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617. That was also a case where the election-petitioner had been defeated by a narrow margin of 51 votes only. The challenge to the election was founded on the plea that as many as 188 votes had been wrongly counted n spite of the fact that all those votes were invalid votes and that since the margin was only 51 votes, wrong counting of 188 invalid votes materially affected the result of the election. It was further alleged that 37 votes of dead persons had been cast and they were thus void and could not, therefore, have been counted. The petitioner gave names of all the 37 voters and annexed death certificates of 36 of such persons. So also there were allegations that there was double voting by 60 voters in violation of Section 62(4) of the Act. Another 19 votes were challenged on the ground of being void as the voters had exercised their right to vote in two constituencies. In addition there were allegations of material irregularities in counting of postal ballot papers. The High Court had despite such assertions dismissed the election petition holding that there was nothing to show as to how many votes of dead persons had been cast in favour of the returned candidate. The High Court also held that the election petition did not disclose as to how the petitioner came to know about dead persons casting their votes nor was it indicated as to how the petitioner came to know about the persons listed having voted in two different constituencies. Reversing the view taken by the High Court, this Court observed that the election petition stated all the requisite material facts and that the High Court committed an error in examining the correctness of the allegations at an intermediary stage which could be done only at the time of trial. As to whether the election-petitioner was required to make a statement that the void votes were polled in favour of the returned candidates this Court held that the same was not a material fact to be stated in the petition. This Court observed:

16. It is further worthwhile to take note of the legal position reflected in the decision of the Court in the matter of Vashisht Narain Sharma Vs. Dev Chandra and others, AIR 1954 S.C. 513 wherein this Court observed as follows:

“It is not permissible in law to avoid the election of the returned candidate on speculation or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates ……………… In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the Court should not interfere with the election on speculation and conjectures.” When the case of the petitioner/appellant is examined on the anvil of the aforesaid position and on the prevailing facts, it is apparent that the petitioner/appellant is indulging in a process which amounts to speculation and conjecture in absence of material particulars; for instance, if it were the specific plea of the petitioner that all 14 votes or at least 4 votes which were cast in which the voters were alleged to have been accompanied by another person were in fact polled in favour of the respondent so as to influence the election result, the plea of the petitioner could be held as amounting to materially affecting the election result. But in absence of this candid relevant and factual detail, the election petition obviously is based only on such averment, which will have to be held speculative and conjectural in nature and can hardly be held to be disclosing ‘material facts with material particulars’ so as to conclude that it materially affected the result of the election. Even assuming that the election petition were to be allowed in spite of absence of such material particulars, the net result would be the recounting of the votes by declaring 14 votes as invalid which were alleged to have been polled in breach of the election rules but could hardly be identified or deciphered. To clarify it further, it may be stated that even if the election petition were to be allowed by declaring the 14 votes as invalid, it is inconceivable as to how those 14 votes which were alleged to have been polled by those voters who had been accompanied by another person could be identified so as to hold that the alleged invalid votes materially affected the result of the election.

17. What is sought to be emphasized is that in the absence of any identification mark of those votes which are alleged to have been polled by voters accompanied by another person and is alleged to be in breach of the Rules cannot possibly be identified so as to treat them as invalid votes and if that is so, the election petition is clearly based on vague material and hence would be unjust to allow the election to be questioned by entertaining the election petition where the losing candidate/the petitioner had himself not alleged any corrupt practice in holding the election but merely a breach of the election rule in regard to which he had not complained at all at the time of election or even thereafter but straightway filed the election petition challenging the election on the basis of an alleged CD after the election result was declared. Thus, the entertainment of an election petition on such speculative material can hardly be held to be disclosing material facts with material particular which would justify the challenge to an election by entertaining an election petition as the same does not spell out material particulars which would affect the election result.

18. It is well settled legal position that no evidence can be led on a matter unless there is a pleading thereon. Therefore, unless it was pleaded that the invalid votes were cast in favour of the returned candidate, no evidence can be led to that effect. In a petition seeking to challenge an election on the ground stated in Section 100 (1) (d) (iii) and (iv), it was imperative for the petitioner to plead the most crucial and vitally material fact that the invalid votes were cast in favour of the returned candidate because then alone could it be pleaded and proved that “the result of the election, in so far as it concerns a returned candidate, has been materially affected” within the meaning of Section 100 (1) (d). The words “in so far as it concerns a returned candidate” and “has been materially affected” read with clauses (iii) and (iv) clearly show the legislative intent to place the burden of pleading and proving that the improper reception of votes or violation of law in regard to casting of votes benefited the returned candidate and materially affected his election as a returned candidate. It is not enough to show mere improper reception of votes or reception of votes or non- compliance with law. In addition it has to be pleaded and proved that this materially affected the election in so far as it concerns the returned candidate. The language of Section 100 (1) (d) (iii) and