Allahabad High Court
Ram Singh vs Kazi Mohiuddin And Ors. on 5 December, 1986
Equivalent citations: AIR1988ALL210, AIR 1988 ALLAHABAD 210
ORDER Om Prakash, J.
1. This is an application under Order 6, Rule 16 C.P.C. by the respondent No. 1 praying that the paragraphs Nos. 7 to 71 of the election petition be struck out, inasmuch as they do not disclose material facts and cause of action.
2. The petitioner who was one of the candidates has filed the petition under Section 81 of the Representation of people Act, 1951 (the Act, 1951 in brief) calling in question the election of the respondent No. 1 to the U.P. Legislative Assembly from 420 Roorkee Legislative Assembly Constituency with the prayer that (1) the election of the respondent No. 1 be declared void and be set aside; and (2) that the petitioner be declared elected instead from the aforesaid constituency.
3. For electing the members of the U. P. Legislative Assembly general elections took place in March, 1985. Last date of filing the nomination paper was 6-2-1985 and the last dare of withdrawal was 9-2-1985. The poll took place on 5-3-1985. The accounting was done on 6th March, 1985 and then the respondent No. 1 was declared elected. The petitioner and all the respondents contested the election.
4. The petitioner has challenged the election of the respondent No. I on the grounds, as staled in para 5 of the petition. The ground (A) is that the result of the election of the respondent No. 1 was materially affected by non-compliance with the provisions of the Act, 1951 and of the Conduct of the Election Rules, 1961 (Rules 1961, for brevity's sake); inasmuch as :
(i) the votes received by the petitioner at some polling stations, were interchanged with the votes, received by the respondents Nos. 1 and 15 and other candidates;
(ii) the petitioner's votes were mixed up in the bundles of respondents Nos. 1 and 17 and other candidates;
(iii) the petitioner's valid votes were improperly rejected;
(iv) invalid votes were improperly accepted in favour of the respondent No. 1 and
(v) the counting of votes was done in violation of the Rules, 1961 and the orders issued by the Election Commissioner of India.
5. Ground(B) states that the respondent No. 1, his agents and workers with the consent of the respondent No. 1 committed the corrupt practice under Section 123(3) of the Act, 1951 by making appeal to vote for the respondent No. 1 on the ground of the religion and community and to refrain from voting for the petitioner on the ground of the petitioner's religion and community for the furtherance of the prospects of the election of the respondent No. 1 and for prejudicially affecting the election of the petitioner.
6. Ground(C) is that the result of the election of the respondent No. 1 has been materially affected by the corrupt practice as defined under Section 123(3) of the Act. 1951, committed in the interest of the respondent No. 1 by his agents and workers, inasmuch as they made an appeal to vote for the respondent No. 1 and to refrain from voting for the petitioner on the ground of their religion and community for the furtherance of the prospects of the election of the respondent No. 1 and for prejudicially affecting the elections of the petitioner,
7. The last ground(D) states that the petitioner has received a, majority of valid votes and is entitled to be declared as elected to the U. P. Legislative Assembly from the aforesaid constituency.
8. The material facts are said to have been stated for the aforesaid grounds in paragraphs Nos. 7 to 71. Let us see whether thesaid paragraphs disclose the material facts for the grounds, as stated in para. 5.
9. The main objection of the petitioner is that in the final result-sheet Form 20, entries have been wrongly incorporated and the error gave rise to interchange of votes of the petitioner with other respondents. In para 42 the averment is that an inspection of the ballot papers will clearly show that Form 20 has not been correctly prepared and in fact, it is the petitioner who hasreceived a majority of valid votes and is entitled to be declared as elected in place of the respondent No. 1. The question is whether the inspection may be permitted on the facts, stated in the petition and whether in the garb of inspection, the petitioner wants to make roving and fishing enquiry to find out faults in the election oi the respondent No, 1.
10. Firstly, I take up the ground(A) and the paragraphs 7 to 63. This ground has been set up under Section 100(1)(d)(iii) and (iv) of the Act, 1951. As stated hereinbefore, the petitioner has raised serveral objections in the ground (A). The first objection pertains to interchange of votes. In para. 32 the petitioner has averred that whereas the respondent No. 15 had received only 4 votes at polling station No. 102, the petitioner had secured 145 votes. Similarly, in para. 33, the averment is that whereas the petitioner received 373 votes at polling station No. 121, the respondent No. 1 received only 215 votes. It is averred that the votes of the petitioner at polling station No. 102 were interchanged with the votes of respondent No. 15 and at the polling station No. 121, his votes were interchanged with respondent No. 1. The result was whereas the petitioner had received more votes at polling stations Nos. 102 and 121, lesser votes had been recorded in his name in Form 20. Since the respondent No. 1 has been declared elected only by a margin of 105 votes, the petitioner contended that the result of the election in so far as it concerns the respondent No. 1 was materially affected by each of such mistake. In para. 37, it is averred that whereas at polling station No. 150, the petitioner had received 57 votes, the respondent No. 16 had received only 2. votes, but the entry was made vice-versa in Form 20. In para 39 some more instances of interchange of votes, much below 105 in number, each of which by itself could not materially affect the result of the election of the respondent No. 1, cumulatively they can, have been set out.
11. The question is whether the material facts in respect of averment of interchange of votes have been disclosed Let us see what are the material facts. Section 83(1) of the Act, 1951 states that an election petition shall contain a concise statement of material facts on which the petitioner relies. Sri K.N. Tripathi, learned counsel for the petitioner submits that this section is mandatory and that if the material facts are not stated, then the petition will have to be rejected for nondisclosure of cause of action. In Samant N. Balakrishina v. George Fernandez, AIR 1969 SC 1201, the Supreme Court ruled that Section 83 is mandatory and requires the election petition to contain first concise statement of material facts and then requires the fullest possible particulars. The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad So the material facts are those which constitute a complete cause of action. It means that no petition can be said to have disclosed full cause of action, if it is bereft of the material facts. The material facts are necessary to present a composite picture of cause of action. The absence of material facts means the absence of cause of action and in the absence of cause of action a petition, which is governed by the provisions of the Civil Procedure Code, is liable to be rejected under Order VII, Rule 11, C.P.C. By virtue of Section 87 of the Act, 1951, every election petition shall be tried by the High Court as nearly as may be, in accordance with the procedure, applicable under the Civil Procedure Code to the trial of suits. The Civil Procedure Code being applicable to the election petitions, they are liable to be dismissed if no cause of action is disclosed under Order VII, Rule 11, C.P.C. It is from this point of view that disclosure of material facts i.e. the facts which are necessary to formulate a complete cause of action becomes necessary. In Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276, it was held that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as to afford a basis for the allegations, made in the petition. So the petition should not only contain the allegations, but complete facts supporting them and their basis must be stated.
12. The allegation made by the petitioner has to be seen in the light of the foregoing decisions of the Supreme Court. It is noteworthy that the petitioner has assailed the entries, made in Form 20 only in both the paragraphs 33 as well as 36. The question is what is the basis of the allegation that the petitioner had secured 145 votes at polling station No. 102 and 373 votes at polling station No. 121 and that the respondent No. 15 and the respondent No. 1 had received only 4 and 215 votes at the said polling stations respectively? No basis whatsoever of this claim has been stated. Before making the allegation of interchange of votes in Form 20, it must be within the knowlege of the petitioner that he had received 145 and 373 votes at polling stations Nos. 102 and 121 respectively and that the score of the respondent No. 15 and the respondent No. 1 at these polling stations was only of 4 and 215 votes respectively.
13. Rule 56 Sub-rule (7) of the Rules, 1961 is as under : --
"After the counting of all ballot papers contained in all the ballot boxes used at a polling station has been completed,
(a) the counting supervisor shall fill in and sign Part II Result of Counting, in Form 16, which shall also be signed by the Returning Officer and
(b) the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars."
This rule shows that after the counting of all the ballot boxes used at a polling station has been completed, the Counting Supervisor shall fill in Part II of Form 16 giving the result of counting and with the help of this Form, the Returning Officer shall make the entries in the result-sheet in Form 20. So the Form 20 is prepared with the help of Form 16. What is the state of affair obtaining in Form 16, that has not been disclosed by the petitioner. Para 33 and para 36 have been couched in such a language so as to give impression that the wrong entries resulting in interchange of votes of the petitioner with the votes of other respondents, were made only in Form 20. There is no allegation in both the paragraphs i.e. 33 and 36 that the votes of the petitioner were wrongly entered in Form 16 also. On the basis of the pleadings of the petitioner, made in paragraphs 32, 33 and 36 as they stand, the petitioner must have disclosed the position of his votes, obtaining in Form 16. If the entries made in Form 16 supported his allegation then only the averment would have been made in these paragraphs that the entries made in Form 20, are incorrect, inasmuch as the votes of the petitioner that he received at polling stations Nos. 102 and 121 were interchanged with the votes of the respondent No. 15 and respondent No. 1 respectively. The entries made in Form 16, inasmuch as they have not been disputed in paragraphs 32, 33 and 36 of the election petition, would have formed the basis of the case of the petitioner that whereas he had secured 145 and 373 votes at polling stations Nos. 102 and 121, the respondent No. 15 and respondent No, 1 had secured only 4 and 215 votes at the said polling stations respectively. In para. 44 it is stated that the counting was concluded at about 9 p.m. and that the petitioner was contacted by his workers at about 10 p.m. at the P.W.D. Rest House, Roorkee. where he was staying during the counting and was then informed by his workers that irregularities had been committed in the preparation of the final result sheet i.e. Form 20. The case of the petitioner is that he did not remain present at the time of counting, but he stayed at the P.W.D. Rest House which was about 1/2 Km away from the place where the counting was done. There is not allegation in para. 44 as well that the entries made in Form 16, were incorrect. It is only in para. 45 an averment has been made that "The petitioner was also informed that the number of votes received by the candidates including the petitioner had not been correctly recorded in Part II of Form No. 16 and that Form No. 20 was also not being prepared correctly. The petitioner's counting agents specifically informed the petitioner about the interchanging of figures of the petitioner and the respondent No. 15 at polling station No. 102 and between the petitioner and the respondent No. 1 at polling station No. 121."
14. In this paragraph also, it is not stated as to what was the basis of the information of the counting agents that they gave to the petitioner that the votes of the petitioner at polling stations Nos. 102 and 121 had been interchanged with the votes of the respondent No. 15 and respondent No. 1 respectively. Whereas in para. 45, the petitioner pleaded that he was informed about the irregularities being committed in the preparation of the final result-sheets, by his 'workers', in para. 45 the allegation is diverted to the counting agents.
15. The next question is whether the petitioner has stated the material facts for the averment that his counting agents informed him about interchanging of his votes with the votes of the respondent No. 15 and respondent No. 1 at the polling stations Nos. 102 and 121 respectively. In this connection, a look at Sub-rule (7) of Rule 56 of the Rules, 1961, which is already reproduced above, and at certain instructions, issued by the Election Commission under Article 324 of the Constitution which declares that the superintendence, direction and control of the preparation of the electoral rolls for the conduct of election shall be vested in the Commission, as contained in the Hand-Book for Returning Officers (for short the Handbook) will be useful. Sub-rule (7) of Rule 56 makes it clear that after completion of counting of all the ballot boxes used at a polling station, the Counting Supervisor shall fill in and sign Part II result of counting in Form 16, which shall also be signed by the Returning Officer and that the Returning Officer shall make the entries in the result-sheet in Form 20 and announce the particulars. So the foundation of Form 20 is Form 16 and this Foundation as pointed out above, has not been attacked in paras 32, 33 and 36. Para 5(a) of Chapter XIV of the Handbood says that each candidate could be allowed to appoint as may counting agents as there are counting tables for counting of votes and one more to watch the counting at the Returning Officer's table. So each candidate is entitled to have counting agents at each table and at the table of the Returning Officer. Para. 17 Clause (j) in Chapter XIV of the Handbood reiterates the rule contained in Sub-rule (7) of Rule 56 of the Rules, 1961, that after the counting of votes in respect of all polling station is completed at a counting table, the Counting Supervisor of that table should fill in Part II result of counting in Form 16 and should note down the discrepancy, if any, total number of ballot papers taken out of the ballot boxes and the total number of ballot papers which should have been found in such boxes, as shown in item 5 of Part I Ballot Papers Account of Form 16. Clause (1) of para. 17 says that there should be at least two Assistants to help the Returning Officer at his table, one affixing stamp for the rejection of ballot papers and the other for filling in the entries in the final result-sheets in Form 20 with the help of Part II of Form 16. Clause (c) of para. 17 inter alia says: --
"...........There is no objection to the number of counting assistants at each table being increased from two to three or even four, provided the table is sufficiently big and the counting hail is large enough to accommodate the additional personnel"
Clause (r) of the same para instructs the Returning Officer to incorporate the result of counting in respect of each polling station, as shown in Part II of Form 16 pertaining to that polling station, in the final result sheet in Form 20. It further instructs the Re-turning Officer to read out the entries so incorporated so that the candidates and their agents may take note of the result, alternatively the Returning Officer may cause the entries to be written on a black-board These provisions clearly show that all the candidates are allowed to keep their agents at each counting table and at the table of the Returning Officer to keep watch on counting. They may point out any irregularity committed by the counting staff or the Returning Officer and they may raise objection as and when they notice any irregularity. Material facts for the allegation pertaining to interchanging the votes have to be seen in the light of the above provisions. The presence of the counting agent of the petitioner at each counting table is not denied. In para 20, the allegation is that the request of the petitioner to appoint his one counting agent at the Returning Officer's table was turned down by the Returning Officer. No material facts have been disclosed to support this allegation. No objection against the order of the Returning Officer refusing to appoint a counting agent of the petitioner at the Returning Officer's table has been filed. Also it is not said that any objection was filed. If any objection was raised in writing or orally and if no objection was raised, then why not all these are material facts in this regard, but they are conspicuously absent. When each candidate is entitled to have his counting agent at each counting table and at the table of the Returning Officer, then the petitioner would have given the facts whether his counting agent took any notes at the counting table; whether he noted down the number of votes which the petitioner received at different stages, the details of the bundles of the petitioner's voles, prepared by the counting staff and details of any objection made against any irregularity, committed by the counting staff. No such material facts have been given by the petitioner. Rather, the petitioner has challenged the irregularity only in preparation of Form 20 and there is no challenge with regard to Form 16 which forms the basis of Form 20. The averment in para. 45 is that he was informed by his counting agent that his votes had riot been correctly recorded in Part II of Form 15 and in Form 20. No material facts have been given as to what was the error in Form 16. There is no averment throughout the petition that in Part II of Form 16 also, the votes polled for the petitioner at polling stations Nos. 102 and 121 were interchanged with the votes of respondent No. 15 and respondent No. 1 respectively. The figures mentioned in Form 20 can be said to be incorrect only when they do ho conform with the figures, entered in Form 16. So long as the entries made in Form 16 and Form 20 conform with each other, there cannot be any mistake in Form 20. The petitioner having not contended that this votes that he secured at polling stations Nos. 102 and 121 were also interchanged with the votes of the respondent No. 15 and respondent No. 1 respectively in Form 16 and no material facts having been given in that regard, no inspection can be allowed to the petitioner on the bald assertion that the figures of his score at polling stations Nos. 102 and 121 were interchanged with the number of votes polled for the respondent No. 15 and respondent No. 1 at the said polling stations respectively in Form 20.
16. In para. 41, it is stated that whereas some other mistakes of similar nature were corrected, but the Returning Officer did not correct the mistakes relating to the polling stations Nos. 102 and 121 inspite of objections. No material facts have been stated whether objection was made orally or in writing. What was the precise objection, it has not been stated. No copy of objection has been filed, nor the purports of objections have been reproduced in para. 41. It is also not known as to who made the purported objection and whether they were disposed of, if so, what is the order.
17. Clause (r) of para. IV of Chapter XIV of the Handbook clearly enjoins upon the Returning Officer to read out the entries incorporated in Form 20, from the Part II Form 16, so that the candidates and their agents may take the note of the result or to cause the entries to be written on a black board. No material facts have been stated whether any counting agent made a note of votes, secured by the petitioner that were read out or written on black-board. Rather, the petitioner denied in paras. 24 and 25 that there was no black board and no announcement was made by the Returning Officer while preparing Form 20 with the help of Form. 16. No material facts have been stated whether the petitioner ever called upon the Returning Officer to comply with the instructions, contained in clause(r) of para. 17 of Chapter XIV of the Handbook and make arrangement for announcement or for the black-board.
18. In para. 32, it is stated that rough note prepared by Sri P.C. Yadav, Counting Assistant at counting table No. 19 where the votes of polling station No. 102 were counted supports the case of the petitioner that he had received 145 votes. No material facts have been given as to why Sri P.C. Yadav kept a note of 145 votes secured by the petitioner at polling station No. 102 and whether he prepared notes of this nature of all the candidates. What was the occasion for Sri P.C. Yadav to write down the score of the petitioner in regard to polling station No. 102 it has not been stated. It is also not stated whether he noticed that 45 votes for polling station No. 102 were correctly shown in Part II of Form 16 and whether interchanging was done only in Form 20. Also it is not stated as to at what stage mistake was discovered by Sri P.C. Yadav and if he discovered the mistake before the result was announced then why the lapse was not pointed out by him to his superior i.e. the Counting Supervisor or to other authorities. Whether or not figure of 145 was stated in Form 16 according to the note of Sri P.C. Yadav, this is also not stated.
19. In para. 50, it is averred that "the stack of the petitioner's ballot papers relating to the polling stations Nos. 102 and 121 were quite high, as compared to the stacks of the ballot papers of the respondent No. 15 for polling station No. 102 and respondent No. 1 for polling station No. 121 on the respective counting tables". There are no material facts to support this allegation. It is merely conjectural averment. It is not stated as to who measured the dimensions of the stack and what were the dimensions.
20. In para. 50, the averment is :
"That so far as the counting agents are concerned, it may be stated that there was nothing to suspect at the time of counting of ballot papers of polling station No. 102 that the petitioner's vote would not be correctly recorded......Moreover, the distance between the counting supervisor (who filled up Part II of Form 16 at the counting tables) and the petitioner's counting agents was more than four feet and the counting agents were not in a position to know as to whether the votes were correctly recorded in the said Form or not.
From this averment, it is manifest that the counting agents were wholly unable to inform the petitioner as to what was the state of affair of Form 16. No other source of information that the petitioner had secured 145 votes and 373 votes at polling stations Nos. 102 and 121 respectively, has been stated in the petition and, therefore the allegation of the petitioner that the votes secured by him at polling stations Nos. 102 and 121 were interchanged with the votes of the respondent No. 15 and respondent No. 1 is based on surmises and conjectures and is absolutely without basis. The source of information of the allegations made in paras. 32, 33 and 36 assume significance in the light of the averments, made in para. 50. The counting agents being of no help to the petitioner and they having passed no information with precision that the petitioner had secured 145 and 373 votes at polling stations 102 and 121 respectively, the question is as to what is the source of information of the petitioner for the allegations, made in paras. 32, 33 and 36. Upon a perusal of verification of the election petition, it appears that paras. 32, 33 and 36 are based on information, received by the petitioner. The question is from whom? Source of such information has not been disclosed, except the allegation that Sri P.C. Yadav, Counting Assistant of counting table No. 19 kept a personal note regarding the score of the petitioner at polling station No. 102. The source of information with regard to the averments made in paras. 36, 37 and 39, is wholly absent.
21. In para. 46, it is avened that the petitioner asked for a recounting of ballot papers but the Returning Officer turned down the request even after oral discussion lasting for about half an hour. Sub-rule (1) of Rule 63 of the Rules, 1961 provides that after the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. Sub-rule \2) of Rule 63 says that after such announcement has been made, a candidate or, in his absence, his election agent may apply in writing to the returning officer for a recount of all or any of the ballot papers already counted stating the grounds on which he demands such re-count. No material facts have been stated in this paragraph whether the request for re-count was made in writing. Sri K.N. Tripathi, learned counsel for the petitioner submitted that request referred to in para. 46 for re-count was oral. No material facts have been given in this paragraph as to why the application for re-count was not made in writing, as provided for by Sub-rule (2) of Rule 63. In para. 49, there is an averment that an application for re-count was made to the Returning Officer before completion of Form 20, but that was rejected at 12.40 a.m. on 7-3-1985. It is not stated as to at what point of time the application was made. No application has been filed nor the petitioner has reproduced the application in para. 49. It is also not stated as to what grounds were stated in the application seeking re-count.
22. Sri Srivastava, learned counsel for the respondent submitted that no material facts pertaining to the averment of interchanging votes have been disclosed in paragraphs 7 to 31 and that they are not germane to the averment of interchanging of votes. He further urged t hat no material facts have been stated in paragraphs 32 to 53 to support the allegations, made in paragraphs 32, 33, 36, 37 and 39 and, therefore, they be struck out. On the other hand Sri Tripathi enumerated the circumstances to support the allegations, made in paras. Nos. 32, 33, 36, 37 and 39 as follows : --
(1) that the petitioner himself is a candidate and, therefore, is in the know of every thing;
(2) that counting table number has been disclosed;
(3) that rough note is possessed by the Counting Assistant Sri P.C. Yadav;
(4) that re-count application was made;
(5) that objections as alluded to in para. 41, were filed; and (6) that the stacks of the petitioner's ballot papers for polling stations Nos. 102 and 121 were high.
23. It is already pointed out that no basis of the claim made by the petitioner in paragraphs Nos. 32, 33, 36, 37 and 39, though he was a candidate himself, has been disclosed. No material facts regarding the circumstances of the rough note, purportedly made by Sri P.C. Yadav, Counting Assistant, re-count application, objections and thickness of the stack of the ballot papers have been disclosed.
24. 1, therefore, agree with Sri Srivastava that the paragraphs Nos. 7 to 53 deserve to be struck out, as they do not disclose material facts and cause of action for the allegations made in paragraphs 32. 33, 36, 37 and 39.
25. Another objection in ground (A) is that the petitioner's ballot papers were mixed up in the bundles of the respondent No. 1 and respondent No. 17 and also in the bundles of the other candidates and were improperly counted in their favour. In para. 54 of the petition, the allegation is that 20 votes cast at polling station No. 150 and 25. 45, 30 and 35 votes cast at polling stations Nos. 55, 77, 84 and 87 respectively for the petitioner were mixed into the bundles of the respondent No. 1 and 25 votes cast for the petitioner at polling station No. 7 were mixed into the bundles of respondent No. 6 and they were wrongly counted as valid votes in favour of the said respondents. It is worthy of note that whereas the allegation is that the petitioner's ballot papers were mixed up with the bundles of the respondent No. 1 and respondent No. 17, the details of mixing up have been given with the bundles of respondents Nos. 1 and 6. There are no details of mixing up with the bundles of the respondent No. 17. Again the question is what is the basis of this allegation? The counting table where the counting for polling stations Nos. 150, 55, 77, 84, 87 and 7 was done, the names of the counting staff, the name of the counting agent, the details of any objection raised by the counting agent, source of information of the votes being mixed up and the particulars of bundles have not been stated. Para. 10 of Chapter XIV of Annexure XXII as contained in the Handbook says that the valid papers of each candidate will be made up into bundles of 50, except one bundle, which may contain less than 50 ballot papers. Each bundle of 50 or less ballot papers will be tied with a rubber band or string. All the bundles of ballot papers for each candidate will then be tied together with a rubber band or string. A check slip will be placed on the top of the bundle of ballot papers for each candidate showing the name of the candidate and the number of ballot papers in the bundle. This check slip will be signed by the Counting Supervisor. No material facts have been stated regarding the check slip. To make such allegation, the petitioner should have stated whether any check slip was prepared, who prepared the same, whether that was signed by the Counting Supervisor or not, whether any mistake was detected in the check slip at that time either by the counting staff or by the counting agent of the petitioner and whether any objection was raised at that time that the check slip was not put or wrongly put on the bundles. Paragraphs Nos. 54 and 55 have, therefore, to be struck out.
26. Then comes the third objection that a large number of ballot papers containing valid votes in favour of the petitioner were improperly rejected by the Returning Officer and similarly a large number of ballot papers which were invalid and were liable to be rejected, were improperly accepted and counted as valid votes in favour of the respondent No. 1. The question is whether material facts have been stated as to which ballot papers concerning the petitioner were improperly rejected and which invalid ballot papers concerning the respondent No. 1 were improperly accepted. No details of such ballot papers' serial numbers have been set out. The table given in para. 56, simply discloses the polling station numbers and total number of petitioner's rejected ballot papers. Similarly in para. 57, the table given shows the polling station number and the number of votes which according to the petitioner, were invalid on various grounds, but were improperly accepted and counted as valid votes for the respondent No. 1. The basis as to how the figures of votes as stated in para. 56 and para. S7 have been arrived at, has not been disclosed.
27. In Ram Sewak v. Hussain Kamil, AIR 1964 SC 1249, which is a leading case on the poini of recount, their Lordships adverted to Rules 53, 55, 56, 57, 58, 60 and 63 of the Rules, 1961 arid observed in paragraph 9 as follows : --
"There can, therefore, be no doubt that at every stage in the process of scrutiny and counting of votes the candidates or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes, and to demand a recount. Therefore, a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal on rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a recount. It is in the tight of the provisions of Section 83(1) which requires a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the tune of counting, of watching and of claiming a re-count that the application for inspection must be considered."
From this authority, it is manifest that every candidate and his agents having had sufficient opportunity to watch the proceedings of counting, it must be clearly stated in the petition as to whether, how, in whose presence, in which round of counting, the irregularity took place and how that irregularity was objected to at the time of counting.
28. Two years later this rule was repeated in the case of Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773.
29. The Supreme Court observed in the case of Jitendra Bahadur Singh v. Krishna Behari, (AIR 1970 SC 276} (supra) in para. 8 as under : --
"The trial court was of the opinion that if an election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts. In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as to afford a basis for the allegations made in the petition. The facts stated in paragraphs 13 and 14 of the election petition and in Schedule 'E' are mere allegations and are not material facts supporting those allegations. This Court in insisting that the election petitioner should state in the petition the material facts was referring to a point of substance and not of mere form. Unfortunately, the trial court has mistaken the form for the substance. The material facts disclosed by the petitioner must afford an adequate basis for the allegations made".
Then comes the case of Bhabhi v. Sheo Govind. AIR 1975 SC 2117. In this case, the Supreme Court heard the appeal against the judgment of the Allahabad High Court. Sample inspection of the ballot papers was allowed by the learned Judge to whom the petition was assigned for trial. The order allowing sample inspection was appealed against and then their Lordships adverted to the aforementioned decisions and observed in para. 17 that the case was not at all fit to allow sample inspection. While giving reasons, their Lordships said : --
"In the first place although the counting agents of the respondent were present at the time when the votes were counted no application for a recount was made under Rule 63 of the Conduct of Election Rules, 1961, The nature of the allegations made by the respondent in his petition as alluded to above was such as could have been easily verified at the spot by the Returning Officer, if his attention was drawn to those facts by an application made under Rule 63 of the Conduct of Election Rules, 196). Secondly, the iearned Judge overlooked that the respondent had not given the material particulars of the facts on the basis of which he wanted an order for sample inspection of ballot papers. No ssrial number of the ballot paper was mentioned in the petition nor were any particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected given by the respondent. Even segment in which the irregularity had occurred was not mentioned in the petition".
30. Lastly, reference may be made to the case of N. Narayanan v. S. Semmalai, AIR 1980 SC 206, in which the Supreme Court held that the relief of recounting cannot be accepted merely on the possibility of there being an error.
31. The consensus of ail the aforesaid decisions is that since an order for recount touches upon secrecy of the ballot, it should not be made lightly or as a matter of course. The petitioner must not only give the figures of the votes which according to him were improperly accepted or rejected, but the basis of the allegation must be disclosed, the serial number of ballot papers must be set out, names of the counting agent, number of counting tables, names of the counting supervisor, round number, details of objection, if any, made to the counting staff, details of the notes, if any, kept by the counting agent, and the basis of information must be disclosed. All these constitute material facts and their disclosure is essential to give a composite picture of cause of action and if a material iact is missing there would be no adequate cause of action to maintain the petition and that would have to be rejected for want of cause of action under Order 7, Rule 11, C.P.C. besides other provisions. No such material facts have been disclosed in the instant case.
32. In paragraph 58, it is averred that the Counting Supervisors on the counting tables did not permit the counting agencies of arty of the candidates to note down the serial numbers of the ballot papers improperly rejected or accepted about which the objections were raised. It is also averred that the Returning Officer also'did not permit any counting agent or candidate to note down the serial numbers of the ballot papers. rejected by him. In paragraph 59, it is therefore, averred that for the reasons given in paragraph 58, it is not possible for the petitioner to disclose serial number of the ballot papers which were improperly rejected or accepted. The names of the Counting Supervisors, who refused the counting agents and the candidates to note down serial numbers of ballot papers, n umber of counting tables where the refusal was made, names of the counting agent and the candidate who were refused, and the details of objections have not been disclosed. It is not stated whether the petitioner made any objection, whether the objection was made orally or in writing and whether that was rejected by the Counting Supervisor or the Returning Officer in writing or otherwise. Therefore, paragraphs 56 to 59 being devoid of material facts, deserve to be struck out as they do not disclose cause of action for the allegations, made in the ground (A).
33. Paragraphs 60, 61 and 62 have no nexus with the objections, raised in ground (A). In paragraph 60, it is averred that at the polling stations which have been set out in the Table given therein, "more than 90 per cent or nearly 90 per cent of the votes polled were shown to have been cast in favour of the respondent No. 1. In paragraph 61, the averments that by an order dated 25-2-1985, the Election Commission of India had directed that in case at any polling station, 90 per cent of the votes were polled in favour of any particular candidate or that the number of votes received to any candidate was extraordinarily high, the counting of ballot papers of that polling station should be stopped and if after the counting of ballot papers of the remaining polling stations, it was found that the margin of difference between such candidates, who have received the extraordinarily high number of voles and the next candidate was less than the votes polled at the said polling station, the matter should be referred to the Election Commission and the result should not be declared". In para. 62, the allegation is that the votes polled at the six polling stations shown in the Table, given in para. 60 for the respondent No. 1, should have been excluded from the counting.
34. From the direction, purportedly, given' by the Commission of India that in case at any polling station 90% of the votes were polled in favour of any particular candidate or number of votes received by any candidate was extraordinarily high, the counting of ballot papers of that polling station should be stopped, it appears that the Commission in rhat situation apprehended booth-capturing. There is no ground of booth capturing in para. 5{ A). This is why I am of the view that the paragraphs 60 to 63 have no nexus with the ground (A) as stated in para. 5.
35. Even if it is argued, though not argued, that the averments made in paragraphs 60 to 63 are covered by grounds, stated in para. 5(A)(v), then it can be said that no material facts have been given, inasmuch as the petitioner has not filed the order dated 25th February, 1985, of the Election Commission of India, nor that has been reproduced in any of such paragraphs. Therefore, the paragraphs 60 to 63 deserve to be struck out.
36. Then, come the grounds (B) and (C). The paragraphs 64 to 67 relate to the grounds (B) and (C). Since Sri Tripathi, learned counsel for the petitioner expressly stated in course of his arguments that he would not press grounds(B) and (C), there is no need to make scrutiny of the paragraphs 64 to 67. The grounds(B) and (C) as stated in para. 5 and paragraphs 64 to67 are accordingly deleted.
37. Lastly, comes the ground(D) and the paragraphs 68 to 71 which are connected therewith. No comments are required, so far as this ground is concerned because this ground is merely conjectural, inasmuch as, the petitioner stated therein that he had received a majority of valid votes and that he is entitled to be declared elected from the 420 Roorkee Assembly Constituency.
38. The result of the foregoing discussion is that the entire petition fails, inasmuch as, no cause of action has been disclosed within the meaning of Order 7, Rule 11, C.P.C.
39. Application of the respondent No. 1 made under Order 6, Rule 16, C.P.C. is, therefore, allowed and the election petition is dismissed under Order 7, Rule 11, C.P.C. read with Order 6, Rule 16, C.P.C. The respondent No. 1 shall get Rs. 500/- as costs from the petitioner. The balance of the security deposit shall be refunded to the petitioner on making a proper application.