Punjab-Haryana High Court
Ram Sarup vs Peer Chand And Others on 18 March, 1992
Equivalent citations: AIR1993P&H180, AIR 1993 PUNJAB AND HARYANA 180, (1992) 2 PUN LR 239
ORDER A.L. Bahri, J.
1. Elections to Haryana Vidhan Sabha from Ratia constituency was held in May 1991. Peer Chand, respondent No. 1, a candidate belonging to Haryana Vikas Party, was declared elected having secured 13255 votes. Rival candidate Ram Sarup petitioner secured 11988 votes. In this petition filed under Sections 80 and 81 read with Sections 100 and 101 of the Representation of the People Act (hereinafter called 'the Act') Ram Sarup petitioner, the defeated candidate, has challenged election of Peer Chand respondent No. 1. Mainly the grounds taken up in the petition are covered by Section 100(1)(d) (iii) and (iv) of the Act. With respect to ground No. (III) it is particularly asserted that at the time of counting at different tables at different rounds of counting certain number of votes belonging to the petitioner and other candidates were wrongfully put in the bundle of respondent No. 1 and if on recount such number of votes are taken out of the bundle of respondent No. 1, he would stand defeated. With respect to ground No. (iv) it is alleged that the seating arrangement at the time of counting of the ballot papers was such that it was not possible for the counting agents to see, much less properly see, the ballot papers in the process of counting. A barbed wire was put in between tables of the counting officers and counting agents of the candidates who were also made to sit at a sufficient distance from where they could not properly see the ballot papers. The counting staff appointed was openly siding with respondent No. 1. Counting agents of the petitioner were turned out. Door Darshan and All India Radio earlier announced election of the petitioner. However, subsequently respondent No. 1 was announced to have been elected.
2. Election petition has been contested by respondent No. 1 by filing written statement. All the assertions of the petitioner have been denied. It is pleaded that the election did not disclose material facts constituting cause of action and thus the same could not be put to trial.
3. On the pleadings, issues were framed On February 14, 1992. Counsel for both the parties stated that issue No. 1 be treated as preliminary as no evidence was requited to be led on this issue. It was so ordered. Issue No. 1 reads as under :--
"1) Whether the election petition discloses any cause of action? Opp."
4. The relevant clauses for decision of the present case are (iii) and (iv) of sub-clause (d) of sub-section (1) of Section 100 of the Act which are reproduced as under :--
"100. Grounds for declaring election to be void.-- (1)Subject to provisions of subsection (2) if the High Court is of opinion:--
(a) to (c) .....
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected:
(i) to (ii) .....
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void."
5. In order to determine whether election petition discloses any cause of action, it is necessary to read the election petition as a whole. It is in that context that reference is being made in detail to the assertions made in the petition, with respect 10 grounds which are covered by sub-clauses (iii) and (iv) of clause (d) of sub-section (1) of Section 100 of the Act as reproduced above. Paras 4 to 6 of the petition refer to the arrangement of tables in the counting hall as well as to the seating arrangement. In all 12 tables for counting of votes were there and ballot papers of 135 polling booths were to be counted. There was a barbed wire put around the counting table all around. At a distance of 5-6 feet the counting agents were to be seated. This arrangement was not in accordance with the rules or instructions that a protest was lodged by the petitioner and his counting agents that the Returning Officer who did not pay any heed to it. Para 8 of the petition states that the counting agents were not permitted and they could not even watch the counting properly. The counting staff did not show the votes to the agents. There were 12 counting agents at all the 12 counting tables. The counting staff was openly siding with respondent No. 1 and they were including votes of the petitioner and other candidates in the packet of respondent No. 1. This general allegation was levelled in para 9 of the petition.
6. Whatever process of counting was visible, on that basis it was asserted in the petition that counting agents of the petitioner raised objections to the mariner of counting, especially at tables Nos. 2 and 11. When on table No. 11 counting of votes of polling booth No. 95 was in progress in 8th round an objection was taken that the counting staff was not properly counting the votes. A re-
checking was done and the mischief was not allowed to be committed. Baldev Singh and Sukhwinder Singh officials doing the job were shunted out of the hall by the Returning Officer. Similar thing happened at table No. 10.18 votes which were wrongly put in the bundle of the winning candidate but belonging to Piara Singh were taken out and put in the bundle of Piara Singh. In para 12, it is stated that as per information given to the petitioner by his counting agents the petitioner was leading at about 2.40 a.m. on June 17, 1991. In para 13 it is mentioned that the Returning Officer did not announce number of votes obtained by each candidate separately after every round of counting. In the end he merely declared respondent No. 1 as elected. In para 14 it is stated that there was announcement on the All India Radio at about 9.00 a.m. on June 17, 1991 that the petitioner had been declared as elected. It was only at about 1.00p.m. on June 18, 1991 it was announced that respondent No. 1 was declared elected. Para 15 of the petition repeats the allegation that after 7th round votes polled were not declared candidatewise. In para 16, allegation has been made with respect to polling booth No. 50. The petitioner was shown to have secured 72 votes and respondent No. 1 as 287. In this polling booth alone about 50 votes of the petitioner and some other candidates were wrongly counted in favour of respondent No. 1. Similar allegation has been made with respect to polling booth No. 86 where the petitioner secured only 5 votes and respondent No. 1 as 167. About 40 votes of the petitioner and the other candidates were stated to be wrongly counted in favour of respondent No. 1. Further generally it is stated that the situation of polling booths Nos. 122, 110 and 134 was similar. In para 17 of the petition similar allegations have been made with respect to table No. 11 and polling booth No. 199 where about 50 votes were wrongly included in the bundle of respondent No. 1 and that at polling booth No. 131, about 40 votes polled in favour of the petitioner as well as other independent candidates were wrongly added in the bundle of respondent No. 1. Further general allegation is that mistakes were committed white counting votes of polling booths Nos. 59, 23 and 107. Para 18 further refers to the wrong counting at counting tables Nos. 2 and 11. About 500 votes polled by the petitioner and 200 votes polled by other candidates were counted as in favour of respondent No. 1. Similarly at counting table No. 11 about 400 votes of the petitioner were counted in favour of respondent No. 1 and about 500 votes of other candidates were counted in favour of respondent No. 1. On this ground re-count has been prayed. Para 19 refers to the grounds taken up in the petition for recounting. These grounds are particularly on the facts mentioned in the preceding paragraphs.
7. Shri Satya Pal Jain, Advocate, appearing on behalf of the petitioner, while making reference to Section 83(1)(a) of the Act, has argued that the facts stated in the election petition. are concise statement of material facts on which the petitioner relies and on such facts a recount of the ballot papers is called for. This contention as such cannot be accepted. Section 83 is to be read along with Section 100 of the Act. May be material facts to prove the grounds are required to be given in a concise manner however all material facts necessary to prove the grounds must be stated and if one of such material facts is missing, the petition cannot be put to trial.
8. Shri Jain relied upon the decision of the Supreme Court in Arun Kumar Bose v, Mohd. Furkan Ansari, AIR 1983 SC 1311, in support of his contention that the facts briefly described bove as given in the election petition constitute a cause of action. In Arun Kumar's case the ground taken was that there was number of wrongly rejected ballot papers. Table numbers and booth numbers were given in the petition. However, details of the ballot papers were not given as they were not available during the counting. 74 ballot papers of the petitioner were wrongly rejected on table No. 10, booth No. 10. 31 ballot papers were rejected on different tables on the ground that signatures of the Presiding Officer were not on the ballot papers. On going through the decision aforesaid I am of the opinion that the ratio thereof cannot be applied to the case in hand. The case of rejected ballot papers would stand on a different footing as covered under Section 100(1)(d)(iii) of the Act. Inspection of 74 such ballot papers was ordered. With respect to 31 votes it was held that the same were wrongly rejected on the ground that Presiding Officer's signatures were not there. Such is not the position in the present case. Learned Counsel for the petitioner also relied upon the decision of the Supreme Court in P. Malai Chami v. M.Andi Ambalam, AIR 1973 SC 2077. In para 10 of the judgment it was stated that mistakes or wrong judgments of ballot papers by the Returning Officer while counting would be covered under S. 100(1)(d)(iii) of the Act. On merits the question for consideration was that in the absence of any application filed under Section 97 of the Act whether on recount some of the votes could be taken in his favour. The answer was in the negative. Even if some ballot papers were wrongly considered as put in the lot of the winning candidate and the case would fall under Section 100(1)(d)(iii) of the Act for which all the material facts in that context were also required to be given in the election petition to constitute cause of action. The third case relied upon by the counsel for the petitioner is of Rajasthan High Court in Brij Sunder Sharma v. V. Shri Ram Dutt, AIR 1964 Raj 99. The Rajasthan High Court considered the matter in the writ petition against interlocutory order passed for recounting of the ballot papers by the Election Tribunal which was otherwise appealable. In respect of ground covered by S. 100(1)(d)(iii) of the Act it was observed that particulars could be substituted. However, only material facts were required to be mentioned in the election petition. Averments made in para 9 of the election petition were taken as complete statement of material facts. Contents of para 9 of the election petition were narrated in para 14 of the judgment. One of the allegations was that doubtful invalid votes were kept by the Returning Officer to be finally checked which was not done. The other allegation was that scrutiny was done by 30 officers and it was physically impossible for the election petitioner or his agents to know and note down the particulars of improperly rejected votes which could be given only after inspection was allowed. The further effect mentioned was that there was wrong counting of votes. Most of the counting officers were under the influence of the winning candidate. Several votes of the petitioner were counted as votes of the winning candidate. An application for re-counting was filed which was turned down. The ratio of the decision aforesaid again cannot be applied to the case in hand. It is the consistent view expressed by the apex Court in different judgments to which reference is being made hereunder that in a case covered by S. 100(1)(d)(iii) it was expected of the election petitioner to state precisely the grounds on which particular votes were wrongly rejected or wrongly accepted as the procedure contemplates snowing of such ivotes to the counting agents by the Returning Officer. The rules also contemplate raising objection at the relevant time as well as just jbefore the declaration of the result, by making an application for recount as in the case of Brij Sunder Sharma's (supra) was filed. In such circumstances it was stated that full details of the rejected ballot papers need not have been furnished in the election petition. However, present is a case where no such application for recount was filed and thus by making vague allegation in th£ election petition it cannot be said that it constitutes a cause of action for trying the petition.
9. Material facts constituting cause of action are required to be given in the election petition. An order of recount of the ballot papers is not to be ordered as a matter of course. The Supreme Court in Ram Sewak v. Hussain Kamil, (1964) 6 SCR 238 : (AIR 1964 SC 1249) : (1964 All LJ 569), observed as under (at page 1252) :--
"An order for inspection may not be granted as a matter of course; having regard to the instance upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled:
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and
(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary."
Similar view was expressed by the Supreme Court in Dr. Jagjit Singh v. Giani .vartar Singh, AIR 1966 SC 773; and in Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276. In Jitendra Bahadur Singh's case the Supreme Court observed as under (at page 279):--
"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 tacts as to afford a basis for the allegations made in the petition."
In Beliram Bhalaik v. Jai Beharilal Khachi, (1975) 4 SCC 417 : (AIR 1975 SC 283), the Supreme Court observed as under (at page 289):--
"A whimsical and bald statement of the candidate that he is not satisfies with the counting is not tantamount to a statement of the "grounds" within the contemplation of Rule 63(2). The application was thus not a proper application in the eye of law. It was not supplemented even by an antecedent or contemporaneous oral statement of the author or any of his agents with regard to any irregularities in the counting. It was liable to be rejected summarily under sub-rule (3) of Rule 63 also."
In Bhabhi v. Sheo Govind, AIR 1975 SC 2117, the entire case law on the subject was summed up and it was observed as under (at page 2122):--
"The Court would be justified in ordering a recount of the ballot papers only where :
(1) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded;
(2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and (3) the Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties."
All the cases aforesaid were considered and relied upon by the Supreme Court in N. Narayanan v. S. Semmalai, AIR 1980 SC 206.
10. In the present case while making reference to the counting done at different tables and different booths specific number of votes were alleged to have been put in the lot of the winning candidate and total of such votes at different tables being taken into consideration, it has been argued that election of the winning candidate would be materially affected and such facts as have been mentioned were on the information supplied by different counting agents whose names were mentioned in the verification to the election petition. By merely mentioning the number of such votes the position is not improved in any manner. The perusal of the election petition shows that as and when any defect was noticed in the counting it was pointed out to the Returning Officer and he promptly remedied it. Now assertion made in the election petition giving notional figure is nothing but vague. As already stated above, no application for recounting of the ballot papers was moved before the Returning Officer before declaration of the result. There appears to be no basis as to how such figures were given in the election petition with respect to such votes which belonged to the petitioner or other candidates and considered as that of the winning candidate.
11. Learned Counsel for the respondent while referring to different allegations made in the election petition has argued that they are self-contradictory. It has been argued that when the cue of the petitioner is that seating arrangement was such that neither the petitioner nor his counting agents could properly see the process of counting of the votes giving number of votes wrongly included in the lot of the winning candidate is per se falsified. This contention, as urged, is not acceptable. The election petition can be filed on one or different grounds as given in Sec. 100 of the Act. The petitioner could also take alternative pleas which prima facie may appear to be conflicting. Looking from another angle if vague allegation is ignored, the other allegation which is not vague can independently be taken into consideration while deciding whether it constitutes the cause of action or not. At this stage no final decision with respect to falsehood or otherwise of the allegations is required to be made.
12. Several matters with regard to seating arrangement of the counting agents, putting a barbed wire and fencing in between the table of the counting staff and the counting agents, according to the petitioner, was such that the counting agents could not see the process of counting and this infringed the rules and the instructions on the subject. That per se will not be, in my view, sufficient to entertain the election petition or a sufficient ground for recount unless further material facts are shown as to how the election of the winning candidate was materially affected, which is a pre-requisite for declaring his election as void.
13. As to what are material facts, the apex Court in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 : (1986 All LJ 625), observed as under (at page 1258) : --
"All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of S. 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice."
Subsequently, distinction was drawn between material facts and material particulars in the case of corrupt practice by the Supreme Court in Shri Udhav Singh v. Madhav Rao Scindia, (1977) I SCC 511 : (MR 1976 SC 744) and in para 41 of the judgment it was observed as under: --
"The distinction between "material facts" and "material particulars" is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under O. 6, R. 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action."
The case of inter-change of votes was also under consideration of the Allahabad High Court in Ram Singh v. Kazi Mohiuddin, AIR 1988 All 210. It was observed as under (paras 31, 34) :--
"As the petition does not disclose material facts and cause of action for the allegations of interchange of votes, mixing of petitioner's votes with respondent's votes, and improper rejection and reception of votes, the petition is liable to be dismissed in its entirety, inasmuch as, no cause of action has been disclosed within the meaning of O. 7, R. 11, C.P.C"
14. In view of the discussion of the averments made in the election petition, issue No. I is decided against the petitioner as the allegations made therein are vague and do not constitute a cause of action. This petition fails and is dismissed with costs quantified of Rs.2000/-.
15. Petition dismissed.