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The Court then stated;

"The defeated candidate does not say that he was not aware of the entries of the dead persons in the Electoral Roll which, in my view, is a material fact and ought to have been pleaded".

The High Court also observed that there was not a word, a whisper that the polling agents challenged the identity of the persons who allegedly voted for dead electors. No reason was put forward as to why it was not challenged. In the opinion of the High Court, it was a material fact which ought to have been pleaded to enable elected candidate to meet the challenge. According to the High Court, when the appellant had given particulars of dead persons for whom the voting right was exercised by impersonation, he must have known at the time of polling that those electors were dead. If he was not aware, he ought to have stated as to when and how he came to know about 37 voters whose names appeared in the electoral rolls and how by personation votes were polled. There was no allegation that the votes cast due to impersonation of the dead persons were managed by the returned candidate or his supporters or election agent. The said allegation thus lacked material facts. Omission to mention those material facts rendered the cause of action incomplete, observed the High Court. According to the High Court, merely because the returned candidate had won by a narrow margin, it could not be a reason for inspection of ballot papers or re-counting of votes. Regarding 60 persons alleged to have exercised right to vote twice in the same constituency in booth Nos. 48 and 49, thereby resulting in 120 void votes in Una 32 Constituency, the High Court observed that the Election Petition was silent as to when and how the appellant came to know about the persons having cast their votes in different booths in the same constituency. He did not state who impersonated for those persons in the other booth. The appellant also did not say precisely as to when he came to know that 60 persons had voted twice. As to 19 persons alleged to have voted in two different constituencies, the High Court observed that the allegations were not supported by material facts. Even though the pleading indicated that the defeated candidate was aware of the persons who voted twice at the same constituency and in different constituencies, neither he nor any person on his behalf raised any objection at the relevant time. He also did not disclose the source of information regarding casting of void votes which was a material fact. Only a bald assertion had been made which was not sufficient.

38. Regarding the remaining one, he had stated that the Gram Panchayat had not issued death certificate, but Death Report issued by the Senior Medical Officer, Zonal Hospital, Una had been annexed at Annexure EP 39. The High Court, dealing with the allegation in para 8(i) has observed that there was nothing to show and not a word as to how many of those 37 votes were cast in favour of the returned candidate and who cast those votes. It was also observed that the defeated candidate never raised any objection at the time of polling and at the stage of filing Election Petition, it was not open to raise an objection. It was further observed that it was not the case of the election-petitioner that he was not aware of death of those persons at the time of polling and it was a case of personation of electors within the meaning of Section 61 of the Act. There was also not a whisper, observed the High Court that the polling agent had challenged the identity of the persons who allegedly voted for the dead electors. The High Court also stated that it was not stated in the Election Petition that the returned candidate or his supporters or election agent managed to have votes cast by impersonation. All these facts, according to the High Court, were material facts and since they were not stated in the Election Petition, the petition was defective.

The High Court almost for the same reasons on which it ordered deletion of para 8(i), has also ordered to delete para 8(ii). It observed that the petition was significantly silent as to when and how the election- petitioner came to know about the persons having cast their votes twice in two different booths in the same constituency. He also did not say who impersonated for those persons in the other booth. Nothing was stated as to when the petitioner precisely came to know about the fact that 60 persons had cast their votes twice in different booths and no reasons was put forward as to why no objection was raised at the relevant time. All these facts, according to the High Court, were material facts and since they were not stated, the petition was defective. With respect, the High Court is not right. When the law prevents a person from exercising right of vote more than once and it is alleged that there was double voting in respect of certain persons, the 'allegation' can be said to be complete. Whether or not the election-petitioner is able to prove the said allegation is a matter of evidence which can be considered only at the stage of trial. By no stretch of imagination, however, it can be said that the material fact, that is, allegation regarding double voting had not been stated in the Election Petition which required Election Petition to be dismissed on that ground. As to para 8(iii), the case of the election-petitioner was that 19 void votes had been cast. The said votes being void since 19 persons had exercised their right to vote in two constituencies, i.e. in Una 32 Constituency as also in booth No 76 and 63 of Kutlehar 33 Constituency. The details of those voters have been mentioned in the Election Petition.

The High Court held that material facts had not been stated and observed that it was not shown as to how the petitioner came to know about the persons listed having voted in two different constituencies and who impersonated them.

As already observed earlier, the approach of the High Court was not in consonance with law and the High Court entered into prohibited area of considering the correctness of the allegation which is to be considered and adjudicated at the time of trial.

Finally, in para 8(iv), the election-petitioner has alleged that there was material irregularity in counting postal ballot papers by the Returning Officer. According to the election-petitioner, six persons whose names have been mentioned in the Election Petition had voted twice thereby 12 votes had been polled. All those 12 votes, therefore, should be treated as void.