Kuldeep Singh Pathania vs Bikram Singh Jaryal and Others

V.K. Sharma, J.—The present order shall dispose of issue Nos. 2 to 5, as extracted below, which have been treated as preliminary issues in this election petition filed by the petitioner, runner up candidate, under Sections 80, 80A and 81 read with Section 100 of the Representation of the People Act, 1951 (in short ''the 1951 Act''), calling in question the election of respondent No. 1, returned candidate, from 5-Bhattiyat Assembly Constituency of H.P. Legislative Assembly held in 2012:-

2) Whether the election petition is liable to be dismissed in limine for lack of material facts and particulars, as alleged? ......OPR-1.

3) Whether the election petition is not maintainable for want of any cause of action, as alleged?......OPR-1.

4) Whether the election petition and the accompanying annexures have not been verified in accordance with law and if so, its effect?.....OPR-1.

5) Whether the election petition is bad for mis-joinder of parties and is liable to be dismissed on this count? ......OPR-1.

The petitioner after stating his educational, professional and political credentials has averred that in 1985, he was elected to the State Legislative Assembly on Congress ticket. Thereafter, he was re-elected as an ML A in 1993 and 2003 as an independent candidate. In 2007, he was again re-elected as MLA for the 4th time. As an MLA, he remained Chairman of various House/Apex Govt. Committees and remained Chairman, State Finance Commission from 2003 to 2007. However, according to him, he lost 2012 election "unfortunately due to the malafide attitude of the Presiding Officers appointed to conduct the election and also with due and active connivance of the respondents, suffered a defeat by just a nominal margin of 111 votes only."

It is averred that consequent upon issuance of the requisite notification by the Governor, Himachal Pradesh, in the month of October 2012, for holding general election to the State Assembly, the Election Commission of India vide notification issued under Section 80 of the 1951 Act, fixed the following election schedule:-

As many as six candidates including the petitioner being Congress candidate and respondent No. 1 sponsored by Bhartiya Janta Party (BJP) fought the election. Whereas respondent No. 1 who got 18098 votes won the election, the petitioner polled 17987 votes, the margin being 111 votes. One of the two independent candidates namely, Sh. Bhupinder Singh Chauhan scored 9870 votes. The score of others was in hundreds, the highest being 960. Sh. Kalu Ram, who was a candidate of Bahujan Samaj Party (BSP) got 482 votes, Ms. Sudesh Kumari, who was put up by Communist Party of India (CPI) polled 960 votes and the other independent candidate, Sh. Sushil Kumar Dhiman received 549 votes.

On the basis of certified copies of the relevant documents received by the petitioner from the office of SDO (Civil)-cum-Returning Officer, Bhattiyat, District Chamba through his agent, Sh. Rajeev Kaushal, the following "violations" enumerated vide paras 5 to 12 of the petition, were allegedly committed by the concerned officials deputed by respondent No. 2, the Returning Officer, during the course of election process:-

"5. That since there were number of violations committed during the course of the election process by the concerned officials i.e. respondent No. 2 deputed to conduct the election, more especially at polling station No. 92 (Kamla). During the counting of the votes, it was noticed that in the above said polling station there were difference in the votes casted and votes recorded in the EVM (machine). The polled votes were in 518 in numbers but in the EVM (Machine) these were recorded 519 at the rate of 78.60% out of the total votes of 659 as per the voter turn out report for polling station 92-Kamla, which shows the difference of 1 vote against the polled votes, the copy of the same difference of 1 vote against the polled votes, the copy of the same is annexed as Annexure P4. It is pertinent to mention here that while issuing a list of electorals by the office of Electoral Registration Officer, SDM, Bhattiyat vide dated 1.1.2013 the voter strength of booth No. 92 (Kamla) has been mentioned as 651, the copy of the same is annexed as Annexure P-4/1 whereas as per Annexure P-4 (Form 17-C) the total voter which have been mentioned by the Presiding Officer by his own hand is shown as 659. There is no explanation how the discrepancy is being shown in Annexure P-4 and P-4/1.

That the petitioner immediately raised objection in writing on 20.12.2012 when the counting was being held and submitted that this is against the provisions of election process and re-polling in all the polling stations in respect of Bhattiyat may be ordered by the Returning Officer, Bhattiyat Chamba. The copy of the objections raised by the petitioner is annexed herewith as Annexure P-5 for the kind perusal of this Hon''ble Court. The petitioner has specifically pointed out that as per Section 100 clauses 2(b), (d) (ii), (iii) and (iv) the election can be declared void, the detail of the provision is mentioned as below:-

"Section 100 of the Representation of the People Act, 1951, it is specifically mentioned in clauses 2(b) and (d) sub-section (ii), sub-section (iii) which is as follows:

(b) That any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent;

(d)(ii) by any corrupt practice committed in the interests of the returned candidate by an agent

other than his election agent;

(iii) by the improper reception, refusal or

rejection of any vote or the reception of any

vote which is void."

Thus, from the above, it is abundantly clear that there had been improper reception of vote which is void. In the present case 519 votes have been polled as displayed by control unit on pressing total button against 518 votes polled in the control unit as per Form 17-C in polling station No. 92 (Kamla). The observation of the Presiding Officer that a lady during early hours at 11.30 a.m. of polling came to the polling station and she casted her vote in double when the button for ballot was Okayed and at the same time she went off from the polling station does not contain any reasons to observe the same. The objection raised by the petitioner did not take the decision seriously by the respondent No. 2 and ignored the observation made by the Observer who has particularly mentioned that mistake was committed at serial Nos. 229 and 230. Had it been any fairness in the mind and working of the respondent No. 2, the vote casted by the alleged lady could have been cancelled and should not have been considered as premium to the illegality because nobody has given right to cast vote two times in India. There is a system of one person one vote right from down to top. Thus, ignoring the objection raised by the petitioner was unjust and unfair only because of the fact that respondents No. 1 and 2 were actively in connivance with each other and intentionally wanted to cause loss to the petitioner.

That there was another violation committed during the process of the election to the effect that as many as 30 declaration forms i.e. Form 13-A accompanying the ballot papers were found invalid in the re-counting and scrutiny of the postal ballot papers which is a grave mistake in the counting process of the postal ballot papers whereas as per the law only those ballot papers were to be put for counting at the first stage which accompany the valid form 13-A which is a declaration form. That due to the grave mistake in the counting process of the postal ballot papers when the candidate-wise counting of the postal ballot papers have been done which vitiated the whole counting of election process and also caused grave suspicion. The objections were raised by the petitioner in writing on 20.12.2012 to the Returning Officer, Bhattiyat and it was also requested through this objection that on the basis of the above said objection the result of 5-Bhattiyat Assembly Constituency be with-held in the interest of justice and re-poling be done in the Constituency. The copy of the complaint/objection raised dated 20.12.2012 is annexed herewith as Annexure P-6 for the kind perusal of this Hon''ble Court.

That the petitioner had raised the objection to the extent that the voters have not properly written their names and addresses in the declaration and have also not put initials. Further the objection raised that in 18 polling booths which are found without SMOs in the declaration form (13-A) are prima-facie invalid. But those objections were decided by the Returning Officer on 20.12.2012 illegally and without giving any reasons and explanation that under what circumstances the orders are passed for admitting the same. The copy of the order is annexed as Annexure P-7 for the kind perusal of this Hon''ble Court.

That once again the petitioner raised on objection/complaint to the Returning Officer, 5-Bhattiyat Assembly Constituency dated 20.12.2012 with respect to the counting process of EVM''s and postal ballot papers whereby the difference in total polled votes in the EVM at booth No. 92 (Kamla) and counting process of postal ballot papers being suspicious and invalid declaration being wrongly counted and unsigned and un-numbered declaration form No. 13-A.

Then on the very application, the Returning Officer has passed the orders to the following effect:-

"As far as para No. 1 is concerned, the matter is already in the notice of the undersigned and further referred to E.C.I., for necessary directions. The matter will be dealt with accordingly.

The matter of postal ballots counting has also enquired into and due to the narrow margin of votes between top two candidates, the mandatory provisions of re-verification was carried out in the presence of their representing contesting candidates and their agents VIPs whether valid, invalid etc. was taken one by one and objections were redressed accordingly to the satisfaction of the candidate i.e. election agent following due process of procedure laid down by the E.C.I.

Hence, no further inquiry is required and the objections stand disposed of."

The aforesaid orders passed by the Returning Officer neither supported by any reason nor any provision and it is a one sided order passed with malafide intention and the objections were decided without following the provisions of law and the reference made to the Election Commission of India as the Returning Officer itself mentioned in the order and thus the same was passed in haste manner for no reasons. The copy of the same is annexed herewith as Annexure P-8 for the kind perusal of this Hon''ble Court.

That in similarly situated situation the Secretariat of Election Commission of India has dealt with the matter with respect to the General Election of Punjab Legislative Assembly 2012 and has ordered re-poll. The short reference in detail is mentioned below:-

"With reference to your letter No. Elec. 2012/R-2301 dated 31.1.2012 on the subject cited above, I am directed to state that on the basis of Returning Officer''s report and also report of the Observer and after taking all materials circumstances into account, the Commission, hereby, declares under Section 58(2) of the Representation of the People Act, 951, the poll taken on 30th January, 2012 (Monday) at polling station No. 76-Govt. Elementary School (Boys), Sharipura, Golden Avenue (Left Side) of 18-Amritsar East Assembly Constituency to be void and appoints 2nd February, 2012 (Thursday) as the date and fixes the hours from 8.00 a.m. to 5.00 p.m. for taking fresh poll at the said polling station in accordance with the Commission''s instructions contained in Chapter XIII of Hand Book for Returning Officers. Give wide publicity in polling areas concerned and also political parties and contesting candidates shall be informed in writing."

The copy of the orders dated 31st January, 2012, passed by the Secretariat of the Election Commission of India, through its Secretary, is annexed as Annexure P-9 for the kind perusal of this Hon''ble Court.

In the present petition, there were 519 votes which were polled as displayed by the control unit on pressing total button against 518 votes polled in the control unit as per form 17-C in polling station No. 92 (Kamla) which clearly shows that there had been improper reception of vote which as per provision of the Representation of People Act mentioned above, is void. In polling station No. 92 (Kamla) as per Annexure A-l, Presiding Officer stated that a lady during early hours at 11.30 a.m. of polling came in the polling station and she casted her vote two times when the button for valid vote was okayed and at the same time she left the polling station. At the same time, the matter was also brought to the notice of the Observer and the Observer inspected the mistake committed at serial No. 229 and 230. The Observer also did not take any steps such as cancellation of that vote or order of re-polling. This shows that the reception of vote as per the provisions mentioned in Section 100(d)(iii) of the Representation of People Act is a void and thereafter complaint in this regard was also made to the Returning Officer, Bhattiyat.

That as submitted above, the matter was also reported and came to the knowledge of the person deputed by the Election Commission of India (Observer) when he visited the polling station and in these circumstances it was necessary to order re-polling in this polling booth immediately which has not been ordered inspite of the complaint made in this behalf on the spot which has also vitiated the entire election process. In addition to this, the possibility that the EVM had been tampered with or there had been bogus voting by the returned candidate or his agent or any other person with his connivance which cannot be ruled out.

It has also come to the knowledge of the petitioner when the counting was being taken place regarding the discrepancy of votes in EVM machine then immediately the petitioner had moved an application on 20.12.2012 raised the objections, but the Returning Officer did not take any notice on this application. Then again application was moved raising the same objections vide Annexure P-6 and the Returning Officer passed the orders with respect to the discrepancy in EVM machine showing 519 votes instead of 518 votes and said that this objection has been referred to the Election Commission of India (E.C.I., respondent No. 3) and after the receipt of the decision from the E.C.I., the matter shall be dealt with accordingly. But as per the information gathered from the office of the Returning Officer and also after obtaining the relevant documents from the office no such decision has been taken by the Election Commission of India till date as per the records available with the petitioner which is being filed along with this petition. Had the decision been taken by the Election Commission of India on the basis of the reference made by respondent No. 2 on the basis of the application moved on 20.12.2012 the return of the result would have been different i.e. the election would have been declared void because as per the provisions of law mentioned in the Representation of the People Act, 1951 and its enabling provisions clearly show that illegal reception or rejection of vote will amounts to void, so this clearly show that there was a grave connivance between the respondents No. 1, 2 and 3 which have causes a grave loss to the return of the result which has affected the petitioner at large.

There is another ground which vitiates the election as the counting has not been conducted in a true spirit and in accordance with the provisions and also against the factual position. As per the postal ballot polled by the employees received from the employees shown as 638+59=697 as per the details mentioned in Annexure P-10 dated 20.12.2012. But as per the proceedings of re-verification dated 20.12.2012, the total postal votes if calculated comes to 597, the copy of the same is annexed as Annexure P-11 and the final result sheet prepared by the Returning Officer is annexed as Annexure P-12. Thus, there is a difference of 100 postal ballots which were received if the Annexures P-10, P-11 and P-12 is compared. The same factual position can be noticed from the final result sheet on Form No. 20 is also being attached with Annexure P-12 in order to complete the detail figure. For more facilitation of this Hon''ble Court, the following table is prepared for clarification:

That as per the postal ballot polled by the employees and counted regarding the number of postal ballot received from the employees by post comes to 527 as per column No. 9 (endorsement No. 3207) and vide endorsement No. 3208 dated 20.12.2012, the total difference of ballots comes to 170 about which no decision whatsoever has been given by the respondent No. 2 with respect to the rejection or acceptance which clearly shows grave connivance between the respondents No. 1 and 2 by taking unilateral decision ignoring such a huge bunch of voters/ballot papers which clearly affect the return of the election so far as the margin of petition as well as respondent No. 1 is concerned.

The number of postal ballot received from the service voters as per column No. 4 delivered voters comes to 59 returned undelivered 297. So far as endorsement No. 3207 dated 20.12.2012 is concerned, the postal of service electorals (59 voters) are concerned, the Returning Officer (SDM) has given a note that we are not able to ascertain it whether it is of service electorals or non-service electorals since some of the envelope does not have any seal of the post office where from they are dispatched, however, the pink ballot envelope with seal of post office are being located and accordingly mentioned in the above proforma. This cannot be ground for non-counting of these 59 votes of service electorals. Moreover, there is nothing in Annexures P-13 & P-14 (endorsements 3207 and 3208) to show why remaining 41 votes were not counted and why only 527 votes have been counted while 697 postal ballots were polled by the employees. There is a clear difference of 170 postal votes which remained unexplained. This has also vitiated the entire election process because as mentioned above, the process adopted being void as per Section 100 sub-section (d)(iii) of the Act.

So far as rejection of 14 votes out of polled votes 597 are concerned, the same have been rejected wrongly and against the rules. So far as the factual position with respect to the votes casted 519 and actual counted 518 with difference of one vote is concerned, this position has already been admitted by the employees i.e. officers on polling duty and the same information is received by the petitioner vide Annexures P-15/1 to P-15/8. The certificate issued by the office of Gram Panchayat, Kamla and the order passed by the Returning Officer vide order dated 5.11.2012, is based on the admitted facts and is an unilateral decision without affording any opportunity to the petitioner and permitting the election process to continue, vitiates the election process and requires the election to be declared void and final declaration report on the discrepancy is contrary to the provisions of law and unilateral and void as the same has been made without following the process of law. That it is further respectfully submitted that as per the fundamental law of the land that the question can only be decided by adjudicatory forum here in this case is the Election Commission of India."

According to the petitioner, in view of the above "violations", the result of the election has been materially affected, which is challenged by him on the following grounds vide para 13(i) to (vii):-

"13. That the above said facts and circumstances clearly show that the result of the election has materially been affected and is apparent from the record that the provisions of the Act and the Rules have not been taken into consideration while holding the process of election. Hence the petitioner assails the same on the following grounds inter alia:

(i) That it is not understood when it has specifically been mentioned in the Act while dealing with provisions of Section 100 sub-section 2(d)(ii), (iii) of the Representation of the People Act, 1951, it is specifically mentioned in Clause 2(d)(iii) that improper reception, refusal or rejection of any vote or the reception of any vote, which is a void and the election official i.e. respondent No. 2 were well aware of the fact that once the voter has casted vote two times, it could not have been considered. It is a bare violation of the provisions as mentioned above, which mandates the election to be void. It is not understood that why such a legal and valid objection raised by the petitioner has been ignored for no reason at all and elections have been declared against the provisions of law.

(ii) That it is not understood that when respondent No. 2 himself has mentioned on the application moved by the petitioner vide Annexure P-8 raising the objections and on that very application the respondent No. 2 has passed the orders whereby objection No. 1 has been stated to be referred to the office of respondent No. 3, Election Commission of India, which has not been decided as yet to the knowledge of the petitioner and how and on the basis decision of the second objection which is also illegally decided has passed the orders vide Annexure P-13/9.

(iii) That respondent No. 2, in connivance with respondent No. 1, has illegally brushed aside the admissions made by the officials of respondent No. 2, who were deputed to conduct the election process to the effect that the mistake has been committed by them and have given in writing vide Annexures P-13/1 to P-13/8, still the admission made by the officials concerned has been ignored by respondent No. 2 for the reasons best known to him which is illegal and vitiates the election in all manner whatsoever.

(iv) That respondent No. 2, in connivance with respondent No. 1 did not take into consideration the casting of votes and counting of votes, there is a lot of difference but despite this a document issued by respondent No. 2 after taking into consideration of voting process still has been ignored.

(v) That as per the postal ballot polled by the employees and counted regarding the number of postal ballot received from the employees by post comes to 527 as per column No. 9 endorsement No. 3207 and vide endorsement No. 3208 dated 20.12.2012, the total difference of ballots comes to 170 about which no decision whatsoever has been given by the respondent No. 2 with respect to the rejection or acceptance. It clearly shows the grave connivance between the respondents No. 1 and 2 by taking unilateral decision ignoring such a huge bunch of voters/ballot papers which clearly affect the return of the election so far as the margin of petitioner as well as respondent No. 1 is concerned. The number of postal ballot received from the service voters as per column No. 4 delivered voters comes to 59 returned undelivered 297. So far as endorsement No. 3207 dated 20.12.2012 is concerned, the postal of service electorals (59 voters) are concerned, the Returning Officer (SDM) has stated in the note that we are not able to ascertain it whether it is of service electorals or non-service electorals since some of the envelope does not have any seal of the post office where from they are dispatched, however, the pink ballot envelope with seal of post office are being located and accordingly mentioned in the above performa. This cannot be ground for non-counting of these 59 votes of service electorals. Moreover, there is nothing in Annexures P-13 & P-14 (endorsements 3207 and 3208) to show why remaining 41 votes were not counted and why only 527 votes have been counted while 697 postal ballots were polled by the employees. There is a clear difference of 170 postal votes which remained unexplained. This has also vitiated the entire election process because as mentioned above, the process adopted being void as per Section 100 sub-section (d)(iii) of the Act. So far as rejection of 14 votes out of polled votes 597 are concerned, these have been rejected wrongly and against the rules.

So far as the factual position with respect to the votes casted 519 and actual counted 518 with difference of one vote is concerned, this position has already been admitted by the employees i.e. officers deputed for polling duty are concerned and the same information is received by the petitioner vide Annexures P-15/1 to P-15/8. The certificate issued by the office of Gram Panchayat, Kamla and the order passed by the Returning Officer vide dated 5.11.2012 which is based on the admitted facts and is an unilateral decision without affording any opportunity to the petitioner and permitting the election process to continue, vitiates the election process and requires the election to be declared void and final declaration report on the discrepancy is contrary to the provisions of law and unilateral and void as the same has been made without following the process of law.

(vi) That it is not understood that under what law the Pradhan of the Gram Panchayat was consulted, who has given in writing on behalf of the Panchayat that the officials who have admitted and committed the act illegally should be forgiven. There is no provision in the Act or the Rules to seek the advice of the Pradhan or the Pradhan has any power to interfere in the election process, which is governed by the State as well as Central Government by appointing the qualified persons.

(vii) That all the decisions have been taken by the respondent No. 2 in connivance with respondent No. 1 unilaterally without jurisdiction and having no powers to adjudicate the same suo motu."

On the above averments, the following prayers have been made:-

(i) "The election of the returned candidate i.e. the respondent No. 1 from 5-Bhttiyat (District Chamba) Assembly Constituency of Himachal Pradesh Legislative Assembly be declared void ab initio and be set aside.

(ii) The polling held with respect to the polling station 92 (Kamla) be held void being invalid and re-casting or re-polling may kindly be ordered to be held in the interest of justice and fair play.

(iii) Cost of the petition be awarded in favour of the petitioner.

(iv) Any Other or further order which this Hon''ble Court deemed just and proper in the facts and circumstances of the case may kindly be passed."

The petition is contested by respondent No. 1 on preliminary objections regarding lack of cause of action; there being no ground for declaring the election to be void under Section 100 of the 1951 Act; the petition lacking in ''material facts'' and ''full particulars''; particularly as to in whose favour there had been ''improper reception, refusal or rejection of any vote or reception of any vote, which was void'' within the meaning of Section 100(d)(iii) of the 1951 Act.; the person exercising dual right of franchise at polling booth No. 92-Kamla being supporter of the petitioner himself; lack of pleadings that the alleged "violations" had materially affected the result of the election, insofar as it concerns the returned candidate and "even otherwise margin of victory is 111 votes and even if the benefit of 101 votes is given to the petitioner still the answering respondent will be leading by 10 votes"; the election petition and the accompanying annexures having not been verified in accordance with Section 83(2) of the 1951 Act; copy of the petition supplied to the answering respondent not being a true copy thereof; maintainability on the ground that the petition has not been presented by the petitioner personally before the Authorized Officer of the court as per law; there being no violation of any rule, regulation or provision of the Constitution of India or the 1951 Act and the rules and orders framed/issued thereunder, during polling, counting of votes and declaration of result; the petition is liable to be dismissed in limine with exemplary costs; the prayer in the petition being not in accordance with Section 84 read with Section 101 of the 1951 Act; non-joinder and mis-joinder of parties as per Section 82 of the 1951 Act; there being no additional prayer in terms of Section 84 of the Act ibid and jurisdiction of the court to entertain the petition sans "relief as contemplated under election law."

It is further submitted as under by way of preliminary submissions:-

"That the contents of the Election Petition are denied save and accept (except) where the replying respondent specifically and particularly admits any fact, in the absence of so all contents are deemed to have been denied"

On merits, the averments regarding credentials of the petitioner, elections won/lost and the offices held by him, the election schedule and outcome thereof and receipt of copies of the relevant documents by the petitioner through his agent, Sh. Rajeev Kaushal from the office of SDO (Civil)-cum-Returning Officer, Bhattiyat, Chamba have been replied as ''call for no reply being matter of record''. As regards the averments in para 5 of the petition, it is stated that the same do not in any manner materially affect the result of the election. No averments have been made, as to in whose favour the person casting double vote has exercised his/her franchise or as to how the result of the election has been materially affected. The discrepancy between the EVM record and the record maintained in Form 17-A was in the notice of the Returning Officer and was also brought to the notice of the General Observer. The same was inquired by the Sector Officer, Sh. Amit Dogra and the matter was referred to the Election Commission of India on the same day, that is, 4.11.2012.

The issue regarding casting of double vote by one and the same person at polling station No. 92 Kamla was addressed by the Returning Officer and decision was taken in accordance with law. A proper and fair inquiry was conducted in the matter and objections were decided in accordance with law in the presence of Counting Observers. The decision so taken is a matter of record. The entire counting process was held in the presence of the contesting candidates and "Form 13A was firstly taken, on a prima facie scrutiny 100 ballot papers were found invalid and were not counted. That after proper inquiry and with the consent and knowledge of all the contesting candidates and under their signature all objections were duly addressed and decided in accordance with law." It is submitted that the petitioner be put to strict proof. The result was declared with prior permission of the Election Commission of India.

Respondent No. 2, the Returning Officer has refuted the "violations" alleged by the petitioner in paras 5 to 12 of the petition in the corresponding paras of his reply, which are as under:-

"Para No. 5

The contents of para No. 5 are admitted to be correct to the exception of violation committed during the process of election, hence denied. In this regard it is submitted that in the Polling Station No. 92 Kamla, the difference in the votes polled or recorded in the EVM and record maintained in Form-17A was in the notice of respondent No. 2. During the visit of Sh. S. Kishore, the General Observer for 5-Bhattiyat Assembly Constituency to the Polling Station No. 92 Kamla, this discrepancy was found out and at the same time was telephonically brought to the notice of respondent No. 2 by General Observer. Total votes casted were 230 as per EVM and 229 as per the Form-17A which is the register of voters at the time of visit of the general observer as per the enquiry by the sector officer Sh. Amit Dogra, AE, IPH Chowari and also this fact was further vindicated and verified by the reports and statements of the Polling Agents of the political parties and on the same day the matter was referred to the Election Commission of India vide letter No. SDM/05/BHT-VS-Gen-Electionm/2012 N-3513-15 dated 04.11.2012 through District Election Officer (DC) Chamba, after conducting proper inquiry through the Assistant Returning Officer, Tehsildar Bhattiyat. But the directions from the District Election Officer or Election Commission of India were not received before the counting of votes on 20.12.12.

As per the Annexure of Petition-P/4 and P4/1 form 17C filled by the Presiding Officer is wrong because the total voters according to the Electoral Roll complete with supplements are 651 and not 659 as mentioned in the Form 17-C. This assertion is therefore, admitted.

Para No. 6.

The contents of Para No. 6 are admitted to be correct to the extent of raising objections by the Petitioner and other counting agent on the day of counting of votes 20.12.2012 vide Annexure of Petition P-5 and P-8. But it is also submitted that after receiving the objections the replying respondent has conducted the enquiry pertaining to these objections. The inquiry was conducted on the facts, and the objection were decided accordingly vide order dated 20.12.2012 copy of decision as Annexure R2/A, R2/B, R2/B/typed and R2/C. There by the replying respondent has decided the matter as per law and the question of connivance with other respondent does not arise. The above said order dated 20.12.12 relating to the objection raised by the petitioner was decided in the presence of counting observer.

As mentioned further in Para-A lady has casted her vote in double due to the negligence of Presiding Officer 92-Kamla Polling Party No. 40 named 1) Rajmal Sharma TGT, GSSS Holi appointed as Presiding Officer 2) Sh. Mahinder Singh DM, Govt. Middle School Tikkru, 3) Sh. Veer Singh Work Inspector O/o X.En HPPWD Dalhousie Polling Officer, 4) Sh. Hem Raj JBT, GPS Kurfhala BEEO Mehla IInd, 5) and Sh. Sushil Kumar Reserve Polling Officer were deputed on that day 04.11.2012 by the respondent No. 2 for smooth conduct of election.

As per inquiry made by Sh. Bal Krishan Choudhary, ARO Tehsildar Bhattiyat the matter was heard in all fairness and as per the Annexure R-2/D enclosed for the perusal of Hon''ble Court., all the process were performed in fair and impartial manner. Hence, the objection of intentionally causing loss to Petitioner is denied.

Para No. 7

That the contents of para 7 are wrong and incorrect hence denied. It is submitted that the counting of Postal Ballot Papers on the counting day 20.12.2012, all the counting process were held in the presence of petitioner and Form 13-A were taken firstly in prima facie scrutiny of Postal Ballot Papers. 100-Postal Ballot papers were found invalid. So, they were not counted and Put in the Record because total 697 Postal Ballot Papers were received from employees on the duty and armed forces voters after that 597 were found valid and counted, hence, 14 Postal Ballot papers were rejected after proper enquiry and with the consent and knowledge of all the candidates, election agents whosever were present there. Further reverification was also conducted at that day and the petitioner and respondent No. 1 were both present there. The acknowledgment of contesting candidates affixed their signatures of all those present is enclosed as annexure R2/E and R2/F for perusal of Hon''ble Court.

Para No. 8

That the contents of Para No. 8 of the petition are admitted to the extent of raising objections however it is submitted that those objections were decided on the same day as per procedure of law vide order dated 20.12.2012, Annexure-R2/G, R2/G/Typed, R2/H, R2/H/typed, R2/1 and R2/l/typed.

So, keeping in view the above stated order passed by Returning Officer it is absolutely incorrect to say that the replying respondents had passed the order without giving a proper and fair hearing.

Objection raised by Petitioner, about 18 Polling Booths which are found without SMOS (Sr. No.) is not clear that what question has been raised by the Petitioner, that the Para No. 8 is incorrect and hence denied. Because the Petitioner and their Election Agents were Personally present there and every process are duly signed by the candidate. The order has been passed out with the consultation of Petitioner has been duly acknowledged by the candidate and their Election Agents by Annexure: R2/1.

Para No. 9

The contents of Para 9 are admitted to the extent of raising objections by the petitioner with respect of counting process of EVM and postal Ballot Paper moreover with regard to above objections the replying respondents on the same day has written to the Principle Secretary of Election Commission of India vide Annexure R2/C and R2/F. The counting process of Postal Ballot Paper, EVMs conducted as per the Returning Officer Handbook Para 14.1 to 14.133. Objection accepted because the letter of discrepancy in 92-Kamla with the finding of observer and detailed report of Returning Officer/Assistant Returning Officer and Polling Party member has been sent same day on 04.11.2012 for further direction of Election Commission of India. But, no reply was received at the State Headquarter, District Head Quarter or Returning Officers office at Bhattiyat till 20th December 2012 i.e. day of counting. The result was declared with prior permission of Election Commission of India on dated 20.12.2012. There is no illegal reception of result from the Returning Officer Respondent No. 2 because all the objection raised by the Petitioner were discussed and declared in the counting Hall on the same day on 20.12.2012 in the presence of the Petitioner and their Agents and Counting Observer. As mentioned in Para the Re Polling in the Polling Station 92 can be declared by the election commission of India and Returning Officer has no power for conduct of repoll. The Election Commission of India was appraised of all the fact and circumstances of the present case and it was left to the prerogative of Election Commission of India to decide. Hence, no such kind of order was received from the Observer or Election Commission of India. So, repoll could not be conducted as the permission from Election Commission of India was not received till 20/12/2012 and the direction for declaration of result were received vide fax No. 011237117057 at 6.56 pm on dated 20.12.2012 No. 470/HP-LA/2012 dated 20.12.2012 as Annexure R2/J. Hence the content of rest of Para is denied.

Para No. 10

The content of Para 10 are admitted to the extent that the matter was also reported to respondent No. 3 Election Commission of India through District Election Officer (DC) Chamba but, in this regard it is submitted that no direction pertaining to repelling in Polling Station 92-was received to replying respondent however the respondent No. 3 dated 20.12.2012, Returning Officer has declared the result of 5-Bhattiyat Assembly Constituency. However the remaining part of the Para ibid as pertains to respondent No. 3 hence these contents are denied for want of knowledge.

In contents of this Para the General Observer has sent the report to the Election Commission of India no report whatsoever were received from the Polling Station, moreover no objection were receive of tampering in the EVM used in Polling Stations and no bogus voting take place. The objection raised by the Petitioner was decided after proper inquiry and relevant facts study and the case of difference of votes in 92 Kamla was referred to the Election Commission of India respondent No. 3. But, no any direction has been received from the Election Commission of India through District Election Officer, Chief Electoral Officer Shimla Himachal Pradesh regarding the letter on dated 04.11.2012 by the Returning Officer for further directions.

Para No. 11.

The contents of Para No. 11 are wrong and incorrect hence denied. However, with regard to counting of Postal Ballot Papers. It is submitted that the difference between the Postal Ballot Papers is 100 Postal Ballot Paper were declared invalid during first checking as the Form 13-A declaration which is to be signed by the elector were not found in the envelopes. Inadvertently the 100 Postal Ballot were rejected as invalid for want of declaration (Form-13A), prima facie were not counted in Form-20, which leads to the difference of 100 votes in the final result sheet. This error is merely clerical but it has to be admitted that no malice was involved and the whole counting process was in conformity with the election rules and Handbook for Returning Officers. Total counted Ballot Paper were 597 of which 14 Postal Ballot Papers rejected due to marking or any other reason.

Para 12

The contents of Para No. 12 are wrong and hence denied. That the para contains the Postal Ballot paper detail, as mentioned in the Petition Annexure 13, 7, 14. It is clarified that there were 59 votes which can be identified as Armed Forces Votes and other 638 votes were received through the Local Employees deputed in Election Duty total counted votes are 638+59=697. Hence the counted votes are correct as the returned undelivered postal Ballot Paper totals in number are 297. Those Ballot Papers are received back through Post Office the addressee has not received. Their Postal Ballot Papers are put up in to the record of the officer sealed in the treasury in contents-as mentioned only 527 votes are counted is false and hence denied because the counted votes are 597 and not 527 as mentioned in the Petition. As in the context the rejection of votes is 14 in number in the presence of replying respondent No. 2, Petitioner has duly signed the reverification proceeding.

In the matter of Pradhan Gram Panchayat Kamla nothing to say, because, this statement was given in the presence of sector officer, General Observer, Polling Party official and in the presence of Polling Agents of all contesting candidates. In this matter as mentioned in para about unilateral decision without affording any opportunity to the petitioner is denied because all the Case regarding 92 Kamla Polling Station was sent to the higher authority i.e. Election Commission of India and after due procedure the decisions of declaration of the counting result was decided. Hence the content are denied.

The grounds of challenge pressed into service by the petitioner vide para 13(i) to (vii) have been met with by respondent No. 2 in the corresponding para of the reply, as follows:-

"Para 13.

The content of Para 13 are not to be correct hence denied. Because all the relevant facts, objections, Act and rules have been taken into consideration and of the petitioner and all the contesting candidates of Vidhan Sabha election of Bhattiyat assembly constituency. All the process of election were held in the presence of election agents, polling agents, counting agents of various candidates contesting the Vidhan Sabha election 2012, and all the matter were also in the notice of contesting candidates regarding 92 Kamla Polling Station and also in the notice of election commission of India.

Contents of Para 13(i)

All the matter regarding polling station number 92 Kamla and double voting by a voter were sent to the district election officer (DC) Chamba, General Observer, and to the Election Commission of India vide this office letter No. SDM/05/BHT-VS-GEN-Election/2012-3513-15 dated 4-11-2012.

Para 13(ii)

The matter of objection raised by the petitioner on the dated 20-12-2012 were also sent to the Election Commission of India for further directions and the result was declared after due course and prior permission of Election Commission of India vide letter number 470/HP-LA/20-12 ELECTION COMMISSION OF INDIA BY FAX MESSAGE by 01123717057 at 6:56 pm addressed to the Returning Officer (SDM) Bhattiyat. And the result was declared after the prior permission of ECI in the presence of petitioner. Hence objection denied.

PARA 13(iii)

There was no connivance with any candidate including respondent number 1 Sh. Bikram Singh Jaryal and the process of the polling were held in the presence of the polling agents of all political parties, candidates, and all the counting process were held in the presence of counting agents of all the candidates including the petitioners.

There was no malafide tension or connivance with any candidate all the objection raised by the petitioner were decided with discussion and proper satisfaction of all the candidates and the petitioner was satisfied at that time in the counting Hall on day 20/12/2012.

PARA 13(iv)

The contents of Para has been already clarified in the reply of para number 11. In the context of annexure P15/1 to 15/8 the certificate issued by the Pradhan Gram Panchayat Kamla and the view of all the polling party member of 92 Kamla, all the polling process was also in the notice of petitioner through his polling agent who was present at that time in the polling station 92 Kamla and also signed the statement of Pradhan GP Kamla and it is understood that the matter was also in the knowledge of petitioner and the candidates contesting Vidhan Sabha election.

Para 13(v)

Para accepted, but the statement of Pradhan Gram Panchayat Kamla is supporting document of the facts and not interrupting in the process of election the Pradhan was eye witness of all episode happens in the polling station.

Para 13(vi)

In this regard it has to be clarified that no any connivance with any candidate and all the decision were taken at the time of counting were discussed with high authorities and also with the petitioner there are the sign of petitioner in the reverification of Postal ballot papers counting and the discussion and process is in the video recording held at that day for further eye witness if required by the honorable court. All the process has took place in the fearless, non partial and clear manner. There was no any kind of connivance with any candidate hence the objection of partial manner has been denied."

A short reply has been filed on behalf of respondent No. 3, Election Commission of India, seeking its deletion besides that of respondent No. 2, the Returning Officer, from the array of respondents, being against the provisions of Section 82 of the 1951 Act, by placing reliance upon, (1) Jyoti Basu and Others Vs. Debi Ghosal and Others, , (2) B. Sundara Rami Reddy vs. Election Commission of India & Ors., 1991 Supp. (2) SCC 624 and (3) Michael B. Fernandes Vs. C.K. Jaffer Sharief and Others, .

In the rejoinders, the petitioner has refuted the respective stands on behalf of the respondents and instead reiterated the averments set up in the petition.

On the pleadings on behalf of the parties, the following issues have been settled, out of which issues No. 2 to 5 have been ordered to be treated as preliminary issues, as already noticed:-

1) Whether the election of respondent No. 1 has been materially affected because of illegal reception of void votes in his favour and non-counting of valid votes in favour of the petitioner in violation of Section 100(d)(iii) of the Representation of the People Act, 1951 and if so, its effect?.... OPP.

2) Whether the election petition is liable to be dismissed in limine for lack of material facts and particulars, as alleged?......OPR-1.

3) Whether the election petition is not maintainable for want of any cause of action, as alleged?......OPR-1.

4) Whether the election petition and the accompanying annexures have not been verified in accordance with law and if so, its effect?.....OPR-1.

5) Whether the election petition is bad for mis-joinder of parties and is liable to be dismissed on this count? ......OPR-1.

6) Relief.

I have heard the learned counsel/senior counsel/Additional Advocate General assisted by Deputy Advocate General and Assistant Solicitor General of India for the parties and gone through the records.

The parties have relied upon the following authorities:-

RESPONDENT No. 1

Parkash Chand Vs. State of Punjab and Others, ;

Jyoti Basu and Others Vs. Debi Ghosal and Others, ;

Azhar Hussain Vs. Rajiv Gandhi, ;

Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, ;

Satyanarain Dudhani Vs. Uday Kumar Singh and Others, ;

Smt. Mewa Devi Vs. The Civil Judge (Junior Division) and Others, ;

Smt. Vimla Devi Vs. State of Himachal Pradesh and Others, ;

Mahendra Pal Vs. Shri Ram Dass Malanger and Others, ;

Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Others, ;

Ashok Vs. Rajendra Bhausaheb Mulak, ;

Ashok S/o. Mahadeorao Mankar v. Rajendera Bhausaheb Mulak and Ashok Mankar Vs. Rajendra Bhausaheb Mulak, , decided by the High Court of Bombay (Nagpur Bench) on 02.08.2010).

RESPONDENT No. 3

(1) Jyoti Basu and Others Vs. Debi Ghosal and Others, ;

(2) B. Sundara Rami Reddy vs. Election Commission of India & Ors., 1991 Supp. (2) SCC 624;

(3) Michael B. Fernandes Vs. C.K. Jaffer Sharief and Others, .

PETITIONER

Dudh Nath Pandey (Dead) by Lrs Vs. Suresh Chandra Bhattasali (Dead) by Lrs, ;

State of Karnataka v. Shree Rameshwara Rice Mills, Thirthahalli and State of Karnataka v. K. Krishnappa Naidu and Co. and State of Karnataka Vs. Shree Rameshwara Rice Mills, Thirthahalli, .

V.S. Achuthanandan Vs. P.J. Francis and Another, ;

Parivar Seva Sansthan Vs. Dr.(Mrs.) Veena Kalra and Others,

Shalimar Chemical Works Ltd. Vs. Surender Oil and Dal Mills (Refineries) and Others, ;

Charanjit Lal Mehra and Others Vs. Smt. Kamal Saroj Mahajan and Another, ;

K.K. Ramachandran Master Vs. M.V. Sreyamakumar and Others, ;

Karam Kapahi and Others Vs. Lal Chand Public Charitable Trust and Another, ;

Nandiesha Reddy Vs. Mrs. Kavitha Mahesh, ;

Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and Others, ;

A.V.M. Sales Corporation Vs. Anuradha Chemicals Pvt. Ltd., ;

The principles of law laid down in the above authorities have been taken into consideration and borne in mind and shall be referred to wherever necessary.

For the sake of convenience, preliminary issues No. 2 and 3, being interconnected requiring common appreciation of pleadings and law, are taken up together for discussion and decision first.

The law relating to ''material facts'' and ''full particulars of any corrupt practice'' referred to in clauses (a) and (b) of sub-section (1) of Section 83 of the 1951 Act, has been succinctly crystallized by the Hon''ble Apex Court in Virender Nath Gautam Vs. Satpal Singh and Others, , a case arising out of the final judgment and order dated 20.12.2004 of this court in Election Petition No. 2 of 2003, laying down as under vide paras 25 to 36 and 50:-

"25. Before we deal with the contentions of the parties, it would be appropriate if we refer to the relevant provisions of the Act. The Preamble of the Act declares that the Act has been enacted

"to provide for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections".

Part I is Preliminary. Part II deals with qualifications and disqualifications for membership of Parliament and of State Legislatures. While Part III provides for issuance of notifications for elections, Part IV relates to administrative machinery for the conduct of elections. Sections 59 and 60 lay down manner and procedure of voting. Section 61 prescribes special procedure for preventing personating of electors. Section 62 relates to right to vote. It is a material provision and may be quoted in extenso;

"62. Right to vote.--(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.

(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950).

(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.

(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for the constituency more than once, and if he does so vote, all his votes in that constituency shall be void.

(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police;

Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.

(6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorized to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector."

Conduct of elections has been dealt with in Part V. Part VI relates to ''Disputes regarding elections''. Section 80 requires any election to be questioned only by way of Election Petition. Under Section 80A, it is the High Court which can try election petitions. Section 81 provides for presentation of election petition and prescribes the period of limitation. Section 82 declares as to who shall be joined as respondents to such Election Petition. Section 83 deals with contents of petition and reads thus-

"83. 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) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."

Section 100 enumerates grounds for declaring election to be void which inter alia includes improper reception, refusal or ejection of any vote or the reception of any vote which is void or there is non-compliance with the provisions of the Constitution or of the Act or Rules or orders made under the Act. Section 101 empowers the High Court to declare a candidate other than the returned candidate to have been elected. Section 123 declares certain practices as "deemed to be corrupt practices".

From the relevant provisions of the Act reproduced hereinabove, it is clear that an election petition must contain a concise statement of ''material facts'' on which the petitioner relies. It should also contain ''full particulars'' of any corrupt practice that the petitioner alleges including a full statement of names of the parties alleged to have committed such corrupt practice and the date and place of commission of such practice. Such election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") for the verification of pleadings. It should be accompanied by an affidavit in the prescribed form in support of allegation of such practice and particulars thereof.

All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by clause (a) of sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order 7 of the Code.

The expression ''material facts'' has neither been defined in the Act nor in the Code. According to the dictionary meaning, ''material'' means ''fundamental'', ''vital'', ''basic'', ''cardinal'', ''central'', ''crucial'', ''decisive'', ''essential'', ''pivotal'', indispensable'', ''elementary'' or ''primary''. [Burton''s Legal Thesaurus, (Third edn.); p. 349]. The phrase ''material facts'', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, ''material facts'' are facts upon which the plaintiff''s cause of action or the defendant''s defence depends. What particulars could be said to be ''material facts'' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.

In the leading case of Phillips v. Phillips, (1878) 4 QBD 127 : 48 LJ QB 135, Cotton, L.J. stated:

"What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial."

In Bruce v. Odhams Press Ltd., (1936) 1 KB 697 : (1936) 1 All ER 287, Scott, L.J. referring to Phillips v. Phillips observed: (ALL ER p. 294)

"The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word ''material'' means necessary for the purpose of formulating a complete cause of action; and if any one ''material'' statement is omitted, the statement of claim is bad; it is ''demurrable'' in the old phraseology, and in the new is liable to be ''struck out'' under R.S.C. Order 25 Rule 4 (see Phillips v. Phillips); or ''a further and better statement of claim'' may be ordered under Rule 7."

A distinction between ''material facts'' and ''particulars'', however, must not be overlooked. ''Material facts'' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. ''Particulars'', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. ''Particulars'' thus ensure conduct of fair trial and would not take the opposite party by surprise.

All ''material facts'' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.

In Halsbury''s Laws of England, (4th edn.); Vol. 36; para 38, it has been stated;

"38. The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, namely either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. Each party is entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponent''s case as will prevent him from being taken by surprise. Particulars enable the other party to decide what evidence he ought to be prepared with and to prepare for the trial. A party is bound by the facts included in the particulars, and he may not rely on any other facts at the trial without obtaining the leave of the court."

There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue."

To the similar effect is the following dictum of law laid down by the Hon''ble Supreme Court in Hari Shankar Jain Vs. Sonia Gandhi, of the report--

"23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well-settled that 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 would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression ''cause of action'' has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party 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. See Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, ; Shri Jitendra Bahadur Singh Vs. Shri Kirshna Behari and Others, . Merely quoting the words of the Section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan Vs. P.J. Francis and Another, , this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.

The above interpretation of ''material facts'' and ''full particulars of any corrupt practice'' has also been reiterated in later judgments rendered by the Hon''ble Supreme Court in (1) Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, , (2) K.K. Ramachandran Master Vs. M.V. Sreyamakumar and Others, , (3) Nandiesha Reddy Vs. Mrs. Kavitha Mahesh, and (4) Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and Others, .

It is settled that material facts are primary facts, in absence whereof the petition would be rendered without disclosing any cause of action and thus liable to be struck of under Order VI, Rule 16 CPC. It is also settled that if full particulars are lacking the petition can be amended and amplified, but cannot be dismissed.

Be it stated at the very outset that there being no allegation of commission of any ''corrupt practice'' within the meaning of Section 1123 of the 1951 Act and in the absence of any other ground except the one covered under Section 100(1)(d)(iii) of the Act ibid, which is re-produced below for ready reference, the challenge to the election of respondent No. 1, by the petitioner, runner up candidate has necessarily to be confined to that extent:-

"(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or"

An election petitioner can be successful under any of the clauses (i) to (iv) of Section 100(1)(d) in case it is made out that the result of the election, insofar as it concerns the returned candidate, has been materially affected.

The "violations" alleged by the petitioner during polling and counting of votes can be grouped in the following three categories, which shall be dealt with one by one:-

I. Exercise of dual right of franchise by a voter and discrepancy between the EVM record and the record maintained in Form 17-A at polling station No. 92-Kamla;

II. Improper reception of 30 postal ballot papers; and

III. Discrepancy regarding 100 postal ballot papers-whether 597 or 697?

I. Exercise of dual right of franchise by a voter and discrepancy between the EVMs record and the record maintained in Form 17-A at polling station No. 92-Kamla;

True it is that in our democratic polity we have adopted the principle of single adult franchise. It being so, every eligible voter has only one vote and in case (s) he exercises dual right of franchise in an election, in the same constituency, both the votes cast by her/him would be rendered invalid under sub-section (4) of Section 62 of the 1951 Act. Indisputably on the polling day a voter had exercised dual right of franchise at polling station No. 92 Kamla, which appears to be an inadvertent and insignificant mistake committed by that voter and the concerned official(s) of the polling party, which stands duly explained on behalf of respondent No. 2 in his reply supported by documentary evidence in the form of Annexures P-15/1 to P-15/8. This discrepancy was also brought to the notice of respondent No. 3, Election Commission of India. It is also not in dispute that both the votes cast by that voter at Sr. Nos. 229 and 230 were counted at the time of counting of votes. However, there is no allegation in the petition that the exercise of dual right of franchise by the aforesaid voter was in favour of respondent No. 1, the returned candidate, who instead has alleged that the said voter was a supporter of the petitioner. To this extent the petition lacks in material facts. However, in any case even if it is assumed for a moment for the sake of argument that the exercise of dual right of franchise by the aforesaid voter was in favour of the petitioner and both these votes are taken out of consideration, his winning margin would come down from 111 to 109. It being so, the result of the election, insofar as it concerns respondent No. 1, the returned candidate, cannot be said to have been materially affected owing to this insignificant discrepancy. Please see (1) Parkash Chand v. State of Punjab and others, supra (paras 11 and 12), (2) Mahendra Pal v. Shri Ram Dass Malanger & Ors., supra (paras 9 to 14), (3) Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao & Ors, supra (paras 15 and 16), (4) Smt. Vimla Devi v. State of Himachal Pradesh and others, supra (para 13) and (5) Smt. Mewa Devi v. The Civil Judge (Junior Division), Narwana, Distt. Jind. and others, supra (para 3).

The contention on behalf of the petitioner that the entire polling in respect of polling station No. 92 Kamla was required to be annulled on this ground cannot be taken into consideration being without any merit, whatsoever. Reliance placed on behalf of the petitioner in this regard on copy of fax, Annexure P-9, whereby the Election Commission had ordered fresh poll in a polling station of 18-Amritsar East Assembly Constituency during 2012 assembly poll in the State of Punjab, cannot be taken into consideration for want of the reasons owing to which poll was cancelled in that polling station and re-polling ordered, which are not explicit in the copy of fax, Annexure P-9.

Another discrepancy pointed out by the petitioner is regarding the number of total votes at polling station No. 92 Kamla, which as per Annexure P-4 have been shown as 659, but in Annexure P-4/1 at page 36 is stated to be 651. This discrepancy again is of no significance in the peculiar facts and circumstances of the case for the simple reason that whatever may be the total number of votes, the fact remains that only 518 votes were polled at that station, which were ultimately taken into consideration at the time of counting of votes held on 20.12.2012. Furthermore, respondent No. 2 has categorically stated as under vide para 5 of his reply:-

"As per the Annexure of Petition-P/4 and P4/1 form 17C filled by the Presiding Officer is wrong because the total voters according to the Electoral Roll complete with supplements are 651 and not 659 as mentioned in the Form 17-C. This assertion is therefore, admitted."

II. Improper reception of 30 postal ballot papers.

Complaints Annexure P-6 and P-8 were submitted by the petitioner to respondent No. 2, the Returning Officer, raising objection to the counting process alleging improper reception of 30 postal ballots. Whereas complaint Annexure P-6 was disposed of vide order Annexure P-7, orders were passed on complaint Annexure P-8 on itself. The record reveals that consequent upon objections raised by the petitioner and other candidates re-verification of postal ballots was carried out, outcome whereof is reflected in fax dated 20.12.2012, forming part of Annexure P-3 at page 27, text whereof is as under:-

"Through Fax No. Endst : SDM/BHT/ELN/VS/Count-2012 Returning Officer 05 Bhattiyat, District Chamba HP

To

Sh. Shangara Ram (Principal Sect) ECI, Ashoka Road, Delhi Dated Bhattiyat 20.12.2012

Subject: Regarding re-verification of Postal Ballot.

Sir,

In connection to the earlier reference forwarded by the undersigned, it is informed that re-verification of Postal ballots was done by following due procedure. The entire process has been videographed and proceeding thereof is also drawn. During the re-verification objections were raised by different candidates on the validity of 37 postal ballots out of which 12 were found valid and 7 were found invalid. 18 declaration forms (13-A) were detected without serial number of the postal ballots in declaration from, which cannot be declared invalid as at this stage it cannot be ascertained to whom these postal ballots are belonged.

After the completion of re-verification of the PB''s the tally of votes gained by the contesting candidates are as follows:

As such the margin between top two candidates is still 111. As regards the 18 sustained objections on declaration forms, even if all of these are counted in favour of the runners up candidate still it does not affect the final result. Hence, declaration of result may kindly be allowed.

Thanking you,

Encl: 1. Proceeding of re-verification.

Sd/- Returning Officer 5-Bhattiyat Distt. Chamba (HP)"

Thus, it is manifest that during re-verification objections were raised by different candidates on the validity of 37 postal ballots, out of which 12 were found valid and 7 invalid. As regards the remaining 18 declaration Forms (13-A), respondent No. 2, the Returning Officer, came to the following conclusions:--

"18 declaration forms (13-A) were detected without serial number of the postal ballots in declaration from, which cannot be declared invalid as at this stage it cannot be ascertained to whom these postal ballots are belonged."

"As such the margin between top two candidates is still 111. As regards the 18 sustained objections on declaration forms, even if all of these are counted in favour of the runners up candidate still it does not affect the final result. Hence, declaration of result may kindly be allowed."

A perusal of the aforesaid fax dated 20.12.2012 reveals that on re-verification of postal ballots there was loss of two votes each to the petitioner and respondent No. 1.

Thus, on the one hand, even if the aforesaid 18 disputed postal ballots were taken out of consideration, it would not have materially affected the election result, as even in that eventuality the wining margin of the petitioner would have been 111-2-18=91, on the other it would be seen again that in the entire petition there is no averment that improper reception of postal ballots alleged by the petitioner vide complaint Annexure P-6 was in favour of respondent No. 1, the returned candidate. The petition, to this extent, lacks in material facts. Furthermore, the averments set up by the petitioner vide paras 7 and 9 of the petition in support of the alleged "violations" covered under categories I and II, even as per his own reckoning, are based on mere suspicion, which cannot take place of proof.

III. Discrepancy regarding 100 postal ballot papers-whether 597 or 697?

In order to resolve the controversy whether there were 697 or 597 postal ballots, it shall be relevant to once again notice the reply filed by respondent No. 2, the Returning Officer, vide para 11 and relevant portion of para 12, which are as follows:-

Para No. 11.

"The contents of Para No. 11 are wrong and incorrect hence denied. However, with regard to counting of Postal Ballot Papers. It is submitted that the difference between the Postal Ballot Papers is 100 Postal Ballot Paper were declared invalid during first checking as the Form 13-A declaration which is to be signed by the elector were not found in the envelopes. Inadvertently the 100 Postal Ballot were rejected as invalid for want of declaration (Form-13A), prima facie were not counted in Form-20, which leads to the difference of 100 votes in the final result sheet. This error is merely clerical but it has to be admitted that no malice was involved and the whole counting process was in conformity with the election rules and Handbook for Returning Officers. Total counted Ballot Paper were 597 of which 14 Postal Ballot Papers rejected due to marking or any other reason."

Relevant portion of Para 12

"The contents of Para No. 12 are wrong and hence denied. That the para contains the Postal Ballot paper detail, as mentioned in the Petition Annexure 13, 7, 14. It is clarified that there were 59 votes which can be identified as Armed Forces Votes and other 638 votes were received through the Local Employees deputed in Election Duty total counted votes are 638+59=697. Hence the counted votes are correct as the returned undelivered postal Ballot Paper totals in number are 297. Those Ballot Papers are received back through Post Office the addressee has not received. Their Postal Ballot Papers are put up in to the record of the officer sealed in the treasury in contents-as mentioned only 527 votes are counted is false and hence denied because the counted votes are 597 and not 527 as mentioned in the Petition. As in the context the rejection of votes is 14 in number in the presence of replying respondent No. 2, Petitioner has duly signed the reverification proceeding."

Though the above averments are not very happily worded, yet the fact remains that 100 postal ballots were declared invalid during the first checking as Form 13-A declaration which is to be signed by the elector was not found in the respective envelops containing those ballot papers. According to respondent No. 2, the Returning Officer, those 100 postal ballots, which were rejected as invalid for want of declaration in Form 13-A, inadvertently could not be shown in the relevant column of Form 20 (Annexure P-12) at page 54 against the entry ''Postal Ballot''. A complete and harmonious reading of Annexures P-10 to P-14 also makes this aspect of the matter quite clear leaving no room for any doubt, whatsoever. Thus, it is crystal clear that after rejection of 100 postal ballots during the first checking only 597 postal ballots were left for counting. The slight difference between the total number of postal ballots received from ''Civilian'' employees as shown in respective column No. 10 of Annexure P-10 as 638 and Annexure P-13 as 633 also stands explained satisfactorily from the entry contained in column No. 9 of annexure P-10 as "633+5 {from Chamba 1 in ballot box on counting day }". Since 59 postal ballots were received from ''Service Electors'', the total number of postal ballots comes to 697 (638 + 59), out of which 100 postal ballots were rejected during the first checking, leaving only 597 postal ballots for counting.

Above all the fact remains that no such objection was raised by the petitioner at the time of mandatory re-verification of postal ballots, as is apparent from fax message dated 20.12.2012, which forms part of Annexure P-3 at page 27, complaint Annexure P-6 and order Annexure P-7 passed thereon, complaint Annexure P-8 and the order passed thereon itself, proceedings of the ''Postal ballot - re-verification'', Annexure P-11 and even at the time of declaration of result vide Annexure P-3.

The above discussion brings me to hold that the petition which is solely based on Section 100(1)(d)(iii) of the 1951 Act is lacking in material facts and does not disclose any cause of action and is accordingly liable to be dismissed without being put to trial.

The contention raised by the learned counsel for the petitioner that since the discrepancies connected with the alleged "violations" falling under the aforesaid three categories I to III stand categorically admitted by respondent No. 2, the Returning Officer, judgment is required to be passed in favour of the petitioner straightway keeping in view the law laid down in (1) Charanjit Lal Mehra & Ors. vs. Smt. Kamal Saroj Mahajan & Anr, (para 8) (supra), (2) Karam Kapahi & Ors. v. M/s. Lal Chand Public Charitable Trust & Anr., (paras 48 and 49) supra, (3) Parivar Seva Sansthan vs. Dr. (Mrs.) Veena Kalra and others, supra (Head Notes A & B) (paras 9, 10 and 13) and (4) Dudh Nath Pandey (Dead) by LRs v. Suresh Chandra Bhattasali (Dead) by LRs, supra (para 6), is on the face of it fallacious and does not deserve any consideration for the reason that on the one hand the alleged admissions cannot at all be characterized as ''admissions'' and on the other all these aspects of the matter stand already dealt with here-in-above in this judgment.

Accordingly issue Nos. 2 and 3 are decided in affirmative.

Issue No. 4

Verification of pleadings is governed under Order 6, Rule 15 CPC, which reads as under:--

"15. Verification of pleadings

(1) Save as otherwise provided by any law for the time being in force, every pleading shall be varied at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.

1[(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.]"

The petition has been verified as under:-

"VERIFICATION

Verified that the contents of paras 1 to 3, 10, 12 and 17 of the petition are true and correct to the best of my personal knowledge whereas the contents of paras 4 to 9, 11 and 18 of the petition are true and correct to the best of my knowledge derived from the official records of election to 5-Bhattiyat Assembly Constituency which I believe to be true and contents of paras 13 to 16 of the petition are true on the basis of the legal advice received which I believe to be true. No part of it is false and nothing has been concealed therein. Verified at Shimla this the 28th day of January, 2013."

The above verification on the face of it is in accordance with Order 6, Rule 15 CPC. Annexures P-l to P15/8 and typed copies of Annexures P-3/1, P-5 to P-8 and P-14/1 to P-15/6 have also been attested/certified to be true copies according to law. Even otherwise defective verification or affidavit is curable and petition cannot be dismissed for any such defect and consequences, if any, such defect(s) entail would be adjudged at the trial, as has been held by the Hon''ble Apex Court in K.K. Ramchandran Master vs. M.V. Sreyamakumar and Others, supra (para 15).

The issue is accordingly decided in negative.

Issue No. 5.

Section 82 of the 1951 Act, which deals with ''Parties to the petition'' reads as under:--

"[82. Parties to the petition.-A petitioner shall join as respondents to his petition--

(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.]"

A bare reading of Section 82 ibid makes it abundantly clear that except the candidate(s) contesting the election, returned candidate(s) and any other candidate against whom allegations of any corrupt practice are made in the petition, no other person can be joined as a party to an election petition contemplated under Chapter II of the 1951 Act beginning with Section 80. In view of the settled legal position emanating from the law laid down by the Hon''ble Supreme Court in (1) Jyoti Basu and others vs. Debi Ghosal and others (supra), (2) B. Sundara Rami Reddy vs. Election Commission of India & Ors. (supra) and (3) Michael Fernandes vs. C.K. Jaffar Sharief and others (supra), respondents No. 2, the Returning Officer and 3, Election Commission of India, are neither necessary nor proper parties to the petition and are as such liable to be struck of from the array of respondents. Ordered accordingly. However, the petition cannot be dismissed only on this count.

The issue is decided accordingly.

In view of the above findings on issues No. 2 and 3, the petition is held to be lacking in material facts as required under Section 83(1)(a) of the 1951 Act and as such does not disclose any cause of action and is accordingly dismissed with costs of Rs. 25,000/- (rupees Twenty Five thousand), payable by the petitioner to respondent No. 1.

Let follow up action in terms of Section 103 of the Representation of People Act, 1951, read with Rule 28 of the ''Rules of Procedure and Guidance in the matters of trial of Election Petitions under Part-VI of the Representation of People Act, 1951'' as amended, contained in Appendix-II to ''the High Court of Himachal Pradesh Original Side Rules, 1997'', be taken by the Registry forthwith.