Karnataka High Court
G. Shankaregowda vs Rathan Singh on 26 March, 1992
Equivalent citations: ILR1992KAR2565, 1992(3)KARLJ378
ORDER Jagannatha Hegde, J.
1. In this Election Petition, the petitioner is questioning the election held to the 34th Hospet Assembly By-election. The Petitioner and respondents 1 to 17 were contesting candidates for the said election held on 16.6.1991. Respondent-1 was declared as successful on 17.6.1991. The difference of votes cast between the petitioner and respondent-1 was only 433. The petitioner, however, alleges that, in reality, he has secured highest valid votes, but for various irregularities and corrupt practices committed by respondent-1 and his agents. According to the petitioner, the declaration of election of respondent-1 is liable to be set aside under Sections 100(1)(b) read with 123(7); 100(1)(b) read with 123(8) and Section 100(1)(d)(iv) of the Representation of Peoples Act, 1951 (hereinafter referred to as 'the Act'). Respondent-1 is the sole contesting party and he will be referred hereinafter as 'the respondent'. The respondent, after appearance, filed written statement on 2.12.1991. He also filed an application. I.A.IV, for rejecting the petition under Section 87 of the Act read with Order 7 Rule 11 of the C.P.C. on the ground that the petition did not disclose the cause of action. The petitioner has opposed this application.
2. One of the objections raised by Smt. Pramila M.Nesargi, learned Counsel for the petitioner, is that I.A.IV. filed by the respondent is not maintainable as the Election Petition could be dismissed only under Section 87 of the Act which empowers the High Court to dismiss the petition if the petition does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act and that Order 7 Rule 11 of the C.P.C. cannot be invoked. Sri Rangavittalachar, learned Counsel for respondent-1, on the other hand, points out that a Bench of three Judges of the Supreme Court in the case of HARDWARI LAL v. KANWAL SINGH has observed that an Election Petition can be dismissed for want of cause of action. The relevant observations are as follows:
"23. Counsel on behalf of the respondent submitted that an Election Petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the Election Petition which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. It was emphasized that Section 83 did not find place in Section 86. Under Section 87 of the Act every Election Petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. A suit which does not furnish cause of action can be dismissed."
The contention of Smt. Pramila M.Nesargi is that the view expressed in is no longer in force as a Bench of three Judges of the Supreme Court in the case of F.A.SAPA v. SINGORA has taken a contrary view and that a Full Bench of our High Court in the case of GOVINDANAIK v. WEST PATENT PRESS CO. has held that if two Decisions of the Supreme Court on a question of law cannot be reconciled and if both such Benches consists of equal number of Judges, the later of the two Decisions should be followed by the High Courts and other Courts. The question therefore is whether, in the case of F.A.Sapa v. Singora, the Supreme Court has taken any contrary view to what has been taken in the case of Hardwari Lal v. Kanwal Singh. In , the point that arose for consideration was whether a mere defect in the verification of the Election Petition was fatal to the maintainability of the Petition and that the Petition could be thrown out solely on that ground. In that context, it is observed that since Section 83 is not one of the three provisions mentioned in Section 86(1) of the Act, ordinarily it cannot be construed as mandatory unless it is shown to be an integral part of the petition under Section 81. Nowhere it is stated in the said Decision that the Petition cannot be rejected under Order 7 Rule 11 C.P.C. and i am, therefore, of the view that the view taken in still holds the field.
3. It is next contended by Smt. Pramila M.Nesargi, learned Counsel for the petitioner, that the respondent cannot raise the question of maintainability of the petition after filing the written statement and that the filing of the written statement itself indicates that the respondent has understood the allegations made in the petition and that he has not been misled. But, the Supreme Court in the case of SAMAR SINGH v. KEDAL NATH has observed that if a party raises objection to the maintainability of the petition, on the ground of absence of cause of action, after filing written statement, the preliminary objection cannot be ignored and that if the Election Petition does not disclose any cause of action, the respondent's right to raise objection to the maintainability of the petition, or the Court's power to consider the objection, is not affected merely because the objection is raised after the filing of written statement or framing of issues. The respondents Counsel appeared before Court on 22.11.1991 and the written statement was filed on 2.12.1991. I.A.No. IV was filed by the respondent on 7.1.1992. In the first paragraph of the written statement, it is stated that the petition is liable to be rejected and that whatever that has been stated in subsequent paragraphs is without prejudice to this contention. At several places in the written statement. the respondent has averred that the allegations made in the petition are vague. Further, it is also the duty of the Court to examine whether the petition is in conformity with Section 83 of the Act in the interest of Justice as pointed out in the case of DHARTIPAKAR v. RAJIV GANDHI. So, both the objections raised by the petitioner regarding the maintainability of I.A.No. IV are rejected.
4. Section 83 of the Act stipulates what an Election Petition should contain. Section 83(1)(a) and (b) of the Act empowers the Court to allow amendment within certain limits. This sub-section was substituted in the place of former Section 90(3), Section 86(5) reads thus:
"(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."
5. What are 'material facts' and 'particulars' depend upon the nature of the charge set up by the party. The expression 'material facts' is very much the same, meaning as the expression 'cause of action' appearing in Order 7 Rule 11 C.P.C. The cause of action means the whole bundle of facts necessary to prove in order to get a decree. The 'particulars' are detailed further information about the cause of action, required to put the opponent on guard, as to the case, he is expected to meet and give full picture of the cause of action. They are requirements of pleading imposed in fairness and justice to the respondent.
6. In the case of S.N.BALAKRISHNA v. FERNANDEZ, their Lordships, after referring to Section 83 of the Act, observe as follows:
"29.............. The Section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as fu!! a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus, the material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that ft refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner, tn the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action, in stating the material facts it will not do merely to quote the words of the Section because then the efficacy of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an Election Petition without the material facts relating to a corrupt practice is no Election Petition at ail, A petition which merely cites the Sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by, merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture. This distinction is brought out by the provisions of Section 86 although the penalty of dismissal is taken away. Sub-section (5) of that Section provides:
"(5)The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."
The power of amendment is given in respect of particulars but there is a prohibition against an amendment "which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition". One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice. The argument that the later part of the fifth sub-section is directory only cannot stand in view of the contrast in the language of the two parts. The first part is enabling and the second part creates a positive bar. Therefore, if a corrupt practice is not alleged, the particulars cannot be supplied. There is however a difference of approach between the several corrupt practices. If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified. But, if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa, in the scheme of election law they are separate corrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause of action, publication of false statements by the candidate is quite a different cause of action. Such a cause of action must be alleged in the material facts before particulars may be given. One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action."
7. I may also refer to the Decision in the case of UDHAV SINGH v. M.R.SCINDIA which explains the distinction between 'material facts' and 'particulars' in the following words :
"38. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of a charge of corrupt practice "material facts" would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an Election Petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).
39. "Particulars", on the other hand, are "the details of the case set up by the party". "Material particulars" within the contemplation of Clause (b) of Section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish and material facts already pleaded in the petition in compliance with the requirements of Clause(a). 'Particulars' serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative.
40. The distinction between 'material facts' and 'material particulars' was pointed out by this Court in several cases, three of which have been cited at the Bar. It is not necessary to refer to all of them. It will be sufficient to close the discussion by extracting what A.N.Ray J. (as he then was) said on this point in Hardwari Lal's case (supra):
"It is therefore vital that the corrupt practice charge against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges. Merely, alleging that the respondent obtained or procured or attempted to obtain or procure assistance are extracting words from the statute which will have no meaning unless and until facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. In the present case, it was not even alleged that the assistance obtained or procured was other than the giving of vote. It was said by Counsel for the respondent that because the statute did not render the giving of vote a corrupt practice the words "any assistance" were full statement of material fact. The submission is fallacious for the simple reason that the manner of assistance, the measure of assistance are all various aspects of fact to clothe the petition with a cause of action which will call for an answer. Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared, could the Court have given a verdict in favour of the election petitioner? The answer is in the negative because the allegations in the petition did not disclose any cause of action."
8. In the case of AZHAR HUSSAIN v. RAJIV GANDHI, the Supreme Court observes thus :
"14.......(1) What are material facts and particulars?
Material facts are which if established would give the petitioner the relief asked for, The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the Election Petition on the basis of the facts pleaded in the petition. [ -Manubhai Nandlal Amarsey v. Popatlal Manilal Joshi].
(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a Government servant, the following facts are essential to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded; [( - Hardwari Lal v. Kanwal Singh].
a) mode of assistance;
b) measure of assistance; and
c) all various forms of facts pertaining to the assistance.
(3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to obtain or procure the assistance of Government servants in election it is absolutely essential to plead the following :
(a) kind or form of assistance obtained or procured;
(b) in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election-candidate for promoting the prospects of his election. .
(4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured (5) There must also be a statement in the Election Petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered. (supra).
(6) The election petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in the particulars. (supra). Sri Rangavittalachar, learned Counsel for the respondent, contends that the allegation of corrupt practice must be so clear and specific, that the inference of corrupt practice cannot be left to time, chance or conjecture for the Court to draw an inference by adopting an involved process of reasoning and that in order to constitute corrupt practices, necessary particulars, statement of facts and essential ingredients contained in the pleadings must be direct and details of every important particular must be stated giving the time, place, names of persons, use of words and expression etc., relying on a Decision in the case of DAULAT RAM v. ANAND SHARMA. He also relies on the observation in the case of Azhar Hussain v. Rajiv Gandhi that failure to incorporate in the petition 'material facts' and 'particulars' is fatal to the petition and that such a petition is not an Election Petition at all. He also relies on a Decision in the case of Dhartipakar v. Rajiv Gandhi to the effect that the allegations of corrupt practice are in the nature of criminal charges and, therefore, it is necessary that there should be no vagueness in the allegation so that the returned candidate may know the case he has to meet, that if particulars of corrupt practice are not stated, the trial of the Election Petition cannot proceed for want of cause of action and that the emphasis of law is to avoid a fishing and roving inquiry and it is, therefore, necessary to scrutinize the pleadings relating to corrupt practice in a strict manner.
10. Smt.Pramila M.Nesargi, learned Counsel for the petitioner, contends that the petition averments cannot be scrutinized in the manner stated in ; ; and AIR 1986 SC 1577, as the views expressed in these Judgments are quite contrary to the views expressed by larger Benches of the Supreme Court in ; ; ; and ;. The learned Counsel for the petitioner points out that the three Decisions relied upon by the respondent have been delivered by two Judges and that the observation, that the petition averments must also include 'particulars' in addition to 'material facts' is not correct. According to her, 'particulars' may be furnished later by an amendment, which is permissible under Section 25(6) of the Act and if that is so, the petition cannot be rejected for want of 'particulars'. She, however, clarifies that the petition allegations contained not only 'material facts' but also 'particulars' required under Section 83 of the Act.
11. Let me now examine how the Decisions of the Benches of the Supreme Court will have to be read. A Full Bench of our High Court in the case of Govindanaik v. West Patent Press Co. concluded thus :
"5........ If two decisions of the Supreme Court on a question of law cannot be reconciled and one of them is by a larger Bench while the other is by a smaller Bench, the Decision of the larger Bench, whether it is earlier or later in point of time, should be followed by High Courts and other Courts. However, if both such Benches of the Supreme Court consist of equal number of Judges, the later of the two Decisions should be followed by High Courts and other Courts."
Before applying this Rule, it is necessary to be satisfied that there is factual conflict between the two Decisions of the Supreme Court and that it is not possible to reconcile them.
12. In the case of Balwan Singh v. Lakshmi Narain, the point that arose for Decision was whether the petition was liable to be rejected because it did not set forth particulars of the date and place of hiring vehicles alleged to have been used in conveying voters, or not. The allegation was under- Section 123(5) of the Act which then read as follows :
"The hiring or propuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person for the conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under Section 25 or a place fixed under Sub-section (1) of Section 29 for the poll."
The High Court was of the view that the corrupt practice was committed not by conveying the voters, but by the act of hiring or procuring the conveyance and in the absence of a detailed statement as to time and place of hiring, the petition was defective. But, this was not accepted by the Constitution Bench by saying that the fact of hiring for conveying voters to and from the polling station is declared under Section 123(5) a corrupt practice and not the contract of hiring. Thus, it was held that if full particulars of conveying by a vehicle of electors to and from any polling station are given, Section 83 was complied with, even if the particulars of the contract of hiring as distinguished from the fact of hiring are not given. This Decision, therefore, states what are the particulars that are required to be stated when allegations under Section 123(5) are made. It does not say that 'particulars' need not be stated at all. The Bench, after referring to the scope of Section 90(5) [present Section 86(5)] which provided for amendment of a petition, observes that an Election Petition cannot be dismissed in limine because full particulars of a corrupt practice alleged are not set out and that the petitioner must be allowed to amend or amplify the particulars of the corrupt practice already alleged. Nowhere it is stated that the petition cannot be dismissed if particulars are not furnished.
13. The Judgment in the case of Rajnarain v. Indira Gandhi was rendered by a Bench of three Judges. The contention of the appellant in that case was that the respondent, after she became a candidate in the election, obtained the services of a gazetted officer in the Government of India for furtherance of the prospects of her election. In order to establish that plea, he should have pleaded and proved -
(1) That the respondent obtained the assistance of Yeshpal Kapur when he was a gazetted officer;
(2) That the assistance obtained by her was for the furtherance of the prospects of her election; and (3) That she obtained that assistance after she became a candidate. ft may be noted that Section 79 was amended later specifying that a person becomes a candidate on the date of nomination. The question before the Supreme Court in that case was whether the appellant should have stated as to when the respondent became a candidate. The Bench observed that from the petition averments it could be made out that the respondent was a candidate even before the nomination and that she had obtained the assistance of the Government servant in service after she became a candidate. It is in this context it was observed that the allegation brought out all the ingredients of the corrupt practice alleged, though they were lacking in better particulars such as the date on which the respondent became a candidate and the date on which the gazetted officer was entrusted with the responsibility of organising the electioneering work and that such better particulars could be supplied later. Their Lordships further observed that if the allegations made regarding corrupt practice to not disclose the constituent part of the corrupt practice alleged, the same will not be allowed to be proved and those allegations cannot be amended after the period of limitation for filing an election petition, but, the Court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified under Section 85(6) of the Act, as that is nothing but giving more and better particulars even after the period of limitation lor ensuring a fair and effective trial. It is further observed that the charge must be beyond doubt and that an amendment can be resorted for refinement. It is not stated anywhere that no particulars need be furnished in the petition. On the other hand, it is clearly stated that 'particulars' of corrupt practice already alleged could be amended for giving better or more 'particulars'.
14. Another case relied upon by the learned Counsel for the petitioner is F.A.Sapa v. Singora which was decided by a Bench of three Judges. The relevant observation reads thus :
"17......... Section 100 specified several grounds, one of them being commission of a corrupt practice by the returned candidate. Section 83(1)(a) stipulates that every Election Petition shall contain a concise statement of the 'material facts' on which the petitioner relies. That means the entire bundle of facts which would constitute a complete cause of action must be concisely stated in an Election Petition. Section 83(1)(b) next requires an election petitioner to set forth full 'particulars' of any corrupt practice alleged against a returned candidate. These 'particulars' are obviously different from the 'material facts' on which the petition is founded and are intended to afford to the returned candidate an adequate opportunity to effectively meet with such an allegation. The underlying idea in requiring the election petitioner to set out in a concise manner all the 'material facts' as well as the 'full particulars', where commission of corrupt practice is complained of, is to delineate the scope, ambit and limits of the inquiry at the trial of the Election Petition.
18. Before the amendment of the R.P.Act by Act 27 of 1956, Section 83(3) provided for an amendment of an Election Petition in so far as 'particulars' of corrupt practice were concerned. By the 1956 amendment this provision was replaced by Section 90(5) which in turn came to be deleted and transferred as Sub-section (5) of Section 86 by the Amendment Act 47 of 1966. Section 86(5) as it presently stands empowers the High Court to allow the 'particulars' of any corrupt practice alleged in the petition to be amended or amplified provided the amendment does not have the effect of widening the scope of the Election Petition by introducing particulars in regard to a corrupt practice not previously alleged or pleaded within the period of limitation in the Election Petition. In other words, the amendment or amplification must relate to particulars of a corrupt practice already pleaded and must not be an effort to expand the scope of the inquiry by introducing particulars regarding a different corrupt practice not earlier pleaded. Only the particulars of that corrupt practice of which the germ exists in the Election Petition can be amended or amplified and there can be no question of introducing a new corrupt practice. It is significant to note that Section 86(5) permits 'particulars' of any corrupt practice 'alleged in the petition' to be amended or amplified and not the 'material facts'. It is, therefore, clear from the trinity of Clauses (a) and (b) of Section 83 and Sub-section (5) of Section 86 that there is distinction between 'material facts' referred to in Clause (a) and 'particulars' referred to in Clause (b) and what Section 86(5) permits is the amendment/amplification of the latter and not the former. Thus the power of amendment granted by Section 86(5) is relatable to Clause (b) of Section 83(1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the Election Petition. The power is not relatable to Clause (a) of Section 83(1) as the plain language of Section 86(5) confines itself to the amendments of 'particulars' of any corrupt practice alleged in the petition and does not extend to 'material facts'.
Even in this Judgment, it is not stated that 'particulars' need not be averred in the Election Petition. On the other hand, it supports the contention of the respondent that the 'particulars' of corrupt practice already alleged in the petition can only be amended.
15. The learned Counsel for the petitioner has also referred to the Decision in the case of Hari Vishnu v. Ahmed Ishaque decided by a Bench of seven Judges of the Supreme Court. The Election Tribunal had dismissed the application after trial and the High Court had upheld it. The Supreme Court allowed the appeal and the election was set aside. Their Lordships did not discuss how the allegations are to be pleaded in a petition in the light of Section 83 of the Act. I may also refer to another Decision of a Bench of four Judges in the case of BHIKAJI KESHAO v. BRIJLAL NANDLAL relied on behalf of the petitioner. The case related to the period prior to 1956. Before the amendment of 1956, Section 83 read as follows :
"83(1). An Election Petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings.
(2) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice.
(3) The Tribunal may, upon such terms as to costs and otherwise as it may direct at any time, allow the particulars included in the said list to be amended or order such further and better particulars in regard to any matter referred to therein to be furnished as may in its opinion be necessary for the purpose of ensuring a fair and effectual trial of the petition."
Their Lordships observed thus :
"....... Section 83(2) requires not only what may reasonably be considered "full particulars" having regard to the nature of each allegation, but enjoins in terms that the following particulars should also be given.
(1) Names of the parties alleged to have committed the corrupt or illegal practice. (2) The date of the commission of each such corrupt or illegal practice. (3) The place of commission of each such corrupt or illegal practice. There can be no reasonable doubt that the requirement of "full particulars" is one that has got to be complied with, with sufficient fullness and clarification so as to enable the opposite party fairly to meet them and that they must be such as not to turn the enquiry before the Tribunal into a rambling and roving inquisition."
They further observed that better 'particulars' could be supplied later.
16. If all these Judgments relied upon by the learned Counsel for the petitioner rendered by Benches of more than two Judges are read, in the light of the Judgments of the two Judges pressed into service by the learned Counsel for the petitioner, it is clear that there is no conflict at all. None of the subsequent Decisions could have intended taking a view contrary to that of larger Benches, and the Judgments of the Benches of two Judges referred to above are binding on all High Courts and the Petition filed in this case could be tested in the light of their observations.
17. It may be useful to refer to some of the Decisions of the Supreme Court which serve as guidelines to test whether in a given case, requirements of Section 83(1) of the Act are satisfied or not. In the case of S.N.Balakrishna v. Fernandez in paragraph 37 of the Judgment, it is stated that merely repeating the words of the statute does not amount to proper statement of facts and that Section 83 requires that 'material facts' of corrupt practice must be stated. In the case of Daulat Ram v. Anand Sharma9 it is observed thus :
"18. We must remember that in order to constitute corrupt practice, which entails not only the dismissal of the Election Petition but also the other serious consequences like disbarring the candidate concerned from contesting a future election for a period of six years, the allegations must be very strongly and narrowly construed to the very spirit and letter of the law. In other words, in order to constitute corrupt practices, the following necessary particulars, statement of facts and essential ingredients must be contained in the pleadings:
(1) Direct and detailed nature of corrupt practice as defined in the Act.
(2) Details of every important particular must be stated giving the time, place, names of persons, use of words and expression, etc. (3) It must clearly appear from the allegations that the corrupt practices alleged were indulged in by (a) the candidate himself (b) his authorised election agent or any other person with his express or implied consent.
18. A person may, due to sympathy or on his own, support the candidature of a particular candidate but unless a close and direct nexus is proved between the act of the person and the consent given to him by the candidate or his election agent, the same would not amount to a pleading of corrupt practice as contemplated by law. It cannot be left to time, chance or conjecture for the court to draw all inference by adopting an involved process of reasoning. In fine the allegation must be so clear and specific that the inference of corrupt practice will irresistibly admit of no doubt or qualm."
In the case of Azhar Hussain v. Rajiv Gandhi it is observed thus;
"21. There is a glaring omission to mention the names of the workers said to have been employed by the respondent or his agents who have allegedly painted the slogans. So also no material particulars are given as regards the vehicles on which the said slogans have been said to have been painted. There are no material particulars or facts. We are of the view that inasmuch as the material facts and particulars in regard to this alleged practice were not mentioned and the High Court was justified in taking the view that it had taken. The averments contained in regard to this charge also do not satisfy the test laid down by the various decisions of this Court adverted hereinabove. A Division Bench of this Court in Nihal Singh v. Rao Birendra Singh, , speaking through Bhargava, J. has observed:
".........The pleading was so vague that it left a wide scope to the appellant to adduce evidence in respect of a meeting at any place on any date that he found convenient or for which he could procure witnesses. The pleading, in fact, was so vague and was wanting in essential particulars that no evidence should have been permitted by the High Court on this point....."
22. The principle laid down is that the pleading in regard to matters where there is scope for ascribing an alleged corrupt practice to a returned candidate in the context of a meeting of which dates and particulars are not given would tantamount to failure to incorporate the essential particulars and that inasmuch as there was a possibility that witnesses could be procured in the context of a meeting at a place or date convenient for adducing evidence, the High Court should not even have permitted evidence on that point. In other words, no amount of evidence could cure the basic defect in the pleading and the pleadings as it stood must be construed as one disclosing no cause of action. In the light of the aforesaid principle laid down by the Supreme Court which has held the field for more than 15 years, the High Court was perfectly justified in reaching the conclusion called into question by the appellant."
19. I may also refer to the following observations in the case of Dhartipakar v. Rajiv Gandhi :
"14.........Section 83 lays down a mandatory provision in providing that an Election Petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings are regulated by Section 83 and it makes it obligatory on the election petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. If the Election Petition fails to make out a ground under Section 100 of the Act it must fail at the threshold, Allegations of corrupt practice are in the nature of criminal charges, it is necessary that there should be no vagueness in the allegations so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the Election Petition cannot proceed for want of cause of action. The emphasis of law is to avoid a fishing and roving inquiry. It -is therefore necessary for the Court to scrutinise the pleadings relating to corrupt practice in a strict manner."
20. The learned Counsel for respondent-1 contended that apart from not furnishing any 'particulars' the petition is also devoid of 'material facts'. The petitioner's case is that he has furnished 'material facts' as well as 'particulars' of the allegations and if more and better 'particulars' are required, he is prepared to furnish the same. The learned Counsel for the petitioner points out that the petitioner has given reasons in the petition for not furnishing more 'particulars'. It has been averred that he was not supplied with the certified copies of the ballot paper accounts though sought for, that he could not give the names of the polling agents and the polling officers of the polling booths alleged to have been captured as they were not furnished, that he could not give the names of the officers who assisted the respondent in committing the allegations under Sections 123(7) and 123(8) of the Act as alleged, that his counting agents were not in a position to watch the counting because of the defective seating arrangement and for want of sufficient light and that his agents were not allowed to sit near a particular table. The learned Counsel for the petitioner also submitted that these reasons have not been stated as an excuse for not furnishing necessary 'material facts' and 'particulars', as all 'material facts' and 'particulars' to be averred under Section 83(1)(a) and (b) have already been supplied in the petition. There could be no dispute that a petition cannot stand if 'material facts' of the allegations are not pleaded and that they cannot be supplied later. Let me, therefore, proceed to consider the various allegations averred in the Election Petition to determine whether the petition satisfied this basic requirement of Section 83(1)(a) and (b) of the Act.
21. In paragraphs-10 to 16 of the Petition, allegations of booth capturing and rigging are stated. Under Section 100(1)(b) of the Act, the High Court will have to declare the election to be void, if it is of the opinion that any corrupt practice has been committed by a returned candidate of his election agent or by any other person with the consent of a returned candidate or his election agent. Section 123 details what amounts to a corrupt practice. Under Section 123(8), booth capturing by a candidate or his agent is deemed to be a corrupt practice. Explanation (4) to Section 123 states that booth capturing shall have the same meaning as under Section 135-A. Section 135-A reads thus :
"135A. OFFENCE OF BOOTH CAPTURING - Whoever commits an offence of booth capturing shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine, and where such offence is committed by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine.
EXPLANATION - For the purposes of this Section, "booth capturing" includes, among other things, all of any of the following activities, namely:
(a) seizure of a polling station or a place fixed for the poll by any person or persons making polling authorities surrender the ballot papers or voting machines and doing or any other act which affects the orderly conduct of elections;
(b) taking possession of a polling station or a place fixed for the poll by any person or persons and allowing only his or their own supporters to exercise their right to vote and prevent others from voting;
(c) threatening any elector and preventing him from going to the polling station or a place fixed for the poll to cast his vote;
(d) seizure of a place of counting of votes by any person or persons, making the counting authorities surrender the ballot papers or voting machines and the doing of anything which affects the orderly counting of votes;
(e) doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate."
22, Paragraphs-10 to 16 of the Petition read thus:
"10. That the Respondent No. 1 has got various polling booths captured and rigged namely polling booth Nos. 107, 108, 135, 136, 137, 172, 173, 174, 175 and 175(a) on the date of the polling namely on 15.6.1991. In doing so, he has taken the assistance and he has given consent and with his consent rigging has taken place by the respective polling agents of the Respondent No. 1 in the polling booths referred to above.
11. That in all these polling booths the petitioner was not permitted to have polling agents and they were prevented from entering polling booths by the agents of the Respondent No. 1 and also by the Polling Officers.
12. The petitioner is not in a position to give the names of the polling agents and the Polling Officers in respect of the polling booths referred to above in view of the fact that the list of the polling agents and the Polling Officers have not been furnished to fee petitioner.
13. That in polling booths No. 107 and 108 to the extent of 300 ballot papers each have been rigged by the Respondent No. 1. The said act has been done by one Katte Umapathi who is an Ex.T.D.B.President residing at No. 10, Muddapura. The said Katte Umapathi is a staunch Congress-1 worker and he has acted as agent of Respondent No. 1 and he has rigged and captured the ballot papers by marking the same in favour of the Congress-I candidate.
14. In Polling booth Nos. 135 and 136 of Sannapura booth rigging has been done by the Respondent No. 1 through one Mundlur Sannaramappa a land owner residing at Sannapura. He is no other than the brother of Mundlur Ramappa Congress-I M.L.A. of Bellary. He is a staunch Congress-I worker and he acted as agent of Respondent No. 1 and with his consent the said Mundlur Sannaramappa has captured the booths in polling station Nos.135 and 136 and has rigged the ballot papers to the extent of nearly 300 ballot papers in Polling Station No. 135, 400 ballot papers to Polling Station No. 136 by marking the same in favour of Congress-I hand symbol. In so far as Polling Station No. 172 is concerned, rigging has been done by one Suryanarayana, Ex-Mandal Pradhan of Suggenahalli Mandal. He is a staunch Congress-I worker and he has worked for the Congress-I party and he has acted as an agent of Respondent No. 1 and with his consent he has booth captured and rigged the ballot papers to the extent of 156 in Polling Station No. 172. The said rigging was so apparent on its face inasmuch as that the said ballot papers were so systematically rigged by putting the mark on Congress-I hand symbol by rubber stamp which was not supplied to the respective Polling Stations. The rubber pad ink supplied for the said purpose has not been utilised and on the other hand, ordinary ink is used for stamping. The instrument which has been used for marking did not even contain arrow mark, that apart, the entire rigging is systematically done and marking is found in the centre of hand symbol on all the ballot papers in centre of the ballot papers. The said Suryanarayana has acted as an agent of Respondent No. 1 and with his consent he has committed this booth rigging.
15. In so far as Polling Booth Nos. 173, 174, 175 and 175(a) are concerned, the rigging has taken place, by the respective polling agents of Respondent No. 1, in those Polling Stations with the consent of Respondent No. 1, 300 ballot papers have been rigged in each of the Polling Station Nos. 172, 173, 174. In respect of Polling Station No. 175, about 200 ballot papers have been rigged.
16. In all these Polling Stations referred to above, booth capturing and rigging is apparent on its face inasmuch as the marks are systematically put on the hand symbol at a particular place. This fact had been noticed at the time of counting and objections have been raised, but no action has been taken. While on the other hand, the officials at the time of counting took a lenient view and counted all in favour of Respondent No. 1 at the instance and consent of Respondent No. 1. In so doing they have acted as agents of Respondent No. 1. Hence, all these acts clearly show that the Respondent No. 1 has committed corrupt practice under Section 123(8) of the Act."
23. In what manner booths or ballot papers have been captured is not stated in these paragraphs. Mere repeating words found in the Section is not sufficient. 'Material facts' detailing the capturing of booths or ballot papers will have to be stated. From whom the ballot papers were taken has not been averred. It is alleged that the respondent has taken the assistance of his polling agents and the polling officers. Measure and mode of assistance taken not stated (please see , The petitioner has not given the names of the polling agents who were not permitted to enter the Polling Stations and the names of the polling officers who prevented them from doing so. It is stated that Katte Umapathi, Mundlur Sannaramappa and one Suryanarayana have acted as agents of the respondent and with his consent. The 'material facts' showing that the respondent has given his consent are not forthcoming. In what manner and how and when and in whose presence the consent was given has not been stated (please see paragraph - 31 : ). On what basis and facts the petitioner says, that these three, have acted as agents of the respondent have not been stated. Bald assertion that they have acted as agents is not sufficient to attribute the relationship of agency between them and the respondent. On what basis the petitioner has made the allegations of booth capturing and rigging is not clear.
24. Averments in paragraphs-14 and 16 show that the petitioner has made the allegations of booth capturing and rigging on the basis of what was observed at the time of counting only. Allegations should not be made on suspicion and conjecture as stated in paragraph-19 of the Judgment in the case of Daulat Ram v. Anand Sharma. Forming an opinion on insufficient ground is nothing but conjecture. These paragraphs viz., 10 or 16 do not state the 'material facts' and, therefore, do not satisfy the requirements of Section 83 of the Act.
25. In paragraph-18 to 33 of the Petition, allegations of contravention of the Act and the Rules framed thereunder and also the directions of the Election Commission are referred to in support of his prayer for declaring the result of the election void under Section 100(1)(d)(iv). Under this Section, the result of an election could be voided, if the result of the election in so far as it concerns a returned candidate has been materially affected by any non-compliance with the provisions of the Constitution or of the Act or of any Rules or orders made under the Act. The contention of the respondent is that the allegations made in this regard are devoid of 'material facts' and that no cause of action is disclosed and that they do not satisfy the requirements of Section 83(1)(a) of the Act.
26. The contention of the learned Counsel for the respondent will have to be examined in the light of various Decisions of the Supreme Court relating to cases coming under Section 100(1)(d)(iv) of the Act.
27. A Constitution Bench of the Supreme Court in the case of RAM SEWAK v. H.K.KIDWAI observes thus:
"(9) There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes, and to demand a re-count. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a re-count. It is in the light of the provisions of Section 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a re-count that the application for inspection must be considered."
They also refer to Decision of the Supreme Court in the case of BHIM SEN v. GOPALI which is relied on by Smt.Pramila M.Nesargi, learned Counsel for the petitioner, in support of her contention that definite particulars about the number and nature of the void votes accounted could be supplied later after the inspection of the ballot papers. But, the observations of the Constitution Bench are as follows:
"11.......We do not think that Bhim Sen's case, 22 Ele.LR 288 (SC) lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election, to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinized again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of counting. To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend upon the facts of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers."
28. In the case of JAGJIT SINGH v. KARTAR SINGH a Bench of three Judges of the Supreme Court, after referring to various provisions of the Conduct of Election Rules, 1961, observes as follows:
"32......We have referred broadly to the scheme of these rules to emphasise the point that the election petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly over-ruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts."
A contention was advanced in this case that at the time and when the application for inspection was made, evidence had already been let in and that the Tribunal on considering the evidence in the light of the allegations was satisfied that an inspection should be ordered. This was rejected by the Supreme Court in the following words:
"35. We are not prepared to accept this contention. The order passed by the Tribunal clearly shows that the Tribunal did not apply its mind to the question as to whether sufficient particulars had been mentioned by the appellant in his application for inspection. All that the Tribunal has observed is that a prima facie case has been made out for examining the ballot papers; it has also referred to the fact that the appellant has in his own statement supported the contention and that the evidence led by him prima facie justifies his prayer for inspection of ballot papers. In dealing with this question, the Tribunal should have first enquired whether the application made by the appellant satisfied the requirements of Section 83(1) of the Act; and, in our opinion, on the allegations made, there can be only one answer and that is against the appellant. We have carefully considered the allegations made by the appellant in his Election Petition as well as those made by him in his application for inspection, and we are satisfied that the said allegations are very vague and general, and the whole object of the appellant in asking for inspection was to make a fishing enquiry with a view to find out some material to support his case that respondent No. 1 had received some invalid votes and that the appellant had been denied some valid votes. Unless an application for inspection of ballot papers makes out a proper case for such inspection, it would not be right for the Tribunal to open the ballot boxes and allow a party to inspect the ballot papers, and examine the validity or invalidity of the papers contained in it. If such a course is adopted, it would inevitably lead to the opening of the ballot boxes almost in every case, and that would plainly be inconsistent with the scheme of the statutory rules and with the object of keeping the ballot papers secret. That is why we are satisfied that the High Court was right in coming to the conclusion that the appellant has failed to make out a case for the inspection of the ballot boxes in this case."
29. A Decision in the case of JITENDRA BAHADUR v. KRISHNA BEHARI clearly lays down that the petitioner must set out the basis of his allegation and it is for the candidates and their agents to note down the serial numbers of the ballot papers at the time of counting. The relevant portions of the Judgment read thus:
"8. The trial Court was of the opinion that if an election petitioner in his Election Petition gives some figures as to the rejection of valid, votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts. In the instant case, apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the Congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information, It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as to afford a basis for the allegations made in the petition. The facts stated in paragraphs - 13 and 14 of the election petition and in Schedule 'E' are more allegations and are not material facts supporting those allegations. This Court in insisting that the election petitioner should state in the petition the material facts was referring to a point of substance and not of mere form. Unfortunately the trial Court has mistaken the form for the substance. The material facts disclosed by the petitioner must afford an adequate basis for the allegations made.
9. xxx xxx xxx
10. Now coming to the rejection of the votes polled in favour of the Congress nominee, under the rules before the vote is rejected the agents of the candidate must be permitted to examine the concerned ballot paper. Therefore, it was quite easy for them to note down the serial number of the concerned ballot papers. The election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections. These again are the material facts required to be stated."
30. Let me now examine whether the allegations in paragraphs-18 to 33 of the Petition satisfies the requirements of law in the light of the Authorities referred to above.
31. The petition averments in paragraphs-18 to 33 are as hereunder:
"18. The petitioner further submits that the counting which took place on 16th and 17th June 1991 is also liable to be set aside and fresh recounting has to be done. As the entire counting has taken place in utter contravention of the provisions of the Representation of People Act, the Conduct of Election Rules and the directions issued from time to time from the Election Commission and the same is liable to be declared as void under Section 100(1)(d)(iv).
19. The counting has taken place in a small hall and it did not contain sufficient light. The counting arrangement has not been done as per the directions of the Election Commission. Seating arrangement has not been properly made for counting agents. The counting agents were not in a position to watch the counting. There were in all 17 candidates and there was keen contest between the petitioner and Respondent No. 1 and his agents. There has been conserted and planned design made by Respondent No. 1. The Counting Officers were taking sides with the Respondent No. 1 to get the assistance of the Counting Officials. Though as per the rules the counting should have commenced at 8 a.m. it did not take place till about one noon. The petitioner's agents were not permitted to take down the counting as and when it was taking place.
20. The sorting was not done properly. The bundles pertaining to the petitioner's ballot papers were sought to be mixed up with the ballot papers of Respondent No. 1 from time to time and objections raised has not been considered. There were in all 14 rounds of counting. Despite alt these odds the petitioner was leading even after the completion of the 13th round of counting. When all the efforts made by Respondent No. 1, his agents and officials failed they made all efforts to turn the balance in the 14th round of counting. The agents were not allowed to sit on a particular table. Strangers were allowed to enter the hall. The postal ballots which should have been counted first were not counted and it was not so counted in the presence of the counting agents of the petitioner. The petitioner's counting agents were not allowed to inspect the paper seal to satisfy themselves that they were in tact as contemplated under law nor the Returning Officer satisfied before opening the ballot boxes. The counting officials have counted the ballot papers which were void and the reception of the same is also void, inasmuch as they should not have counted the ballot papers pertaining to polling stations in which booth capturing and rigging has taken place namely Polling Stations Nos. 107, 108, 135, 136, 137, 172, 173, 174, 175 and 175(a). The counting officials have counted them despite the objections raised by the petitioner and election agent Arali Kotrappa.
21. The counting officials have counted the ballot papers in respect of Polling Station where rigging had taken place despite the fact that the ballot papers did not contain the markings from the instruments supplied for the said purpose.
22. The Ballot paper account was not written from time to time, as and when it should have been written. The Form 16 Part I, has not been supplied to the polling agents of the petitioner though it is required under law. The ballot paper account in Form 16 Part I had not been written properly and it contained full of mistakes and it was not reconcilable. The accounting Form 16 Part I do not tally with Form 16 Part II in most of the Polling Station. In some of the Polling Station when they were taken for counting the ballot papers to be found did not tally with the ballot papers to be counted. They were less in some and they were excess in some. The petitioner is not in a position to give exhaustive details of the same as the Returning Officer has not furnished the certified copies of Form 16 Part I and II though sought for and though they were entitled to get the same in law. The petitioner submits that he may be permitted to give the said details and discrepancies after the said records are brought before this Hon'ble Court and permission given to take certified copies of the same.
23. However at random the petitioner is giving such discrepancies to the extent he is aware of as under:
24. There has been shortage of accounting in the following Polling Stations i.e., Polling Stations No. 34-1, 42-1, 65-6, 68-3, 72-1, 79-1, 82-3, 83-3, 84-5, 86-1, 88A-10, 89-10, 90A-1, 91-121, 96-23, 97-102, 99-1, 127-1, 156-79, 157-59, 161-2 in all to the extent of 434.
25. There has been excess accounting in the following stations to the extent of 161 which are as follows: Polling Station No. 34-2, 38-10, 40-2, 56-5, 57-1, 59-1, 60-7, 66-7, 68A-2, 69-45, 69A-7, 70-17, 71-1, 110-6, 150-24, 152-11, 153-6, 159-1, 163-6.
26. The petitioner submits that Form No. 20 in turn is not also corresponding with Form 16 Part I and II and the petitioner may be permitted to give such discrepancies after the copies are furnished.
27. Besides these shortage, shortage in accounting and excess in accounting the petitioner submits that the manipulations have been done even at the time of counting in almost all the 14 rounds. They have managed in such a way that the time of counting in the table the figures that reflected does not reflect at the time of tabulation and in the entries. They have reduced the votes secured by the petitioner on one hand and they have increased the votes secured by Respondent No. 1 on the other hand. Some of the details the petitioner is furnishing herewith to the following extent. In Polling Station No. 1 the Respondent No. 1 had secured 190 votes but it has been made into 193 in the respective column of counting thereby giving 3 votes in his favour in excess. In Polling Station No. 4 the petitioner had secured 20 votes but it has been reduced to 19 at the time of entering. In Rolling Station No. 11 Respondent No. 1 had secured 163 but it has been increased to 193 by adding 30 votes. While doing so the petitioner who had secured 193 votes has been reduced to 163. In Polling Station No. 16 the Respondent No. 1 had secured 82 votes but counted as 83 votes. In Polling Station No. 19 Respondent No. 1 had secured 100 votes but shown as 101. Similarly in Polling Station No. 30 Respondent secured 120 votes, but. shown as 121. In Polling Station No. 52, he had secured 119 but shown as 120. So far as Polling Station No. 93A is concerned, the petitioner has secured 106 votes but in Form No. 20 it has been shown as 96 votes thereby reducing 10 votes in favour of the petitioner. In Polling Station No. 141 the Respondent No. 1 has secured only 113 votes but in Form No. 20 the same has been shown as 213 thereby 100 votes have been inflated in his favour. In Polling Station No. 142, 161, 164, 171A the Respondent No. 1 had secured 157, 251, 203 and 141 votes respectively. But in Form No. 20 in the same order the Respondent No. 1 has been shown as having secured 159, 256, 253 and 142 votes and thereby the difference of 2, 5, 60 and 1 votes are counted in excess in favour of Respondent No. 1.
28. The petitioner further submits that he has secured 20, 193, 146, 228 and 53 votes in Polling Station Nos. 4, 11, 93A, 145, 151 and 177 respectively. As against this in Form No. 20 the petitioner has been shown as having secured only 19, 163, 96, Nil, 222 and 9 votes respectively in these Polling Stations and hence to that extent votes have been counted less in his favour.
29. The Respondent No. 5, who contested the election on behalf of Janata Dal has secured only 66 votes, but in Form No. 20 he has been shown as secured 163 votes thereby his position has been inflated by 129 votes, which otherwise should have come to the petitioner.
30. For the foregoing reasons and in view of the discrepancies that have been found in Form No. 16 Part I and II and Form No. 20 and the manipulations in the counting, the petitioner submits that the entire ballot papers have to be recounted and results have to be declared after such recount.
31. The details of the tendered votes have also not been properly given in the Form No. 20. The total does not at all tally and one Form 16(1) with 16(2) and 16(2) with (20) is not reconcilable with the other. There has been improper reception of invalid votes and rejection of valid votes in the entire counting. To the extent of 6555 and odd votes said to have been rejected and out of the many of the valid votes which were marked in favour of the petitioner has been rejected though the major portion of the mark showed that they were in favour of the petitioner, while it has not been done in the case of Respondent No. 1.
32. Besides this the counting of the tendered votes have not been properly accounted for. It is shown as though there are only 4 tendered votes while there are more than 4 tendered votes. The petitioner may be permitted to give the said particulars after copies of the ballot paper accounts are given. The petitioner submits that there has been improper reception of invalid votes and rejection of valid votes in counting and it is shown as though there are 6555 votes are rejected and in them many of the valid votes polled in favour of the petitioner have been rejected on the ground that major portion of the marking was not within the line while it was not so. Similar treatment has not been done to the Respondent No. 1. The votes that have been counted in respect of Polling Station Nos. 107, 108, 135, 136, 137, 172, 173, 174, 175 and 175(a) are all void votes and counting them and receiving them amounts to reception of void votes and they have to be excluded from counting.
33. That the petitioner had given an application for recounting vide Document No. 5 and the said application has not been considered and on the other hand an endorsement has been issued after the declaration of the results through post, vide document No. 6. Hence the entire ballot papers have to be called for and which has to be recounted as the difference is hardly 433."
32. Paragraph-18 will have to be ead along with other paragraphs. In the affidavit filed in support of the petition, the petitioner has averred that he came to know from his election agents and his counting agents the facts alleged in the petition. In the petition, he does not say which direction of the Election Commission has been infringed in the arrangement of counting and how it was improper. The names of his counting agents who were not in a position to watch the counting and the number of counting tables to which they were attached have not been furnished. The names of the counting officers taking sides and how they were taking sides, details and nature of the "concerted and planned design to get the assistance of the counting officials" have not been stated. The petition is silent as to how the alleged acts in paragraph-19 affected the result of the election. Further, how change of timing of counting helped the respondent has also not been stated. The alleged facts should not be imaginary and in order to show that the allegations are not imaginary, the petitioner must state the basis of his allegations. The basis always depends upon the facts of each case. It may be found in the written objection filed before the officials in charge of counting. It may also be found in the notes prepared by the candidate, his election agents or his counting agents. In this case, a petition for recounting was filed and the allegations now found in paragraphs-18 to 33 have not been stated in the said petition. The names of his counting agents who were not allowed to sit on a particular table and also his counting agents who were not allowed to inspect the seal have not been mentioned. In paragraphs-20 and 21, allegations relating to booth capturing and rigging are relied upon. I have already held that the allegations with regard to booth capturing and rigging are not in conformity with law.
33. Paragraphs-22 to 25 may be taken together. It is alleged in paragraph-24 that ballot papers actually found in the boxes were less than the votes cast. In paragraph-25, the allegation is that more ballot papers were found in the ballot boxes than the votes cast. It has been explained by the learned Counsel for the petitioner that this allegation is nothing but stating that discrepancies were found between Part-I and Part-II of Form No. 16. As per Rule 45(1) and (2) of the Conduct of Election Rules, 1961, the Presiding Officer will have to furnish to every polling agent present at the close of the poll a true copy of the entries made in the ballot paper account in Form No. 16. The petitioner could have easily therefore given the names of his polling agents to whom these forms have not been supplied. It is also not the case of the petitioner that he was not allowed to keep counting agents at the time of the counting. His complaint is that only in a particular table he was not allowed to keep counting agents. On what basis his counting agents or election agent have made the allegations with regard to counting, have not been stated. Bald assertion of the petitioner that he got information from his counting agents cannot afford the necessary basis. He should have stated in the Petition, who those counting agents are and whether they maintained any notes or whether he had examined that notes. These are all 'material facts' required to be stated in the Petition as points out in paragraphs-8 and 18 of the Judgment in the case of Jitendra Bahadur v. Krishna Behari.
34. The learned Counsel for the petitioner points out that the allegations in paragraphs-26 to 30 amounts to stating that the votes counted on the counting tables in favour of the petitioner and the respondent have not been correctly recorded in Form No. 20 and that it was recorded in Form No. 20 so as to increase the votes in favour of the respondent and decrease the votes in favour of the petitioner and that this exercise has materially affected the result of the election, it is further stated by the learned Counsel for the petitioner that the votes were properly counted at the counting table, but those were not faithfully recorded in Form No. 20. It is not possible to get such an impression, by reading paragraphs-26 to 30 of the Petition. Even assuming that the averments made in paragraphs-26 to 30 of the petition amounts to be so, he should have stated the basis or source of information. In the affidavit, he avers that he came to know these facts from his counting agents and election agent. But, it is not stated on what basis the counting agents or the election agent gave these details to the petitioner. The names of the counting agents who gave this information have not been stated in the Petition.
35. Let me now consider the allegations made in paragraphs-31 and 32. It is stated that counting of the tendered votes have not been properly accounted for, and that there were more than four tendered votes, though it was stated that there were four tendered votes. On what basis it is alleged that counting of the tendered votes has not been properly accounted for and on what basis it is stated that there were more than four tendered votes, has not been stated. How many tendered votes were there, is not stated. Why and how the first part of Form No. 16 and second part of Form No. 16 did not reconcile with each other and the basis of this allegation has not been stated. No written complaint has been made in this regard. The petitioner has not given the figures of the votes which according to him were improperly accepted or rejected. He has also not disclosed the basis of the said allegation. The serial numbers of the ballot papers, names of the counting agents who informed him, number of counting tables, names of the counting supervisors, round numbers, details of the notes, if any, kept by the counting agents are all not disclosed though they constitute 'material facts' and this disclosure is essential to give a correct picture of cause of action. He also complains that the votes polled in respect of polling stations, where booth capturing and rigging are alleged to have taken place, were also counted. This allegation cannot be taken into account as the allegations of booth capturing and rigging have not been made in accordance with law. In paragraph-33, the petitioner contends that there is a case for recounting of all the ballot papers.
36. The petitioner, therefore, has not alleged the 'material facts' constituting the allegations made in paragraphs-13 to 33. Those allegations are liable to be rejected for want of 'cause of action'.
37. In paragraph-17 of the Petition, the allegations are that the respondent has committed corrupt practice under Section 123(7) by obtaining the assistance of the polling officers and the counting officials including the Assistance Returning Officers and the Returning Officers for furtherance of the prospects of his election who are admittedly in the service of the Government and are gazetted officers. He also alleges that the officers have assisted in committing the corrupt practice alleged, with the consent of the respondent at his instance. The petitioner further states that the 'material facts' and the 'material particulars' of the said corrupt practice have been furnished in paragraphs-10 to 16 and 18 to 33 of the Petition. The petitioner has not stated the mode of assistance rendered by the Government officials and in what manner the respondent gave his consent to those Government officials to commit the alleged acts. It has already been held that the allegations made in paragraphs-10 to 16 and 18 to 33 of the Petition are bereft of 'material facts'. Hence, the allegations in paragraph-17 also must fail.
38. For the foregoing reasons, the entire Petition fails inasmuch as no cause of action has been disclosed. The application of the respondent, I.A.No. IV, is therefore, allowed and the Election Petition is dismissed under Order VII Rule 11 of the C.P.C. The respondent shall get Rs. 1,000/- as costs from the petitioner. The balance of the security deposit shall be returned to the petitioner.