C. Krishna Yadav vs Ale Narendra and others

The first respondent in Election Petition No. 15 of 1995 is the petitioner. The Election Petition was filed for ordering inspection, scrutiny and recount of the ballot papers polled during the election to 207 Himayatnagar Assembly Constituency held on December 1, 1994, and for other reliefs, mainly on the ground that the agents of the petitioner had no opportunity to watch the scrutiny of ballot papers and the counting process; that several ballot papers were accepted in favour of the first respondent which do not have the signature of the Presiding Officer, or otherwise wrongly counted, while several ballot papers were wrongly rejected from counting in favour of the petitioner either on the ground that the mark is not distinguishable or that the mark is overlapping or it was affixed partly only, in relevant column, noticed discrepancy in the total count of ballot papers including the posEal ballots; no test check was conducted by the Returning Officer properly, several ballots which do not contain the signature of the Presiding Officer were counted in favour of the respondent in almost all the rounds, the objections raised by the counting agents were turned down by the Returning Officer unjustly and these and other irregularities materially affected the result of the election.

Pending the said Election Petition, the first respondent-returned candidate, filed this application objection to the maintainability of the election petition on the ground that none of the allegations made in the election petition discloses any cause of action, or triable issue under the Representation of the People Act, 1951 and as such, it is liable to be dismissed. The main objection of the petitioner in this application is that the averments in paras 5, 8 to 14, 16 to 24 are vague and they do not contain the necessary relevant particulars, they do not disclose any cause of action, much less a triable issue. Therefore, the election petition is liable to be rejected.

In the counter-affidavit filed by the first respondent election petitioner it is stated that the petitioner has entered appearance through his counsel in the month of April, 1995, sought for number of adjournments for filing written statement and ultimately the written statement was filed in the month of September, 1995. The petitioner has also filed the list of witnesses during the first week of November, 1995 and since then the matter was coming up for trial and when the first respondent was ready to proceed with his evidence, on 7-12-1995 the above application was filed raising the preliminary objection as to the maintainability of the election petition. As the written statement was already filed by the petitioner, the present application is intended only to delay and embarrass the fair trial of the election petition. Since pleadings are completed, list of witnesses are filed and as the election petition is posted for trial, the petitioner cannot take the preliminary objection as to the maintainability of the election petition at this stage and the proper course is only to go on with the trial of the main election petition. Even otherwise, the petition has no merits. All the relevant particulars in support of the contentions raised in the election petition are given and proper foundation of the claim was also laid, necessary material particulars were given in all the paras and they are specifically pleaded in the election petition. Therefore, it cannot be said that either the election petition does not constitute prima facie cause of action or does not raise a triable issue for adjudication and, therefore, the application is liable to be dismissed even on merits.

Before going through merits of the rival contentions of the parties, it is necessary to take a glance at the relevant provisions of the Representation of the People Act, 1951. The Representation of the People Act, 1950 provides for delimitation of the Constituencies both for the Parliament and the State Legislative Assembly, preparation of electoral rolls and for other allied matters; while the Representation of the People Act, 1951 -- hereinafter called the ''Act'', provides for resolution of disputes arising out of Election. The High Court is vested with the power to try an election petition u/s 80(A) of the Act, while Section 81 enables the parties to present petitions in the High Court on the grounds specified under Sections 100(1) and 101. Section 83 prescribes the contents of the election petition, while the procedure for trial of such petitions by the High Court is prescribed u/s 87 of the Act. Article 329(B) of the Constitution prohibits challenge of elections to either houses of Parliament or to any State Legislature, except by an election petition presented to such authority as may be prescribed by law. It is now fairly well settled that this Act is a self-contained Act and the procedure prescribed therein alone governs the petitions filed under this Act. It is also reiterated by the Apex Court time and again that an election petition is neither a common law action nor a suit in equity but is only a statutory proceeding purely governed by the statutory provisions.

Section 83 in general which prescribes the contents of the election petition to the extent it is relevant as extracted hereunder:

CONTENTS OF PETITION.-- (1)

An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) .....

The scope, the ambit and the limitations of the inquiry by the High Court at the trial of the election petition have been the subject-matter of number of decisions both by the High Courts and the Supreme Court. In Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, , Chief Justice Hidayatullah, speaking for the court explained the subtle difference between "material facts" and "full parti- culars." He stated "the entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture".

Material facts must he stated in the'' election petition as otherwise it is fatal for its maintainability, since Section 86 of the Act provides for dismissal of election petition which does not comply with the provisions of Section 81, 83 or Section 117.of the Act. In Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, , Chief Justice Gajendragadar observed thus:

"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."

In Shri Udhav Singh Vs. Madhav Rao Scindia, , the Supreme Court observed thus:

"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)."

To the same effect is the decision is Bhagwati Prasad v. Rajeev Gandhi (sic)(4), which reads thus:

"It is now well settled that in election petitions pleadings have to be precise, specific and unambiguous and if the election petition does not disclose cause of action it is liable to be rejected in limine".

In the light of these binding authorities, it has to be seen, whether the election petition has to be dismissed for non-compliance of mandatory provisions of Section 83(1)(a) of the Act.

Sri V. Rama Rao, the learned counsel for the petitioner raised a preliminary objection that this application is not maintainable at this stage, since the first respondent who filed this application has already filed his written statement in the main election petition, the election petition itself had been posted for trial after framing issues and having taken time to get ready for trial, the petitioner herein has come forward with this application with a view to prolong the trial of the election petition and to harass the petitioner. No doubt, the petitioner has put in his appearance through his counsel as early as in the month of April 1995. He went on taking adjournments for filing written statement and ultimately filed the same in September, 1995. The respondent herein, filed list of witnesses also. Again the matter underwent some adjournments. This application is filed meanwhile on 7-12-1995. The argument of the learned counsel for the respondent looks attractive in the first flush, but on a deeper probe, it is clear that mandatory provisions will have to be given effect to even in the absence of any averments in the written statement that the election petition does not confirm to the mandatory provisions. The jurisdiction of the Court to examine the maintainability of the Election Petition does not depend upon the averments in the written statement. So, this circumstance, in my view, cannot deprive the petitioner from raising these objections about the non-compliance of the mandatory requirements. In fact, the Court can reject the election petition when the same does not conform to the mandatory requirements of Section 81(1)(a). Authority can be found in the decision reported in Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, , wherein it is held as follows:

"Section 86 confers power on the High Court to dismiss an election petition which does not comply with the provisions of Ss. 81 and 82 or S. 117. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of ihe Act and of any rules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of CPC apply to the trial of an election petition, O.VI, R. 16 and O.VI, R. 17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is apparent that those paras of a petition which do not disclose any cause of action are liable to be struck off under O. VI, R. 16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the Court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI, Rule 16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings the Court finds that no triable issues remain to be considered, it has power to reject the election petition under 0. VI, R. 11."

Hence, in my view, this objection has no force. Therefore, it is necessary to find out whether the election petition contains the material facts for the maintainability of the election petition in the light of the respective contentions. I shall now take up para 8 of the election petition. In this para what is stated is that the second phase i.e., candidate-wise counting commenced approximately at 4 p.m. on 9-12''1994. Each table was provided with 1000 ballots i.e., 40 bundles of 25 ballots each to each counting table for each round. In view of the distance between the agents and the counting tables, in view of the seating arrangements, it was not possible for the agents to watch the scrutiny of ballots and the counting process. In spite of objection, no adequate opportunity for election agents of the petitioner was given, no steps were taken to have a clear view of the counting by the agents of the petitioner. It is further stated that the counting staff did not allow the agents of the petitioner to watch sorting or counting of ballots and the agents are not even allowed to raise any objection and only a few doubtful ballots decided by the counting supervisor were shown to the agents. These allegations, in my view, are as bald as anything. The election petitioner did not give the necessary and relevant particulars as to the distance at which the agents were allowed to sit, the objection if any raised by the agents, and if so, to whom and the nature of the objection. Except stating that only a few doubtful ballots decided by the counting supervisor were shown to the agents, no other particulars were mentioned including the number of such doubtful ballots. Therefore, I am of the view that this para does not contain the material particulars, or facts amounting to disobedience of the mandate of Section 83(1)(a) of the Act.

In para 9 of the election petition, it is staled that during the second round certain invalid votes were improperly received in favour of the first respondent in spite of objections. In para 10, it is stated that certain valid votes which were polled in favour of the petitioner were rejected as invalid votes illegally. In para 11 again it is stated that in third round certain illegal votes were counted in favour of the first respondent. In these paras, the petitioner has given the names of the counting agents, the table numbers, number of votes either rejected or accepted and other details. However, the learned counsel for the petitioner herein submits that those paras are vague as material particulars are not furnished. The particulars like which votes ought to have been counted in favour of the election petitioner and no contemporaneous evidence like lodging complaint with the returning officer with regard to these irregularities isproduced. As all the relevant details are given except the ballot paper number, I am of the view that these paras cannot be struck down for want of material particulars. The learned counsel for the respondent has rightly relied on a decision reported in Jagjit Singh Vs. Dharam Pal Singh and Others, . It is observed by the Supreme Court thus:

"It would thus appear that in the aforementioned paragraphs of the election petition the appellant had set out the number of votes which were improperly rejected, the particular booth to which they related, the particular table at which the said votes were counted and the grounds on which the votes were rejected. All that was lacking was the serial numbers of the rejected ballot papers. Explanation for the same is offered in paragraph 12 of the election petition wherein after referring to the requirement laid down in Rule 56(3) of the Conduct of Election Rules, 1961 it is stated that in view of the seating arrangement at no stage any ballot paper was shown to the agents of the candidates or to the candidates at any stage during the counting. The truth or falsity of this explanation will have to be decided on the basis of evidence that is adduced at the trial. But at this stage the said explanation cannot be ignored."

The Apex Court before coming to the said conclusion also relied on an earlier decision of the same Court reported in Arun Kumar Bose Vs. Mohd. Furkan Ansari and Others, , wherein the following observations are made:

"So far as averments in paragraph 9(1) of the election petition is concerned, we find that the number of ballot papers alleged to have been wrongly rejected has been furnished, the counting table number has been given, the booth number has also been disclosed and the ground for rejection has even been pleaded. Respondent No. 1 pleaded that the particulars of the ballot papers could not be obtained as during counting they were not shown."

As those decisions apply to the facts of this case on all fore, I am of the view that Paras Nos. 9 to 11 cannot be struck down for want of material particulars. So also in paras 12 and 13 of the election petition, it is stated that the petitioner had submitted a perition against the rejection of valid votes polled in favour of the petitioner relating to ballot paper Nos. 3087, 047257, 127936, 86872, 79395 and 79054, but the Returning Officer erroneously rejecting the same by his proceedings dated 9-12-1994, copy of the petition and the proceedings of the Returning Officer are filed as Annexures VI and VII. The objection of the petitioner herein in respect of these paras is that the election petitioner having raised objections should have been in a position to note down the ballot numbers. It is further slated that according to Election Rules, the ballot papers which contained thumb impressions of voters should be rejected. I am of the view that para 12 contains the necessary material facts and, therefore, it cannot be said that this para is liable to be deleted on the ground that it does not contain the material particulars. Regarding Para 13, the allegation is that the ballot paper bearing No. 127936 was rejected on the ground that the mark is not distinct. This para contains material particulars regarding this allegation. However, I am of the view that the further allegation that the ballots bearing Nos. 86872, 79395 and 79054 were illegally rejected since they contained thumb impressions as the intention of the voters is clear in view of the distinct mark cannot be accepted. Admittedly, these are the ballots containing the thumb impressions, instead of the stamp mark of the instrument provided by the Returning Officer. Therefore, in my view these allegations cannot stand.

Coming to the allegations in para 14 of the election petition, it is stated that Sri Narsing Yadav, the counting agent of the election petitioner at table No. 5, raised objection for mixing of two bundles of votes cast in favour of the petitioner with those of respondent No. 1 at the time of tally, the counting Supervisors refused to verify the same. As the counting was uninterruptedly going on, the agents could not move from the table to raise an objection before the Returning Officer. The objection of the petitioner herein is that these paras do not contain the necessary material particulars. The said allegation is vague and is liable to be rejected, I see force in these contentions. So also, it is stated in para 17 that Sri Govindraj, the counting agent of the petitioner at table No. 2 in the VI round took an objection for mising of one bundle of ballots polled in favour of the petitioner with that of the first respondent. Except stating that four bundles of votes cast in favour of the petitioner were mixed up with those of respondent No. 1 at the time of tally, no other details are forthcoming. Therefore, these allegations are hit by the mandatory provisions of Section 83(1)(a) of the Act.

In para 16oftheelectionpetition,itis stated that some illegal votes were counted for the respondent No. 1 and rejected certain valid votes cast in favour of the election petitioner: The particulars like table, numbers, the number of votes either illegally counted or rejected, the names of the counting agents etc., are furnished. Therefore, following the decision reported in Arun Kumar Bose Vs. Mohd. Furkan Ansari and Others, , I am of the view that those allegations cannot be rejected for want of material particulars.

In para 18, what the election petitioner stated is that during the test-check conducted at the Returning Officer''s table in III, IV, V and VI rounds in a sample bundle chosen at randum, certain discrepancies were noticed. The details of round number, number of votes found in excess to the first respondent, number of votes added to the petitioner and number of votes added to the first respondent in each rounds are given. It is stated that in spite of the said defects, the Returning Officer failed to conduct test-check of sample bundle in each round, and therer fore, the counting process is violative of Rule 56. The objection of the petitioner herein, with regard to this paragraph is that no material particulars are furnished as to the nature of addition and deletion in the relevant statement, or with regard to the discrepancies and defects noticed by the election agents of the election petitioner. I am of the view that this objection has no force. The election petitioner has given the necessary details like the round number, number of excess votes counted for the first respondent, number of votes added to the petitioners after test-check. Therefore, I am of the view that this para cannot be deleted.

In para 19, the election petitioner stated that at the table of the Returning Officer doubtful votes collected from each table were scrutinised in every round, during the scrutiny of doubtful votes, objections were raised by the election agents of the election petitioner before the Returning Officer against the illegal rejection of the ballots from counting in favour of the election petitioner. The number of such rejected votes including the ground under which they were rejected were also mentioned. The objection of the petitioner herein, in this regard is that the election petitioner did not clearly state the number of votes and no contem-peraneous evidence is placed before the Court in regard to the said allegation. This para discloses the material particulars as required u/s 83(1)(a) of the Act, and therefore, I am not prepared to accept the contention of the petitioner herein for deleting the said para.

In para 20 of the election petition, it is merely stated that the agents of the election petitioner submitted a petition demanding for re-count, which contains an endorsement of the Returning Officer which is filed as Annexure-VIII. Another similar petition is also filed as Annexure-IX. The contents of those petitions were also mentioned. Therefore, it cannot be said that this para does not contain the necessary ingredients required u/s 83(1)(a) of the Act.

In paras Nos. 21 and 22 of the election petition the election petitioner has referred to his submitting an application seeking for recount, but the Returning Officer ordered partial recount for the sixth round only by the proceedings dated 10-10-1994 and the same is filed as Annexure-X. It is also alleged that while total number of vote are 88230 only 88183 were polled and about 104 ballots were missing. In this para the material particulars and details about the submission of an application for recount and the order of the Returning Officer for recount in respect of sixth round as well as ballot account including the number of missing ballots were clearly stated. Therefore, I am of the view that this para does not offend the mandate contained u/s 83(1)(a) of the Act.

In para 22, it is merely stated that during recount of sixth round, there was no proper scrutiny or inspection of ballots, nor verification of the mark or symbols. During the tally in the said recount seven votes were deleted from the petitioner. It is merely stated that there is every possibility of mere irregularities and defects in the counting of all rounds. This para, in my view, does not contain the necessary ingredients or material facts except stating that had there been such tally in every round, there would be more irregularities. This cannot be a ground u/s 83(1)(a). Therefore, this para, in my view, cannot stand.

In para 23, the election petitioner, stated that his agent submitted addition for recount after the recount of sixth round. The said petition is marked as Annexure-XI. But the allegation is that several ballots without the signature of the Presiding Officer were counted in favour of the first respondent in almost all the rounds and objections were raised by signing the satisfactory certificate for the second and third rounds subject to objections and signed the same for fourth to sixth rounds demanding recount. This para in my view merely discloses filing of an objection petition which is marked as Annexure-XI and also signing of certificates subject to certain objections. No more details are necessary in my view for this para.

In para 24, the election petitioner states that the agent of the petitioner has submitted a petition to the Chief Election Commissioner on 10-12-1994 by Fax, a copy of the same for recount and the copy of the said petition containing the endorsement of the Returning Officer is marked as Annexure-XII. The said application contains the irregularities in counting of invalid votes in favour of the first respondent and rejection of valid votes in favour of the petitioner as well as final account of tally showing the missing of 104 ballots. This para in my view contains the material facts relating to submission of a petition seeking for recount, copies of those petitions and the endorsement thereon were also filed. The contents of those petitions in brief are also narrated in this para. Under these circumstances, I am of the view-that this para contained the necessary particulars contemplated u/s 83(1)(a) of the Act.

In view of the above discussion, paras Nos. 8, 14, 17, 22 and that part of para No. 13 which contains allegations about affixing thumb marks on ballot papers bearing Nos. 86872, 79395 and 79054 do not contain material particulars and as such they are devoid of cause of action and accordingly, Application No. 930 of 1995 is allowed to the extent indicated above, but in the circumstances, without costs.

Order accordingly.