Ram Lal Jassi vs Chaudhary Jagjit Singh

V.K. Jhanji, J.—This order will dispose of preliminary issues framed on the basis of objections raised by respondent No. 1 (hereinafter referred to as returned candidate) whose election to the Punjab Vidhan Sabha, from 33-Kartarpur (S.C.) Assembly Constituency has been challenged on the ground that the result of the election insofar as it concerns the returned candidate has materially been affected by the improper reception, refusal and rejection of votes. It is alleged that the votes have improperly been counted in favour of returned candidate and improperly been rejected which were in favour of the petitioner. The following issues were directed to be treated as preliminary is-sues:-

"5. Whether the election petition does not disclose any cause of action? OPR.

Whether paragraphs 7 to 21 of the election petition are vague, scandalous and frivolous and lack in material facts and hence are liable to be struck off under Order VI Rule 16 and under Order VI Rule 11, C.P.C.? OPR.

Whether the corrupt practices alleged in the election petition are not supported by a sworn affidavit? If so, its effect? OPR.

Whether the election petition has not been verified as required under Order VI Rule 15, C.P.C.? If so, its effect? OPR.

Issue No. 7.-

Mr. G.K. Chatrath, Sr. Advocate, appearing on behalf of the returned candidate firstly arguing on issues No. 7 has contended that the allegations contained in paras 8 to 11 of the election petition fall within the ambit of ''corrupt practice'' as defined in Section 123(7) of the Representation of People Act, 1951 (hereinafter, referred to as the Act). He contended that proviso to Section 83(1)(c) of the Act mandates that affidavit in support of allegations of corrupt practice and particulars thereof must be filed whenever allegation of corrupt practice is made. He contended that in the present case, no affidavit has been filed in support of the allegations of corrupt practice levelled in paras 8 to 11 of the election petition and that being so, election petition is liable to be dismissed being an invalid election petition. In answer to these submissions, Mr. P.S. Thiara, Advocate, for the petitioner contended that the allegations contained in paras 8 to 11 do not fall within the ambit of ''corrupt practice as defined in Section 123(7) of the Act.

In order to appreciate the respective contention of counsel for the parties, it is necessary to notice the allegations contained in paras 8 to 11 of the election petition and also the relevant provision of Section 123 of the Act:

"8. That the Returning Officer of 33-Kartarpur Assembly Constituency who was posted as Sub Divisional Officer (Civil), Jalandhar-II is considered to be close to Chaudhary Jagjit Singh, Respondent No. 1. During the last Lok Sabha elections the Returning Officer for Kartarpur constituency was Smt. Sarojni Gautam Sharda, who was posted as Special Land Acquisition Collector. She continued as Returning Officer for this Constituency till January 13, 1997, when somehow Shri Bhagwant Singh, Sub Divisional Officer (Civil), Jalandhar-II, a close associate of Chaudhary, Jagjit Singh was posted as Returning Officer of this constituency.

That Shri Bhagwant Singh, in order to please Chaudhary Jagjit Singh, respondent No. 1, started helping him from the very beginning. The selection of counting staff was made in such a way that persons close to Chaudhary Jagjit Singh and his son were appointed as Counting Supervisors/Counting Agents. Chaudhary Jagjit Singh served as Cooperative Minister in the State of Punjab. His son, Chaudhary Surinder Singh is holding the post of Chairman of the Block Samiti West, Jalandhar. These positions, he was also holding at the time of Punjab Vidhan Sabha election held on February 7, 1997. The Returning Officer appointed most of the counting staff of these three departments, i.e. the staff of Jalandhar Cooperative Agriculture Development Bank Limited and the staff of Market Committee, Jalandhar and that of the Block Samiti West, Jalandhar. The staff of these Departments were appointed as Chaudhary Jugjit Singh and his son, Chaudhary Surinder Singh had direct link with these Departments as stated above.

That the Returning Officer also deputed Shri Gurmit Singh Nadala, a political person, on the counting duty where only staff of Government organisations can be appointed. Shri Gurmit Singh Nadala is elected as President of the Bholath Primary Agriculture Development Bank Limited and he still continues to work on this post. The Returning Officer did not allow the petitioner to move to different tables whereas the Respondent No. 1, Chaudhary Jagjit Singh was frequently visiting the different tables. During the time of counting, Shri Gurmit Singh Nadala, Shri Gurpreet Singh, Kanungo and Shri Mohan Lal, Kanungo were approaching Chaudhary Jagjit Singh and telling him that come what may, they will definitely get him (Chaudhary Jagjit Singh, Respondent No. 1) elected.

That the counting staff in order to please their bosses were helping the Congress candidate from the very beginning of the counting. The counting staff illegally rejected hundreds of valid votes of the petitioner and counted the rejected votes of Respondent No. 1 as valid in his favour. The counting staff also counted some of the votes polled in favour of Respondent No. 1 twice. Even counting staff also counted the votes polled in favour of the petitioner in the bundles of Respondent No. 1, Chaudhary Jagjit Singh. The details of various illegalities committed are given in subsequent paras."

Section 123 of the Act defines ''corrupt practice''. Sub-section (7) of Section 123 provides as under :-

"(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate''s election, from any person in the service of the Government and belonging to any of the following classes, namely: -

(a) gazetted officers;

(b) stipendiary judges and magistrates;

(c) members of the armed forces of the Union;

(d) members of the police forces;

(e) excise officers;

(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and

(g) such other Class of persons in the service of the Government as may be prescribed:

Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing for, to or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangement, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate''s election."

A reading of the allegations contained in paras 8 to 11 regarding the role played by the Returning Officer, allegedly at the behest of the returned candidate along with Sub-section (7) of Section 123 of the Act shows that the same have been made to prove that the votes have been improperly counted in favour of the returned candidate and improperly rejected which were in favour of the petitioner. There is no allegation of procuring, and obtaining the help of government servants. Simply because the Returning Officer happened to be a gazetted officer and an allegation is made that the Returning Officer and some of the Revenue Officers helped the returned candidate would not be taken to mean that an assistance rendered by the Returning Officer and revenue Officers would be a ''corrupt practice'' within the meaning of Sub-section (7) of Section 123 of the Act. Petitioner has not charged the returned candidate with corrupt practice. Petitioner has also not claimed any relief against the returned candidate on account of commission of corrupt practice, such as disqualification or barring the returned candidate from contesting the election. Accordingly, the contention of Mr. Chatrath that the allegations contained in paras 8 to 11 of the election petition fall within the definition of ''corrupt practice'' as defined in Section 123(7) of the Act and filing of an affidavit in support of the said allegations was mandatory, is devoid of any merit. Consequently, issue No. 7 is decided in favour of petitioner and against the returned candidate.

Issues 5 and 6:

Arguing on issues No. 5 and 6, Mr. Chatrath contended that the allegations contained in paras 7 to 21 are vague and do not disclose material facts constituting cause of action. Against this, Mr. P.S. Thiara, counsel appearing on behalf of petitioner, has contended that in the election petition, petitioner has averred regarding wrongful rejection and acceptance of votes and violation of provisions of the Act and the Rules. It is contended that the material facts have been given to constitute cause of action.

In order to appreciate the contention of counsel, it is necessary to notice certain provisions of the Act and the Rules.

Section 80 of the Act states that no election can be called in question except by an election petition under Part-VI of the 1951 Act. Section 81 of the Act provides that an election could be challenged only on any one or more of the grounds specified in Section 100(1) of the Act. Section 83 says that all material facts on which petitioner relies and when there is an allegation of corrupt practice, the fullest particulars thereof should be\\alleged. Section 87 provides that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the CPC to the trial of suits. Section 100 provides for grounds of declaring of election to be void. One of the grounds for declaring election to be void is that the result of the election insofar as it concerns a returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or reception of any vote which is void or by any non- compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act.

Part IV of the Conduct of Election Rules, 1961 (hereinafter referred to as the Rules) relates to voting in parliamentary and assembly constituencies.

Rule 4.4 provides for sealing of ballot boxes after poll. It says that as soon as practicable after the closing of the poll, the presiding officer shall close the slit of the ballot box, and where the box does not contain any mechanical device for closing the slit, he shall seal up the slit and also allow any polling agent present to affix his seal. The ballot box shall thereafter be sealed and secured. This rule also provides that as soon as practicable after the close of poll, the presiding officer shall transfer all the ballot papers contained in the ballot box or boxes used at that polling station, without examining or counting them and with due regard to the secrecy of the ballot, into a cloth bag or cloth-lined cover after demonstrating to the polling agents present that the bag or cover is empty, and allow the polling agents present to inspect each ballot box and demonstrate to them that it has been emptied; and then record on the bag or cover the name of the constituency, the name of the polling station and the date of the poll; and thereafter, seal the bag or cover and allow any polling agent present to affix his seal thereon. Rule 45 provides that the Presiding Officer shall at the close of the poll prepare a ballot paper account in Form 16 and enclose it in a separate cover with the words "Ballot Paper Account" superscribed thereon. It further provides that the Presiding Officer shall furnish to every polling agent present at the close of the poll a true copy of the entries made in the ballot paper account after obtaining a receipt from the said polling agent therefore and shall also attest it as a true copy. Rule 47 requires that presiding officer shall deliver or cause to be delivered to the returning officer at such place as the returning officer may direct the ballot boxes or, as the case may be, the bags or covers referred to in Rule 44; the ballot-paper account; the sealed packets referred to in Rule 46, and all other papers used at the poll.

Part V deals with counting of votes.

Rule. 51 provides that the Returning Officer shall at least one week before the date or the first of the dates, fixed for the poll, appoint the place or places where the counting of votes will be done and the date and time at which the counting will commence and shall give notice of the same in writing to each candidate or his election agent. Rule 52 provides for appointment of counting agents and revocation of such appointments. It says that the number of counting agents that a candidate may appoint u/s 47 shall, subject to such general or special direction as the Election Commission may issue in this behalf, not exceed sixteen at the place or each of the places, fixed for counting under Rule 51. Rule further provides that no counting agent shall be admitted into the place fixed for counting unless he has delivered to the returning officer the second copy of his appointment under sub-ruff (2) after duly completing and signing the declaration contained therein and receiving from the returning officer an authority for entry into the place fixed for counting. Rule 53 requires the Returning Officer to exclude from the place fixed for counting of votes all persons except such persons to be known as counting supervisors and counting assistants as he may appoint to assist him in the counting; persons authorised by the Election Commission; public servants on duty in connection with the election; and the candidates, their election agents and counting agents. The rule also requires with the election; and the candidates, their election agents and counting agents. The rule also requires that the returning officer shall decide which counting agent or agents shall watch the counting at any particular counting table or group of counting tables. Rule 54-A provides that the returning officer shall first deal with the postal ballot papers. It requires that the returning officer shall count all the valid votes given by the postal ballot in favour of each candidate, record the total thereof in the result sheet in Form 20 and announce the same. Thereafter, all the valid ballot papers and all the rejected ballot papers shall be separately bundled and kept together in packet which shall be sealed with the seals of the returning officer and of such of the candidates, their election agents or counting agents as may desire to affix their seals thereon and on the packet so sealed shall be recorded the name of the constituency, the date of counting and a brief description of its contents.

Rules 55, 56, 57 and 59 are not required to be noticed, being not relevant because counting in this case has been done in terms of Rule 59-A. Rule 59-A states that where the Election Commission apprehends intimidation and victimisation of electors in any constituency and it is of the opinion that it is absolutely necessary that the ballot papers taken out of all boxes used in that constituency should be mixed before counting, it may, by notification in the official gazette, specify such constituency for counting of such ballot papers in lieu of Rules 55, 56, 57 and 59, Rules 55-B to 57-B shall apply. Rule 55-B provides for scrutiny and opening of ballot boxes and for preparing a ballot paper Account in Part 11 of Form 16-A. It further provides that before any ballot box is opened at a counting table, the counting agents present at that table shall be allowed to inspect the paper seal or such other seal as might have been affixed thereon and to satisfy themselves that it is intact. The returning officer shall satisfy himself that none of the ballot boxes has in fact been tampered with and if he is satisfied that any ballot box has in fact been tampered with, he shall not count the ballot papers contained in that box and shall follow the procedure laid down in Section 58 in respect of that polling station. Section 56-B provides that subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, the ballot papers taken out of all boxes used at more than one polling station in a constituency, shall be mixed together and then arranged in convenient bundles and scrutinised. It further provides that before rejecting any ballot paper, the returning officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper. The returning officer shall endorse on every ballot paper which he rejects, the word "Rejected" and the grounds of rejection in abbreviated form either in his own hand or means of a rubber stamp and shall initial such endorsement. All ballot papers rejected under the rule shall be bundled together. Every ballot paper which is not rejected, shall be counted as one valid vote. Rule, however, states that no cover containing tendered ballot shall be opened and no such paper shall be counted. After the counting of all ballot papers contained in all the ballot boxes used in a constituency has been completed, the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars. Rule 57-B provides for sealing of used ballot papers. Rule 58 relates to counting of ballot papers transferred to bags or covers under Rule 44. Rule 63 requires that after the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. After such announcement has been made, a candidate or in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to recount the votes either wholly or in part stating the grounds on which he demands such re-count. On such an application being made, the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. Every decision of the returning officer under Sub-rule (3) shall be in writing and contain the reason therefore. If the returning officer decides under Sub-rule (3) to allow a re-count of the votes either wholly or in part, he shall do the recounting in accordance with Rule 54-A, Rule 56 or Rule 56-A, as the case may be, amend the result sheet in Form 20 to the extent necessary after such re-count and announce the amendments so made by him. After the total number of votes polled by each candidate has been announced under Sub-rule (1) or Sub-rule (5), the returning officer shall complete and sign the result sheet in Form 20 and no application for a recount shall be entertained thereafter. Sub-rule, however, states that no step shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by Sub-rule (2), i.e. to apply to the returning officer in writing to recount the votes, stating the grounds on which he demands such re-count. Rule 64 relates to declaration of result of election and return of election and Rule 66 provides for grant of certificate of election to returned candidate.

The material facts in Section 83(1)(a) correspond to Order 6 Rule 2 of the Code of Civil Procedure. Absence of a single material fact will be fatal to the challenge making the cause of action incomplete rendering the pleadings liable to be struck off under Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. As already noticed, CPC has been made applicable by virtue of provisions of Section 87 of the Act. What are material facts and the effect of omission to plead the same, have been settled by the Hon''ble Supreme Court in various judicial pronouncements.

In Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, , their Lordships of the Supreme Court held that:

"But an order for inspector of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection."

Their Lordships after referring to the rules framed for conduct of elections held that :

"..........at every stage in the process of scrutiny and counting of votes the candidates or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes, and to demand a re-count. Therefore, a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity, of acquainting himself with the manner in which the ballot boxes were scrutinized and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers and of demanding a recount. It is in the light of the provisions of Section 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a re-count that the application for inspection must be considered." Same view has been reiterated in Dr. Jagjit Singh Vs. Giani Kartar Singh and Others, .

In Shri Jitendra Bahadur Singh Vs. Shri Kirshna Behari and Others, , their Lordships of the Supreme after referring to the rules for conduct of elections and the judgments in Ram Sewak Yadav''s and Dr. Jagjit Singh''s cases (supra), held :

".......... under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore, it was quite easy for them to note down the serial number of the concerned ballot papers. The election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections. These again are the material facts required to be stated."

In Azhar Hussain Vs. Rajiv Gandhi, , the question before the Supreme Court was whether an election petition not complying with Section 83(1) could be summarily dismissed. It was argued that as Section 83(1), even though mandatory, should not have the lethal consequence of dismissal. Their Lordships of the Supreme Court rejected the argument and held :

(a) The provisions of Section 87 specifically require that every election petition be tried by the High Court as nearly as may be in accordance with the procedure applicable under the CPC (CPC) to the trial of suits.

(b) The fact that Section 83 did not find a place in Section 86 did not mean that powers under the CPC cannot be exercised;

(c) Under CPC, the court had power to act at the threshold, and the power must be exercised at the threshold itself in case the court was satisfied that it was a fit case for the exercise of such power.

(d) In regard to a matter pertaining to the elected representative of the people which was likely to inhibit him in the discharge of his duties towards the nation, the controversy should be set at rest at the earliest, if the facts of the case and the law so warrant.

In Bhagwati Prasad Dixit ''Ghorewala'' Vs. Rajeev Gandhi, , the Hon''ble Supreme Court reiterated that in election petitions, pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it is liable to be rejected in limine.

In Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, the Hon''ble Supreme Court in this very context, held :

"On a combined reading of Sections 81 83 86 and 87 of the Act, it is apparent that those paragraphs of a petition which do not disclose any cause of action, are liable to be struck off under order VI Rule 16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VI Rule 11."

In the light of the aforementioned provisions of the Act, Rules and the judgments of the Supreme Court, it has to be seen whether the averments made by the petitioner for declaring the election of the returned candidates to be void due to improper acceptance, refusal or rejection of any vote or reception of any vote which was void or non-compliance with the provisions of the Act or any Rules, are sufficient enough so that the petition may be set down for trial on merits or whether the averments are totally vague, not disclosing any cause of action.

As already noticed while discussing issue No. 7, the facts stated by the petitioner in paras 8 to 11 relate to the illegalities and irregularities, allegedly committed during the course of counting. The averments are totally vague and general in nature and do not contain as to which provisions of the Act or the Rules were not complied with by the Returning Officer during the course of counting of votes. It was also not been stated as to what illegality or irregularity was committed by the Returning Officer during the course of counting of votes and how it has materially affected the result of the returned candidate. In fact, a reading of last line of para 11 shows that petitioner is laying stress only on paragraph 12 and onwards as according to him, the said paragraphs contain "details of various illegalities committed" during the course of counting.

In para 12, it is alleged that on the day of poll, i.e. February 7, 1997, 83573 votes were polled at different polling booths of Kartarpur Assembly constituency whereas the votes counted on the day of counting, i.e. February 9, 1997, came to 84155. It is alleged that there was a discrepancy of 582 votes which were counted twice in favour of returned candidate. In para 13, it is alleged that at the end of third round of counting during lunch time, one Rajinder Singh Nagra, Counting Agent of the petitioner at Table No. 11, informed the petitioner that during the third round of counting when most of the people had moved out for lunch, the trunk containing the mixed votes was opened by one person hurriedly and some votes were put in the trunk from outside and again, the truck was locked. It is alleged that Rajinder Singh Nagra told the petitioner that he watched this from the other corner of the hall and rushed to the spot and immediately raised objection, but he was told that nothing has been done. It is further alleged that petitioner immediately complained to the Returning Officer but he replied that it is only petitioner''s apprehension. In this very context, in para 17 it is alleged that there was a discrepancy of 582 votes and these were the one put in the trunk of mixed votes during the third round of counting.

The aforesaid allegations contained in paragraphs 12, 13 and 17 are totally vague. No concise statement of material facts, the name of the person who allegedly put 582 votes in the trunk and the fact whether such person had been or not been appointed as polling agent by the returned candidate, has been given in the petition. In order to prove the allegation in regard to discrepancy of 582 votes which were allegedly counted twice in favour of returned candidate, petitioner in para 12 has referred to Annexures P-1/A and P-2/A. Annexure P-1/A is constituency-wise poll percentage prepared by Tehsildar, Jalandhar in regard to 37 assembly constituencies. Against Kartarpur Constituency, i.e. the constituency in question, it is stated that 83573 votes were polled. Annexure P-2/A is certified copy of Form-20 prepared by the Returning Officer after completion of counting of all ballot-papers contained in all ballot-boxes. It shows that the total votes polled were 84155. It cannot be disputed that preparation of document, Annexure P-1/A is not envisaged under any of the rules relating to voting and counting of votes in an assembly constituency. The only forms in the present case which are envisaged, are Form 16-A and Form 20. Part-I of Form 16-A is required to be filled in by the Presiding Officer at the close of the poll recording account of all ballot papers received, used, unused or cancelled for violation of voting procedure under Rule 39, ballot papers cancelled for other reasons and ballot papers used as tendered ballot papers. Part 11 is required to be filled in at the time of scrutiny and opening of ballot boxes as provided under Rule 55-B which states that the Returning Officer shall open or cause to be opened, simultaneously the ballot box or boxes used at more than one polling station and shall have the total number of ballot papers found in such box or boxes counted and recorded in Part 11 of Form 16-A. In case there is any discrepancy between the total number of such ballot papers recorded as aforesaid and the total number of ballot papers shown against item No. 5 of Part I shall also be recorded in Part 11 of Form 16-A. Form 20 is required to be filled in and signed by the Returning Officer after counting of all ballot papers contained in all ballot boxes used in the constituency has been completed. Petitioner has not annexed with his petition Form 16-A nor it is the allegation of the petitioner that there was discrepancy of votes mentioned in Form 16A and Form 20. Form 20, Annexures R-1/2 to the written statement, shows that the total votes found in the ballot boxes were 81440 and Annexure R-1/3, Final Result Sheet in Part 11, Form 20 shows that the total number of postal ballot papers was 15. The total number of votes found in the ballot boxes and the postal ballot papers thus comes to 84155, which in fact were the total number of votes counted on the day of counting.

In para 14, it is alleged that in the first round 106 votes, in the second round 87 votes, in the third round 108 votes, in the fourth round 117 votes, in the fifth round 54 votes and in the sixth round 48 votes, polled in favour of the petitioner were illegality rejected. It is alleged that some of these votes were slightly smudged and carrying marks on them due to the handling of ballot papers by the voters. These ballot papers did not show identification of the voters but were illegally rejected by the Returning Officer. It is alleged that out of many of these rejected votes, the stamp was touching the bottom line. It is averred that the name/symbol of the petitioner was at bottom end of the ballot paper and thus, there was no dispute that these votes had been polled in favour of the petitioner, but the Returning Officer without hearing the objections of the petitioner illegally rejected the ballot papers. In para 15, it is alleged that the Returning Officer had also counted the votes which were required to be rejected under the Rules in favour of the returned candidate. It is averred that 46 votes in the first round, 113 votes in the second round, 108 votes in the third round, 34 votes in the fourth round, 48 votes in the fifth round and 68 votes ill the sixth round were liable to be rejected because they were having a double stamp, one fixed in the column of returned candidate and another in the column of other candidate. In para 16, it is stated that most of the counting staff was all put to favour the returned candidate. In para 18, it is stated that after the completion of counting of votes, petitioner submitted a detailed representation to the Returning Officer and requested that recounting of votes may be ordered, but the Returning Officer flatly refused to entertain the representation by verbally saying that he will not order recounting of votes under any circumstances.

As regards the allegations made in paras 14 and 15 relating to illegal rejection and improper reception of votes, petitioner has again failed to disclose the material facts constituting cause of action. Ballot Papers Numbers are not mentioned. The precise objection raised by the Counting Agents deputed by the petitioner on each table, has not been stated. Apart from saying that 106 votes in the first round, 87 votes in the second round, 108 votes in the third round, 117 votes in the fourth round, 54 votes in the fifth round and 48 votes in the sixth round, polled in favour of the petitioner were illegally rejected and 46 votes in the first round, 143 votes in the second round, 108 votes in the fifth round, 34 votes in the fourth round, 48 votes in the fifth round and 68 votes in the sixth round were improperly accepted in favour of returned candidate, petitioner has not disclosed any source or material on the basis of which he arrived at these figures. It is only a bald assertion. Petitioner has neither given the table numbers nor the names of Counting Agents who had disclosed this fact to him. It has also not been stated as to whether the information had been supplied to the petitioner by the Election Agent or by his counting agents. There is complete lack of material facts. Because of non-pleading of basic requirements, namely, concise statement of material facts which is sine-quanon to an election petition, the averments made in paras 14 and 15 are liable to be struck off under Order VI Rule 16, Code of Civil Procedure. After striking out of the pleadings contained in paras 12, 13, 14, 15 and 17, I am of the view that no triable issues remain to be considered and the election petition is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure, as the same does not disclose any cause of action. Consequently, issues 5 and 6 are decided in favour of returned candidate and against the petitioner.

Issue No. 8:

Counsel for the returned candidate has not advanced any argument in support of this issue and, therefore, the same is decided against the returned candidate and in favour of the petitioner.

No other point was urged.

In the result, the election petition is rejected. Office will intimate the substance of the decision to the Election Commission and the Speaker of the Punjab Legislative Assembly without any delay. Thereafter, an authenticated copy of the decision shall be sent to the Election Commission as per Section 103 of the Act.