Allahabad High Court
Naresh Kumar vs Prakash Narain Awasthi And Ors. on 23 April, 1987
Equivalent citations: AIR1988ALL102, AIR 1988 ALLAHABAD 102
ORDER V.K. Mehrotra, J.
1. In the election for the U.P. Legislative Assembly, one of the constituencies which was called upon to elect a member was 285 Jahanabad Fatehpur Assembly constituency, Feb. 6, 1985 was the last date for filing of nominations. Scrutiny was to take place on Feb. 7. The date of poll was March 5, 1985. Counting of votes was fixed for March 5, ,1985. A number of people filed their nominations but after scrutiny and withdrawal 13 candidates remained in the field. Petitioner Naresh Kumar Uttarm was one of them. The other 12 were the first respondent Prakash Narain Awasthi and 11 others who are also impleaed as respondents in the petition. Polling took place on March 5,1985. Counting was done in the compound of District Court, Fatehpur from 8 A.M. on March 6, 1985. Naresh Kumar Uttam a Lok Dal candidate, was declared to have obtained 31498 votes while Prakash Narain Awasthi of the Indian National Congress was said to have obtained 31619 votes. Of the total 77005 votes, 1169 votes were declared to be invalid Prakash Narain Awasthi was declared to have been elected. The difference between the votes received by him and petitioner Uttam was shown to be of 123 votes.
2. On April 11,1985, the present election petition was filed in this Court challenging the election of Prakash Narain Awasthi. The grounds of challenge contained in Para 13 of the petition are two. They have been stated thus :
"(A) Because the result of the election has been materially affected by non-compliance and the contravention of the provisions of the Representation of the People Act 1951 and Conduct of Election Rules, 1961 and Orders framed there and directions issued from time to time by the Election Commission of India.
(B)Because the result of the election has been materially affected by the improper reception of invalid votes in favour of the respondent 1, by improper refusal of acceptance of valid votes of the petitioner and by improper rejection of valid votes of the petitioner."
3. In respect of Ground (A), a concise statement of material facts has been given out in para 14 of the petition while in respect of Ground (B), it has been given out in para 15. Both these paragraphs run into various sub-paragraphs. The basic relief sought in the petition is that the election of Awasthi, the first respondent, be declared to be null and void and petitioner Uttam be declared to be duly elected Member of the U.P. Legislative Assembly from the Constituency in question.
4. On Sept. 10, 1985 some applications were made in this petition, one of them being paper No. A-8 with a prayer that some of the paras be deleted from the election petition under R. 16 of Order VI, C.P.C and the petition itself be then dismissed under Rule 11 of Order VII, C.P.C. as disclosing no cause of action. This application is supported by an affidavit of the first respondent A counter-affidavit(A-9) has been sworn in it by the petitioner Naresh Kumar Uttar. Shaila Nath, a pairokar of the first respondent has sworn a rejoinder affidavit in the application. The application was heard on several dates and orders reserved therein on March 10, 1987. Sri A. Kumar argued the matter op behalf of the respondent Awasthi while Sri R.C. Srivastava appeared on behalf of the petitioner Uttam. Both of them referred to a number of decisions of the Supreme Court and "some of this Court during the course of their submissions. Such of them as are relevant for a decision on the questions canvassed before me shall be noticed at the appropriate place.
5. The first submission which Sri Kumar made was that the grounds of challenge to the election contained in para 13 of the petition are mere reproduction of the language of Section 100(1)(d)(iii) and Section 100(1)(d)(iv) of the Representation of the People Act, 1951 and do not amount to a ground of challenge to the election of the first respondent on either of the two sub-clauses of Clause (d)(iii) and (d)(iv) of Section 100(1), inasmuch as there is no assertion that the result of the election, "........in so far as it concerns the returned candidate" has been materially affected It is urged that the absence of the words "in so far as it concerns the returned candidate" from the two Grounds A and B put forward by the petitioner had the result of the election being challenged on a ground which was not permissible under the Act and that, in any case, as stated, the grounds did not afford the returned candidate an opportunity of meeting any specific case.
6. Section 100(1)(d) says :
"100(1) -- Subject to the provisions of subsection (2) if the High Court is of opinion-
(a)-(c) ...........
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -
(i)-(ii) .............................
(iii) by the improper reception, refusal or rejection, of any vote or the reception of any vote which is void.
(iv) by any non-compliance with the provisions of the Constitution or of this Act Or of any rule or order made in this Act, the High Court shall declare the election of the returned candidate to be void (2) ................................."
6-A. In Vidya Charan Shukla v. Purushottam Lal Kaushik, AIR 1981 SC 547, upon which reliance has been placed by Sri A. Kumar, the Supreme Court observed (in paragraph 22) that:
"...........The distinction between Clauses (a),
(b) and (c) in the first part and Clause(d) in the second part lies in the fact that whereas on proof of any of the grounds mentioned in Clauses (a), (b) and (c), the election has to be declared void without any further requirement, but in a case falling under Clause (d) the election cannot be declared void particularly on proof of any of the grounds mentioned in its Sub-clauses, unless it is further proved that the result of the election in so far as it concerns the returned candidate has been materially affected................."
7. What was stressed by Sri Kumar was that this observation implies that while urging any of the grounds mentioned in the sub-clauses of Clause (d) as a ground for challenging the election of any returned candidate, it should also be asserted that the result of the election in so far as it concerned the returned candidate had been materially affected. The argument, though attractive, does not bear scrutiny. The ground upon which the election is assailed is, undoubtedly, to be stated clearly so as to give to the returned candidate an opportunity of meeting it but what Section 100 of the Act contemplates is that the Court will declare the election of a candidate to be void only on the grounds mentioned in that section and subject to the provisions of sub-section (2) if it is of opinion that the result of the election in so far as it concerns a returned candidate had been materially affected by one of the circumstances outlined in the sub-clause of Clause (d). If the High Court is not satisfied that the reason put forward by the election petitioner had materially affected the result of the election, as far as it related to the returned candidate, it would not declare the election of the returned candidate to be void The various sub-clauses of Clause (d) provide instances of specific reasons which may be put forward as invalidating the election of the returned candidate and which have to be stated by an election petitioner to give notice to the returned candidate of the case which he is called upon to meet. When it is said that the result of the election had been materially affected on account of one of those reasons, it is implicit in this statement that the material effect is in respect of the candidate whose election is being assailed The election petitioner is, thus, called upon to establish, firstly, the factual existence of the reasons put forward by him from amongst the reasons mentioned in the various sub-clauses of Clause (d) and, secondly, its material effect upon the result of the election which he is challenging, that is, how has the reason put forward and established by him actually affected the declaration in favour of the returned candidate. The observations of the Supreme Court in paragraph 22 cannot be construed to mean, as is attempted by Sri Kumar, that absence of a recital that the grounds mentioned in some of the sub-clauses of Clause (d) had material effect upon the result of the election "in so far as it concerns the returned candidate" would be fatal to the trial of the petition, for the reason that no ground has been put forward for assailing the election within the meaning of Section 100.
8. Sri Kumar then argued that the petition deserves to be thrown out on another general ground which is said to be defective verification of various paragraphs of the petition in the affidavit which the election petitioner filed along with the petition. It was urged that the assertions made in several paragraphs of the petition or portions thereof were stated by the election petitioner as based "on information received from my agents, workers and supporters, which all I believe to be true" without disclosing the names and particulars of the agents, workers and supporters who are said to have supplied information to him and without disclosing further whether those agents etc. had maintained any notes or record on the basis of which they gave the information to the election petitioner. It was said that under Rule 12 of the Chap. IX of the Rules of Court, which applied to an election petition by virtue of Rule 11 of Chap. XV-A of the said Rules, names etc. of the persons from whom 'the information was received were to be mentioned in the affidavit filed in an election petition.
9. Rule 11 of Chap. XV-A (which contains special provisions relating to the trial of election petition) of the Rules of Court, 1952 says that an application shall ordinarily be accompanied by an affidavit and says further that "subject to the proviso to Sub-section (1) of Section 83 of the Act, the provisions of Chap. IX as to affidavits shall apply to proceedings under this Chapter". Rule 12 of Chapt. IX lays down that certain applications are to be accompanied by an affidavit and that they shall "set out in the form of a narrative the material facts and circumstances including names and dates, where necessary, on which the applicant relies and shall be supported by an affidavit."
10. Reliance has been placed upon the decision of the Supreme Court in Virendra Kumar Saklecha v. Jagjiwan, AIR 1974 SC 1957. The case was taken to the Supreme Court from the decision of the Madhya Pradesh High Court. Rule 7 of the Madhya Pradesh High Court Rules, which was applicable to election petitions on account of Rule 9 of those rules, provided that "every affidavit should clearly express how much is a statement and declaration from knowledge and how much is a statement made on information or belief and must also state the source or grounds of information or belief with sufficient particularity." The Supreme Court observed (in para 11 of the report) that:
"Form No. 25 of the Conduct of Election Rules requires the deponent of an affidavit to set out which statements are true to the knowledge of the deponent and which statement are true to his information. The source of information is required to be given under the provisions in accordance with Rule 7 of the Madhya Pradesh High Court Rules. In so far as form No. 25 of the Conduct of Election Rules requires the deponent to state which statements are true to knowledge there is no specific mention of the sources of information in the form. The form of the affidavit and the High Court Rules are not inconsistent. The High Court Rules give effect to provisions of Order 19, of the C.P.C."
11. Elelction of V.K. Saklecha was assailed on allegations of corrupt practice under Section 123(4) of the Representation of the People Act, 1951. That corrupt practice was found to have been established and the election was set aside by the High Court.
12. Reliance was also placed on the decision in Ramanbhai Nagjibhai v. Jasvant Singh Udesingh, AIR 1978 SC 1162 in which it was observed by the Supreme Court (in para 9 of the report) while considering the evidence on record that "the affidavit in support of the statements made in para 9 of the election petition was wholly inadequate and wrong. To say that the statement was true to the information of the election petitioner was neither a correct form of an affidavit nor did it fulfil the requirement of disclosing the source of information. In evidence the election petitioner who was examined as P.W. 1 stated that he had received this information from Ramanbhai Punjabhai who had filed the other election petition. Ramanbhai was not examined in this case. The High Court has not noticed and attached due importance to these discrepancies. "Election of appellant Ramanbhai to the Gujarat Legislative Assembly was set aside by the High Court finding him guilty of having committed corrupt practice within the meaning of Section 123(l)(A)(b) of the Representation of the People Act, 1951.
13. B.D. Agarwal, J. said in Ramji Pandey v. Vikramaditya, AIR 1987 All 92 that Order VI Rule 15(2), C.P.C. which applies for purposes of verification of an election petition on account of Section 83(1)(c) of the Representation of the People Act requires that the person verifying shall specify with reference to the numbered, paragraphs, of the pleading what he verifies of his own knowledge and what he verifies from information received and believed to be true. He found that there was no compliance of the rule in the petition before him.
14. Likewise, in Ram Charan v. Bhola Shanker, Election Petition No. 55 of 1985 decided on Jan. 16, 1987 : (reported in AIR 1987 All 134) the same learned Judge observed that the verifications of the petition did not conform to the rules. According to him, Grounds A and C of para 17 of the petition were verified upon the legal advice which left clearly unverified the factual aspects pertaining to those grounds and that in regard to para 20(a) the verification narrated that it was on information received from workers and agents and that their identity was not disclosed nor was there any other indication to locate the source of information. Paragraph 26 of the petition contained the charge of corrupt practice against the returned candidate under Section 123(6) of the Act. There the learned Judge relied upon the decision of the Supreme Court in the case of Virendra Kumar Saklecha and felt that non-disclosure of grounds and source of information in the verification in the affidavit filed in support of the petition was a serious flaw.
15. It is notice able that the charge against Saklecha was one of corrupt practice and the affidavit which had to be filed in support of a petition containing a charge of corrupt practice had, in terms of R, 7 of the Madhya Pradesh High Court Rules, to contain the disclosure about the source of information of the election petitioner. The rules of our Court do not require such disclosure. The Supreme Court itself noticed that under Rule 94-A of the Conduct of Election Rules, 1961, an affidavit was to be in Form No. 25. The said Form does not contain any requirement that source of information be disclosed. Affidavit is only needed in support of the petition where there is an allegation of corrupt practice. In absence of any rule, like Rule 7 of the Madhya Pradesh High Court Rules, it cannot be said that in the absence of disclosure of the source of information in an affidavit filed in support of an election petition containing charges of corrupt practice, the affidavit was contrary to mandatory requirement of law. This aspect of the matter was probably not brought to the notice of B.D. Agarwal, J.
16. A petition is to be verified like a plaint on account of Rule 15(2) of Order VI, C. P.C. which is applicable to an election by virtue of Section 83(1)(c) of the Act. The verification clause in a plaint, under this rule, is only to specify by reference to the numbered paras of the pleading, what the person verifying the plaint verifies of his own knowledge and what he verifies upon information received and believed to be true. There is no requirement that the source of knowledge or information be disclosed by the person who is verifying the plaint. In Ramji Pandey's case (AIR 1987 All 92), as mentioned by B. D. Agarwal, J. himself, even the requirements of Rule 15(2) were not complied with. Failure to disclose the source of information or knowledge either in the affidavit filed in support of an election petition or in the verification clause of the petition, as far as this Court is concerned, cannot be treated to be breach of any mandatory rule. In the present case, the absence of recital as to the source of knowledge or information in the affidavit can have no material bearing on the trial of the petition.
17. In K. M. Mani v. P.J. Antony, AIR 1979 SC 234, it was observed in paragraph 11 that:
"It has also been argued that the election petition has not been properly verified as it has not been stated which of the averments in paras 3 to 6 were true according to the information received by the petitioner and which were 'believed' by him to be true. Our attention has in this connection been invited to a judgment of this Court in Virendra Kumar v. Jagjiwan, (1972) 3 SCR 955 : (AIR 1974 SC 1957. We find that the only objection which was taken in the written statement (para 11) was that the "affidavit filed along with the petition (was) not in conformity with the requirements of law". The law in that respect is contained in the proviso to S. 83(1) which requires that the affidavit shall be in the 'prescribed form'. A cross reference to Rule 94A and Form 25 of the Conduct of Election Rules, 1961, show that it was enough for the election petitioner to say that the statements made in the relevant paras (3 to 6) were true to his 'information' and that is what he has done. The decision in Saklecha turned on the Rules of the High Court, but no breach of any rule of the Kerala High Court has been brought to our notice."
18. Even in the early sixties a Constitution Bench of the Supreme Court said in Murarka Radhey Shyam Ram Kumar v. Roop Singh, AIR 1964 SC 1545 that the defect in' the verification in the election petition or in the affidavit filed along with it cannot be sufficient ground for dismissal of the petition summarily.
19. The next submission of Sri Kumar, upon which he placed the main emphasis, was that the petition did not contain a concise statement of material facts in respect of either of the two grounds (A) and (B) mentioned in para 13 of the petition.
20. Sri Kumar first dealt with the averments contained in paras 10, 11 and 12 of the petition. What has been stated in these paragraphs is this ...............the Returning Officer did not count the postal ballot papers which ought to have been counted under the Rules. After the total count of votes, it appears that the Returning Officer realised that the postal ballots have not been counted so that he incorporated the figure of postal ballots in Form 20 on the basis of assumption without actual counting (Para 10). The tendered votes were also not counted by the Returning Officer(para 11). As a result of counting the election petitioner had received majority of valid votes and was informed that he had received majority of votes and was being declared elected by a margin of 264 votes but to his great surprise respondent No. 1 was declared elected at about 5.45 p.m. after manoeuvring of result at the behest of the first respondent though the petitioner was entitled to be declared elected (para 12). The statement in para 10 has been verified to be true partly on the basis of legal advice and partly on the basis of information received by the petitioner from his agent sand workers which he believed to be true those of para 11 on the basis of information received by the petitioner from his agents and workers which he believed to be true and those of para 12 on the basis of the petitioner's personal knowledge. In respect of these assertions the criticism is that the averments contained in paras 10 and 11 were wholly vague inasmuch as it was not stated as to whether there were any postal or tendered votes at all and, if so, their particulars with reference to their number etc. should have been given. It should also have been specifically stated as to which rule was contravened in not counting them. About the statement in para 12, it is said that it does not contain any statement of fact but is a mere inference of the petitioner without any basis. These allegations are also vague.
21. Proceeding then to the averments contained in paragraph 14 of the petition, which is said to contain material facts in respect of Ground (A), what Sri A. Kumar urged was this.
22. The statement in para 14(i), (ii) and (iii) is to the effect that polling of votes took place on March 5, 1985 between 8.00 a.m. to 4.00 p.m. which was conducted by the Presiding Officers at each polling centres with the aid of Polling Officers provided therein and that apart from the Presiding Officers and Polling Officers, there was police arrangement for maintaining law and order and an observer of the rank of Addl. District Judge was also appointed to ensure peaceful polling in the entire constituency. The statement shows due compliance with the law.
23. The averment in para 14(iv) and (v) is vague for it only says that the direction of the Election Commission is that where it was found that the polling at a polling centre is either more or near about 90% of polling and where a single candidate has obtained votes to that extent at a polling centre, the votes should not be counted and a recommendation be made for re-poll by the Returning Officer to the Election Commission. The votes should be counted only when the Election Commission decides the matter and does not direct repoll. This direction of the Election Commission was disregarded and disobeyed by the Returning Officer by counting the ballot papers of a number of polling centres where polling was found to be about 90% and the votes secured by the first respondent were also to the same extent. It is further stated that the details of some of the polling stations were being furnished in Schedule I to the election petition. In Schedule I to the petition are mentioned as many as 11 polling stations with reference to their names and number along with total number of votes polled, votes polled by the first respondent and those polled by the election petitioner in a tabular form. In respect of the Schedule what is said is that the total number of votes attached to a particular polling station was not mentioned in it from which it could be found out whether the total number of votes polled were 90% of the total number of votes attached to it. The criticism further is that no indication has been given in these sub-paragraphs in respect of the identity of the direction of the Election Commission nor was it stated that any complaint had been made about the breach of the alleged direction during the course of counting. It was then said that even on assumption that there was some direction of the Election Commission of the nature mentioned in these sub-paragraphs of which a breach had been committed, the same could not afford ground for avoidance of an election under Section 100 of the Act. Consequently, the statements in sub-paras (iv) and (v) do not make out a cause of action for trial of the petition.
24. In para 14(vi) the allegation is that there was breach of Rule 38 of the Conduct of Election Rules, 1961. This rule relates to issue of ballot papers to voters. What has been stated is that on a large number of ballot papers, there was neither the seal of the polling centre nor signature of the Presiding Officer so that these ballot papers were wholly invalid and could not be taken into consideration for purposes of counting. Still they were counted by the Returning Officer in contravention of the provisions of Rule 38.
25. The criticism of Sri A. Kumar is that assuming that the averments were factually correct it has not been averred as to how it had materially affected the result of the election. He also said that under the first proviso to Rule 56(2) of the Conduct of Election Rules, if a ballot paper does not bear the mark and signature which it should have borne under Rule 38(1), it could not be rejected only on the ground under Clause (h) of Rule 56(2) where the Returning Officer is satisfied that the defect had been caused by any mistake or failure on the part of the Presiding Officer or the Polling Officer. The petitioner had not excluded that possibility by the statement made in these sub-paragraphs.
26. In para 14(vii) the statement made is that the Returning Officer did not incorporate the correct figures mentioned in part II of Form 16 prescribed for purposes of entering the votes of different candidates, in Form 20 and on a number of polling centres the votes mentioned in favour of the election petitioner had been incorrectly incorporated in favour of the first respondent in Form 20. The result was that there had been number of mistakes on account of which the first respondent had been illegally declared as elected. Further, in case comparison of the figures in Form 16 part II is made with those in Form 20, it would be found that the first respondent had received lesser number of votes than the petitioner.
27. The statement in this sub-para has been verified on the basis of the legal advice. According to Sri Kumar there is, thus, no statement of fact made in this sub-para. It has also been urged that the statement is absolutely vague because, according to him, the incorrectness in entries is attributed to those made in Form 16.
28. If, however, one were to read this sub-para in a normal and natural manner, the last criticism of Sri A. Kumar would not be found to be justified for it is clear, on reading the sub-para as a whole, that what was being said was that the figures contained in Form 16 part II were not correctly reproduced in Form 20.
29. In para 14(viii) it has been asserted that in spite of the protest made by the election petitioner, a number of ballot papers of different constituencies other than 285 Jahanabad Fatehpur Assembly Constituency were found during the counting and those ballot papers were illegally and improperly counted in favour of the first respondent.
30. The criticism about these averments is that they are absolutely vague and there is no indication as to ballot papers of which other constituencies were found and at which counting table nor is there any detail of these ballot papers. There is no indication as to who made a protest and to whom. There is no indication even in the verification clause as to which agents and workers gave this information to the petitioner.
31. The argument of Sri A. Kumar is that on the averments made in the various sub-paras of para 14 of the election petition, no triable issue can be said to arise between the parties. These paragraphs therefore, deserve to be deleted.
32. Coming now to ground (B) :
This ground relates to improper reception of invalid votes in favour of the first respondent and improper refusal to accept valid votes of the petitioner and improper rejection of his valid votes. The material facts about this ground are said to be contained in para 15 of the petition which has as many as (XLVII) sub-paras. In the affidavit which the first respondent has filed in support of application (A-8) and in the submission of Sri A. Kumar, these sub-paras have been grouped together for purposes of criticism. Sub-paras (i) to (iv) give out that a pandal was erected at the Collectorate compound at Fatehpur and counting was held on 25 tables. The petitioner appointed 25 counting agents whose photographs were supplied to the Returning Officer. Later, one more person was permitted to act as counting agent of the petitioner. The result of the counting in the first round showed that the petitioner had received 5812 votes while the first respondent obtained 5125 votes, showing a lead of 687 votes in favour of the petitioner. These assertions have been characterised as recital of fact which, by themselves, do not disclose any cause of action.
33. Paragraph 15(vi) and (vii) say that on account of the trend disclosed by the result of the first round of counting, Sri R.P. Arora, Returning Officers, who was interested in the first respondent and was bent upon ensuring his victory became very much perturbed and deployed a large number of P.A.C. Jawans and police personnel who misbehaved with the counting agents of the petitioner who left the counting tables. The Returning Officer did not intervene in spite of the petitioners repeated requests and the counting agents were not permitted to come back to their tables. The criticism about these assertions is that they are absolutely vague. They do not give any details whatsoever about the reasons of the interest of the Returning Officer in the first respondent and of the counting agents with whom the P.A.C. Jawans and police misbehaved and who left their counting tables. These allegations have been sworn partly on the basis of personal knowledge and partly on the basis of information without specifying the portion attributable to either of them.
34. About para 15(viii) where it is stated that though in the fair counting of ballot papers, the petitioner had secured larger number of votes and was entitled to be declared elected, the result was manoeuvred in a high handed manner on account of the foul acts of the Returning Officer and the first respondent was shown to have received 31619 votes while the petitioner was shown to have received 31496 votes, the criticism is that these allegations are vague and there is no indication as to what was actually done by the Returning Officer and how was the result manoeuvred in favour of the first respondent.
35. Paragraph 15(ix) to (xiv) mention that there was congestion in the pandal as there was not sufficient space for accommodating 25 tables nor was it possible for the counting agents of the petitioner to witness and watch the validity or invalidity of the ballot papers, inasmuch as, 25 counting agents representing each candidate were present in the pandal. The counting agents of the petitioner were not allowed to note down the serial number of all ballot papers nor were they shown the ballot papers or permitted to handle them even at the time when they raised objection about the validity of the ballot papers and it was with great difficulty and on enough persuasion, numbers of some ballot papers only were allowed to be seen and noted down, The sitting arrangement was such that on several occasions the counting agents of the petitioner had to remain away in the second and last row and were never heard by the counting supervisors. The complaint made to the Returning Officer remained unheard and undecided. In the available space in the pandal, which could hardly accommodate 150 to 160 persons, more than 300 people were present, Counting was done with such speed and manner that the counting agents found it difficult to watch the process of counting properly and effectively. The criticism is that the allegations are absolutely vague. The size of the pandal, the table numbers where the agents felt difficulty, the details of the sitting arrangement etc. are all missing. The names of the agents who have the information to the petitioner is not disclosed. It is not alleged that any complaint was made to the Returning Officer in writing and, if so, what actual complaint was made. It is also urged that 'detailed procedure for counting is prescribed in Rule 56 of the Conduct of Election Rules, 1961 of which Sub-rule (3) contemplates giving of reasonable opportunity to a counting agent to inspect the ballot paper before rejecting it There is no allegation that this opportunity was refused even when asked for. The presumption that necessary procedure was followed by the Returning Officer in the counting of ballot papers will arise in favour of the first respondent.
36. In para 15(xv) and(xvi) the allegation is that there was paucity 6f light as low powered bulbs were fused. The day was a cloudy one and when the fact of insufficiency of light was brought to the notice of the Returning Officer, he paid no heed to it and said that there was no provision for additional light and that the work will have to be done in the light available. According to the petitioner, on a number of occasions when counting officials were found placing valid ballot papers in favour of the petitioner in the bundle either of the first respondent or of other candidates, the counting officials took cover under the protest of paucity of light when this was pointed out to them. The criticism is that the assertions are absolutely vague, without any details and the source of information about the statement has not been disclosed nor has it been alleged that any complaint was made in writing to the Returning Officer.
37. In para 15(xvii) to (xix) it has been alleged that counting of votes was done in the form of bundles of 50 ballot papers of each of the candidate a large number of valid ballot papers of the petitioner were added in the bundle of the first respondent treating them to be votes in favour of that respondent by putting the ballot papers of the petitioner in the middle of the bundles of the first respondent The complaint on behalf of the petitioner lodged with the Returning Officer remained un headed and in spite of the objections the bundles of the first respondent in which the ballot papers of the petitioner were mixed up were not opened and counted again. These allegations are described as vague without giving out any details whatsoever nor even mentioning as to who had raised objection about it. The details of mixed up ballot papers are not mentioned and though the statement is partly said to be based upon information, the identity of the person who gave it or which part of it was based on information has not been given out. It has not been mentioned as to whether any objection was given in writing and which was the table on which the alleged irregularity had taken place.
38. In para 15(xx) the details of some ballot papers said to have been illegally mixed up in the bundle of the first respondent are mentioned as given in Schedule II to the petition. That Schedule contains the serial numbers of such mixed up ballot papers. This statement is criticised as imaginary because neither the table number nor the polling station nor the round when the ballot papers were mixed up with the ballot papers of the first respondent has been specified. The source of information has also not been disclosed. It is also said that the statement in this sub-paragraph contradicts the earlier statement of the petitioner that the counting agents of the petitioner were not permitted to take down even the number of the ballot papers.
39. In para 15(xxi) the statement that a large number of ballot papers of the petitioner were mixed up in the bundle of other candidates reducing the total of the petitioner has been criticised as being entirely vague without giving any details whatsoever, including even the names of other candidates.
40. In para 15 (xxii) the statement is that a large number of ballot papers which were invalid and void and liable to be rejected were erroneously counted for the first respondent and the serial number of some such ballot papers are shown to have been given in Schedule III attached to the petition'..
The criticism is that the statement is entirely vague. It does not disclose the table number and the names of the polling stations nor the number of such ballot papers. It also does not indicate the illegality on account whereof the ballot papers were said to be invalid and whether any objection and, if so, what was made before the Returning Officer. Schedule III is also criticised as vague giving out hypothetical numbers of the ballot papers without disclosing any details about the polling station etc.
41. The assertion in para 15(xxiii) that out of the total votes polled in the entire constituency, i.e. 77005, 1169 were shown to be rejected ones, is described as vague and as liable to be struck off on the ground mentioned in the earlier paragraphs.
42. In paras 15(xxiv), (xxv) and (xxvi) complaint has been made that out of the, figure of 1169 rejected votes, more than 750 votes were valid votes of the petitioner which had been arbitrarily rejected; more than 200 votes were rejected illegally on the ground that these ballot papers did not contain the signature of the Presiding Officer though all those ballot papers contain a clear seal of the official of the polling centre and a clear official seal mark in favour of the petitioner and were valid votes in favour of him. They could not have been rejected only on the ground that they did not contain the signature of the Presiding Officer because it could be due to slip or failure on the part of the Presiding Officer which could not be a ground for rejection of these ballot papers on account of the proviso to Rule 56. The allegation also is that the Returning Officer adopted double standard, inasmuch as, while rejecting the ballot papers marked in favour of the petitioner on the aforesaid ground, he actually counted as valid similarly marked ballot papers which did not have signature of the Presiding Officer as valid votes in favour of the first respondent. In Schedule IV to the petition are given out the numbers of the ballot papers which should have been counted for the petitioner but were improperly rejected as they were not signed by the Presiding Officer. The statement is criticised as being vague.
The details of the polling stations, serial number of the ballot papers, table number and the fact whether any objection was raised before the Returning Officer and, if so, what was it and what was order passed by the Returning Officer have not been disclosed. It is also said that the fact that ballot paper number has been disclosed ran counter to the case set up by the petitioner that his counting agents were not permitted access to the ballot papers. It is also said that this inconsistent plea cannot be permitted in law and that it discloses the petitioner's effort to somehow secure inspection of the ballot papers. It is also urged that the facts disclosed by the petitioner do not satisfy any of the tests which have been laid down by the Supreme Court, particularly, in its decision in the case of Bhabhi v. Sheo Govind, AIR 1975 SC 2117, for being permitted inspection and recount of ballot papers.
43. In para 15(xxvii) the statement that about 100 ballot papers contained clear seal mark in favour of the petitioner and only an ink mark in the column of the first respondent due to handling were illegally counted for the first respondent by the Returning Officer and the disclosure of serial numbers alone of some such ballot papers, has been characterised as vague and insufficient in detail The criticism further is that under Rule 56(b) such ballot papers which bore a mark otherwise than with the instrument provided, were to be rejected and as such the facts did not raise a triable issue even if accepted. The absence of the table number, name of the polling station and the booth number is added as showing the vagueness of the statement Likewise, in para 15(xxviii) the disclosure of the number of only three ballot papers, out of allegdly ten, which are said to have been illegally rejected by the Returning Officer though they contain clear official seal mark in favour of the petitioner which was faint, is criticised as vague because of absence of table number and the name of the polling station. It is also urged that the failure to assert that an objection was raised at the time of counting or that the counting agents had prepared any note from which they gave out these serial numbers to the petitioner, the mention of these serial numbers was to be treated to be at random.
44. In para 15(xxix), (xxx), (xxxi), (xxxii), (xxxiii) and (xxxiv) are given instances of improper reception of invalid votes in favour of the first respondent. The assertions are described to be vague as only serial numbers of some ballot papers out of approximate number of improperly received ballot papers have been disclosed without any further details. The instances in these paragraphs are of such ballot papers which according to the petitioner, did not contain any official seal mark but contain merely an ink mark near the column of the first respondent; or contain official seal mark in the column both of the first respondent and also one or other candidate as well; or did not contain any seal mark whatsoever but merely contain either a thumb impression or ink mark in the middle of the shaded area of ballot papers of the first respondent and other candidates or contain official seal mark in favour of candidates other than the first respondent together with an impression of seal mark in the column of the first respondent or the major portion of the official seal mark in the column of the petitioner and merely an edge of that seal mark in the shaded area or slightly towards the area of the first respondent or were ballot papers which did not contain the official seal of the polling and the signature of the Presiding Officer. The further criticism is that there is no assertion about any such objection being raised before the Returning Officer and/or his order passed thereon.
45. In para 15(xxxv) the statement that as many as 450 votes polled and marked in favour of the petitioner were removed from the ballot boxes and not counted for him of which details are claimed to be disclosed in Schedule V to the election petition, is described as wholly vague. It is also said that the Schedule does not improve the things in favour of the petitioner because there is no indication contained therein about the number of the ballot papers which are said to have been so removed from the ballot boxes pertaining to the various polling stations. It is said that no details as to when they were removed or how it was known that the votes were cast in favour of the petitioner are contained. The further statement in this paragraph that even if only these votes had been counted, it would have been found that the petitioner had, in fact, received majority of valid votes is also characterised as a mere imaginary assessment of the petitioner.
46. In para 15(xxxvi) the statement that two ballot papers which were not polled or cast by the electors and were not liable to be counted were illegally and improperly counted though they were found in excess of votes polled and about 23 votes which were marked in favour of the petitioner, were not counted as they were not found in the ballot boxes of various polling stations, has been criticised as absolutely vague because it does not disclose the serial number, polling stations etc. of these votes.
47. The statement in para 15(xxxvii) that as soon as the defects in the preparation and incorporation of incorrect figures were detected by the petitioner, he immediately applied for recount of the ballot papers as contemplated under Rule 63 but the Returning Officer illegally rejected the prayer, is described as absolutely vague as it has not been revealed as to when i.e. before or after the declaration of the result, was the prayer for recount made. Similarly, the statement in para 15(xxxviii) that the petitioner was shown to have won by a margin of 264 votes and a declaration was also made to that effect by the Returning Officer but on the instigation and at the behest of Congress (I) candidate, namely, the first respondent, the result sheet originally prepared was changed and substituted by another chart of result sheet in which the petitioner was shown to be defeated by a margin of 123 votes, has been described as absolutely vague as it does not disclose the precise allegation which the petitioner has in minds in regard to declaration of result. He does not state whether Form 20 initially prepared was changed and, if so, who did it and whether any change was made in Form 16 etc.
48. In para 15(xxxix), (xi) and (xli) the allegation that the petitioner brought the fact of having received 264 votes more than the first respondent to the notice of the Returning Officer and moved an application for recount of ballot papers which were illegally and mechanically rejected by the Returning Officer, who also helped the first respondent by getting a lathi charge made upon the persons present there when chaos was created in the counting area by the first respondent and his counting agents on the declaration of the petitioner having obtained 264 votes more than the first respondent; the counting agents of the petitioner were turned out of the counting area and incorrect result sheets were subsequently prepared and substituted at the instance of the first respondent when the petitioner gave a second application for recount of the votes of the last round but no steps were taken by the Returning Officer about it and that tearing of the original and substitution of the result sheets showed that there was consistent attempt on the part of the Returning Officer to manipulate the result and declare the petitioner defeated irrespective of the fact that he had received majority of valid votes, has been criticised as being absolutely vague and lacking in details in regard to essential facts whether the application was given before or after the declaration, what were the facts mentioned in it and who changed the result sheet or had torn the earlier one and whether the Returning Officer was present throughout. The copy of the alleged application has not been filed along with the petition. Sri Kumar has pointed out that the petitioner has deliberately omitted to make any allegation of altering or tampering with Form 16 Part II for fear of having had to disclose the table numbers where the mistakes are said to have taken place.
49. He has also urged that the statement in para 15(xlii) that from the facts given out earlier it was evident that apart from the entries made incorrectly in Form 16 Part II and Form 20, the counting of ballot papers had also been shown in an erroneous and surreptitious manner thereby showing the petitioner to have received lesser number of votes than the first respondent is absolutely vague by itself as far as it relates the Form 16 and equally vague in respect of that Form even if it is read in conjunction, with the other paras.
50. In respect of the statement made in para 15(xliii) that in case recheeking is made of the entries in respect of different candidates, including that of the petitioner and the first respondent, it would be found on calculation that the petitioner had received more votes than the first respondent, the criticism is that it is absolutely vague.
51. The claim in para 15(xliv) that even on scrutiny of the rejected ballot papers alone it would be found that as many as 750 votes were of the petitioner out of 1169 rejected ballot papers and if only these ballot papers which had been improperly rejected were counted for the petitioner, a recount would show that the result of the election has materially been affected as the petitioner had, in fact, received majority of valid votes, is described to be vague and wishful thinking on the part of the petitioner by Sri A. Kumar.
52. Similarly, the claim in paras 15(xlv) to (xlvii) that the counting of ballot papers had, been done in great disregard of the provisions of the Act, the Rules and the orders issued by the Election Commission and that in case scrutiny and recount of ballot papers was done afresh, it would be found that the petitioner had received majority of valid votes and was entitled to be declared elected as Member of the Legislative Assembly and further that the petitioner was entitled for inspection, scrutiny and recount of ballot papers, has been characterised as vague and wishful thinking on the part of the petitioner.
53. From the aforesaid analysis of the allegations contained in paragraphs 10, 11, and 12 and the various sub-paras of paras 14 and 15 of the petition, it is clear that it is not the case of the first respondent that the assertions are unnecessary, scandalous, frivolous or vexatious or may tend to prejudice, embarrass or delay the fair trial of the petition or constitute an abuse of the process of the Court. These assertions can, therefore, not be struck off under Rule 16 of Order VI, C.P.C. in view of the clear pronouncements of the Supreme Court in Roop Lal v. Nachhattar Singh AIR 1982 SC 1559 where it was observed (in para 21 of the report) that:
"The order passed by the High Court directing that paragraphs 4 to 48 of the election petition be struck out cannot be sustained on the terms of Order VI Rule 16of the Code. There is no finding reached by the High Court that the averments in paras 4 to 18 of the election petition are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the election, nor is there any finding that the averments therein are such as to constitute an abuse of the process of the Court. That being so, the High Court had no power to direct the striking out of paras 4 to 18 of the election petition."
54. Coming now to the question whether the petition is liable to be dismissed under Rule 11 of Order VII C.P.C. as disclosing no cause of action :
55. In D.P. Sharma v. Commissioner and Returning Officer, AIR 1984 SC 654 the Supreme Court observed that:
".....It is well established that in order to obtain recount of votes a proper foundation is required to be laid b y the election petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidate which had in reality been cast infavour of the defeated candidate......"
56. In Roop Lal (AIR 1982 SC 1559), the Supreme Court has laid down in unmistakable terms that in deciding the question whether the petition discloses a cause of action, the court has to assume that the averments, contained in the election petition are true and that the court cannot cast on the election petitioner the burden of disclosing facts which are not within his knowledge. The allegations in the petition are, therefore, to be seen in the background of these principles. The court also has to keep in mind, before directing a recount, the various principles culled out by the Supreme Court from its earlier decisions and stated by it in Bhabhi v. Sheo Govind (AIR 1975 SC 2117 in paragraph 15 of the report) as under :
"(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) That court must be prima facie satisfied on the material produced before the Court regarding the truth of the allegations made fore recount;
(4) That the court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
(5) that the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials."
57. On a consideration of the allegations made in the petition on the anvil of these principles, and having regard to the criticism made by Sri Kumar in respect of the allegations contained in the petition, one tiling appears clear. And, it is that except for the fact that 1169 ballot papers were declared to be invalid and excluded from consideration on that ground, there is hardly any other assertion which may be said to be a definite statement of facts, keeping in mind the relevant provisions of the Conduct of Election Rules, 1961, which may raise a triable issue between the parties either in respect of Ground (A) or (B). Stray disclosure of the number of some ballot papers without anything more or of the number of ballot papers said to have been marked for the petitioner, but not counted for him, without the disclosure of the ballot paper number or the bald allegation that due to paucity of space or light in the counting pandal, the counting agents of the petitioner could not take down the necessary details in respect of the ballot papers without any complaint shown to have been made in that respect before the Returning Officer in writing or the general allegation of bias and improper conduct on the part of the Returning Officer including his direction allegedly made to the P.A.C. Jawans and police personnel or even the allegation that the petitioner had been found to have obtained larger number of valid votes than the first respondent on the basis whereof a declaration was earlier made which was subsequently substituted by another declaration about the first respondent having obtained larger number of valid votes, without any contemporaneous complaint in writing to the appropriate authorities, are not averments sufficient in law to entitle the petitioner to seek a recount in view of the principles laid down by the Supreme Court in this respect. Even if all these facts were to be assumed in favour of the petitioner, could it be said that the case fell within the fore-corners of the dictum of the Supreme Court? The answer would appear to be in the negative.
58. Coming now to the allegation that out of 1169 votes which were declared to be invalid, one finds, in paras 15(xxiii) to (xxvi), the assertion that more than 750 votes were valid votes of the petitioner and were not liable to be rejected and were illegally and arbitrarily rejected by the Returning Officer out of which more than 200 votes were rejected erroneously on the ground that those ballot papers did not contain the signatures of the presiding Officer though all of them contain a clear seal-mark of the official of the polling station and a clear official seal-mark in favour of the petitioner. Serial numbers of some of these ballot papers which were illegally rejected are disclosed in Schedule IV. On an assumption that these facts are true, which assumption is to be made at this stage on account of what the Supreme Court has laid down in Roop Lal (AIR 1984 SC 656), one would legitimately feel that if a recount of these votes was to be made it would well be that the petitioner is found to have received a larger number of valid votes entitling him to a declaration in his favour. Also, that a sample inspection, in these circumstances, of some of these ballot papers, particularly those of which the ballot paper numbers have been disclosed in Schedule IV, could establish that the allegations made by the petitioner for recount are true. There is sufficient definiteness in the allegations made in these sub-paragraphs of para 15 meriting trial of the petition in respect of the plea for recount made by the petitioner and the need for permitting the parties to lead evidence about it, At this stage, therefore, it cannot be said that the petition does not disclose any cause of action within the meaning of Rule 11 of Order VII and deserves to be dismissed. The prayer in that regard is rejected.
59. Let written statement be filed within two weeks and the case be listed for framing issues on May 11, 1987.