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Judgment
D.B. Lal, J.—These are four election petitions No. 3/72, 4/72, 9/72 and 11/72, and the Respondents have raised certain preliminary objections for which issues have been framed. The respective parties were called upon to produce evidence in respect of these issues. Since most of the issues deal with common questions of law and facts, the four petitions have been consolidated and connected and a single judgment disposes of such preliminary issues.
Issue No. 2 of petition No. 3/72;
Issues Nos. 3 and 4 of petition No. 4/72;
Issues Nos. 2 and 3 of petition No. 9/72; and
Issues Nos. 1, 2, 3 and 4 of petition No. 11/72.
These preliminary issues relate to defects pointed out u/s 83 of the Representation of People Act, 1951. It has been stated that a concised statement of material facts [Section 83(1)(a)], and full particulars of any corrupt practice [Section 83(1)(a)], have not been provided as required by this section. It has been further stated that the affidavits filed in support of the allegations of corrupt practice are not in the prescribed forms. It is also a plea in one of the petitions, No. 11/72, that the annexure submitted with the petition has not been signed and verified in manner laid down in the Code of CPC [Section 83(1)(a)].
It is abundantly clear from Section 86 that any defect pointed out in the petition with reference to Section 83 is not fatal to the petition. Section 83 is, no doubt, mandatory and requires the election petition to contain, first a concise statement of material facts, and then requires the fullest possible particulars. The word "material" shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. The material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. (See Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, Another case of the Supreme Court which is latest is reported in Raj Narain Vs. Indira Nehru Gandhi and Another, . Their Lordships have reiterated the previous view and have further held that any defect in the supply of material facts and particulars so as to hold that a cause of action is not made out, is not curable by supply of such facts and particulars at a later stage and after the expiry of the period of limitation prescribed for submitting an election petition. I have, therefore, to keep guard against this, that material facts and particulars now sought to be supplied cannot be made to set up a fresh cause of action not available to the Petitioners, on the dates they submitted their election petitions. It is manifest, that the four election petitions cannot be dismissed on this preliminary ground, because one or more causes of action are set out in each petition and material facts and particulars of corrupt practice for such cause of action are already available. It is only in respect of some causes of action that full particulars are required to be given, which I have specified in the several appendices given at the end of this judgment and which are part of the judgment. These further particulars are required to be given by the Petitioners concerned, accompanied by proper affidavits duly signed and verified in the manner laid down in the Code of CPC as provided u/s 83, within a period of one month; failing that, the Petitioners would not be entitled to furnish any such further particulars, with the resultant consequence of a decision in favour or against them relating to the election petition.
It has further been contended in some of the election petitions that a proper affidavit has not been filed for the corrupt practice alleged by the Petitioner. The proviso to Section 83(1) is not mandatory. Failure to file an affidavit or any defect found in affidavit already filed, have not been considered fatal to the petition. It has been held that a proper affidavit can be submitted at a later date. In this connection, reference can be made to Bhikaji Keshao Joshi and Another Vs. Brijlal Nandlal Biyani and Others, ; Gadipalli Parayya v. Boyina Rajayya (Election Law Reports Vol. XII 1956); Brij Mohan Das Agarwal v. Z.A. Ahmad ( AIR 1964 All 523); N.P. Chengalraya Naidu Vs. G.N. Pattabhi Reddi, ; Jildar Ram Vs. Gouri Shankar Pandey and Another, and Murarka Radhey Shyam Ram Kumar Vs. Roop Singh Rathore and Others,
If in any petition the affidavit submitted substantially complies with Form-25 read with Rule 94.A of the Conduct of Election Rules, 1961, the said affidavit shall be considered proper and in prescribed form.
In election petition No. 9/72, an amended affidavit has been filed, but the same refers to the original paragraphs specified in the petition and to that extent the amended affidavit seems to be correct. At the same time, the Petitioner seeks amendment in the serial numbers of paragraphs, themselves and if these amendements are allowed, the new affidavit shall be rendered defective. The Petitioner shall now correct this mistake and get the paragraphs enumerated again and file fresh affidavit with reference to such paragraphs within a period of one month.
In election petition No. 11/72, the affidavit filed is not in the prescribed form and, therefore, such an affidavit should now be filed within a period of one month from the date of this order.
In election petition No. 4/72, the affidavit filed appears to be correct and no fresh affidavit need be filed.
In case, the affidavits sought for are not filed within a period of one month from the date of this order, the legal consequences shall follow affecting the decision of the election petition.
In election petition No. 11/72, it has been objected that the two annexures filed with the petition are not signed and verified as required u/s 83(2). These annexures are, in fact, documents on which the Petitioner relies and, therefore, no question should arise regarding the verification by the Petitioner of the correctness of their contents. The annexures are no doubt signed by the Petitioner and so he owns upon himself the responsibility of filing them. The verification was, in fact, not required because these annexures do not contain any facts on which the Petitioner relies as being correct.
Issue No. 1 of election petition No. 9/72, and
Issue No. 5 of election petition No. 11/72:
The objection in petition No. 9/72, is that the petition itself cannot be considered to be duly signed and verified because the copy supplied to the Respondent does not show the paragraph relating to verification. The petition itself, in this case, is duly signed and verified but the copy supplied to the Respondent does not show the verification clause, leading to an inference that a true copy has not been supplied to the Respondent. When the verification defect pointed out in Section 83(1)(c) was curable, as held above, how can the absence of verification in the copy supplied to the Respondent be considered fatal to the petition ? The objection has become somewhat involved because Section 81 is mentioned in Section 86 and a defect pertaining to Section 81 is prima facie a fatal defect as provided in Section 86.
The real test in a situation of like nature, is the misunderstanding which is likely to be created in the mind of the Respondent because of defective copy supplied to him. If no such misunderstanding can be inferred, the defect is not held fatal to the petition. In Dr. Anup Singh Vs. Abdul Ghani and Others, , each copy was not attested to be a true copy of the petition and was only endorsed as true copy signed by the Petitioner. It was held that sufficient compliance was made and no misunderstanding was created in the mind of the Respondent. The defect was not held fatal. In Krishan Goyal Vs. Purshottam Lal Badhwar (Rajaji) and Another, a similar defect was pointed out; but it was held that the petition could not be dismissed. In Ch. Subbarao Vs. Member, Election Tribunal, Hyderabad, substantial compliance of Section 81(3) was considered sufficient. There was absence of words "true copy" in the copy. It was held that the defect was not fatal. A distinction was drawn between complete non-compliance with the provisions and substantial compliance of the same provisions. If a substantial compliance is detected, the defect is not considered fatal. The last case of the series is reported in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore (A.I.R. 1964 S.C. 1545). It was observed that the word "copy" in Sub-section (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it. The test whether the copy is a true one is whether any variation from the original is calculated to mislead an ordinary person. In the instant case, the petition itself is properly verified and even if the copy does not contain the verification, there is no question of any misleading to the Respondent. He was made aware of the contents of the petition and he could prepare himself for a defence. Therefore, such a defect found in the copy is not fatal to the petition.
In petition No. 11/72, issue No. 5 has been withdrawn by the learned Counsel because the annexures themselves did not show verification and so the copies of such annexures supplied to the Respondent could not exhibit any such verification.
Issue No. 2 of election petition No. 4/72;
Issue No. 5 of election petition No. 9/72; and
Issue No. 6 of election petition No. 11/72.
The objection on behalf of the Respondents is, that the security has not been deposited as required u/s 117 of the Act. High Court Rules 23 and 27 would be relevant in this connection. According to Rule 23, the security for costs is to be paid in cash and deposited with the cashier during the hours in which the cash business of the High Court is conducted. The amount so deposited is credited to the Civil Court Deposit Account. A separate ledger folio is opened in respect of each party. Receipts are issued by the cashier to the persons depositing the amount. Rule 27 contains the power which the High Court exercises to relax the compliance of any particular rule and in that respect, the High Court can give directions to meet the ends of justice. It is submitted by the Respondents that the security was not paid in cash to the cashier. Similarly receipts have not been issued to the persons depositing security. In petitions Nos. 4/72 and 11/72, Shri K.P. Bose, Superintendent (Accounts) was examined as witness for the Petitioner. He stated in petition No. 11/72 that no post of cashier is sanctioned as such one Shri Madan Lal, Assistant, discharges the duties of the cashier. The Petitioners came to deposit the amount in cash with Shri Bose or Shri Madan Lal Assistant, but either of them informed the Petitioners that they should fill up necessary challans and deposit the amount in the State Bank. Accordingly the challans Ex. P.1 (petition No. 11/72) and Ex. P.2 (petition No. 4/72) were prepared and signed by Shri K.P. Bose. These challans disclose that the amount was deposited by the Petitioners on behalf of the Registrar of the High Court and the full particulars of remittance were: "security for cost of election petition entitled..." The amount specified is Rs. 2,000 and the head of account is as follows:
P--Deposits and Advances---Judicial Deposit--Departmental Deposit--Civil Deposits--Civil Courts Deposits.
Shri K.P. Bose has proved these challans. In the petition No. 9/72, the learned Counsel for the Petitioner relied upon a similar challan marked Ex. P.1 in that petition. It is abundantly clear from this challan that the deposit was made on behalf of the Registrar of High Court of Himachal Pradesh and that the amount was credited to the Civil Court Deposit Account. The particulars of remittance were, no doubt, security for cost of election petition. It is, therefore, manifest that the amount was deposited under a proper head of account and that it was available for payment as security towards costs awarded in the election petition. Shri K.P. Bose admitted that the Civil Court Deposits Account is invariably opened in the name of the Registrar of the High Court. This being the position, a substantial compliance of Section 117 has been made. The amount has been deposited under a proper head of account and is available to the Court for payment as security to be awarded in the election petition. Om Prabha Jain Vs. Gian Chand and Another, is almost a parallel case supporting the Petitioners. The dicta of the Court is clear from the following paragraphs:
Where there was no dispute that the Petitioner deposited the required amount and enclosed a deposit receipt with his petition but the deposit receipt filed by the Respondent contained the following statements--''(1) By whom tendered...; (2) Name of the person on whose behalf money is paid... and the contention was that the receipt in this form showed that the money had been paid by the Petitioner acting for the Secretary to the Election Commission and not by him in favour of the latter, and hence Section 117 was not complied with;
Held that as the form of the receipt contains no other heading for indicating the person in whose favour the money was paid and as it was paid in favour of somebody, that made it perfectly clear that the words ''on whose behalf meant ''in whose favour''. The money was thus properly deposited ''in favour of the Secretary and was thus in full compliance with Section 117.
In the instant case, the amount was paid on behalf of the Registrar of the High Court. It was deposited in a proper head of account and was no doubt available to the High Court for payment to the Respondents. This was a substantial compliance of Section 117 and the petitions cannot be dismissed on that account.
The same view was followed in Chandrika Prasad Tripathi Vs. Siv Prasad Chanpuria and Others, and K. Kamaraja Nadar Vs. Kunju Thevar and Others, The learned Counsel relied on Sudhansu Sekhar Panda Vs. Natendra Nath Das and Another, , but in that case the deposit was not made in the correct head of account, nor as security for costs, and in those circumstances it was held that no substantial compliance was made of Section 117. The facts regarding deposit of security in the instant petitions are different and, therefore, these petitions are not liable to rejection on any such ground.
Issue No. 1 of petition No. 4/72:
It was not disclosed, in what manner a proper address was not furnished by the Petitioner and, therefore, it is held that the petition does not suffer from any such infirmity.
Issue No. 4 of petition No. 9/72:
During the course of arguments, the learned Counsel gave up the plea regarding limitation and hence this issue no longer arises for decision.
Issue No. 1 of petition No. 3/72:
The rule regarding production of election papers is 93 of the Conduct of Election Rules, 1961. It is manifest, the election papers including ballot papers can be opened for inspection under the order of a competent court. Section 87 of the Act provides that the trial of an election petition shall be held as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. In other words, provisions regarding inspection and discovery of documents contained in the Code of CPC can be conveniently imported in an election petition to facilitate a correct decision of such petition. The Petitioner in election petition No. 3/72 wants that in the very first instance, recounting of ballot papers should be permitted and, therefore, a preliminary issue has been framed, as to whether the Petitioner can, in the first instance, ask for recounting of votes before any other preliminary issue is entered into and decided.
There was an interesting controversy at the Bar as to whether the Petitioner should be permitted to adduce evidence on this issue and it was contended that if the request of the Petitioner is acceded to, the trial would be held in dirblets, as piecemeal evidence on material facts would be given at several stages to the detriment of either party. The objection of the Respondent(s) was upheld and it was ordered that the contentions raised by the Petitioner would be taken at their face value and assuming such contentions to be correct, it would be decided as to whether a prima facie case is made out calling for recounting in the first instance.
It is settled law that recounting cannot be claimed by any party as a matter of right. In Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, , the learned Judges emphasised that vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interest of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. Care must be taken to see that election Petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate''s election is void. No hard and fast rule can be laid down in this matter; for, attempt to lay down such a rule would be inexpedient and unreasonable. Their Lordships considered the scheme of the Act as well as the scheme of the rules prescribed in Part v. of the Conduct of Election Rules, 1961 and emphasised the point that the election Petitioner who is a defeated candidate, has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly over-ruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. Therefore, arises the necessity of getting a complete opportunity regarding any such irregularity said to be committed by the persons conducting the election regarding improper acceptance or rejection of ballot papers. This dicta of the Supreme Court is reiterated in Shri Jitendra Bahadur Singh Vs. Shri Kirshna Behari and Others, . The ratio of that case can conveniently be quoted in the own words of their Lordships:
The basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers, are.
(1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the Petitioner relies in support of his case and (2) the tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. If an election Petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts when the Petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion, that he got those figures from the counting agents of the unsuccessful candidate cannot afford the necessary basis.
In the instant case, the Petitioner has simply enumerated the number of ballot papers said to have been improperly accepted or rejected and his basis of information for that is neither cogent nor definite, and hence I am of opinion, that recounting at the initial stage should not be permitted. The allegations are contained in para 6 of the petition and amount only to a reasonable apprehension that exists in the mind of the Petitioner, as to the improper acceptance or rejection of any particular vote. Apart from this, some more material facts are required to be established before any recounting can be resorted to. It would not be proper to give opportunity to the Petitioner to conduct a roving and fishing enquiry as to the state of votes in any particular ballot box with a distant hope that he could find some votes in his favour to exceed the required number for winning the election. It was submitted by the learned Counsel that a narrow-margin exists for the winning of the Petitioner. But that by itself cannot be a ground for permitting recounting at the initial stage. In my opinion, the allegations made out, do not raise even a prima facie case, at any rate at this stage, so that before deciding any other issue in the petition, recounting should be made.
From what I have stated above, I should not be understood to mean that the Petitioner has failed to make out a case for recounting. He may succeed in making out such a case at a later stage when proper evidence is recorded. If that is so, recounting would certainly be ordered for the satisfaction of this Court. My finding on this issue is therefore, only this, that a prima facie case for recounting is not made out at the initial stage. Subsequently if a case for recounting is made out, the same would be permitted in favour of the Petitioner.
All the issues are, therefore, decided in the manner stated above. The costs incurred by respective parties for decisions under these issues shall be costs in the petitions.
This judgment is being given in election petition No. 3/72 and shall form part of the record of the other election petitions. Copies of the decision shall be kept in the records of other election petitions.