Bombay High Court
Manohar Gopal Naik vs Subhash Ankush Shirodkar And Ors. on 16 November, 1995
Equivalent citations: 1996(5)BOMCR93
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
JUDGMENT T.K. Chandrashekhara Das, J.
1. This petition is filed challenging the election of respondent No. 1 who was returned successfully from 23-Shiroda Assembly Constituency of Goa State which was conducted on 16th November, 1994. The petitioner was one of the contesting candidates for the said Election in 23-Shiroda Assembly Constituency. In all, 8 candidates had contested in that Constituency. These candidates were allotted symbols by the Returning Officer as shown in Form 7-A of Rule 10(1) of the Conduct of Election Rules. The petitioner's name was shown at Serial No. 4 as candidate for B.J.P. and who was allotted symbol of 'Lotus'. The respondent No. 1 was shown in the list of candidates at Serial No. 3 as candidate whose party name is shown as Indian National Congress and the allotted symbol of 'Hand'. In this petition, the petitioner prays, inter alia, as follows :---
(a) That the decision given on December 10, 1994 (Exhibit P6) by the Returning Officer of 23, Shiroda Assembly Constituency of Goa State, rejecting the application of the petitioner for recounting of votes cast at the General Election held on November 16, 1994 from the said Constituency, be set aside;
(b) That the re-counting of votes cast during the general assembly election held on November 16, 1994 and the results of which were declared on December 10, 1994 be ordered to be held under the supervision of an officer of this Hon'ble Court, an Advocate or any other fit and proper person to be appointed by this Hon'ble Court;
(c) That on such recounting of votes and after ascertaining in fact that it is the petitioner who has secured highest number of votes in the said election, the said election of the respondent No. 1 be declared as void and therefore set aside;
(d) That the petitioner be declared to have been elected to the Goa Legislative Assembly from 23-Shiroda Assembly Constituency for the election held on November 16, 1994 the result of which was declared on December 10, 1994.
2. Therefore, the main reliefs sought in this petition in substance is for a re-counting of ballot papers. In the poll, the respondent No. 1 polled 6256 valid votes whereas the petitioner polled 6154 valid votes, thereby the 1st respondent was declared as elected by a margin of 102 votes. Evidently, therefore, in order to succeed in this petition, the petitioner should plead and establish that there were irregularities in counting of votes, that certain identifiable number of votes in certain tables were miscounted and had there been no such miscounting, the petitioner would have been declared elected. Therefore, for the purpose of establishing his case, first of all, the petitioner should allege specifically and precisely regarding the details of misconduct pointing out specific instances of irregularities which have been committed in the course of counting of the votes. However, I shall deal with this aspect of the case in the latter part of this judgment in more detail.
3. All the contesting candidates have been made parties to this petition. Except the 1st respondent, no other respondents filed Written Statement in this case. In fact, the other respondents, namely respondents Nos. 2 to 7, were set ex parte by this Court by its Order dated 28-7-1995. The 1st respondent filed his Written Statement denying the allegations contained in the petition. On the basis of the pleadings of the parties, the following issues were framed :
1. Whether the respondent No. 1 proves that the petition is liable to be rejected in limine :
i) for non-compliance with section 81(3) and 83(1)(a) and (b) and proviso thereunder of the Representation of the People Act;
ii) for want of due verification of the petition in accordance with law;
iii) for lack of material facts and details of ballot papers with their numbers.
2. In view of (iii) of Issue No. (1) above whether the pleadings in relation thereto are liable to be struck off or ignored?
3. Whether the petition is filed within the period as provided for under the Representation of People Act and if not what orders?
4. Whether the respondents prove that the election petition is liable to be rejected in limine under Order 7, Rule 11 of C.P.C., 1908, for non-disclosure of cause of action?
5. Whether the petitioner proves that Conduct of Election Rules 1961 were violated as alleged?
6. Whether the petitioner proves that he is entitled for an order of recount of votes polled or any part thereof on the grounds of improper rejection of valid votes and/or improper reception of votes as alleged or for alleged non-compliance with various provisions of the Representation of People Act and Election Rules and directions/instructions?
7. Whether the petitioner proves that the result of the election has been materially affected as alleged?
8. Whether the petitioner proves that he is entitled for a declaration that petitioner is elected to the 23 - Shiroda Assembly Constituency as prayed for?
At the request of the counsel appearing for both sides, the issues Nos. 1 to 4 were taken up together for hearing as preliminary issues. At the time of hearing of these issues, the learned counsel for the respondent No. 1 submitted that sub-issues contained in issue No. 1 with regard to the non-compliance of section 83(1)(b) and proviso can be ignored as he is not pressing those sub-issues. Similarly, he also did not press sub-issue No. 1(ii) and Issue No. 3. Therefore, the first issue called upon to be decided as a preliminary issue in this case is 'Whether the petition is liable to be rejected for non-compliance with section 81(3) and 83(1)(a) of the Representation of the People Act. Firstly, I shall deal with the first part of this issue which deals with the requirement under section 81(3) of the Representation of the People Act (hereinafter called 'the Act'). Section 81(3) states (i) that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and (ii) every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
4. The learned Counsel for the 1st respondent submitted that the petition is liable to be rejected for non-compliance with mandatory provision under section 81(3) as enjoined in section 86 of the Act. Section 86 of the Act says that the High Court shall dismiss an election petition if it does not comply with the provisions of section 81 or section 82 or section 17. Therefore, the Senior Counsel Mr. Vijay Nadkarni appearing for the 1st respondent has contended that the requirement of section 81(3) has not been complied with. Dwelling on this question, he pointed out that under the scheme of the Act, the election petition as such has been treated distinctly and separately under section 83 from other annexures and affidavits accompanying the petition. Mr. Nadkarni further submitted that if the election petition for re-counting is separable from the enclosures and annexures and affidavits and as the copy of the election petition served on the 1st respondent does not contain any signature of the petitioner it is liable to be dismissed as it does not satisfy latter part of the section 81(3). However, he concedes that there is no dispute that former part of section 81(3) has been complied with. He submitted that his client received a purported copy of the election petition which contains on the front page an index without any page marking and second page though marked as page No. 1 contains synopsis of events and next page as page No. 3 starts with the cause-title of the Election Petition proper. He also submitted that the petition was accompanied by an affidavit at pages Nos. 36 and 37 and the entire paper-book ends with annexure-Exhibit P-7. He submits that at the top of the front page of the paper-book which starts with index contains an endorsement : "This is a true copy of the original petition along with its annexures" and in the bottom of that page contains the signature of the petitioner. So also, the last page of the paper-book which ends with Exhibit P-7 also contains similar endorsement : "This is a true copy of the original petition along with its annexures" and below this endorsement contains the signature of the petitioner. The learned Counsel for the 1st respondent, Shri Nadkarni, therefore submits that none of the portions of the copy of Election Petition proper contains any signature of the petitioner certifying that it is the true copy of the Election Petition. He also submits that attestation and signature of the petitioner seen on the front page of the paper-book and on the last page will not satisfy the mandatory requirement of latter part of section 81(3), namely, "every such copy shall be attested by the petitioner to be a true copy of the petition". Consequently, he submits, by virtue of section 86, the Election Petition is only to be rejected. The learned Counsel has cited in support of his argument the decisions of M. Kamalam v. Dr. V.A. Syed Mohammed, , Rajendra Singh v. Smt. Usha Rani and others, and F.A. Sapa etc. etc. v. Singora and others etc, . These decisions, say the respondent, are not bound to wade through as to which are the correct copy. The said sub-section was enacted with the view to ensure service of true and correct copy of the petition on the respondents.
5. Mr. Thali, the learned Counsel for the petitioner, on the other hand, submitted that the election petition means all the papers contained in the paper-book : the index, synopsis, annexures and affidavits, all should be treated as part of the election petition. Treating index, the synopsis and the annexures not as part of the election petition will be too technical. Index and synopsis are provided to satisfy the High Court Rules and without satisfying the High Court rules, one cannot file any petition before the High Court. Even though Index and Synopsis are not insisted by the provision of the Act, it cannot be said that those are not part of the petition, if an Election Petition was prepared with Index and Synopsis. Moreover, he submits, what section 81(3) ensures is that the respondents must be served with a true copy of the petition filed as such before the Court and the attestation required to be made in the copy by the petitioner is that it is a true copy of the petition. In other words, the latter part of sub-section (3) of section 81 does not insist that the attestation to be made by the petitioner as true copy of the petition, need not, however, necessarily be on the Election Petition, which is part of the paper-book. Therefore, the signature on the front page of the paper-book containing the election petition and the signature on the last page of the paper-book stating that it is the "true copy of the election petition and the annexures" will be sufficient and in substantial compliance of section 81(3) of the Act. He also cited decisions of the Supreme Court in support of his argument in Ch. Subbarao v. Member, Election Tribunal, Hyderabad and others, , Sardar Mal v. Smt. Gayatri Devi, and Smt. Sahodrabai Rai v. Ram Singh Aharwar and others, .
6. Now let us look into the various authorities cited above by the counsel. M. Kamalam v. Dr. V.A. Syed Mohammed, is, in fact, a petition filed to set aside the election of the respondent therein on the ground of corrupt practice. It was a case where the High Court of Kerala had rejected the election petition of the appellant on the ground of non-compliance of sub-section (3) of section 81 for the reason that the copy of the Election Petition was not attested by the petitioner under his own signature to be a true copy. At the same time, she had made the attestation on the last page of the affidavit accompanying the petition. In paragraph 4, while dealing with this question, the Supreme Court discussed the matter thus :
"..... But, here in the present case, the signature of the appellant appeared only at the foot of the copy of the affidavit and there was no signature of the appellant at any place in the copy of the election petition and there was thus, according to the respondent non-compliance with the last part of sub-section (3) of section 81. The appellant, however, submitted that the affidavit was a part of the election petition and the copy of the election petition, therefore, consisted of two parts, one being copy of the election petition proper if we may so call it, and the other being copy of the affidavit. The signature of the appellant at the foot of the copy of the affidavit was, therefore, said the appellant, referable not only to the copy of the affidavit but also to the copy of the election petition proper and hence the requirement of the last part of sub-section (3) of section 81 was complied with by the appellant. These rival contentions raise an interesting question of law depending on the interpretation of section 81, sub-section (3) in the light of section 83 and section 86, sub-section (1)."
After pointing out the controversy as above, the Supreme Court, in that case, resolved the controversy by observing thus in paragraph 6 :---
"6. ..... The law does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition. It may be at the top of the copy or in the middle or at the end. The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy. When original signature is made by the petitioner on the copy of the election petition, it can safely be presumed, as pointed out by this Court in Ch. Subbarao's case, (supra), that the signature is made by the petitioner by way of authenticating the document to be a true copy of the election petition."
(underline supplied) Mr. Nadkarni, learned counsel for the 1st respondent, tried to distinguish the aforesaid decision and submitted that the aforesaid decision is relied on by him for the simple reason that in that case the petition was based on corrupt practice and in such petition the affidavits are treated as integral part of the election petition by virtue of section 83(1)(b) and, therefore, it was treated as an integral part of the election petition because an election petition shall contain an affidavit containing the material particulars of the corrupt practices as enjoined by section 83(1)(b). It is therefore in that context that the Supreme Court held in that case that signature of the petitioner contained on the copy of the affidavit will be substantial compliance with the requirements of section 81(3). But, he submitted, that criteria cannot be adopted in this case. He submitted that an affidavit accompanied by an election petition for re-counting cannot be treated at par with an affidavit submitted along with a petition based on corrupt practices, because even without an affidavit, an election petition for re-counting is maintainable as Proviso to section 83(1)(c) is not made mandatory in such cases. Therefore, he argues, when an affidavit or any other part or annexures of the election petition for re-counting cannot be treated as an integral part of an Election Petition and the signature of the petitioner on such part which was not treated as mandatory cannot be treated as having a signature on the copy of Election Petition to satisfy the requirements of latter part of section 81(3) of the Act. He relied on the observations of the Supreme Court in the aforesaid judgment in para 6 thus :---
"..... In fact, the copy of the affidavit constituted the end-portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the affidavit was, therefore, clearly referable to the entire copy preceding it and it authenticated the whole of the copy of the election petition to be a true copy. We cannot, in the circumstances, accept the contention of the respondent that the copy of the election petition was not attested by the appellant under her own signature to be a true copy of the petition. The requirement of the last part of sub-section (3) of section 81 was complied with by the appellant. ...."
According to me, the distinction that Mr. Nadkarni, Counsel for the respondent No. 1, was trying to make out based on M. Kamalam's decision cannot be sustained for the reason hereinafter mentioned. What the statute provides under latter part of sub-section (3) of section 81 of the Act is that in order to ensure the service of the true copy of the election petition, the copy of the petition proper and all the annexures and affidavits contained together should be served on the respondents. May be an election petition for re-counting, it need not necessarily contain an affidavit or sometimes need not necessarily contain even an annexure, but once the petitioner presents his petition alongwith affidavits and annexures before the Court he is bound to serve the true copies of those materials, namely, the petition proper alongwith other annexures and affidavits to the respondents also. Though an affidavit or annexures, which accompanies the Election Petition for re-counting, cannot be treated as an integral part of the petition as in the case of an Election Petition for corrupt practices, it cannot be said these annexures and affidavits are in fact not part of the Election Petition. In other words, without an affidavit containing particulars of corrupt practices, an Election Petition is liable to be thrown out; but, at the same time, an Election Petition for re-counting accompanying affidavit need not necessarily be thrown out for that ground alone. It has to be borne in mind that the consequence of an Election Petition accompanying an affidavit or not accompanying affidavit may be different in the case of an Election Petition based on corrupt practice and the one for re-counting. But this consequence will not, however, control the nature of requirement of attestation of true copy by the petitioner under section 81(3). The main purpose of the sub-section has been examined by the Supreme Court as early as 1964 in Ch. Subbarao v. Member, Election Tribunal, Hyderabad and others, , which was relied upon in M. Kamalam v. Dr. V.A. Syed Mohammed, , (supra). In Ch. Subbarao v. Member, Election Tribunal, Hyderabad and others, , more or less a situation similar to the present one had arisen. It was also a petition filed on the ground of corrupt practices. The actual defect noted in that petition was that what has been discussed by the Supreme Court in paragraph 6 of the judgment:
In paragraph 24, the Supreme Court says :
".... By 'copy' in section 81(3) was meant not an exact copy but only one so true that nobody by any possibility misunderstands it not being the same as the original."
It further observed in paragraph 25 :
"..... We have already pointed out that the appellant has complied with the following requirements :
(1) The petition has been accompanied by the requisite number of copies. (2) The copies that accompanied the petition were true copies. (3) Each of those copies bore the signatures of the petitioner." In paragraph 26 it observed :
"If the signature of the petitioner whose name is set out in the body of the petition is appended at the end, surely it authenticates the contents of the document."
It is worth noting the conclusion arrived at by the Supreme Court in that case at the end of paragraph 26 which runs thus :
"There is no compelling necessity to hold that the signatures were merely intended to be a copy of those on the original in order to spell out a non-compliance with section 81(3), seeing that a signature in original was not needed on the copy and a writing copying out the name of the signatory would suffice. The decision of this Court in Murarka's case C.A. Nos. 30 and 31 of 1963 dated 7-5-1963 (S.C..) is authority for the position that the absence of a writing in the copy indicating the signature in the original would not detract the copy from being a true copy. In the circumstances, we consider that there has been substantial compliance with the requirement of section 81(3) in the petition that was filed by the appellant and the learned Judges were in error in directing the dismissal of the petition."
(underline supplied).
7. Rajendra Singh v. Smt. Usha Rani and others, , is a case of furnishing incorrect copies to the respondent and the Election Petition on that ground has been rejected. Court in that case refused to give benefit of doubt to the petitioner as to the furnishing the correct copies of the petition. In para 10 of the judgment it has been held by the Supreme Court thus :
"10. In these circumstances, therefore, in the instant case, there was absolutely no justification for the learned Judge to have invoked the doctrine of benefit of doubt. We are satisfied that it has not been proved by the respondent that she filed correct copies of the election petition or, for that matter, the appellant got the correct copy and not the incorrect one, in the face of the clear and categorical assertion by him that he did not receive the correct copy."
It is true that in that case the Supreme Court reiterated the mandatory nature of requirement of complying with the provision of section 81(3) of the Act. No doubt, that the section is mandatory and non-compliance of the provision will definitely entail dismissal of the petition. But in this case the 1st respondent has no case that incorrect copy of the petition was served on him. His contention is that signatures and attestations of the copy are contained only on the first and last page of the paper-book but not on the Election Petition proper.
8. In F.A. Sapa etc etc. v. Singora and others etc., , the Supreme Court has held that mere defect in verification is not fatal and petition cannot be rejected under section 86(1). Particular objection raised in that case was, as stated by the Supreme Court in paragraph 31, thus :
"31. The next objection raised by the appellants is that the copy of the petition served on each one of them is not attested to be a true copy of the original petition as required by section 81(3) of the R.P. Act and Rule 1 of the Rules. Each copy is attested as 'certified true copy' and the petitioner has put his signature thereunder. This, contend the appellants, is not in conformity with section 81(3) and, therefore, it is obvious that the mandatory requirements of section 81(3) read with section 86(1) is not satisfied. On a plain reading of section 81(3) it becomes clear that the requirement of that provision is : (i) the election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition, and (ii) every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. There is no dispute in regard to the compliance of the first part. So far as the second part is concerned, all that the section requires is that the copy should be attested by the petitioner to be a true copy of the petition under his own signature. The requirement of this part of the provision is met by each copy having been signed at the foot thereof by the concerned petitioner. What is essential is that the petitioner must take the responsibility of the copy being a true copy of the original petition and sign in token thereof. No particular form of attestation is prescribed; all that sub-section enjoins is that the petitioner must attest the copy under his own signature to be a true copy of the petition. By certifying the same as true copy and by putting his signature at the foot thereof, the petitioner of each election petition had clearly complied with the letter and spirit of Section 81(3) of the R.P. Act. In fact in Ch. Subba Rao v. Member, E.T. Hyderabad , which was followed in Kamalam's case (supra) this Court had accepted the mere signature without the words like true copy, sufficient attestation under section 81(3) of the R.P. Act. We are, therefore, in agreement with the finding recorded in this behalf by the High Court."
In the aforesaid case the Supreme Court has categorically held that the attestation of copy cannot be insisted upon to be in a particular form. If the copy contains a signature will suffice for compliance of section 81(3).
9. Coming to the present case, admittedly, the copies of the paper-book containing the petition has signature of the petitioner on the front page and the last page. There is no case for the 1st respondent that he has not received true copies of the petition nor has he any case that all the pages of the petition have not been furnished. The signatures of the petitioner were found in the front page and the last page of the paper-book as clearly attested that "it is the true copy of the original petition along with its annexures".
10. Another decision cited by Mr. Thali, Counsel appearing for the petitioner, is Sardar Mal v. Smt. Gayatri Devi, . In that case also the election petition filed by the petitioner there was an objection on the ground that the copies of the main petition and annexures A and B which was served on her did not bear the attestation of the petitioner as prescribed under section 81(3) and urged that the petition should be rejected on this ground under section 90(3). The copy of the main petition consisted of 5 sheets numbered serially from 1 to 5. There is no attestation on any part of it. Then follow copies of the three annexures A, B and C consisting of two, one and three sheets respectively. The pages of these annexures are not numbered in continuation of the main petition or in continuation of one another. They are numbered independently. There is no attestation on any part of the copies of annexures A and B. At the foot of the last page of the copy of annexure C there is an attestation by the petitioner who has inscribed the words "True Copy" under his signatures. The copies of the annexures are followed by the copy of the affidavit which is inscribed with words "True Copy" under the signatures of the petitioner both on the first page and at the foot of the last page. The defect pointed out in that case is more or less similar to the one pointed out here. In disposing of the objection, the learned Judge of the Rajasthan High Court has observed in paragraph 32:
"(32) It is also provided in this section that where the petitioner alleges any corrupt practice the petitioner shall be accompanied by an affidavit in support of the allegation of such corrupt practice and the particulars thereof. It is in compliance with this provision that the petitioner filed an affidavit along with his petition. The copy of the affidavit was admittedly duly attested in accordance with section 81(3) and it is not necessary to consider in this case whether or not it is a part of the petition within the meaning of section 81(3)."
It has further observed in paragraph 33:
"(33) Section 81(3) however does not lay down the manner in which a copy shall be attested by the petitioner under his own signature to be a true copy of the petition. As annexures A, B and C are parts of the petition it is necessary for the petitioner to supply the requisite number of copies of these annexures also, along with an equal number of copies of the main petition, and to attest them under his signature, in such a way, that on their face, they would appear to be attested copies of the petition and the annexures. The attestation is to be made in such a way that this object is fulfilled. So long as this object is fulfilled it does not matter where the endorsement or endorsements about attestation are placed. Nor does it matter what words are used in the endorsement to achieve this object, as no particular words are prescribed. The attestation must be made in such a way that it must appear that the main petition as well as the annexures have been attested as true copies by the petitioner. It is not necessary that the petition and the annexures shall be separately attested. All that is necessary is that the endorsement of attestation made under the signature should indicate either by the use of appropriate words that it relates to the petition as well as the annexures or the endorsement or endorsements should be so placed that it or they, ex facie govern the petition as well as the annexures."
(underline supplied).
In view of the pronouncements of the Supreme Court discussed in the above decisions, I perfectly agree with the view taken by the learned Judge of the Rajasthan High Court. No particular form or manner or place was prescribed or restricted for attesting the copy of the petition by the petitioner. Only thing is that it should be made amply clear on perusal of the copy of the Election Petition that it contains a signature of the petitioner and attestation by him to be true copy of the petition. If this is contained in the paper-book containing the election petition, it can be said that the latter part of section 81(3) has been substantially complied with. Therefore, I have no hesitation to hold that the endorsements on the front page and the last page of the paper-book containing the Election Petition and other annexures made by the petitioner to be the true copies will satisfy the requirement of section 81(3). Consequently, the Election Petition cannot be rejected under section 86(1) of the Act, as contended by the counsel for the 1st respondent for this defect. This issue, therefore, I find in favour of the petitioner and the preliminary objection relating to the same is hereby overruled.
11. Now I deal with the rest of the preliminary issues. These issues relate to the non-compliance of section 81(3) by non-furnishing of details of ballot papers with their numbers in respect of irregularity alleged and in the absence of furnishing concise statement constituting cause of action, whether the pleadings in relation thereof are liable to be struck off under Order VI, Rule 16 of C.P.C. Mr. Nadkarni, learned Counsel for the 1st respondent, has drawn my attention to the pleadings in detail contained in the election petition. As I pointed out earlier, the entire petition is based on alleged irregularities committed by the Counting Officers and the Returning Officer at the time of counting the ballot papers. It is alleged that the invalid ballot papers which have been counted as valid in the account of the 1st respondent, the counting was done in such a way that the agents are deprived of the opportunity of scrutinizing the ballot papers and the entire counting was over within 3 hours; that the ballot papers were bundled and that they were totalled by the Returning Officer in such a way that was done mechanically multiplying the number of bundles into 25 without further scrutiny whether all the 25 belonged to one candidate and that the Returning Officer did not conduct the random checking of the bundles of the ballot papers, etc. etc. The Election Petition containing these allegations runs into 33 pages spreading over 95 paragraphs. The learned counsel for the 1st respondent has read out to me and taken up for discussion each and every paragraph to substantiate that none of the paragraphs contain the material facts constituting the cause of action which is required under section 83(1)(a). He argues that section 83(1)(a) mandates that the petition must contain a concise statement of material facts on which the petitioner relies. As I pointed out earlier, the margin of winning of the 1st respondent is 102. Though in the petition the re-counting was sought with regard to the entire votes, it is interesting to note that the request of re-counting made to the Returning Officer at the time of counting was only with regard to the tables 4, 7 and 9.
12. Annexure P5 - the objection filed before the Returning Officer is relevant to be considered at this juncture. The first complaint in this objection, Exhibit P-5, is that "the ballot papers received by the Presiding Officer at polling station No. 4 were 630 bearing Sr. Nos. 2201 to 2830. The total votes polled on that polling station as per Form No. 16 is 503. However, the actual votes found in the ballot box were only 502. However, this irregularity will not affect the result materially, because difference was only 1 vote. The next objection as per Exhibit P-5 is that at Table No. 3, during the counting round No. 2, one ballot paper is found less. The total No. of ballots distributed in the table was 675 and the total found were 674. It is alleged that this has vitiated the result. I am at a loss to understand how this defect affects this result because there also the difference is only 1 and this, however, is not going to affect the result of the election. Another objection is that the ballot paper bearing Sr. No. 004438 during second round is wrongly rejected against B.J.P. as having a stamp on border when it was partially in B.J.P.'s area. There also the complaint is with regard to a single ballot paper. The next objection is that the ballot paper bearing Sr. No. 002517 at table No. 1 is wrongly included to Congress during the second round when the same was spurious, mutilated and was not genuine. There also the complaint is confined only to 1 ballot paper. Taking into account the 4 objections noted above relating to 4 votes, assuming that these 4 votes were taken in the account of the petitioner, the result is not going to be materially affected. Recount is called for only when defects or irregularity so manifest that are materially going to affect the results of the election. Then only a cause of action for recount would arise.
13. Coming to the next objection contained in Exhibit P-5 is that margin between the winning candidate and the B.J.P. candidate is sufficiently and reasonably thin; that the defective votes at the R.O.'s table were wrongly decided in favour of the winning candidate and wrongly rejected against B.J.P. candidate. In fact, these two allegations contained in Exhibit P-5 are vague and suffer from infirmity of lack of clarity and precision. The objection (g) in Exhibit P-5 has been already dealt with by me. The last objection, namely, objection (h), is very interesting and it has become very controversial at the time of arguments of the case. Therefore, it is desirable to extract that objection (h) in Exh. P5 herein:---
"(h) Similarly during both the counting rounds at all the tables, the counting supervisors and the counting assistants, particularly at tables Nos. 4, 7 and 9 were going so fast and sometimes two persons were counting simultaneously that it was not possible to observe and keep the track which has affected the counting as it has been rendered defective."
Reserving my observations about this request of the petitioner at a later stage, I find that this request has been practically allowed by the returning officer and the Returning Officer has ordered recount of all the votes at tables, Nos. 4, 7 and 9. Exhibit P-6 will go to show that the Returning Officer has very meticulously and with precision and clarity disposed of this objection by a very elaborate and speaking order. While disposing of this objection, the Returning Officer has stated in his order dated 10-12-1994 evidenced by Exhibit P-6 thus:--
"As regards the objection at Sr. No. 8 no candidate or election agent or counting agent raised any objection when the counting was in progress during both the rounds that any particular table is counting or sorting out the ballot papers hurriedly. So also after declaring the results of first round at 5.00 O'clock no any such objection was raised by any candidate or Election Agent. In the application for recount table Nos. 4, 7 and 9 have been indicated that two persons were counting simultaneously and it was not possible to observe and keep track on the counting. Although for the reason given above I am not satisfied that any particular table has done the counting hurriedly since no objections to that effect either in writing or verbally were received by me when the counting was going on, in order that no aspersions are cast on the counting staff or the Returning Officer, I am ordering recount and re-scrutiny of polled ballot papers which were counted at table Nos. 4, 7 and 9 only.
Recounting shall be done by the counting staff of other than table Nos, 4, 7 and 9."
Very strangely, even though request for recount was allowed, the petitioner and his agents have chosen to leave the place without co-operating with the officers for recount and left the place without waiting for the result being not satisfied with the partial re-counting. Prima facie it can be seen that material objections contained in P-5 only relate to certain number of votes at tables Nos. 4, 7 and 9. Exh. P-6, without stating any reasons, requested for re-counting of entire votes polled. It was recorded that after the partial recount, 1 vote has been detected to have been wrongly added to petitioner's account and, therefore, it was actually added to the 1st respondent's account and 1st respondent's total vote has increased by 1 vote after such partial re-counting. However, in disposing of this petition, the request made by the petitioner to the Returning Officer and the decision taken thereon by the Returning Officer are most relevant. According to the learned Counsel for the respondent No. 1, even the request made to the Returning Officer for recount was not clear and precise. It is full of surmises and conjectures. He submits that the said request is susceptible for more than one interpretation. It may be understood that the petitioner had asked for a recount of all votes polled as the counting was done so fast that no Polling Agent could bestow their attention for scrutiny and verification on each ballot paper. It is also possible to interpret that the request contained in Exhibit P-5 that even though generally the re-counting was fast, as far as tables Nos. 4, 7 and 9 are concerned, counting was going on those tables in a super-fast speed and, therefore, votes in all tables are required to be recounted. It may also be interpreted as that re-counting may at least be confined to tables Nos. 4, 7 and 9 though a general allegation was made in respect of all tables and the petitioner would be satisfied with re-counting at least in respect of tables Nos. 4, 7 and 9. Therefore, even the petitioner at the time of raising objection was not able to put his case in four corners with clarity and precision. It is very difficult to entertain such a request for re-counting. However, Returning Officer allowed re-counting of votes on tables Nos. 4, 7 and 9 as comprehended by him from Exhibit P-5. The self same vagueness and lack of precision suffer the pleadings contained in this petition in a more pervasive manner, argues, learned counsel for the 1st respondent. He submitted that the petitioner himself even before this Court has failed to come out with definite grounds based on which he could build up his defence. I find considerable substance in this argument of the counsel for the respondent No. 1.
14. On going through the pleadings, it can be seen that all the allegations are based on surmises and conjectures. Let us examine certain allegations which can be cited as examples for such vague and ambiguous allegations. Paragraph 14 says that deployment of Counting Agent was not properly done. He alleges that no proper arrangement was made at the table of the Returning Officer and only one person i.e. either the candidate or his election agent was allowed to observe and attend the proceeding at that table, by the Returning Officer. Petitioner did not say how this affects the counting warranting a re-counting. He has no case that other candidate was differently treated in the deployment of election agent. It is also alleged that the petitioner had already objected for the same before the Returning Officer. But no document is produced in support of such objection. As far as allegation in Para 15 is concerned, no such allegation is made in Exhibit P-5 and it is first time raised in the Election Petition and it can be taken as only an afterthought. He further says in paragraph 17:---
"The petitioner states that the above fact has vitiated the counting process thereby materially affecting the result of the election in so far as it concerns the respondent No. 1."
But this pleading fails to show in what manner the result was affected and how it vitiated the counting. So also paragraph 20 contains a general statement containing vague allegations.
15. I shall cite another sample for vagueness and lack of precision. In paragraphs 21 and 22 of the petition of it is stated:---
"21. There were in all ten tables and at all the tables both the counting assistants were simultaneously sorting the ballot papers candidatewise. Not only that, but when the sorting of the ballot papers candidatewise was in progress, the counting supervisor was simultaneously engaged in counting the valid votes candidatewise and making bundles of twenty five each. Therefore, at all the tables and during both the counting rounds, all the three counting staff members were simultaneously engaged in counting process as stated above.
22. The petitioner states that the entire process of counting as stated above was done in so fast and haphazard manner that it was not possible for a single counting agent to keet the track and have a reasonable look at the entire process to ensure that there were no errors being committed by the staff while sorting or counting of the votes candidatewise."
Almost all the allegations contained in the petition are similar and suffer from the infirmity of vagueness, lack of clarity and precision and suffer from the infirmity of lack of material facts constituting cause of action. The allegations in the nature shown above can be made in any case of the counting without any particular incidents or materials. I have only cited some of the paragraphs of the petition as samples. In all the complaints that have been highlighted in the petition, the petitioner says that he has made original complaints before the Returning Officer but not a single complaint he has made in writing to the Returning Officer except Exhibit P-5 which was done immediately after the counting was over. Vague and general allegations will not be sufficient to order a recount as section 83(1)(a) mandates that the Election Petition should contain a concise statement of material facts constituting the cause of action. I do not find any such statement in this Election Petition constituting a cause of action for the petitioner in this petition. An elaborate discussion on the basis of the Supreme Court decisions and other High Courts have been held across the Bar by the learned Counsel for the 1st respondent in Ram Sewak Yadav v. Hussain Kamil Kidwai and others, , Dr. Jagjit Singh v. Giani Kartar Singh and others, , Jitendra Bahadur Singh v. Krishna Behari and others, , K.C. Madhava Kurup v. K. Muraleedharan, , Narain Chand Prashar v. Prem Kumar Dhumal and others, , Bhabhi v. Sheo Govind and others, , Kamakhya Prasad Malaho v. Digendra Purkayastha and others, A.I.R. 1987 Gauhati 80 and Kashi Nath Misra v. Vikramaditya Pandey and others, . All these decisions will go to show that unless material facts have been pleaded with precision and without any ambiguity, the pleadings in the election petition are liable to be struck off. It has been decided in these cases that the allegations contained in the election petition which result in a roving and fishing enquiry for finding out the truth behind the allegations is not called upon to decide in an election petition. A whimsical and bald statement of the petitioner that the counting was done fast, one agent alone was permitted in the counting for a candidate on each table, the calculation was done mechanically, etc. will not be sufficient to constitute material and basic facts constituting a cause of action for a recount. It was made clear by the Supreme Court as early as 1964 in its decision in Ram Sewak Yadav v. Hussain Kamil Kidwai and others, . An order for inspection cannot be granted to support vague pleas not supported by material facts or without an evidence to such plea. He has to place before the Court prima facie evidence for an order of inspection to become necessary in the interest of justice. A promise or hope contained in the petition in case he is given an opportunity of re-counting, he will be able to satisfy the Court there was wrong counting on account of improper reception, refusal or rejection of votes etc. were not at all sufficient to justify a case of re-counting. In order to succeed in the election petition, the allegations must be clear and precise in contradistinction with vagueness, surmises and hopes and aspirations. Pleadings in assertive terms alone will not satisfy the statutory requirement; they should also be definite. Pleadings should contain such details, which if not controverted, present prima facie case before the Court. For these reasons Section 83(1) (a) states that the Election Petition should contain a concise statement of the material facts on which petitioner relies. This is not a new concept incorporated in the Representation of the People Act first time by the Parliament. In fact it is more or less a reproduction of Order VI, Rule 2 of C.P.C. which reads as follows :---
"2. Pleading to state material facts and not evidence.---
(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words."
However, the rigour of this rule somehow is diluted or relaxed by providing the provision for amendment of the pleading under C.P.C. As far as Election Petition is concerned this rule has to be strictly observed. The main intention being that if the parties held strongly to their pleadings, they ought not to be allowed to prove at the trial, as a fact on which would have to rely in order to support their case any fact which is not stated in the pleadings. Courts were consistent in this opinion even the case of Election Petition as we can find from the above cited decisions. Therefore, pleadings must be in such nature having precision and without ambiguity and not fraught with any guessworks or wishful thinking.
16. Unless the allegations are so clear and point, the election petitioner is not entitled to succeed in the Petition. Therefore, I fully agree with the argument of the learned Counsel for the 1st respondent that the petition does not contain a concise statement of material facts constituting the cause of action to the petitioner. Though the petitioner's counsel Mr. Thali has brought to my notice the decisions in Km. Shradha Devi v. Krishna Chandra Pant and other, and Mrs. Filomena Guilherme Furtado v. Deputy Collector and others, 1995(1) Goa L.T. 291, those decisions cannot be pointed out as an authority, for the position that general allegations of irregularity and partiality will be sufficient to satisfy the requirements of section 83(1)(a) of the Act, as contended by the petitioner's counsel. Therefore, I find that the petitioner failed to make out a cause of action before this Court in this petition and those pleadings of the petition are liable to be struck off under Order VI Rule 16 of the C.P.C. All the decisions concentrate to one pointer. That pointer is that inspection or recount cannot be ordered for the mere asking based on blunt and bald allegations. It must be based on concrete facts supported by details and evidence in support of it.
17. In the result, these Issues are found in favour of the 1st respondent and, consequently, the Election Petition is rejected as it suffers from legal infirmity of non-fulfillment of conditions contained in section 83(1)(a) of the Act. In the circumstances of the case, I also order a cost of Rs. 1,000/- to be paid by the petitioner to the 1st respondent.