Mehant Ram Parkash Das vs Ramesh Chander

Jawahar Lal Gupta, J. (Oral)

Election to the Dasuya Assembly Constituency in the State of Punjab was held on February 7, 1997. The petitioner as well as various other persons had contested this election. Respondent No. 1 Mr. Ramesh Chander was elected by a margin of 54 votes. The petitioner who had secured the next highest votes has filed this election petition to challenge the election of respondent No. 1. The other candidates viz. respondent Nos. 2 to 5 were served. No one appeared on their behalf. Consequently, it was directed that they will be proceeded against ex parte. After the completion of pleadings, the issues were framed on May 19, 1997. Learned counsel for the parties had prayed that Issue Nos. 1 to 3 be treated as preliminary issues. These issues were :

Whether the election petition lacks in material facts and does not disclose any cause of action ? OPR

Whether the election petition is liable to be dismissed as no affidavit was filed in support of the allegations contained in para 13 of the petition ? OPR

Whether the written statement is to be excluded from consideration as the copy supplied to the petitioner was not a true/exact copy of the written statement filed in the Court ? OPP

Counsel for the parties have addressed arguments.

It may be noticed at the outset that learned counsel for the petitioner has not pressed Issue No. 3. No arguments were addressed. Consequently, the arguments as advanced in respect of the other two issues shall be noticed.

Issue No. 1

Mr. S.C. Kapoor, learned counsel for the respondent has contended that the averments in the petition do not contain a concise statement of material facts. These are vague and not specific. There is no contemporaneous evidence. The basis on which the allegations have been made has not been disclosed. Thus, the petition does not conform to the requirements of Section 83(1)(a) and should be dismissed at the threshold on that short ground alone. Learned counsel has placed reliance on various decisions in support of his submission.

The claim made on behalf of the respondent has been controverted by the learned counsel for the petitioner. It has been submitted that the averments made in the petition disclose a triable issue. There is contemporaneous evidence in the form of two documents, copies of which have been produced as Annexures P.2 and P.4. The objections had been raised even orally. The evidence in support of the allegations as made in the petition shall be produced during the trial of the case. In this situation, it cannot be said that the petition should be dismissed at the threshold.

Section 83(1)(a) clearly postulates that an election petition ``shall contain a concise statement of the material facts on which the petitioner relies.''''

A perusal of this provision shows that it is not necessary for a party to disclose all the facts. He has not to give an elaborate statement. Only a concise statement of those facts which are material and on which the petitioner relies are required to be disclosed. The obvious purpose is to ensure that all those facts on which the petitioner wishes to place reliance should be disclosed so that the opposite party has a complete notice and is liable to prepare its defence effectively. The provision does not envisage that evidence has to be disclosed. It does not require that every detail has to be mentioned. Only a concise statement of such facts as are material is required to be given.

What is the position in the present case ? In paragraph 18 of the petition, the petitioner has inter alia alleged that a total of 1278 ballot papers were rejected. Out of these, six were Postal Ballot Papers. About 250 votes were wrongly rejected. Still further, he gives details to indicate that ``about 150 ballot papers either contain the faint stamp on the symbol of the petitioner or the voter has put the stamp on the symbol of the petitioner, but the impression of the same has been carried out on the block of the candidate on the left side of the ballot papers''''. In case of 100 votes, the stamp is very clear ``on the symbol of the petitioner'''' but the thumb impression have appeared on the ballot papers. The petitioner has also explained as to how it had so happened. It has also been alleged that the counting agent as well as election agent of the petitioner had objected to the rejection of the votes but the Returning Officer and the counting staff had not been persuaded to treat these ballots as valid. In paragraph 19, it has been alleged that about 150 votes belonging to the petitioner have been put in the bundles of Respondent No. 1. The counting staff at table Nos. 4, 5, 7 and 14 had mixed these votes. In paragraph 20, it has been alleged that ``on table No. 7 in round No. 2, two packets of 49 ballot papers belonging to the petitioner have been mixed in the bundles of respondent No. 1 as the counting staff folded the ballot papers covering the 49 ballot papers...'''' Further facts have also been given in paragraphs 21 and 22. In paragraph 23, it has been alleged that 150 ballot papers which were invalid were in fact counted in favour of respondent No. 1. These irregularities had been committed on table Nos. 2, 4, 5, 6, 7 and 14 largely. The petitioner also states that upto round No. 4, respondent No. 1 was leading but after the 5th and 6th rounds, he was leading. At about 5.30 p.m., the light went off for about two minutes. During this period, the counting staff had managed to change the bundles and the rejected votes of respondent No. 1 were counted in his favour.

Besides this irregularity regarding improper acceptance and rejection of the ballots, in paragraph 24, the petitioner has pointed out that a perusal of ``the certified copy of the form 20 attached with the election petition would suggest that there has been a manipulation while preparing the result sheet because on the very first page at serial No. 13, Col. No. 3, belonging to respondent No. 1, there is a cutting in the votes secured by him as well as at serial No. 2 in Col. No. 4, there is a cutting of ballots secured by the petitioner.'''' He demonstrates that if the votes secured by the various candidates are counted, the total would be 976 while in fact, it has shown to be 981. There is a difference of five votes. The petitioner has given the facts in detail to show the various discrepancies in the form.

In paragraph 25, the petitioner has pointed out that a total of 445 ballot papers had been received by post. He has given details regarding the number of ballot papers received on different dates. He has also produced a copy of the certificate issued by the Post Master, Post Office, Dasuya, alongwith the petition in support of his averment. In paragraph 26, he points out that in form No. 20, only 44 ballot papers appear to have been taken into consideration. He alleges that there is no account of 401 Postal Ballot Papers in the final result sheet. He alleges that he had got ``more than 300 votes'''', out of these 401 Postal Ballot Papers. The petitioner points out that the Postal Ballot Papers were required to be opened in the presence of the candidates or their agents. However, these were not so opened. In paragraph 29, the petitioner has pointed out the discrepancies in the forms 16I and 16II to show that the total votes which have been found in the ballot boxes is different from the number indicated in the forms. Adequate details have been finished in this behalf.

A perusal of the petition shows that the petitioner has broadly alleged that :

(i) There was improper acceptance and rejection of votes.

(ii) There are apparent inconsistencies in Form Nos. 16I, 16II and 20 which cannot be reconciled without checking up the original votes and the records.

(iii) 401 Postal Ballot Papers were not opened in the presence of the candidates or their agents and have not been accounted for during the process of counting.

On these premises, the petitioner alleges that a request had been made to the Returning Officer to order a recount. This request was illegally rejected. In fact, according to the petitioner, the Returning Officer was under the influence of Respondent No. 1. He had categorically observed in the order, a copy of which has been produced as Annexure P.3, that ``they have been assured that their demand will be referred to the Election Commission in Annexure 2.'''' It has been further pointed out that the petitioner having lost the election only by a margin of 54 votes, it is apparent that by the irregularities, the result of the election was materially affected and that in the circumstances of the case, it is in the interest of justice that a recount is ordered.

Mr. Kapoor, learned counsel for respondent No. 1 has contended that the petitioner has not given the basis on which various figures have been mentioned in different paragraphs of the petition. It has been further submitted that there is no contemporaneous evidence in support of the submissions. Learned counsel has placed particular reliance on the decision of the Supreme Court in Shri Satyanarain Duhdani v. Uday Kumar Singh, AIR 1993 SC 367 to contend that in the absence of contemporaneous evidence, a recount cannot be ordered.

On a perusal of the petition, it cannot be said that the petitioner has not given a concise statement of the material facts on which he relies. Still further, it has been categorically alleged in paragraph 18 that ``the counting agents of the petitioner and the election agent of the petitioner objected to the same but the Returning Officer and the counting staff was adamant...'''' The petitioner has also produced a copy of the written application submitted by his election agent alongwith Mr. Ujagar Singh who was the election agent of the candidate from the Bahujan Samaj Party to the Returning Officer in which a prayer for rechecking and recounting of votes had been made on the ground that ``your staff has done many wrong things in spite of our objections.'''' It was also alleged that ``your staff has mixed our votes in Congress candidate bundles.''''. Even a FAX message, a copy of which has been produced as Annexure P.4 had been sent by the petitioner to Mr. M.S. Gill, the Election Commissioner in which it was stated that ``at each and every round of counting, my counting agent and BSP agent objected regarding mixing of votes by the counting staff with the votes of Congress candidate. Kindly order rechecking and recounting.'''' When considered cumulatively, it cannot be said that there is no contemporneous evidence or that it has not been disclosed. It also deserves mention that the matter is at the threshold. The petition only embodies the material facts on which the petitioner relies. At the trial, the parties would lead evidence. It is only thereafter that the factual position would become clear. At the moment, the limited question before the court is Does the petition disclose a cause of action ? Has the petitioner reasonable grounds for apprehending that on account of alleged irregularities, the result of the election was materially affected ? Do the circumstances as disclosed in the petition warrant a recount of the votes ? The answer to these questions is not required to be given at this stage. However, these do arise for the consideration of the Court. The facts as alleged in the petition disclose that there is a triable issue which has to be gone into. That being so, it cannot be said that the election petition deserves to be dismissed at the threshold.

Mr. Kapoor has referred to the decisions of the Supreme Court in Ram Sewak Yadav v. Hussain Kamil Kidwai and others, AIR 1964 SC 1249, Dr. Jagjit Singh v. Giani Kartar Singh and others, AIR 1966 SC 773, Jitendra Bahadur Singh v. Krishna Behari and others, AIR 1970 SC 276, Hari Ram v. Hira Singh and others, AIR 1984 SC 396 and Shri Satyanarain Duhdani v. Uday Kumar Singh, AIR 1993 SC 367 to contend that the secrecy of the ballot has to be maintained and that it is not permissible to make a fishing enquiry.

There is no quarrel with the proposition, as advanced by the Counsel. The election process being expensive and timeconsuming, the Legislature has prescribed the procedure and the grounds on which an election can be set aside. It is recognised principle that the secrecy of the ballot has to be maintained. Equally, it is settled that unless material facts are disclosed and a clear case for recount is made out, the court cannot permit the petitioner to ask for a roving enquiry. It is also true that in a case where the allegations were not specific, and the contemporaneous evidence had not been disclosed, the prayer for recount was declined and the decision of the High Court was reversed. Yet, it is also the recognised principle of law that the purity of election has to be maintained. The principle of secrecy of ballot has been held to yield to the larger principle of free and fair elections. In Raghbir Singh v. Gurcharan Singh, AIR 1980 SC 1362, it was categorically held that an adequate statement of material facts on which the petitioner relies is enough. In paragraph 36, it was observed that the existence of contemporaneous followup action was not a condition precedent. The clear implication was that even if there is no contemporaneous evidence, the court can still go into the matter. The principle was further reiterated in A. Neelalohithadasan Nadar v. George Mascrene and others, 1994 Supp. (2) SCC 619. It was held that purity of election must prevail over secrecy of ballot. It was also observed in paragraph 14 that even if details of the source of information are not given in the petition, the matter can be examined by the court. Besides this, the underlying principle which has been recognised by the courts even in the various decisions on which reliance has been placed by the counsel for the petitioner is that the court has to adopt a procedure which would meet the ends of justice. In the case of Dr. Jagjit Singh (supra), in paragraph 31, their Lordships were inter alia pleased to observe that ``an application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interest of justice, the ballot boxes should be inspected or not.'''' It was further observed that the court was not laying ``down any heard and fast rule in this matter. Indeed, to attempt to lay down such a rule would be inexpedient and unreasonable''''. Similarly, in Jatindra Bahadur''s case (supra), it was observed that there were basically two requirements before the Election Tribunal could permit the inspection of the ballot papers. One of these was that ``the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.'''' In the very nature of things, each case has to be examined on its own facts. The basic purpose is to ensure that an election petition shall be tried only when it discloses the existence of a cause of action. In the present case, on the allegations as made in petition, it cannot be said that the petitioner has no cause of action which may be remediable through these proceedings.

Mr. Kapoor contended vehemently that this court can reject the petition summarily at the threshold. He relied upon the decision of the Supreme Court in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 in support of his submission.

Learned counsel is absolutely right in his contention. However, the decision does not lay down an inviolable rule that every election petition has to be dismissed at the threshold. It only clarifies that the court has the power to do so. Moreover, it is equality settled that at the stage of consideration of the preliminary issues or the examination of the petition, the court is not concerned with the truth or falsity of the allegations. It is not even concerned with the merits of the controversy or the final decision that may be given. The limited query is Is there a cause of action which deserves a trial ? Once the answer is in the affirmative, the normal trial must take place. This is precisely what the petitioner prays for.

Mr. Kapoor has also placed reliance on a decision of this Court in Ram Sarup v. Peer Chand and others, 1992(2) RLR 364. In this case, the petition was undoubtedly dismissed on the ground that it did not disclose material facts. It was also found that there was no application for recount. It was a decision on its own facts. The case is clearly distinguishable from the controversy which arises in the present case. In Thupiri Penchalaiah v. The Election Court, Kavali constituted under A.P. Gram Panchayat Act and others, AIR 1991 NOC 27, the petition was dismissed inter alia on the ground that even the application for recount was not got marked as an exhibit. Such a situation has not yet arisen in the present case.

Mr. Kapoor has also contended that the election agent of the petitioner had accepted the correctness of the counting process till round No. 5. The election agent had signed a statement to that effect. This fact has been categorically mentioned in the written statement. The petitioner has filed a replication. He has not denied it. Consequently, it cannot be said that there was any irregularity. In fact, this evidence indicates that the counting had been rightly done.

The contention is premature. At this state, the solitary question for consideration is Does the petition disclose a cause of action ? Whether the allegations are correct or false will be finally determined after examination of the evidence. Furthermore, according to the petitioner, there were irregularities in subsequent rounds e.g. when light had gone off after the 6th round.

Taking the totality of circumstances into consideration and without finally expressing any opinion on the merits of the controversy, it cannot be said that this stage that the petition does not disclose a cause of action. Resultantly, it is held that the petition contains a concise statement of material facts and discloses a cause of action which has to be tried. Issue No. 1 is decided accordingly.

Issue No. 2

In paragraph 13 of the petition, the petitioner has stated as under :

``That the Returning Officer Mr. Surinder Mohan Sharma was in fact got appointed by the respondent No. 1 to the post of Sub Divisional Officer (Civil), Dasuya when the respondent No. 1 was a Minister in the State of Punjab. This was done with a view to extract all possible help from him at the time of elections. Mr. Surinder Mohan Sharma, Returning Officer helped respondent No. 1 to maximum extent. The respondent No. 1 had very good relationship with Returning Officer. The respondent No. 1 dictated the terms to the Returning Officer and he is turn directed his counting staff which ultimately resulted into the defeat of the petitioner. The counting staff helped respondent No. 1 largely. The Returning Officer did not hear to the objections raised by the petitioner and his counting agents orally as well as in writing. Since the Returning Officer was under the influence of respondent No. 1, the complaints of the petitioner and his counting agents, were ignored.''''

Mr. Kapoor submits that the allegations in this paragraph constitute a corrupt practice. The petitioner has not filed an affidavit in support of these allegations in accordance with the provisions of the proviso to Clause (c). On the other hand, Mr. Jain has submitted that neither in the heading of the petition nor in the prayer, it has been suggested that respondent No. 1 was guilty of any corrupt practice. The averments in paragraph 13 have been made only to support the plea for recount of the votes.

Counsel for the petitioner appears to be right. It is not the petitioner''s prayer that respondent No. 1 being guilty of a corrupt practice should be disqualified from contesting any election. There is not even a suggesting of any corrupt practice in the petition. The only prayer is that the petitioner be declared to be duly elected from the constituency. In the circumstances of the case, the contention appears to be wellfounded.

Mr. Jain has placed reliance on the observations in paras 13 and 14 of the judgment in Mukhtiar Singh v. Bal Mukand, AIR 1994 P&H 125. The observations do support the submission.

No other point has been raised.

In view of the above, Issue Nos. 1 and 2 are decided against the respondent. Issue No. 3 is decided against the petitioner.

In view of the decision on the preliminary issues, the parties have to file their lists of witnesses. Mr. Jain states that he will file the list of witnesses within three days. Mr. Kapoor states that he will file the list of witnesses within 10 days. Let these lists be filed on or before June 16, 1997. The case shall come up for scrutiny of the lists of witnesses on July 4, 1997.