Punjab-Haryana High Court
Deep Chand vs Ramji Lal And Ors. on 29 January, 1998
Equivalent citations: AIR1998P&H112, (1998)120PLR326, AIR 1998 PUNJAB AND HARYANA 112, (1998) 2 RECCIVR 248, (1998) 120 PUN LR 326, (1998) 2 CURLJ(CCR) 569
ORDER N.K. Sodhi, J.
1. This is a petition under Section 81 read with Section 84 of the Representation of the People Act, 1951 (for short the Act) calling in question the election of Ramji Lal respondent to the Haryana State Legislative Assembly from 3-Sadhaura (SC) Assembly constituency on the ground that the returned candidate had committed some corrupt practices within the meaning of the Act which render his election void. Some irregularities during the course of the counting of votes have also been alleged and the petitioner has sought a further declaration that after recounting the votes, he be declared elected.
2. Elections to the Haryana Slate Legislative Assembly were held in April, 1996 in which the petitioner and the respondents were candidates from 3-Sadhaura (Scheduled Caste) reserve Assembly constituency. Petitioner contested as an independent candidate whereas Ramji Lal respondent 1 was a candidate of the Samta Party. Polling was held on 27-4-19% and in two Polling Booths are poll was held on 30-4-1996. Counting of voles started on May 8, 1996 and the result was declared on May 10, 1996. Ramji Lal respondent 1 polled 20142 votes whereas Deep Chand petitioner secured 24075 voles. Since the votes polled by respondent 1 were more than the votes polled by any other candidate, he was declared elected. It may be mentioned that the petitioner was a member of the Haryana Vikas Party and the contested elections to the State Assembly from this constituency held in the year 1991 on the ticket of Haryana Vikas party but was defeated. In the year 1996 the Haryana Vikas party had an electoral alliance with the Bhartiya Janta Party and as per the alliance this seat fell to the share of Bhartiya Janta Party and that Party had set up Dayal Singh, respondent 7, as its candidate. The Haryana Vikas Party did not put up any candidate because of the alliance and, therefore, the petitioner, as per his averments, contested the election as an independent candidate.
3. Election of the returned candidate has been challenged on three grounds, namely, (a) that he and/or his agents and/or other persons with his consent committed the corrupt practice of Booth Capturing both at the time of polling on 27-4-1996 and also at the rime of counting of votes on 8-5-1996; (b) that the returned candidate committed the corrupt practice of incurring election expenditure in contravention of Section 77 of the Act, and (c) that the result of the election in so far as it concerns the returned candidate, has been materially affected on account of the various irregularities committed during the counting of votes as stated in paragraph 10 of the petition and a prayer for recounting the votes has been made and it is further alleged that on a recount it would be found that it is not the returned candidate but the petitioner who had received majority of valid votes and is, therefore, entitled to be declared elected. These three grounds on which the election is challenged have been stated in paragraph 6 of the petition and the material facts and full particulars which, according to the petitioner, constitute those corrupt practices have been set out in the subsequent paras of the petition. The ground of corrupt practice of Booth Capturing has been taken in para 6(a) of the petition whereas material facts and their particulars have been stated in para 8. Since a declaration has been sought that the petitioner be declared elected after recounting the votes, all the contesting candidates other than the petitioner have been impleaded as respondents.
4. In response to the notice issued by this Court only the returned candidate has put in appearance and opposed the petition. The other respondents did not choose to appear and were proceeded against ex parte. In the written statement filed by the returned candidate some preliminary objections have been raised apart from controverting the allegations on merits. It is pleaded that the averments made in paragraph 6 read with the subsequent paragraphs of the petition are totally vague and deficient in material facts and are, therefore, liable to be struck off under Order 6 Rule 16 of the Code of Civil Procedure (hereinafter called the Code). Similarly, it is averred that the allegations regarding booth capturing as contained in paragraph 6(a) read with paragraph 8 are vague and deficient in material facts and according to the respondent same is the position in regard to the allegations contained in paragraph 6(b) read with paragraph 9 of the petition in regard to the corrupt practice under Section 123(6) of the Act pertaining to the incurring of expenditure in contravention of Section 77 of the Act. According to the respondent no triable issue arises from the pleadings of the petitioner and that they do not disclose any cause of action. Accordingly, a prayer has been made for the dismissal of the election petition under Order 7 Rule 11 of the Code. On merits, the allegations of corrupt practices and the irregularities alleged during the course of counting have been controverted.
5. Pleadings of the parties gave raise to the following issues :--
1) Whether the allegations made in paragraphs 6, 8 to 10 of the petition are vague and deficient in material fats and liable to be struck off under Order VI Rule 16 of the Code of Civil Procedure? If so, its effect? OPR
2) Whether the allegations contained in paragraphs 6(a), 8 and 10 of the petition do not constitute the offence of booth capturing? If so, its effect? OPR
3) Whether the returned candidate and/or his agents and/or other persons with his consent has/ have committed the corrupt practice of booth capturing? If so, to what effect? OPP
4) Whether the returned candidate has incurred or authorised the incurring of expenditure in contravention of Section 77 of the Representation of the People Act, 1951? If so, to what effect? OPP
5) Whether the petitioner is entitled to recounting of votes? OPP
6) If issue No. 5 is decided in favour of the petitioner, whether he is entitled to be declared elected from 3-Sadhaura (SC) Assembly Constituency? OPP
7) Relief.
6. Counsel for the parties stated that they would not lead any evidence on issues Nos. 1 & 2 and that the same be treated as preliminary and these be decided before adjudicating upon the other issues. Accordingly, counsel for the parties have been heard in regard to the two preliminary issues and these are being disposed of by this order.
7. As already observed above, the grounds on which the election of the returned candidate has been challenged are mentioned in paragraph 6 of the petition and the material facts which, according to the petitioner, substantiate those grounds have been detailed in paragraphs 8, 9 and 10 of the petition. The contents of paragraph 6 have been verified by the petitioner on the basis of legal advice received by him and which he believed to be correct. It is, therefore, clear that on the basis of the facts as narrated by the petitioner to his counsel, the latter advised him to take three grounds referred to in paragraph 6 for challenging the election of the returned candidate. Obviously, no facts have been stated in this paragraph and in sub-paragraph (a) the ground of booth capturing has been pleaded. It is averred that booth capturing was done by the returned candidate, and/or his agents and/or other persons with his consent both at the time of polling on 27-4-1996 and also at the time of counting of votes on 8-5-1996. A reading of paragraph 6(a) of the petition makes it clear that the petitioner has reproduced the statutory language of Section 100(1)(b) of the Act and all the three alternatives as referred to therein have been pleaded. The statute no doubt provides that the election of a returned candidate can be set aside if he commits a corrupt practice or if the same is committed by his election agent or by any other person with his consent or with the consent of his election agent but when an election petitioner approaches the Court challenging the election of the returned candidate it is not enough for him to reproduce the statutory language and plead all the three alternatives, rather he should be clear and specific in stating whether the corrupt practice was committed by the returned candidate or by his election agent or by any other person with his consent or with the consent of the election agent. If a corrupt practice is committed by the returned candidate or by his election agent nothing more need be proved and the election is liable to be set aside on that ground. On the other hand, if a corrupt practice is committed by any other person then the fact that the same was committed with the consent of the returned candidate or with his election agent has to be proved before the election can be set aside. In a case like the present one where all the three alternatives are pleaded by using the words and/or, it can safely be concluded that the plea as taken by the petitioner is vague as he is not clear as to who committed the corrupt practice and wants to keep his options open till the end of the trial and lead whatever evidence that may become available to him. Certainly this cannot be allowed to be done as that would prejudice the rights of the returned candidate who is required to meet a specific case as set up in the petition. In paragraph 6(a) of the petition it is stated that the material facts and particulars constituting the corrupt practice of booth capturing are set forth in the subsequent paragraphs. The particulars which, according to the petitioner, constitute the offence of booth capturing have been stated in paragraph 8. This paragraph is divided into three sub-paragraphs. In the first sub-paragraph the petitioner alleges that booth capturing was done by all the three, namely the returned candidate, his agents and other persons with his consent and with the help of persons in the service of the Government who were members of the polling staff on the date of polling. Again, it is alleged that booth capturing was done at different polling stations. It is also alleged that the polling staff was conniving with the returned candidate and/or his agents and other persons with his consent and were actively aiding the returned candidate by furthering the prospects of his election. This sub-paragraph also does not give the concise statement of the material facts which, according to the petitioner, constitute the corrupt practice of booth capturing. Which are the polling stations where booth capturing was done and who were the persons and agents who were helping the returned candidate have not been mentioned in this sub-paragraph. These details have been stated in sub-paragraph (ii) of paragraph 8 of the petition. This sub-paragraph makes an interesting reading. It may be reproduced hereunder in extenso for facility of reference :--
"That two polling Booths Nos. 70 and 71 were set up in Government Middle School, Ambli, for the voters of Village Ambli on 27-4-1996. The polling started at 7.00 a.m. Contrary to election rules, the polling staffillegally stopped the polling from 1.00 p.m. to 2.00 p.m. as lunch interval and closed all the doors of the polling booths and all the polling agents of all the candidates were turned out. This action of the polling staff created doubt in the minds of some of the voters and the polling agents present at the spot. Vinod Kumar, son of Shri Wazir Chand, Halwai, Bus stand, Ambli, polling agent of the petitioner, who was present at the time of polling at Booth No. 71, and few other persons, opened the door and saw that one member of the Polling Staff, Rajbir Singh, Record/Store Keeper, Market Committee, Radaur, was inserting the ballot papers in the ballot box during lunch time. On seeing this, the polling agents and other persons who witnessed this raised objections. In the meantime, Deputy Commissioner, Ambala, and Shri P.K. Sharma, Sub-Diyisional Magistrate, Naraingarh, reached Village Ambli, which is a part of the 3-Sadhaura (S/C) Assembly constituency. After having been convinced that Rajbir Singh, member of the Polling Saff, had indulged in election offences and was helping some candidate, the Deputy Commissioner passed an order there at the spot for adjourning the polling at Booth No. 70, and also passed an order that the election stood vitiated by the act and conduct of Shri Rajbir Singh, a member of the polling staff in polling Booth No. 71. An F.I.R. was also registered against the said Rajbir Singh, a member of the Polling Staff Subsequently, on 29-4-1996, the Returning Officer passed an order for repelling in Booths Nos. 70 and 71 on 30-4-1996 from 7.00 a.m. to 5.00 p.m. This is one of the numerous incidents where a member of the polling staff was caught indulging in election mal practice. Otherwise this has happened in most of polling booths in 3-Sadhaura (S/C) Assembly constituency. In this situation there polling should have been ordered in the entire constituency. This incident regarding Sadhaura (S/C) Assembly Constituency was carried on Doordarshan National news on the same night, i.e., 27th April, 1996."
Booth capturing is said to have taken place at two polling booths Nos. 70 and 71 which were set up in Government Middle School, Ambli. What is alleged is that contrary to the Election Rules, the polling staff illegally stopped the polling from 1 PM to 2 PM as lunch interval and closed all the doors of the polling booths and all the polling agents of all the candidates were turned out. One Vinod Kumar polling agent of the petitioner who was present at booth No. 71 and a few other persons opened the door and saw that one Rajbir Singh a member of the polling staff was inserting the ballot papers in the ballot box during lunch time. On seeing this, objections were raised. In the meantime. Deputy Commissioner, Ambala and the Sub-Divisional Magistrate, Naraingarh are said to have reached the booths at village Ambli. According to the allegations of the petitioner these officers were convinced that Rajbir Singh had indulged in election offences and was helping 'some candidate'. The Deputy Commissioner is then said to have adjourned the polling at both the booths. An F.I.R. is also said to have been registered. Neither a copy of the F.I.R. has been attached along with the petition nor its contents reproduced therein. The Returning Officer is also said to have passed an order for a repoll in both these booths which was held on 30-4-1996. This, according to the petitioner, was one of the numerous incidents where a member of the polling staff was caught indulging in mal practices. In the entire sub-paragraph it is not pleaded that whatever Rajbir Singh was doing was to help the returned candidate (respondent 1). The allegation, indeed, is that he was helping 'some candidate' and that candidate could be a person other than the returned candidate because admittedly as many as 16 candidates including the petitioner were in the fray. It is no where stated that Rajbir Singh acted with the consent of the returned candidate. Rajbir Singh was a member of the polling staff as per the averments in the petition. He was not an agent of respondent 1 and, therefore, before the election of the returned candidate can be set aside, it has to be alleged and proved as a fact that Rajbir Singh acted with the consent of the returned candidate or his election agent. This material fact has not been pleaded. In the absence of such a plea the averments made in sub-paragraph (ii) of paragraph 8 do not, in my opinion, disclose any cause of action against the returned candidate. Even if we take the averments in this sub-paragraph at their face value, they could only prove that Rajbir Singh a member of the polling staff was helping some candidate and that he inserted the ballot papers in the ballot box during lunch time and that the polling was stopped illegally from 1 PM to 2 PM. It has not been alleged that the ballot papers which were inserted by Rajbir Singh were marked in favour of the returned candidate. It has also not been alleged as to from where those ballot papers came were they snatched from the presiding officer of the booth or stolen or were bogus papers. So, according to the allegations made in para 8(ii) there was an illegal stoppage of polling for one hour during the alleged lunch interval and this could be an irregularity but in what way has it materially affected the result of the election in so far as it concerns the returned candidate has not been pleaded. Again, if the allegation is correct, Rajbir Singh has committed a corrupt practice/ election offence and for his acts the election of the returned candidate could be set aside under Section 100(1)(d)(ii) of the Act which plea has not been taken as a ground of challenge in the petition. According to this provision where the result of the election in so far as it concerns the returned candidate has been materially affected by any ' corrupt practice committed in the interest of the returned candidate by an agent other than his election agent then the election can be set aside. Even if we assume that Rajbir Singh was acting as an agent of the returned candidate (though this too has also not been pleaded) no case under Section 100(1)(d)(ii) of the Act has been set up. As already observed, the material facts which, according to the petitioner, constitute corrupt practice of booth capturing have been pleaded in paragraph 8(ii) and (iii) of the petition. Sub-paragraph (ii), we have seen, does not contain a complete statement of the material facts inasmuch as consent of the returned candidate for whatever Rajbir Singh did in polling booth No. 71 has not been pleaded. Without proving the consent of the returned candidate for the acts of Rajbir Singh the election of the former cannot be set aside. What was the nexus between Rajbir Singh and the returned candidate has not been pleaded and the allegations contained in paragraph 8(ii) are of such a general nature that these could be pressed into service even if some other candidate had won the election. In the absence of the plea of consent of the returned candidate the election petition is lacking in the most vital and essential material facts to furnish any cause of action. Section 100(1)(b) under which election of the returned candidate is sought to be challenged is, therefore, not attracted on the pleas as raised in the petition.
8. The argument of the learned Counsel for the petitioner is that the averments made in paragraphs 6(a) and 8(i) to the effect that corrupt practice has been committed by the returned candidate and/or by his agents and/or other persons with his consent should be read along with the averments contained in paragraph 8(ii) and when so read the only inference that can be drawn is that Rajbir Singh was acting with the consent of the returned candidate. I am afraid there is no merit in this contention. As already noticed, in paragraph 6(a), the petitioner is not clear as to who committed the corrupt practice whereas in paragraph 8(i) it is pleaded that the corrupt practice of booth capturing was committed by the returned candidate and also by his agents and other persons with his consent. These pleadings are conflicting and cannot be read with the averments made in paragraph 8(ii) where material facts which according to the petitioner constitute the offence have been stated. While stating these material facts the petitioner should have pleaded that Rajbir Singh had acted with the consent of the returned candidate before he could challenge his election on that ground. A similar argument was negatived by the Supreme Court in Daulat Ram v. Anand Sharma, AIR 1984 SC 621. The petitioner therein had alleged in paragraph 4 of his petition that the returned candidate, his election agent and other persons with his consent or with the consent of his election agent had committed several corrupt practices with the full knowledge and consent of the respondent therein and his election agent and while stating material facts in paragraph 16 of the petition the fact that the persons who allegedly committed the corrupt practice had obtained the consent of the returned candidate had not been pleaded. It was argued there that the contents of paragraph 4 should be read with paragraph 16 to infer the consent of the returned candidate. The argument was rejected and it would be fruitful to reproduce what their Lordships observed in this regard :--
"The learned Counsel for the appellant wants us to read para 4 in conjunction with para 16 and then to arrive at the conclusion that libellous slogans were shouted by Sood and Balish with the consent of the appellant. We are however not in a position to accept this somewhat complex process of reasoning, in our opinion, such a disjoined scheme of averring particulars so that one has to read one part of the allegation with another and then by joining the two produce a particular result to infer an allegation of corrupt practice is not contemplated by Section 123 of the Act and is in fact foreign to the principle of giving all necessary particulars and statement of facts, viz. time, place, manner, mode and the consent of the candidate or his election agent, Such an approach would naturally suffer from the vice of vagueness. It is even against the well settled rules of pleadings to interpret or read such a serious allegation as that of fraud by joining one portion of the allegation with another and then connect the head of one with the tail of the other in order to present a composite picture. The danger of making such an approach would really amount to basing the decision of the court on pure conjectures or speculation and is against the very spirit and tenor of Section 82(b) of the Act."
A similar view was taken by the Supreme Court in Dhartipakar v. Rajiv Gandhi, AIR 1987 SC 1577 where their Lordships made the following observations in para 15 of the judgment :--
".........every corrupt practice must be clearly and specifically pleaded and it should be complete in itself. No corrupt practice can be inferred from reading one sentence here and the other sentence there."
Thus, all the material facts which go to constitute a cause of action must be stated with precision. The details of every important fact must be stated and it must clearly appear from the allegations that the corrupt practice alleged was either committed by the candidate himself or by his election agent or by any other person with his consent. It is, therefore, vital that corrupt practice with which the returned candidate is charged against 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 returned candidate to meet the case and defend the charge. Merely alleging that the returned candidate committed corrupt practice by extracting words from the statute will have no meaning until and unless the facts stated go to show that corrupt practice when committed by a person other than the returned candidate or his election agent was committed with his consent. In a case like the present one where consent has not been pleaded while giving material facts the same cannot be inferred from the conflicting and Vague averments made in paragraphs 6(a) and 8(i). The element of consent is conspicuous by its absence in the facts stated in paragraph 8(ii).
9, Let us now examine what is alleged in sub-paragraph (iii) of paragraph 8. This sub-paragraph reads thus :--
"The Returning Officer, at the behest of the returned candidate, and contrary to election rules, appointed the Lecturers of the D.A.V. College, Sadhaura, as Counting Supervisors, who were at the beck and call of Shri Anil Kumar, son of Shri Ved Parkash, of Sadhaura, who was Counting Incharge of Ramji Lal, the returned candidate. Regarding the appointment of the Counting Supervisors, no notice was given to the petitioner. The lecturers appointed as Counting Supervisors were silently conniving with the returned candidate, his agents and/or other persons with the consent of the returned candidate and were helping in the furtherance of the election prospects of the returned candidate. Shri G.K. Sharma, Shri H.K. Kataria and Shri Jasmer Singh, Lecturers, D.A.V. College, Sadhaura, who were Counting Supervisors at Tables Nos. 2, 3 and 5 respectively, were wearing something in their fingers for the purpose of double-marking the ballot papers of the petitioner at the time of counting in order to make these invalid. By this novel method, they got several hundred ballot papers polled in favour of the petitioner, rejected at the time of counting. This illegal practice adopted by them is embraced by the definition of booth capturing."
The averments in this sub-paragraph apparently state the material facts which, according to the petitioner, constitute the corrupt practice of booth capturing committed at the time of counting of votes. As per the allegations the Returning Officer appointed some Lecturers of D.A.V. College, Sadhaura as Counting Sueprvisors who were at the beck and call of Anil Kumar who was the Counting Incharge of the returned candidate. The appointment is said to be contrary to Election Rules. It is also alleged that no notice was given to the petitioner regarding appointment of the Counting Supervisors. It is further alleged that the Counting Supervisors were silently conniving with the returned candidate, his agents and/or other persons with his consent and were helping in the furtherance of his election prospects. Three Counting Supervisors have been named in this sub-paragraph and they are Sarvshri G.K. Sharma, H.K. Kataria and Jasmer Singh, Lecturers, D.A.V. College, Sadhaura. According to the allegations they were at tables Nos. 2, 3 and 5 respectively and were wearing something on their fingers for the purpose of double-marking the ballot papers of the petitioner at the time of counting in order to make them invalid. It is also averred that by this novel method, these Counting Supervisors got several hundred ballot papers which were polled in favour of the petitioner rejected at the time of counting and this, according to the petitioner, amounts to booth capturing. The gravamen of the charge is that the polling supervisors who were appointed contrary to the Rules were double-marking the ballot papers polled in favour of the petitioner in order to make them invalid. Here again, the allegations are wholly incomplete and deficient in material facts. The averments in this paragraph have been verified by the petitioner on the basis of information received by him from his polling agent Shri Vinod Kumar and two others. They must have been present at the time of counting and they should have known as to what was that article which was worn by the Counting Supervisors on their fingers by which they were double-marking the ballot papers of the petitioner. On which finger of which hand was that article worn must have been known to them and could have been mentioned. Not only this, a vague allegation that several hundred ballot papers were got rejected by double-marking has been made without supplying any particulars thereof. As to how did the petitioner come to know that several hundred ballot papers polled in his favour had been rejected has not been stated. The petitioner or at least his counting agents were present at the time of counting and full particulars of the rejected ballot papers which, according to the Rules, are to be shown to the candidates or their agents should have been supplied in the petition in this sub-paragraph. As per the Rules and instructions contained in the Hand Book for Returning Officers, before any ballot paper is rejected, a reasonable opportunity of inspecting the same is given to the candidate or his Agent present at the time of counting; Not only this, if the agents or the candidates want to note down the serial number of any ballot paper on the ground that it is of doubtful validity or wrongly rejected, they are allowed to do so. This being so, it was possible for the petitioner to have supplied the particulars of his ballot papers alleged to have been double-marked by the Counting Supervisors thereby making them invalid. In the absence of such particulars the allegations cannot but be said to be vague lacking in material facts and particulars. It is interesting to note that in the complaint sent by the petitioner to the Election Commission by a fax message, the number of ballots alleged to have been rejected on the ground of double-marking has been given as 'thousands' instead of 'several hundred' as stated in the petition and the vagueness of the plea raised without any basis is, thus, writ large. It has not been alleged in para 8 that rejected ballot papers were not shown by the Counting staff. Again, if the Returning Officer appointed Counting Supervisors contrary to the Election Rules and without giving notice of appointment to the petitioner or any other candidate and if such a notice was necessary to be issued, the Returning Officer committed some irregularity/illegality and on that ground the election of the returned candidate could be set aside only under Section 100(1)(d)(ii) of the Act. The election of the returned candidate has not been challenged on this ground either nor has it been pleaded as to how any such irregularity materially affected the result of the election in so far as it concerns the returned candidate.
10. Mr. Sukhbir Singh, learned Counsel for respondent 1 strenuously contended under issue No. 2 that the allegations made in para 8 of the petition pertaining to booth capturing even if taken to be correct do not satisfy the requirements of the corrupt practice of booth capturing and, therefore, no triable issue arises therefrom. In order to examine the validity of this argument, one will have to know what booth capturing is. For the purposes of the Act, corrupt practices have been defined in Section 123 and Clause (8) therein was introduced by Act I of 1989 with effect from 15-3-1989 whereby booth capturing by a candidate or his agent or other person has been made a corrupt practice. Clause (4) of the explanation to Section 123(8) states mat for the purposes of this clause 'booth capturing' shall have the same meaning as in Section 135A of the Act. Section 135A makes booth capturing an offence punishable with imprisonment. This section, however, does not define what booth capturing means but the explanation thereto tells us what it includes among other things. In other words, the definition as given in the explanation is not exhaustive but inclusive. It includes seizure of a polling station or taking possession of a polling station or threatening any elector and preventing him from going to the polling station or seizure of a place for counting of votes or doing of anything which affects the orderly conduct of elections whereby the polling authorities or the counting authorities are made to surrender the ballot papers or voting machines. The Legislature in its wisdom has not given us an exhaustive definition because human ingenuity in indulging in such nefarious activities has no defined limits and in the very nature of things all the acts which would amount to booth capturing could not have been visualised by the Parliament. The term booth capturing is wide and general to include within its ambit different acts or omissions, which may otherwise escape the clutches of law. In common parlance, the term is understood to mean seizure of a polling station or of a place of counting by any person or persons through any means to the exclusion of others or, by making others irrelevant. The act complained of may generally speaking have an element of force, show of force or threat on the part of the wrong doer either at the time of polling or at the time of counting or at both the times as a result of which the persons connected with the election process including the voters are made to surrender to the wishes of the wrong doer. There may, however, be cases where a booth is captured without the use of threat or force but the act must be such as affects the orderly conduct of election process. The allegations in each case have, therefore, to be examined to determine whether a particular act amounts to a booth capturing. Now let us see whether the acts complained of by the petitioner constitute the corrupt practice of booth capturing. Allegations in this regard are contained in paras 8(ii) and (iii) of the petition which have already been discussed above at length. However, in order to determine whether they constitute booth capturing, the allegations as made may be recaptulated briefly. The gist of the allegations in regard to booth capturing at me lime of polling is that polling in booths Nos. 70 and 71 in village Ambli was stopped from 1 PM to 2 PM as lunch interval and during that period all the doors of the polling booths were closed and the polling agents of all the candidates were turned out. It was then seen by the polling agent of the petitioner that Rajbir Singh a member of the polling staff was inserting me ballot papers in the ballot box during the luncheon interval. According to the facts as alleged the polling staff had for one hour taken full control and possession of the booths and turned out all the agents of the candidates and others including voters and during this period of time Rajbir Singh put some ballot papers in the ballot boxes. This allegation, in my opinion, was booth capturing beyond any doubt as the booths had been seized by the polling staff to the exclusion of others.
11. As regards booth capturing at the time of counting, the only allegations are that three Counting Supervisors were wearing some object on their fingers and were double marking the ballot papers of the petitioner at the time of counting in order to make them invalid. Whatever else the action of the Counting Supervisors may amount to, it cannot be held to fall within the ambit of booth capturing. It is not alleged that the place of counting had been seized or any one had been turned out to the exclusion of others so as to make them irrelevant. The entire counting staff and the counting agents of the candidates were present. It is not even alleged that orderly counting of votes was in any way affected.
12. In view of my findings that the allegations as contained in paras 6(a) and 8 are vague, lacking in material facts and that the most vital element of consent on the part of the returned candidate or his election agent for booth capturing having not been pleaded, no triable issue arises no matter that the facts as stated in para 8(ii) constitute booth capturing by the polling staff.
13. Another ground on which the election of the returned candidate has been challenged is that he committed the corrupt practice of incurring expenditure in contravention of Section 77 of the Act. Section 77 of the Act requires every candidate at an election to keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date on which he was nominated and the date of declaration of result thereof and it mandates that total of the said expenditure should not exceed the prescribed amount. Counsel for the parties are agreed that under Rule 90 of the Conduct of Election Rules, 1961 the maximum limit of election expenses in any one of the Assembly Constituencies in the Stale of Haryana is Rs. 1.35 lacs. In Clause (b) of para 6 of the petition it is averred that the returned candidate committed a corrupt practice by incurring election expenditure in contravention of Section 77 of the Act. The material facts and full particulars of this corrupt practice have been set out in para 9. The contents of para 9 of the petition have been verified by the petitioner on the basis of his inspection of the election record. This para is divided into three sub paras. In sub-para (i) it is alleged that respondent 1 was required to maintain a separate and correct account of all expenditure but he has failed to do so. It is stated that a bare look at the election expenses return filed by him would show that the same has not been correctly maintained. The election expenses return filed by respondent 1 has not been attached with the petition nor have its contents been referred to or reproduced in the petition even though the petitioner had inspected the election record. Again, in sub-para (ii) i t is alleged that the returned candidate spent a huge amount on his election and has exceeded the permissible limit of Rs. 1.35 lacs and that he has not shown in his return the amount of fare paid by him for the vehicles used by him for election purposes during the election days. In sub-para (iii) it is pleaded that respondent 1 requisitioned greater number of vehicles than permissible under the Model Code of Conduct. A maximum of three vehicles was allowed according to the petitioner but the returned candidate employed more than six vehicles a day in the elections and has not shown to have paid their daily fare to the owners thereof. It is further stated that the vouchers annexed with the election expenses return would show that more than three vehicles were used for canvassing and if the daily fare of the six vehicles and the price of the petrol consumed in these vehicles is added in the election expenses return of respondent 1, the amount would exceed the permissible limit. Thus, according to the petitioner, the return filed by the candidate does not reflect actual expenses incurred by himduring his election campaign. These are the only allegations made in para 9. Having gone through this para of the petition, I find that the allegations are as vague as they could be. In order to constitute corrupt practice as contemplated by Sections 77 and 123(6) of the Act, it is necessary to plead the requisite facts which if proved disqualify the returned candidate and his election would become void. A mere vague and general statement that respondent 1 spent an amount exceeding the prescribed limit of Rs. 1.35 lacs is not enough to make out a case of corrupt practice under Section 123(6). Again, a reference has been made to the use of six vehicles by the returned candidate. No details of these vehicles have been given nor has it been averred as to how much amount was spent on these vehicles so as to show that the expenditure incurred was in excess of the prescribed limit. It could be that the vehicles had been provided by the friends and well wishers of the returned candidate and he may not have paid anything for those vehicles. It has not even been averred that the vehicles had been hired by the returned candidate and that he made payment to the owners thereof and that the said payment has not been shown in the election expenses. Again, a reference has been made to the Model Code of Conduct whereunder a candidate was not allowed to use more than three vehicles. What the Model Code of Conduct is and whether it has any legal sanctity has not been brought out in the petition nor could the learned Counsel satisfy the court in this regard at the time of arguments. The petitioner had inspected the election record which contains the return of the election expenses filed by respondent 1. He could furnish the requisite facts. Even the election expenses return filed by the returned candidate has not been filed along with the petition nor its contents referred to in the petition. In the absence of the necessary material facts and the non-filing of the return with the petition, the present is a case of total lack of pleadings and for this reason para 9 also does not disclose any cause of action.
14. In Ramakant Mayekar v. Smt. Celine D'Silva, AIR 1996 SC 828, one of the allegations made against the returned candidate was that he and his election agent had used posters, banners and wall paintings canvasing to vole for the returned candidate and appealing to the voters in the name of Hindu religion. It was further alleged that the petitioner therein had taken photographs of the wall painlings and that he would refer to them as and when produced. These photographs had not been produced with the election petition nor furnished to the returned candidate along with a copy of the petition. Their Lordships held that there was no pleading in the petition of the language or contents of the wall paintings which were alleged to constitute corrupt practice of canvassing for votes in the name of Hindu religion and that in the absence of such pleadings no triable issue arose.
15. For the foregoing reasons, It must be held that the averments made in para 6(b) read with para 9 of the petition pertaining to the corrupt practice of incurring election expenditure in contravention of Section 77 of the Act are wholly deficient in malerial facts necessary to constitute the cause of action and, therefore, they do not raise any triable issue.
16. The petitioner has also challenged the election of the returned candidate on the ground of some irregularities committed during the course of counting of voles which, according to the petitioner, have materially affected the result of the election in so far as it concerns respondent 1. A prayer has been made for recounting the votes and a declaration sought under Section 101 of the Act to the effect that it is the petitioner who has been duly elected as he received a majority of the valid votes, ground is taken in para 6(c) of the petition which is further divided into four sub-paras. It is alleged that non-compliance with the provisions of the Constitution and the Act has resulted in inflating the number of votes in favour of the returned candidate and reduced the number of valid votes polled by the petitioner. It is pleaded that valid votes polled by the petitioner were" improperly rejected whereas invalid and void votes were counted in favour of the Returned candidate. It is also the case of the petitioner that votes polled in his favour were wrongly counted as the votes of the returned candidates. Material facts which, according to the petitioner, make out a case for recounting the votes have been stated in para 10. This para has been verified by the petitioner on the basis of information received by him from his agents who must have been present at the time of counting. Counting of votes for the Sadhaura (SC) Assembly constituency and the Ambala (Reserved) Parliamentary constituency (Sadhaura segmento was held simultaneously. It stated at 8.00 AM on 8-5-1996 at D. A. V. College, Sadhaura. Shri Pancham Singh, District Development and Panchayat Officer was the Returning Officer for the Assembly constituency and Assistant Returning Officer for Ambaia Lok Sabha Assembly segment. Seven tables were arranged for counting of ballot papers for the Assembly constituency and equal number for the Lok Sabha Assembly segment and they were arranged in two parallel rows. In between the two rows and on one side of the hall, there was a dais arranged for the Returning Officer. According to the petitioner, the entire area was enclosed with wire screen fencing and there were only two entrances to it. One entrance was exclusively for the counting staff, the Returning Officer and the candidates whereas the other one was for the counting agents of the candidates. It is alleged that counting agents were not allowed to be present at the table of the Returning Officer which is said to be against express provisions of law. It is further alleged that the counting agents were asked to stand beyond the partition facing the tables and it was impossible for them to watch the counting properly. It is also pleaded by the petitioner that at the time of counting it was not possible for the counting agents to see whether votes were properly counted and rightly put in the accounts of the candidates. The counting staff is said to have hidden the marking on the ballot papers and were arbitrarily putting them in the account of the candidates according to their whims. It is not in dispute that all the candidates had appointed seven counting agents each who were present inside the hall. It is further stated that some Lecturers of D.A.V. College, Sadhaura were appointed as Counting Supervisors and they, in connivance with Anil Kumar Counting Incharge of the returned candidate, helped the latter. In sub-para (v) of para 10, it is averred that Sarvshri G.K. Sharma, H.K. Kataria and Jasmar Singh were wearing some object on their fingers and while counting they double marked the ballot papers polled in favour of the petitioner in order to render them invalid and this they did with the tacit approval, connivance and consent of the returned candidate and/or his agents. The names of different persons who were at different tables have then been mentioned. It is further alleged that after six rounds of counting Shri Ram Kumar Saini, the election agent of the petitioner became apprehensive because a large umber of ballot papers polled in favour of the petitioner were being rejected. He is said to have raised an objection but the rejected ballot papers were not shown to him. Shri H.K. Kataria, the Counting Supervisor who is stated to have been double marking the ballot papers also refused to show his hand to the election agent of the petitioner. A similar objection regarding double marking is also staled to have been raised by Narender Kumar at table No. 5. The petitioner then states that on these objections being raised, the Returning Officer posted two police officials, whose names have been mentioned, to ensure that no other objection was raised by the counting agents of the petitioner or any other person. When the Returning Officer did not entertain the objections raised by the agents of the petitioner, the latter faxed a complaint to the Election Commission of India on 9-5-1996 complaining that thousands of ballot papers polled in favour of the petitioner had been spoiled by double marking during counting and that the Returning Officer was refusing to accept the objections of the candidate. The Election Commission was requested to stop the counting immediately. Again it is alleged that after the tenth round of counting the Returning Officer had announced on the public announcement system that 7784 votes had been rejected but in the final result as announced on 10-5-1996 at 5.00 AM only 5619 votes had been rejected. Since there was a difference of 2165 votes between the earlier announcement and the rejected votes and because this was more than the margin by which the petitioner was defeated, the result of the election stood materially affected. After the result was announced the petitioner is said to have made an application to the Returning Officer for recounting the votes but the same was allegedly not entertained. Some blank ballot papers are also said to have been detected which were marked in favour of the returned candidate by the counting supervisors.
17. Another irregularity pointed out by the petitioner is that as per the Rules all ballot papers are required to be arranged in convenient bundles of 25 votes each but in the present case only a few bundles contained 25 votes whereas others had 27 or more votes in them and some had less than 25 votes. This, according to the petitioner, is not only a violation of the election Rules but it also materially affected the result of the election. Further, the final result sheet, according to the petitioner, contains several cuttings/alterations which have not been initialled by the counting staff. Lastly, it is stated that the petitioner and his counting agents were not given any opportunity to watch the counting process effectively and the Returning Officer refused to give copies of the record which he was bound to give. It is pleaded that in these circumstances, the petitioner has been greatly handicapped in furnishing any particulars of irregularities and illegalities committed by the Returning Officer and his staff during the counting of votes and in the compilation of the election result. The provisions of the Act, Rules, orders and instructions of the Election Commission are said to have been violated with a further allegation that the petitioner was not allowed to satisfy himself that the counting of votes was fair and accurate. Another grievance made is that the petitioner moved a written application to the Election Commission of India for supply of certified copies of election records but that had not been made available to him till the date of the filing of the petition and that a , deliberate effort had been made to prevent the petitioner from filing an effective election petition. The aforesaid allegations, according to the petitioner, are enough to have the votes recounted and if that is done, the petitioner would poll more votes than the returned candidate and is entitled to be declared elected.
18. The question that arises is whether the aforesaid allegations even if taken to be correct make out a case for recounting the votes. The first irregularity pointed out is that the petitioner was not given any notice by the Returning Officer regarding the place of counting. If it is so, then certainly it is violation of Rule 51 of the Rules. However, before the election of a returned candidate can be set aside on this ground, it has to be shown that non-compliance of the provisions of the Constitution or of the Act or of any Rules or orders made thereunder has materially affected the result of the election in so far as it concerns the returned candidate. Even if notice was not given to the petitioner, his election agent and counting agents were present at the time and place of counting. This violation has, therefore, not prejudicially affected the petitioner nor has it been shown as to how it materially affects the result of the election in so far as it concerns the returned candidate. Another irregularity pointed out in para 10(iii) is that counting agents were not allowed to be present at the table of the Returning Officer and this, according to the petitioner, is against the express provisions of law. It has not been pointed out which provision of the Act or Rules makes it obligatory for the Returning Officer to allow the counting agents to be present at his table. Again, if we go by the allegation, no counting agent of any candidate was allowed to be present at the table of the Returning Officer. It is not the case of the petitioner that his counting agents alone were not allowed while the counting agents of the other candidates were allowed to be present. It is further stated in this para that it was not possible for the counting agents of the petitioner to properly watch the counting. The averments are that the petitioner is not sure whether the counting was properly done. In view of this vague assertion, the possibility that it was properly done cannot be ruled out. It is well settled that if allegations of corrupt practice in an election petition admit of two interpretation, they must fail. Surely, the election of the returned candidate cannot be set aside when the petitioner himself is not sure whether the counting was properly done or not.
19. The next irregularity pointed out is regarding the three counting supervisors namely, Sarvshri G.K. Sharma, H.K. Kataria and Jasmer Singh who double marked the ballot papers polled in favour of the petitioner in order to render them invalid. It is stated that they were wearing some object on their fingers with which they were double marking the ballot papers. What was that object, has not been stated and again how many ballot papers were double marked has also not been stated. In para 8(iii) of the petition, a similar allegation has been made where it is stated that several hundred ballot papers polled in favour of the petitioner were rejected on account of double marking by the aforesaid counting supervisors at the time of counting. The petitioner sent a complaint to the Election Commission as well and a copy of the fax message has been attached along with the petition. The contents of that complaint have been reproduced in para 10(viii) of the petition. In that complaint, the petitioner stated that thousands of ballot papers were spoiled by the Reluming Officer due to double-stamping. The petitioner is not sure whether such ballot papers were in hundreds or in thousands. The Rules require that before any ballot paper is rejected the Returning Officer shall allow the same to be inspected by each counting agent present. When the petitioner or his election agent had the right to inspect the rejected ballots then surely details and particulars thereof could be furnished in the petition. The instructions issued by the Election Commission to the Returning Officers make it clear that they will not only allow inspection of the rejected ballot papers by the candidates or their election agents present but will also permit them to note down the serial number of any ballot paper on the ground that it is of doubtful validity or wrongly rejected. In view of these instructions, the particulars of the ballot papers which were double marked could have been furnished by the petitioner in the petition. In the absence of any such particulars, the allegations can only be termed as vague, not disclosing any cause of action nor making out a case for recounting the voles. It is common case of the parties that the petitioner was defeated by respondent 1 in the election by a margin of 2067 voles. Before the petitioner can succeed in getting the votes recounted, it is necessary for him to plead in the petition that more than 2067 votes polled in his favour were double marked which were rejected at the time of counting. It is only then that it can be said that the result of the election in so far as it concerns the returned candidate has been materially affected. No such case has been set up in the petition and, therefore, this allegation, even if taken to be correct, will not be sufficient to order a recount of votes.
20. There is yet another irregularity pointed out in para 10(x) of the petition. After the tenth round of counting, the Returning Officer is said to have announced through the public announcement system that 7784 votes had been rejected but after compilation of the result on 10-5-1996 at 5.00 AM the total rejected votes were 5619. There was, thus, a difference of 2165 votes between the earlier announcement and the total number of rejected votes reflected in the final result sheet. According to the petitioner, this has materially affected the result of the election. Here again, I am not inclined to accept the contention of the learned Counsel for the petitioner. The allegations in this sub-para are so in complete that they do not make out a case for a recount. It is not the case of the petitioner that 2165 votes which had earlier been allegedly rejected after the tenth round were counted in favour of the returned candidate. It is also not his case that those votes had been validly polled in his favour. If either of these allegations had been made and proved, it could be said that the result of the election had been materially affected. In the absence of such averments, sub-para 10(x) can only be termed as vague not disclosing any cause of action muchless a case for recounting the voles. It is then pointed out that the petitioner made a written request to the Returning Officer for recounting the votes but the same was not entertained. Copy of that application has not been attached with the petition nor its contents referred to therein. We do not know on what ground, if any, the petitioner asked for a recount. Moreover, after the election was over, the petitioner addressed a letter to the Election Commission pointing out the alleged various irregularities committed during the course of counting. A copy of that letter has been attached as B-24 with the petition. A perusal of that communication shows that the petitioner did not make a grievance therein that his request for recounting the votes had not been entertained. This allegation as now made is not by itself, enough to order a recount of votes.
21. Again, it is alleged that some blank papers which were detected were marked in favour of the returned candidate by the counting supervision which, according to the petitioner, has materially affected the result of the election. This is said to have been done by the lecturers of D.A.V. College, Sadhaura. Here again, the petitioner has not furnished full material facts in. support of the allegations. What was the total number of blank papers has not been mentioned, at which table and in which round of counting were they marked and by whom. Quite a few lecturers of D.A V. College were appointed counting supervisors at the centre. The names of those who marked the ballot papers have not been disclosed. Significantly, this allegation also does not find mention in the complaint to the Election Commission contained in B-24 which was made soon after the elections.
22. Another ground taken for recounting of votes is that all ballot papers were arranged in bundles, some containing more than 27 votes while others containing less than 25 votes though the requirement of the Rules, according to the petitioner, is that each bundle should contain 25 votes only for purposes of counting. May be this was in violation of the Election Rules but it does furnish to the petitioner a ground to have the '; votes recounted. It is not alleged that the ballots polled in favour of the petitioner were put in budles of more than 25 votes. It is also not alleged that the bundles pertaining to the returned candidate had less than 25 votes which were counted as 25 votes. The table numbers where such bundles were arranged have not been given and even the names of the members of the staff have not been mentioned who were responsible for making such bundles. In the absence of such material facts having been averred, the allegations are incomplete and do not furnish a cause of action nor do they show that the result of the election has, in any way, been materially affected.
23. It is then alleged that the votes were not tallied with the ballot paper account and it was not made known as to how many votes were polled in the entire Assembly constituency. Even if it be assumed that this irregularity was committed, it is not shown as to how it has materially affected the result of the election.
24. The next irregularity pointed out is that there were cuttings and alternations in the election result sheets which would show that the record was not properly maintained. The result sheet has been attached with the petition as Annexures B-22 and B-23. What were the cuttings/alterations have not been mentioned and it is not shown how the cuttings/alterations, if any, have materially affected the result of the election. The allegations are as vague as they can be. The petitioner has himself admitted in his pleadings that he has been handicapped in giving particulars of irregularities and illegalities committed by the Returning Officer and his staff during the counting and in the compilation of result of the election.
25. Having carefully gone through the averments contained in para 10 of the petition. I am of the view that they not only lack in material facts and particulars but are also vague and do not make out a case for a recount of votes.
26. As a result of the above discussion, the preliminary objection as covered by issues Nos. 1 and 2 are upheld and these two issues are decided against the petitioner and in favour of the returned candidate. Consequently, in the absence of any triable issue arising in the case, the petition fails and the same stands dismissed with costs.