(1). The instant application has been filed by respondent No.1, the returned candidate, under Order 7 Rule 11 read with Order 6 Rule 2 of the Code of Civil Procedure read with Sections 83(1)(a) and 87 of the Representation of People Act, 1951 (for short, "the Act, 1951"), contending that the election petition does not contain full material facts and particulars, therefore, it does not disclose any cause of action and, thus, liable to be rejected at the threshold without holding the trial.
(2). The election petition has been filed by one Shree Narain Dhanuka claiming that he is a voter of Natangarh Assembly Constituency and was counting agent of Shri Hari Shanker Bhabhara, respondent No.6, who was a B.J.P. candidate. Petitioner stated that he was present during counting of the votes on 28.11.98; the margin of votes between the returned candidate and respondent No.6 Shri Bhabhara was only of 377 votes. The difference of victory being marginal and there had been various illegalities and irregularities jn counting of the votes which materially affected the result of the election; the application filed by the election agent of Shri Bhabhara for recounting of votes was wrongly rejected by the Returning Officer, therefore, the eleclion petition should be allowed and directions should be issued for inspection and recounting of votes. The inslant application has been filed by the returned candidate submitting that for lack of material facts and specific allegations, petition does no! disclose any cause of action and thus, the same is liable to be rejecled at this stage without proceeding for trial.
(3). In D. Ramachandran vs. R.V. Janakiraman & Ors. (1), the Hon'ble Supreme Courl has laid down as under:-
"It is well settled thai in all cases of preliminary objeclion, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such. The Court cannot probe into the facts on the basis of the controversy raised in the counter..."
(4). In Azhar Hussain vs. Rajiv Gandhi (2), Hardwari Lal vs. Kanwal Singh (3) and Harish Chandra Bajpai vs. Triloki Singh (4), the Hon'ble Supreme Court held that for lack of material Facts and full particulars, the election petition alleging corrupt practices is liable to be dismissed in limine as the same does not disclose the cause of action as the trial is to be held under the provisions of the Code of Civil Procedure, 1908 (hereinafter called, "the Code").
(5). In V.S. Achuthanandan vs. P.J. Francis & Anr. (5), the Hon'ble Supreme Courl dealt with a case dismissed by the High Courl under Section 83(1)(a) read with Order 7 rule 11 of the Code, where the main allegations had been of adopting the corrupt practices and irregularity/illegalily in counting of ballots. The Court observed that while interpreiing the provisions of O.7 R. 11 of the Code and Section 83 read with Section 123 of the Act, the Court would not take a hypertechnical view as it would frustrate the purpose of the purity of the elections and to ascertain the true wishes and will of the people in choosing their leader in a democratic system. The trial Court must also affect an opportunity to the party to plead on record the circumstances justifying the recount. The Court further observed as under :-
"It is true that on vague and ambiguous evidence, no Court can direct re-count. But it is equally true that the doors of juslice cannot be shut for a person seeking recount without affording him an opportunity of proving the circumstances justifying a recount."
(6). In L.R. Shivaramagowda vs. T.M. Chandrashekar (6), the Hon'ble Supreme Court has categorically held that while failure to plead material facts is fatal to an election petition, absence of material particulars can be cured at a later stage by appropriate amendment.
(7). In Udhav Singh vs. Madhav Rao Scindia (7), the Apex Court observed that the word "material" shows that the facts necessary to formulate cause of action must be stated. Happening of a fact as well as fact itself is material. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The particulars present full picture of the cause of action with such further information in detail as to make the opposite party undersland the case he will have to meet. The Hon'ble Supreme Court explained the distinction between the grounds, material facts and material particulars by observing as under:-
"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).
'Particulars' on the other hand, arc 'the details of the case set up by the party.' 'Material particulars' within contemplation of Clause (b) of Section 83(1) would therefore mean all the details which arc necessary to amplify, refine and embellish, the material facls already pleaded in the petition in compliance with the requirement 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".
(8). Similar explanation was provided by the Hon'ble Supreme Court in Samant N. Balakrishna vs. George Fernandez (8). There "may be some over-lapping between material facts and particulars but the two are quite distinct."
(9). In V. Narayanaswamy vs. C.P. Thirunavukkarasu (9), the Hon'ble Apex Court, while dealing with a case of corrupt practice, held that election petition must disclose cause of action and for the said purpose, petition must be read and considered as a whole and the same cannot be rejected merely on the ground of non-disclosure of cause of action if dissected in several parts. The Court observed that material facls and material particulars connote two different things. The difference between 'material facts' from 'material particulars' was re- staled as material facts constitute the cause of action. In election petition, the allegations cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based on serious allegations. However, to furnish the material facts, if names of all persons involved in causing illegality or irregularity are not given, the names of few must be given and in absence of these material facls, the petition cannot be tried. The Court made the following observations:-
"I twill be thus seen that an election petition is based the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dis pensing power to waive non-compliance. For the purpose of consid ering a preliminary objection as to the maintainability of the election petition, the averments in the petition should be assumed to be true and !he Court has to find out whether these averments disclosed a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 of the Act read with rule 940A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read, if the Court finds non-compliance, it has to up-hold the preliminary objection and has no option except to dismiss the petition. There is difference between 'material facts' and 'material particulars.' While a failure to plead material facts is fatal to the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. 'Material facts' mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely slated in the election petition, i.e. Clause (a) of Sub-section (1) of Section 83. Then under Clause (b) of Sub-seclion (1) of Section 83, the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded....
It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to the dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Where neither a verification is there in the pelilion nor the affidavit gives any indication of the sources of information of the petitioner as to the facts staled in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form prescribed does not suffer from any defect, the allegations of corrupt practices cannot be inquired and tried at all. In such a case, the petition has to be rejected on the threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of the duty of me Court suo moto even to direct furnishing of better particulars when objection is raised by the other side."
(10). In Dr. Jagjit Singh vs. Gain! Kartar Singh (10), the Hon'ble Supreme Court placed reliance upon its earlier judgment in Ram Sewak Yadav vs. Hussain Kamil Kidwai & Ors. (11), and held that petition must contain a concise statcmenl of material facts, on which the petiiioner relies; for the reason that election petitioner should not get a chance to make a roving and fishing inquiry in the ballot boxes so as to justify its claim that the election of the returned candidate is void. The Court trying the election petition should bear in mind that even after the completion of counting, a candidate or his election agents can apply in writing to the Returning Officer for a recounting of all or any of the ballot papers already counted stating the ground on which he demands such recount as provided under Rule 63(2) of the Conduct of Election Rules, 1961 (for short, "the Election Rules, 1961") and where a defeated candidate has an ample opportunity to examine the ballot papers before they are counted and in case the objections are raised by him or his election agents have been improperly over-ruled, he knows precisely the nature of objections raised by him and the ballot papers, to which these objections related. It is in the light of this back-ground that Section 83(1)(a) of the Act has to be applied to the petitions made for inspection of ballots. Such an application must contain a concise statement of material facts. The Court should not be swayed by the allegations which are very vague and general. Where the whole object of the petiiioner in asking the inspection is to make a fishing inquiry with a view to find out some material to support his case for the reason that 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.
(11). Similarly, in Jitendra Bahadur fiingh vs. Krishna Behari & ors (12), the Hon'ble Apex Court held that when the counting of votes takes place, It is quite possible for the candidate or his eleclion agent or counting agents appointed by him under the Rules to note down the serial number of the ballot papers improperly accepted or rejected and the same should be disclosed in the eleclion petition and in case where election petition is silent in this regard as to the inspection of the ballot papers or whether the counting agents had noted down the serial number of those ballot papers or whether those agents raised any objection relating io the validity of those ballot papers; If so, who those agents are and what are the serial number of the ballot papers, to which each one of them advanced their objections. These actions are the material facts required to be stated. A Judge can be justified only on the basis of proof and not on the basis of mere allegations and, therefore, there must be some proof in support of the allegalions, on the basis of which scrutiny of the ballot papers is prayed for. The Court categorically held that for the purpose of passing an order of inspection of ballot papers, the pelilion must contain an adequate statement of the material facls and the Court must be prima facie satisfied that inspection was necessary to do complete justice between the parlies.
(12). ln Beliram Bhalaik vs. Jai Behari Lal Khachi & Anr. (13), the Apex Court held that recounting cannot be permitted merely on a whimsical and bald statement of the candidate that he was not satisfied with the counting as the same could not be lentamount to a statement-of the grounds within the contemplation of Rule 63(2) of the Rules, 1961. There must be a proper application in the eye of law giving full particulars of any irregularity in the counting. If the allegations are not made in the application before the Returning Officer after completion of the counting, the allegations of irregularities and illegalities in the counting of voles must be considered as invented as an after- thought. Moreso, Ihetourt should not consider more or less vague and general allegations for the reason that they are lacking the material facts. Since the order for recount touches upon the secrecy of the ballot, it should not be made lightly or as a mailer of course. The Court would be justified in ordering a recount of ballot papers only where (i) all the material facts, on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition; and (ii) the Court trying the petition is prima facie satisfied that making of such an order is imperatively necessary to decide the dispule and to do complete and effeclual justice between the parties. The allegations in the petition must be precise; they should not be merely general and vague, floating on suspicion and belief's of the petitioner rather than resting on terra firma of material facts. Allegations in the petition must stand from a sure belief. Similar view had been reiterated in SmI. Sumitra Devi vs. Sheo Shanker Prasad Yadav & Ors. (14).
(13). In Suresh Prasad Yadav vs. Jai Prakash Mishra (15); the Supreme Court held that the Rules, 1961 provide an elaborate procedure for counting of ballot papers wherein the procedure itself contains so many slatulory checks and effective safeguards against trickery mistakes and fraud in counting, that it can be called almost full prOof.iTherefore, in absence of specific material facts showing illegality or irregularity in counting, recounting should not be ordered.
(14). In Chanda Singh vs. Ch. Shiv Ram Varma (16), the Apex Court held that even in a case of small lead in the election, petition seeking recounting of votes, must contain the allegations of irregularity and illegality and the same should be definite, concrete and positive. Mere vatgue fears and blurred anxieties canno! do duty for the actual requirements of Rule 63 of the Rules, 1961. A mere doubt or small lead or unspecified blemish in the manner of the counting falls short of the needs of the Statutory Rules. Particulars must be furnished regarding the table number, serial number of the ballot papers etc. as the allegations, if frivolous or unreasonable, should nol be taken into consideration for the reason that what is not reasonably grounded or seriously supported, is unreasonable or frivolous.
(15). Similarly, in Bhabhi vs. Sheo Govind & Ors. (17), and Salya Narain Dudhani vs. Uday Kumar Singh (18), the Supreme Court held that in an application for recounting of votes, there must be clear and specific allegations and the same must be supported by adequate slatements of material facts for the reason that the secrecy of the ballot, which is sacrosanct cannot be easily violated on frivolous, vague and indefinite allegations. Petitioner is always able to place cogent material in the petition for the reason thai his counting agents were present at the time of counting and if there was any irregularily, they could have raised the objection and the same could have been verified easily'at the spot by the Returning Officer had his attention was drawn to those facts by making application under Rule 63 of the Rules, 1961. Moreso, the pelitioner must furnish the serial number of the ballot papers, which he alleges to have been counted illegal or the particulars of the bundles containing the ballot papers which were alleged to have been wrongly rejected or accepted. The segment and the booth names and numbers may also be furnished. A very narrow margin of votes in the election does not itself furnish any ground for presumption that there has been illegality or irregularity in the counting. The Court cannot lightly brush aside the success of duly elected candidate in an election petition on the basis of vague and indefinite allegations or frivolous and flimsy grounds.
(16). In N. Narayanan vs. M. Semmalai & Ors. (19), the Hon'ble Supreme Court held that recounting is not permissible merely on the possibility of there being an error. The allegations of irregularily and illegality in counting must be clearly made by furnishing the material facts and the matter should be proved with absolute certainty by adducing cogent evidence. In case where the counting agents had not taken any objection at the time of counting and such allegations are made first time in the eleclion petition, the allegations must be rejected as being after-thought.
(17). In P.K.K. Shamsudeen vs. K.A.M. Mappillai Mohindeen & Ors. (20), the Hon'ble Supreme Court held that material facts furnished in the election petition, claiming recounting of votes, must be of compulsive nature for the reason that there must be adequate justification for the secrecy of the ballot papers being breached. Moreso, the order of the Court for recount of votes must stand or fall on the nature of averments made and evidence adduced before the order of recount is made and not from the result eminaling from the recount of votes.
(18). In Jagjit Singh vs. Dharam Pal Singh & Ors. (21), the Hon'ble Supreme Court held that in a case seeking recounting, petitioner musl set-out the number of the votes which had been improperly rejected, the particular table at which the said votes were counted and the ground on which the votes were rejected and may also furnish the serial number of rejected ballot papers. In absence of all the aforesaid informations, it can be held that the eleclion petition did not contain material facls as required under Section 83(1)(a) of the Act. liven if there is a very small difference in the votes of the rclurncd candidate and the eleclion petilioner, he cannot be permitted to make a roving and fishing inquiry to nullify the election result.
(19). In V.S. Achuthanandan (supra), the Apex Court placed reliance upon its earlier judgment in Raj Narain vs. Indira Nehru Gandhi (22), wherein it was observed that rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law arc not merely formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. Therefore, the pleading in the eleclion petition must clearly make out a cause of action for ordering recount and in absence of the same, the petition is liable to be rejected under Section 83(1)(a) of the Act read with Order 7 Rule 11 of the Code.
(20). In M. Ornkar vs. Revuri Prakash Reddy & Ors. (23), the Hon'ble Supreme Court held that in case an application for recount has been made immediately after completion of the counting process and the same has been found to be vague by the Re turning Officer, and there had been no complaint of any mal-practice or irregularity in the counting of votes, recounting cannot be ordered as it would not be justified at all on hopelessly vague allegations. The gravamen of the charge in the said case had been not complying with the instructions of the Chief Election Commissioner in counting, which, on investigation, was found to be baseless.
(21). In T.H. Musthaffa vs.-M.P. Varghese & Ors. (2-1), the Hon'ble Supreme Court held that application for recounting cannot be entertained where it is based only on a guess work and does not lay any foundation in the pleadings or by way of evidence to draw such an inference and in case the evidence or the pleadings in respect of irregularities alleged regarding mixing, shorting and bundling of ballot papers are vague, no weight should be attached to the same and such pleadings do not warrant recount or inspection of the ballot papers. The pleadings must indicate the allegations made either with reference to the number of ballot papers or table or round in which such mistakes occurred. Moreso, mere smallness of margin of votes by which the election is decided is irrelevant, though in a given case on the totality of pleadings and evidence, smallness of margin may gain importance. However, in S. Baldeo Singh vs. Teja Singh Svvatantra (25), the Apext Court held that in a case of narrow margin of voles, recounting should be allowed as a rule and should be refused only as an exception by the Returning Officer at the lime of counting of votes as "fairness at the polls must not only be manifest but misgivings about the process must be erased at the earliest."
(22). In Narendra Singh vs. Mala Ram & Anr. (26), the Hon'ble Apex Court held that the general principle is that the onus to prove the essenlial facls, which constitute the cause of action in an election pelilion, is upon the person making it, namely, the election petitioner. Challenge by the defeated candidate must be on subslantial grounds supported by responsible and dependable evidence.
(23). In Hareram Pandey vs. Ajit Chaudhary (27), the Apex Courl held that in a case where a proper objection had not been raised by the candidate or his counting agents during counting to the reception of the so-called spurious voles and if the issue is raised in the election petition, the same should not be accepted for the reason that inference can be drawn that the entire story might have been coined at the stage of election pelilion. Moreso, the Court should be satisfied that if the allegation that votes of the applicant had illegally been rejected, or improper ballols had illegally been accepted in favour of returned candidate, slands proved, it must materially affect the result of the election. Same view had been reiterated in Shiv Charan Singh vs. Chandra Bhan Singh (28).
(24). In Melianl Ram Prakash Dass vs. Rainesh Chandra & Ors. (29), the Apex Court held that if the grounds are vague and staled thai the staff had done many wrong things inspite of objection and had mixed up the votes cast in his favour with that of the other candidate, the same does not stand for scrutiny of law for the reason that the hopelessly vague allegations do not make a ground for order of recounting even in a case where the margin is loo low. The Court observed as under:-
"If an application is made under Rule 63(2), the Returning Officer shall decide the same either by allowing the application in whole or in part or may reject it in its entirely, if it appears to him to be frivolous or unreasonable. The decision shall be in writing containing reasons therefor. The application for recounl should contain valid precise grounds on which the recount is asked for. When rules provide for enough opportunity to a candidate or his agent to watch the counting process before the result is declared and if an objection is raised as to the validity of any ballol paper and if such objeclion is rejected improperly, it would afford a basis for recount in an election petition. The secrecy of the vote has to be maintained and demand for recount should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to error in counting of such magnitude that the result of the election of the returned candidate may be affected. Smallness of the victory margin by itself may not be a sufficient ground for recount. However, if a prima facie case is made out as to error in counting, the small margin by which the returned candidate succeeded in the election assumes significance, inviting recounl."
(25). However, in Shashi Bhushan vs. Prof. Balraj Madhok (30), the Supreme Court dealt with the allegations of rigging the election by process of chemical treatment to ballot papers. The Court stressed upon the substantial justice observing that undoubtedly secrecy of ballol is important and cannot be breached on vague or indefinite allegations but doing justice was more important and it would be moreso, if whal is in stake is the interest of the society.
(26). In Banamall Das vs. Rajendra Chandra Mardaraj Harishandan & Ors. (31), the High Court disposed of the election petition after taking the consent of the parties on the issues for which there had been no allegations/pleadings at all. The Hon'ble Supreme Court disapproved such practice observing as under:-
"In our opinion the learned Judge was in error in directing merely because his suggestion was accepted by the parties appearing beiore him, that the Court should take a recount of all the ballol papers. Respondent-1 who filed the election petition had not asked for such a recount and the defence of the appellant to the petition was that the entries in form No. 28 reflected a true picture and contained no error. The consent to the recount was given only by the appellant and. respondents 1 and 2. The oilier respondents who had contested the ciection did not appear at the trial of the election petition but they certainly had no notice that a recount would be suggested or accepted when there was no plea about it in the pleadings of the parlies. The learned Judge widened unduly the scope of the election petition are landed himself into an unforeseen difficulty of having to decide points on which there was neither a pleading nor an issue.....And so we have to countenance an argument based on no pleadings, arising out of no issues and founded solely on errors, real or supposed, which are said to have happened to sec the light of the day as a result of the recount and the re-recount. Even election petitions must and at some stage and they cannot, for the reason that elections are a democratic venture, be permitted to procreate points during the course of their pendency.... Elections, says the learned counsel, are not a matter of technicalities and the court must satisfy its conscience that the election before it was free and fair. Justice may be a matter of the Judge's conscience but even a strong and sensitive conscience must not brook an endless litigation in which parlies will fish for new challenges based on accidental discoveries of no more than plausible points to ponder. The new errors or which me appellant now relies have an air of plausibility and no more. The new argument founded on those errors must therefore fail."
(27). In M.R. Gopalakrishnan vs. Thachady Prabhakaran (32), the Hon'blc Supreme Court, after considering the statutory provisions of the Act, observed that the rules provide adequate opportunity to a candidate, his election agent and counting agents to have a watch over the counting process before result is declared and if they raise any objection as to the validity or otherwise of any ballot paper and the said objection is improperly rejected, the candidate, his election/counting agents are well informed of the nature of the objection that they raised with regard to ballot and make a concise statement of material facts in the election petition in relation thereto. It is for these reasons that the Hon'ble Supreme Court repeatedly held that recount should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to the errors in the counting and is able Io show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected for the reason that mandatory provisions of Section 94 of the Act, which provides for maintaining the secrecy of voting, have lo. be observed strictly.
(28). In Ajit Singh vs. Bansi Singh (33), the Hon'ble Supreme Court held'that there must be convincing and unimpeachable evidence about irregularity in counting the votes found materially affecting the election result and it should not be interfered with lightly. Moreso, the arrangements at the counting place when the counting agents of the candidates were asked to sit put side the high fence and they had no access to the counting table to see counting, was held to be justified in order to prevent any untoward situation and putting the high-fences between the counting agents and the counting table was held to be the precautionary measures taken by the Returning Officer and the same cannot be said to be unjustified rendering counting process invalid.
(29). In Manohar Joshi vs. Nitin Bhaurao Patit & Anr. (34), the Hon'ble Apex Court held that non-compliance of the provisions of Section 83 of the Act is not specified as a ground for dismissal of the election petition under Section 86, the petition cannot be dismissed for non-compliance of the provisions of Section 83. The provisions have to be construed strictly being a technical law. Section 86 empowers the High Court to dismiss an election petition at the threshold if it does not comply with the provisions of Section 81 or Section 82 or 117 of the Act, all of which are patent defects evident on a bare examination of the election pelition as presented. Sec. 81(1) requires the checking of limitation with reference to admitted facts and Sec. 81(3) requires only a comparison of the copies accompanying the election petition with the election petition itself as presented. Section 82 requires verification of the requires parties to the pelition with reference to the relief claimed in the election petition. Section 117 requires verification of deposit of security in the High Court in accordance with High Court Rules. Thus, there is no scope for any further inquiry for the purpose of Sec. 86 to ascertain the deficiency, if any, in the election petition found with reference to the requirements of Section 83 of the Act. For this reason, the non-compliance of Sec. 83 is not specified as a ground for dismissal of the election petition u/Sec. 86 of the Act.
(30). In Mahendra Pal vs. Ram Das Malanger & Ors. (35), the Hon'ble Supreme Court again re-stated and clarified the distinction between "material facts" and "material particulars" and held that material particulars can be furnished at a later stage and if the petitioner has sufficiently averredc the total number of votes polled and counted and the alleged excess counting of votes in favour of the returned candidate, when the specific allegations of irregularity in counting of votes are there, the election petition may not be dismissed merely on the ground that the petition lacks material facts and particulars and in such a case, after trial, the order of recounl may be made.
(31). In V.S. Vishwavidyalaya & Anr. vs. Dr. Rajkishore Tripathi & Anr. (36), the Supreme Court dealt with the provisions of Order VI Rule 4 of the Code, which provides for furnishing full parliculars in case of allegations of any misrepresentation, fraud, breach of trusl, wilful default or undue influence. The Court held that it was not enough to state in general terms that there was "collusion" without more particulars. The Court referred to and relied upon its earlier judgment in Bishundeo vs. Seogeni Rai (37), wherein it had been held that Court cannot take notice of general allegations of fraud, collusion, coercion and undue influence as the same would fall short of pleadings. Persons, against whom the allegations are there, must be named. Thus, the .party pleading any of the above must set forth full parliculars tand the case is to be decided on the particulars as laid. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6 Rules 16 of the Code.
(32). In T.M. Jacob vs. C. Poulose & Ors. (38), the Constitution Bench of the Hon'ble Supreme Court held as under:-
"That apart, to our mind, the Legislative intent appears to be quite clear, since it divides violations into two classes- those violations which would entail dismissal of the election petition under Section 86(1) of the Act like non-compliance with Section 81(3) of the Act, i.e. non-compliance with the provisions of Section
83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam (AIR 1964 SC 1545), and Ch. Subbarao's cases (AIR 1964 SC 1027). The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doclrine of curability on the principles contained in the Code of Civil Procedure."
(33). In view of the above, it can be summarised that right to challenge the election of the Parliament/State Legislative Assembly isneither a civil right nor a right in enquily but merely a statutory right and thus very strick adherence to the statutory provisions is required. Election petitioner, by incorporating adequate material facts has to discharge the burden by salisfying the Court that there was a prima facie case for recounting. Allegations made in the pelition must be clear and specific and must be supported by adequate statements of material facts. The Court has to reach the conclusion that by passing an order of recounting, it was imperalive to do full justice between the parlies for the reason that it is also very important to maintain the secrecy of the ballot which is, in fact, sacrosanct and cannot be violated on frivolous, vague and indefinite allegations. Secrecy of ballot is "an adjunct of free and fairelections" but the same cannot be invoked to suppress a wrong coming to the light or to protect a fraud on the election process. Section 83(1)(a) of the Act which provides that petition must contain a concise statement of the material facts, on which the petitioner relies, is akin to the 'provisions contained in O. VI R. 2 of the Code which requires thai every pleading shall contain a concise statement of the material facts on which the party relies for his claim or defence. Eleclion petition must contain the material facts and where, the petition is based on the allegations of corrupt practices, the material particulars have also to be furnished mandatorily as required under Section 83(1)(b). In case the petition is based on the grounds other than the corrupt practices, the particulars can be furnished at a later stage as the election petition cannot be dismissed at the threshold under Section 86 for the reason thai Section 83 has not been referred to therein alongwith the provisions of Sections 81, 82 and 117 of the Act.
(34). Application under the provisions of Order 7 Rule 11 of the Code has to be considered only in respect of the material facts in the case like the instant, taking the averments made in the eleclion petition to be true as the truthfulness or falsehood of the said averments is a matter of trial and if material facts have been incorporated in the election petition, the same cannot be dismissed by entertaining such an application. The trial Court may also take into consideration that the candidate/his election agenis and counting agents had sufficient opportunity to see the-ballot papers at the time of counting and raise objection for acceptance or rejection of a ballot paper improperly or illegally and if they had not raised any objection at the time of counting or had raised the objection but the same had been found vague or rejected after being considered by the Returning Officer, the Court may not permit to raise the issue unless there are compelling circumstances to show that the order passed by the Reluming Officer on such ballot papers was perverse or illegal. If the election petitioner, his agenl or counting agent has not made any complaint to the Returning Officer at the lime of counting regarding any illegality or irregularity of accepting or rejecting the voles, he should furnish an explanation why he could not make such an objection, and if made, what was the result of their objection. If the same had nol been raised there and agitated first time in the election petition, it may be deemed to be after-thoughi. If the election petitioner cannot furnish the serial number of the ballot etc., he should furnish 'explanation for the same. Vague pleas taken in the petition, not supported by the material facts, do not warrant the order of inspection and recounting. More so, on every plea it has to be urged that for want of proper action, result of the election stood materially affected for the reason that Court cannot avoid the eleclion on "speculation and conjectures." In order to bring the case within the ambit of Sec. lOOCD(d)Gv) of the Act, material facts have to be incorporated nol only with regard to the breach of the Rules but also with regard to the fact of materially affecting the result of the eleclion.
(35). The instant case requires examination in the light of the aforesaid proposition of law.
(36). Paragraphs 1 to 9 and 12 furnish the information in a chronological order as how the election has been held and the votes had been counted. The eleclion was held on 25.11.98 and the counting took place on 28.11.98 in the Lohia College, Churu in rooms No. 1 and 49, wherein 8 tables had been fixed in each room. The votes secured by each candidate had been as under: -
1. Shrl Jaidev Prasad Indoria 42373
2. Shri Rajendra Dildhania 384
3. Shri Hari Shankar Bhabhra 41996
4. Shri Poonam Chand Rajpurohit 1930
5. Shri Bhera Ram 713
6. Shri Mangal Chand 140
7. Shri Bhawani Shankar. 58
8. Shri Madan Singh (Loonchh) 1118
9. Shri Shyam Lal 46
(37). In para 10 and 11 of the election pctition. it has been alleged that Instruclions for mixing up of the ballots had no! been cemplied with strictly inspite of the complaint by counting agent of B.J.P. candidate. In absence of any averment that non- compliance of the Instruction for mixing up of the ballots had material affected the result of the eleciion, the contents therein do not disclose any cause of action for recgunling.
(38). Paragraph 13 contains the allegation of connivance of the returned candidate with the Reluming Officer Mr. Mahaveer Prasad. No basis for such a connivance has been disclosed, nor it is alleged that who was knowing about the alleged connivance and on what basis the connivance is alleged. Moreso, there has been no protest to such a charge prior to counting of votes. A mere bald statement that the Returning Officer was in connivance with the returned candidate does not furnish any ground for recounting. Merely because he had changed some of the members of Counting Staff, does not lead to the conclusion that il was an out-come of connivance as it may be an administrative exigency and the persons assigned the duty may not be available for that purpose for one reason or the another. There is no averment that same has malerially affected the result of the election.
(39). Paragraph 14 is again regarding some connivance between the returned candidate with the Reluming Officer in allowing a large number of counting agents on behalf of the returned candidate though purported to be the agents of other candi-dafes. Under law every candidate has a right to have his counting agenls' present in the counting halls. It is not petitioner's case that the signatures on application forms for attending the counting halls had been forged by the returned candidate or his election agenl; or the counting agents present in the counting halls were not the authorised counting agenls, If the law itself provides for having a counting agent by every candidalc, it cannot be a ground for alleging, connivance between the returned candidate and the Returning Officer.
(40). Paragraph 15 contains the allegation that the counting agents were interested in manipulating the victory of the returned candidate and a large number of counting agents of different candidates did not permit the counting agents of B.J.P. candidates to raise their grievance. The allegations are nol specific and precise, they are completely vague and unspecified. Petitioner ought to have disclosed as in which round, on which lable it so happened and who had done it. What was the number of ballots in respect of which counting agents of B.J.P. candidate had raised the objeclion and the Counting Assistants did not accept it and even if il was turned down by the Counting. Assislanl, whether any protest was made to the Re turning Officer? The paragraph does nol meet the requirement of law regarding "containing the full particulars."
(41). Paragraphs 16, 20 and 21 had been given up by Mr. Raghav at the time of arguments stating that the same did not conlain full facts and as such these paragraphs do not require any discussion.
(42). Paragraph 17 contains the allegation that television set installed in the Counting Centre depicted that Congress candidates were having a lead in more than one hundred constiluencies and it came to the knowledge of the employees. It does nol say further how it has malerially affected the resutl in the instant case. Mere having information that in most of the constituencies Congress candidates were leading, does hot give a cause or reason for recount of voles. Therefore, the allegation remains incomplete, half-hearted and of no avail.
(43). In Paragraphs 18 and 19, allegations have been made that on particular lable, the employees of Education Department, who had special grievance against Mr. Bhabhra, had been posted. It is too general a statement to allege that employees of Education Department were having some grudge againsl the B.J.P. candidate merely on the ground thai he happened to be the Finance Minister. As there is no further reference as what had been (heir demands, when it was rejected and what was the main role of Mr. Bhabhra in rejecting their demand, the allegations are general and vague and do not disclose the material facts. Enhancing the pay scales was a general problem for all the Governmenl employees and it is not the case of the petilioner that it was confined only to the employees'of the education department. Such a vague allegation does not constitute material fact.
(44). Paragraph 22 contains the allegation that Mr. Vishnu Indoria, who had been assigned the duly in the counting in placing of Mr. Ratan Pareek, was a relative of respondent No.l. The allegation does not go further as how Mr. Vishnu Indoria had acted in counting, what was the duly assigned to him in parlicular and how he had been an instrument in changing the election result inalerially. The document (Annx. 2) filed by the petitioner himself shows that he had been assigned the duty of preparing the result sheet. In absence of any allegation that how the result sheet had wrongly been prepared and how he could materially affect the result of the election. Even if it is accepted thai he was related to the returned candidate, it does not make out a case for recounting.
(45). In paragraph 23, it is alleged that one Mr. Satya Narain Jangid had mixed up certain votes and on lodging the complaint, the error was rectified. If the error had already been reclified, nothing remains so far as the allegation conlained in paragraph . 23 is concerned.
(46). In paragraph 24, allegations have been made against Mr. Satya Narain Jangid regarding irregularity and mischief on table Nos. 1,4,6 and 8 and the Returning Officer did not stop him from dong so even after raising objection by the counting agent of B.J.P. candidate. This paragraph also does not disclose the material fact as in which round what irregularily had been committed and who was the counting agent who raised the objection and how the Reluming Officer had rejected his objeclion. As per the document (Annx. 2) filed by the petilioner himself, the duty of Mr. Satya Narain Jangid had been for English lyping. The allegation made therein remains completely vague and general in nature. Neither the ballot number had been given nor the number of votes of B.J.P. candidate, which had been mixed up in the bundles of Congress candidate has been given. No explanation has been furnished as why no complaint had been lodged to the Returqing Officer in writing and if he did nol pay any heed to their request, why the complaint was not lodged to the District Election Officer.
(47). Paragraph 25 contains the allegation that a large number of persons belonging to Sardarsahar, Dungargarh, Sujangarh and Churu had entered into Room No. 1 and created choas and confusion. Counting agents of B.J.P. candidate could not see the counting properly as they had been pushed back by such crowd. Allegations contained in this paragraph also remain completely vague. It is not the case of the petitioner that they had raised objection, orally or in writing, as how such crowd had been permitted to enter the counting halls contrary to the Rules and Instructions, nor there is any specific allegation as how they had come and sat with which counting agents of B.J.P. candidate and prevented them of having a proper watch on counting. Allegation is not specific as it does not disclose whether all of them spread on all the eight tables or surrounded only one lable; nor does it specify as in which round it so happened, for the reason that the election agent of B.J.P. candidate had given in writing in respect of counling of votes in several rounds that he was satisfied with it. It has nol been disclosed as who had raised the objection to the Returning Officer regarding the unauthorised presence of those persons and whether it was oral or in writing and how it was rejected. Moreso, if such a situation had happened, why it was not mentioned in the applicalion for recounting of votes filed before the Returning Officer.
(48). It has been alleged in paragraph 26 [hat the returned candidate from the neighbouring Sujangarh Constituency Master Bhanwar Lal came to the counting hall at 7.00 p.m., sat wilh the Reluming Officer and asked him to favour the Congress candidate and act against the B.J.P. candidate in the counting. There is no allegation in the election petition that in furtherance of his pressure, the Returning Officer had asked any counting assistant to favour the returned candidate or to act against the B.J.P. candidate. In absence of such an assertion, mere alleged pressurising the Returning Officer by Master Bhanwar Lal remained inconsequential for the reason that the lest is that such a pressure should have been actuated further which could have affected the election result materially. Thus, full facts have not been furnished in this paragraph.
(49). Paragraph 27 contains the general statement regarding illegality in sorting out of votes candidale-wise at table No. 3 and not paying heed to the objections raised by the counting agents of B.J.P. candidate. Again, it remains a general allegation without disclosing as in which round it so happened and which of the B.J.P. counting agent had raised the objeclion and if so, to whom and with what result. The allegation has to be examined in view of the fact that election agent of B.J.P. candidate had given in writing for most of the rounds that he was satisfied with counting. Therefore, this paragraph also does not contain any material fact.
(50). Paragraph 28 contains the allegation that in 4th round, at table No. 8, one extra counting assistant came and slarled sorting of ballots on the stool to help respondent No.I and it resulted in difficulty for counting agent of B.J.P. candidate to see the ballots properly. The name of such extra counting assistant has not been disclosed; no number of voles he had sorted out, has been given; nor it is disclosed as whether any objeclion in this regard had been lodged and if so wilh what result. Mere statemenl that he was sorting out the votes on the stool, does not disclose the full facts. It is not further alleged that it materially affected the election result.
(51). Paragraph 29 relates to one suspicious vote and also rejecting the valid votes of B.J.P. candidate and accepting invalid voles of Congress candidate. Number of such votes has not been given; in which round and on which table it so happened and who had raised the objection and what was its result, have not been described fully and in a concise manner. Thus, the allegations contained therein are vague and do not furnish full facts. So far as one suspicious vote is concerned, it would not affect the election result materially.
(52). Paragraph 30 pertains to the allegations of support by the counting assistants to the returned candidate and when objection was raised, they threatened that they could do anything whatever they wanted. It has not been the case on behalf of the B.J.P. candidate in the application for recount, nor they have made any such complaint before the Returning Officer in writing. It does not disclose the material facts as which of the counting agenls of B.J.P. candidate had lodged the compaint and to whom and with what result. Thus, the paragraph does not disclose full material facts.
(53). In Paragraph 31, it has been alleged that upto third round, the B.J.P. candidate was leading by 850 votes and after the knowledge of the prevailing trend in the State, the counting assistants and particularly the employees of the Rducalion Deparlmenl, played all possible mischiefs to manipulate the result for the defeat of the B.J.P. candidate. The paragraph does not disclose any material fact as at what lime, after knowing the trend, the mischief was played, who had played the mischief and in which room, on which table and in which round it was done. Thus, the allegations are completely vague and do not furnish full material facts.
(54). Paragraph 32 contains the allegation regarding the favour by the counting assistants on tables No. 1,4,6,9,10 and 11 in illegally rejecting the valid voles of B.J.P. candidate and mixing of his votes in the bundles of Congress candidate and not paying heed to the objections raised by the counting agenls of B.J.P. candidale. In this paragraph also, the number of round, serial number of ballots and total number of voles of B.J.P. candidate illegally rejected and the number of votes, lablewise and roundwise, mixed up with the bundles of Congress candidate, have not been furnished. Further, it remains a vague allegation that the objections raised by the counting agents of B.J.P. candidate were not heard properly by the counting staff. Without disclosing the names of the counting assistants, as on what particular lime, which particular counting agent of B.J.P. candidate had raised the objection regarding illegal rejection ofVotes etc., the objection raised in this paragraph can yield nothing in favour of the petitioner. Further, allegation regarding loud shouting of other candidate's counting agents also remains vague as it does not disclose in which room and in which round and on which table it so happened. Why the report in respect of such inslance had not been lodged before the Returing Officer/District Election Officer.
(55). In paragraph 33, the allegation has been that the counting agents of B.J.P. were not allowed to touch the ballots. Such an allegation is not acceptable because as per the provisions of law, the ballots cannot be touched by the counting agents of a candidale. The further allegation that they were not allowed to note down the serial number of the ballots, also, remains vague for the reason that the same does not disclose as in which round, who tried to note down the number of the ballot-papers etc. and who did not allow him to make a note of it.
(56). Paragraph 34 contains the allegation of calculation errors of three votes. As per this allegation, Form No. 20 had shown that 979 valid votes had been polled in the second round at table No. 14, though altogether it could have been 976. Firstly, it is not the case of the petitioner that three extra votes had been shown in favour of the returned candidate, nor it is explained as how the three voles could have materially affected the result of the election. It may be a writing or calculating error which stood rectified. Therefore, such a trivial issue does not make a ground for recount of votes.
(57). Paragraphs 35, 36, 37, 38 and 39 arc regarding the applications for recount of votes and satisfaction of the counting agents regarding the counting.
(58). Rule 56-B provides for a procedure of counting of votes. Rule 63 provides for recounting of votes and rule 64 provides for declaration of result of election and return of election. As per Clause (1) of rule 63, after completion of counling, the Returning Officer shall record in the Resull Sheet, in Form 20, the total number of votes polled by each candidate and announce the same. Clause (2) provides that the candidate or his election agent, after such announcement, may apply in wriling to the Returning Officer to recount the votes either wholly or in part, stating the grounds on which he demands such recounling. Clause (3) provides thai such an application shall be decided by the Returning Officer and it may also be rejected in loto if it appears to him to be a frivolous or unreasonable one. Instructions have been issues; Chapter 14-B of which provides for counting of votes. Paragraph 1.1. of the said Instructions emphasises on the importance of counting of votes and counling should be done very carefully "when the margin of difference between the two candidates securing the largest number of votes is comparatively narrow." It should be done with great vigilance and maintaining the discipline for the reason that such a course shall not give a chance for recount of voles. Paragraph 11 refers the provisions of rule 53(1) of the Rules, which provides for appointment of counling staff. Paragraph 13 of the Instructions provides that no person shall be allowed in the counting hall unless he is a counting supervisor or count assislant authorised by the Election Commission, public servant on duty in connection with directions and candidales, their election agenls and counting agents. Paragraph 14.3. provides that entry of persons should be regulated strictly as the presence of any unauthorised person may vitiate the counting itself. The over-crowding may create confusion etc. Paragraph 27.1 provides for recounling, stating that after filling up the number of voles secured by each candidate in the result sheet in Form 20 and announcing the said number, the Reluming Officer shall 'pause for a minute or two", if during this period, any candidate or in his absence his election agent or any of the counting agents, ask for a recount the Returning Officer must ask him how much time he would require for making an application in writing for recounting and after giving such a reasonable time, if application is filed, the Reluming Officer should allow il in whole or in part if il is reasonable, but it should be rejected in toto if it appears to be frivolous or unreasonable, but the decision should be recorded in writing. Chapter 15 of the Instructions deals wiih declaration and publication of election result. Paragraph 1.3 thereof puts an embargo on the Returning Officer not to declare the result without proper approval of the Election Commission if the margin of the leading candidate is less tnan 5% of the total valid voles polled by them and there is a request for recounting which has been rejected. Para 2.1 provides for declaration of result after obtaining the approval of the Election Commission, if necessary, after completing the process and signing the result sheet in Form No. 20.
(59). In the inslant case, the result had been prepared and filled up in the result sheet at 7 : 18 p.m. with the following allegations :-
"(1) Margin of votes was very low;
(2) With the connivance of the Congress candidate, there has been mixing of BJ.P; votes in the bundles of the votes of Congress candidate;
(3) Counting was not impartial;
(4) Votes of B.J.P. candidate had illegally been rejecled knowingly;
(5) At the lime of counting, the counting agents of B.J.P. were asked to sit at far distance; thus, the re-counting was asked for".
(60). The said application was rejected by the Returning Officer stating thai the application was filed at a belated stage; when number of votes polled by each candjdate was declared at 7 : 18 p.m., nobody asked for recounting; there was a difference of 377 voles but during the process of counting, there had been no objection from the election agents/counting agents of Shri Bhabhra who were present at every table, therefore, merely because the margin of votes, it did not mean that there has been some irregularities. The question of collusion of the counting staff with the Congress candidate had been alleged in completely vague terms without disclosing as in which round and at which table, the illegality has been committed. The election agents of Shri Bhabhra has expressed his salisfaction towards the counting, the allegations were vague and without disclosing as which employee had commilled an illegally or irregularity or had not acted impartially. It is further not alleged as in which round, on which table which ballot has not been accepted in favour of B.J.P. candidate. Moreso, the counting agents of all the candidates were sitting togelher, there was no substance in the allegalion that B.J.P. counting agent was asked to sit at a far distance, nor any compaint had ever been lodged during the process of counting.
(61). Another application for recounting was filed at 7 : 55 p.m. contending that it has wrongly been stated that election agent of BJ.P. was satisfied with the counting of Round Nos. 4, 5 and 6. He had never expressed his satisfaction, nor he had been asked to do so. The said application was also rejected stating that the earlier application for recount had already been rejected and so far as counting of 4th, 5th and 6lh rounds are concerned, the agent of B.J.P. had expressed his satisfaction. Thus, the said application was rejecled having no basis.
(62). Two more applications for recounting were filed subsequently but once the result had been declared and the Returning Officer became functus officio, 1 do not think that it is worth consideration. In the application filed after declaration of the result at 11 : 05 p.m., allegations had been made for the first time that about one thousand votes of B.J.P. candidate had been wrongly rejecled and had the same been accepted, it could have materially affected the result of the election; the counting had no! been done impartially as the counting agents of B.J.P. were asked to sit at a far distance, they could no! see the counting properly and could not raise objection and there had been illegal mixing of voles, particularly of B.J.P. candidate, in the votes of Congress candidate. But as such an application had been filed after declaration of the result, it was rejecting being nothing but a repetition and improvement of the earlier applica- lions. Moreso, by that time, the Election Commission had already granted approval for declaration of the result.
(63). There is a material difference between the allegations made in the application for recounting before the Returning Officer and the election petition. It has nol been the case of the B.J.P. candidate or his election agent that the employees of the Education Department, who had been assigned the duty of counting the voles, had some personal grievances or vengeance against Shri Bhabhra. Secondly, II has nol been mentioned therein that some persons have been substituted afterwards to favour the returned candidate and moreso there has been variance in the contents/allegations even in the application filed before the Reluming Officer for recount. Moreso, there is ioo much improvement in the version made on behalf of the B.J.P. candidate before the Returning Officer and the election petition. Election petition is based on an improved version as such allegations had nol been there in the applications for recounting.
(64). Undoubtedly, at this stage, for deciding this applicalion, this Court is not permitted to see the reply of the respondents or other relevant record of the case, but in view of the aforesaid discussion it is crystal clear that the material facts in respect of the following have not been disclosed in the election petition:-
(i) Total number of voles of B.J.P. candidate alleged to have been mixed up in the bundles of votes of the returned candidate.
(ii) Table wise break up of such voles;
(iii) Round-wise break up of such votes;
(iv) No contemporananeous record/application complaining about such irregularity and illegality;
(v) To.tal number of voles of B.J.P. candidate illegally rejecled, with round-wise and table-wise break up of such voles;'
(vi) Total number of votes illegally accepted in favour of the returned candidate, with table-wise and round-wise break up;
(vii) It was expected from the petitioner's counting/election agent (s) to have raised objections in writing regarding the irregularities alleged to have been committed in the counting; whether any objection was raised, and if yes, by whom and to which officer and with what result;
(viii) No explanation has been furnished by the election petitioner as to why any objection was not raised when the unauthorised crowd entered into the counting halls, nor is there any explanation as to why objection was not raised when the returned candidate from the neighbouring constituency Master Bhanwar Lal entered the counting hall and sat with the Returning Officer and promised him to favour the returned candidale;
(ix) It has no where been stated that the instances alleged in the petilion had affected the result of the election malerially; and
(x) There are no explanations why all the allegations made in the election petition had not been urged in the application (s) filed for recounting of votes before the Returning Officer;
(65). Accordingly, the application filed by the returned candidate, respondent No.l, under Sections 83(1)(a) and of the Act read with Order 7 Rule 11 and Order 6 rule 2 of the Code, is allowed. Consequently, the election pelition is dismissed on the ground that the averments contained in the election petition do nol disclose a cause of action. Returned candidate-respondent No.l shall be entitled for costs to the tune of Rs. 1,000/- (One Thousand) only.