Question

what is bahadur's 1961 representation r codes?

Answer 1

1. This is an Election Petition under the Representation of the People Act, 1951.

2. Election to the Legislative Assembly, U.P took place in March 1985. The Constituency No. 293 Sarsaul, district Kanpur the nominations could be filed between Jan. 28 to Feb. 6, 1985; the date for scrutiny was Feb. 7. Last date of withdrawal of nomination papers was Feb. 9, 1985. Poll was scheduled, to take place on March 5 and the counting took place on the day following. The petitioner and the respondents 1 to 14 were the contesting candidates. The respondent I was declared elected by a margin of 820 votes having secured 37,960 votes as against 38,780 in favour of his nearest rival namely, the petitioner. Aggrieved, the petitioner has filed this petition. For the respondent 1 there is application filed under O. 7, R. 11.O. 6, R. 16, Civil P.C read with S. 86(1) of the Representation of the People Act, 1951 (hereinafter referred to as the Act) contending that the petition as framed does not disclose a cause of action; it does not contain a precise statement of material facts and deserves, therefore, to be rejected. This has been opposed for the petitioner.

3. I have heard learned counsel on both sides and perused the record.

4. In para 9 of the Election Petition the following are the grounds specified for challenging the election of the respondent No. 1:—

(i) Because respondent 1 himself and/or his election agent and/or other persons with the consent of respondent 1 and/or his election agent, have committed corrupt practice of bribery as provided under sub-sec. (1)(A)(a) and (b) of S. 123 of the Act.

(ii) Because respondent 1 and/or his election agent and/or other persons with the consent of respondent 1 and/or his agent committed the corrupt practice as provided under sub-sec. (3) of S. 123 of the Act by issuing appeal to vote for respondent 1 and/or refrain from voting for the petitioner and/or either contesting candidates on the ground of caste.

(iii) Because respondent 1 and/or his election agent and/or other persons with the consent of respondent 1 and/or his election agent promoted and/or attempted to promote the feeling of enmity or hatred between Brahmins and Kshattriyas as provided by S. 123(3-A) of the Act.

(iv) Because respondent 1 and/or his election agent and/or other persons with the consent of respondent 1 and/or etetion agent hired or procured on payment or otherwise for the free conveyance of electors to and from the polling stations as provided by sub-sec. (5) of S. 123 of the Act.

5. Paragraphs 10 to 25 are devoted to these grounds. Paras 27 to 49 are devoted to contending that there was improper reception, refusal or rejection of votes which has materially affected the result of the election concerning the returned candidate. Paras 49 and 50 concern S. 123(6) of the Act.

6. The provisions made in S. 123 (Corrupt Practices) of the Act in so far as relevant for purposes of this petition are as under—

“(1) ‘Bribery’, that is to say'—

(A) Any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification to any person whomsoever, with the object, directly of inducing—

(a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or

(b) an elector to vote or refrain from voting at an election, or as a reward to—

(i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature: or

(ii) an elector for having voted or refrained from voting;

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:”

“(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.”

(5) The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate or his election agent, or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under S. 25 or a place fixed under sub-sec. (1) of S. 29 for the poll.”

7. Under S. 100(1)(b) of the Act the election of the returned candidate shall be declared void if the Court finds “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”. To attract S. 100(1)(d)(iii) or (iv) as the case may be, there has to be finding “that the result of the election, in so far as it concerns a returned candidate has been materially affected

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

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.”

8. The law is settled that to constitute the corrupt practice of bribery within the meaning of S. 123(1)A there must co-exist the two essential ingredients, namely—

(1) any gift, offer or promise of a gratification by a candidate or his agent or by any other person with the consent of a candidate or his election agent;

(2) the element of bargaining.

9. These indeed are expressly envisaged in the text of the-section itself. Reference in this connection may be made to the decisions reported in Harjit Singh Mann v. S. Umrao Singh, (1980) 1 SCC 713 : AIR 1980 SC 701: Ghasi Ram v. Dal Singh, AIR 1968 SC 1191: Om Prabha Jain v. Abnash Chand, AIR 1968 SC 1083: Bhanu Kumar v. Mohan Lal, (1971) 1 SCC 370 : AIR 1971 SC 2025; Chaitanya Kumar v. Sushila Dixit, (1976) 3 SCC 97 : (AIR 1975 SC 1718).

10. In this connection the distinction existing between the provisions made in S. 100(1)(b) and (d) of the Act has as well been emphasised as of significance. To attract S. 100(1)(b) the petitioner has necessarily to aver and prove in order to succeed that the corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. The element of consent is, however, dispensed with in S. 100(1)(d) which instead requires pleading and proof that the corrupt practice in question ‘has materially affected’ the result in relation to the returned candidate. Dealing with this aspect in Samant N. Balekrishna v. George Fernandez, (1969) 3 SCC 238 : AIR 1969 SC 1201 the Supreme Court thus explained the position, at page 1210:

“The petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with the consent of, the candidate or his election agent, in which case he need not establish what the result of the election would have been without the corrupt practice. The expression “any other person” in this part will include an agent other than an election agent. This is clear from a special provision later in the section about an agent other than an election agent. The law then is this: If the petitioner does not prove a corrupt practice by the candidate or his election agent or another person with the consent of the returned candidate or his election agent but relies on a corrupt practice committed by an agent other than an election agent he-must additionally prove how the corrupt practice affected the result of the poll. Unless he proves the consent to the commission of the corrupt practice on the part of the candidate or his election agent he must face this additional burden. The definition of agent in this context is to be taken from S. 123 (Explanation) where it is provided that an agent “includes an election agent a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate”. In this explanation the mention of “an election agent” would appear to be unnecessary because an election agent is the alter ego of the candidate in the scheme of the Act and his acts are the acts of the candidate, consent or on no consent on the part of the candidate.”

11. Their Lordships in this case laid down moreover that S. 83 of the Act is mandatory. It requires first a concise statement of material facts and then requires the fullest possible particulars. The word ‘material’ shows that the facts necessary to formulate a complete cause of action must be stated. “Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad”. The material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. “In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words ‘material facts’ will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice”. The power of amendment is given, it was observed, in respect of particulars but if a person has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice (vide S. 86(5)). “One alleges the corrupt practice in the material facts and they must show a complete cause of action”. This has been the consistent view on the subject. It is unnecessary to burden this judgment with those other citations. Suffice it may to make a mention of the recent decision in Azhar Hussain v. Rajiv Gandhi, 1986 All LJ 625 : (1986 Supp SCC 315 : AIR 1986 SC 1253) in which the contention that S. 86 does not incorporate S. 83 of the Act and therefore, the petition cannot be dismissed in exercise of the power under the Code of Civil Procedure, was negatived referring also to earlier decision in Hardwari Lal v. Kanwal Singh, (1972) 1 SCC 214 : AIR 1972 SC 515. In para 11 the principle reiterated is—

“In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil P.C So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Civil P.C can be passed if the mandatory requirements enjoined by S. 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant's case, (1969) 3 SCC 238 : AIR 1969 SC 1201 has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh's case, (1977) 1 SCC 511 : AIR 1976 SC 744 the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of S. 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.”

12. Corrupt practice is placed at par with the charge of a criminal offence. This may entail serious consequences not merely of the election being declared void but also of the returned Candidate being debarred from contesting a future election for a period of six years. The element of consent cannot be left to conjecture for the Court to draw an inference by adopting an involved process of reasoning or with the help of legal dictionary. If there be apparent ambiguity and the allegations are equivocal, the pleading of corrupt practice does not fulfil the mandatory statutory requirements. It is useful in this behalf to bear in mind the enunciation made by the Supreme Court in Daulat Ram Chauhan v. Anand Sharma, (1984) 2 SCC 64 : (AIR 1984 SC 621) as under:

“We must remember that in order to constitute corrupt practice, which entails not only the dismissal of the election petition but also other serious consequences like debarring the candidate concerned from contesting a future election for a period of six years, the allegations must be very strongly and narrowly construed to the very spirit and letter of the law. In other words, in order to constitute corrupt practices, the following necessary particulars, statement of facts and essential ingredients must be contained in the pleadings.

(1) Direct and detailed nature of corrupt practice as defined in the Act;

(2) Details of every important particular must be stated giving the time, place, names of persons, use of words and expressions, etc.;

(3) It must clearly appear from the allegations that the corrupt practices alleged were indulged in by (a) the candidate himself, (b) his authorised election agent or any other person with his express or implied consent.

A person may, due to sympathy or on his own, support the candidature of a particular candidate but unless a close and direct nexus is proved between the act of the person and the consent given to him by the candidate or his election agent, the same would not amount to a pleading of corrupt practice as contemplated by law. It cannot be left to time, chance or conjecture for the court to draw an inference by adopting an involved process of reasoning. In fine, the allegation must be so clear and specific that the inference of corrupt practice will irresistibly admit of no doubt or qualm.

13. As a logical consequence of the principles enunciated by us, it follows that where the allegation of fraudulent practice is open to two equal possible inferences, the pleading of corrupt practice must fail. For instance, A or in this case Sood or Batish, joined or participated or was present in an election rally or crowd and may have shouted slogans on his own without taking the consent of the candidate concerned, this would not be a corrupt practice within the meaning of S. 23(2) because the element of consent is wholly wanting.”

14. Now, ground No. 1 which intends to attract S. 123(1)(A)(a) and (b) of the Act covers paras 11 to 13 of the petition. For proper appreciation of the point at issue, it becomes necessary to reproduce here these paras from the election petition:—

“11. That on 2nd and 3rd March, 1985, i.e two or three days prior to the date of poll, respondent 1 and/or his election agent and/or such other persons with the consent of respondent 1 and/or his election agent paid money to the chaudharies of Harijan community to vote for respondent 1 and refrain from voting to the petitioner or any other candidate at the election. Besides, the chaudharies of the schedule caste, the money through them was also distributed to individual families of the schedule caste in a large number of villages within the constituency by respondent 1 and/or his election agent and/or other persons with the consent of respondent 1 and/or his election agent.”

12. “That on an average Rs. 20/- was paid to each of the individual family of Harijan community and Rs. 100/- to each of the Chaudharies of such community.

15. The details and particulars of the aforesaid corrupt practice of bribery shall appear from Schedule I to this petition.”

13. “That respondent 1 and/or his election agent and/or other persons with the consent of respondent 1 and/or his election agent paid Rs. 5,000/- to Sri Jagat Narain Gupta and Sri Munnu Lal, both independent candidates in the aforesaid election from 293 Sarsaul constituency, to withdraw from the election. These candidates issued appeals in the press in favour of respondent No. 14.

Details and particulars of the aforesaid corrupt practice shall appear from Schedule II attached to this petition.”

16. Para 11 is divisible in two parts. The first part refers to distribution of money to the Chaudharies of Harijan community and the second to the giving of money to individual families of the Scheduled caste. Upon analysis of the pleading contained in this para, it would appear that the distribution of money was allegedly done by—

(i) the respondent 1 alone; or

(ii) the respondent and his election agent; or

(iii) the election agent alone; or

(iv) the respondent 1 and other persons; or

(v) the election agent and other persons; or

(vi) the other persons.

17. For the ‘consent’ the pleading would amount to saying that this was of—

(i) the respondent 1 alone; or

(ii) the respondent 1 and the election agent both; or

(iii) the election agent alone.

18. These are thus the various equations permeating the pleading in this para. The crux of the matter is left to mere conjecture or a guess work. The attempt is to cover all possible imaginable situations or contingencies without letting the respondent to gather precisely as to what after all does the petitioner mean to contend. The choice is left to the respondent who may opt to resist the petitioner or the court. The petitioner on his part remains altogether ambiguous, uncertain and equivocal. It has been necessary to deal with this at same length because as will presently appear this is the common thread running throughout the paras 10 to 25 related to corrupt practice and has given rise to the principal cause for objection for the other side. I have also looked into Schedule I (referred to in para 12) but this in no manner improves the position. The title-given to the Schedule is ‘Particulars of persons who paid and received the bribe to vote for respondent 1 and/or refrain from voting to the petitioner and other candidates. Thus again the element of indefiniteness relating to the bargain. There are just three persons mentioned in col. 3 relating to “Name of persons who gave bribe.” Of these there is one ‘Shyam Lal’ with absolutely nothing else stated whether he acted with the consent of the respondent 1 or the election agent or both or none. In para 11 the first part refers to the element of bargain being “to vote for respondent 1 and refrain from voting to the petitioner or any other candidate at the election”. In Schedule I this also is made ambiguous and altogether vague by the use of the expression ‘and/or’. There is obvious inconsistency existing between para 11 and this Schedule.

19. For the respondent Sri A Khare the learned counsel argued then and not withount force that in the second part of para 11 there is no mention at all of the requisite element of bargining which, as I have mentioned, is an indispensable ingredient of S. 123(1)(A)(b) of the Act. That part does not aver that the gratification proceeded with the object directly of inducing the elector to vote or refrain from voting at the election.

20. Faced with the oft repeated expression ‘and/or’ throughout this petition in all its material parts Sri D.P.S Chauhan the petitioner's learned counsel made a bid to justify this with the aid of certain extracts from the Stroud's Judicial Dictionary, Vol. I page 132. The extracts relied on:

“Where statements or stipulations are coupled by ‘and/or’ they are ‘to be read, either disjunctively or conjuctively.”

21. And does any act (Official Secrets Act, 1970 (C. 75) S. 7) must be read as “or does any act” as otherwise the phrase in meaningless. (R. v. Oakes, (1959) 2 QB 350)

22. The proposition that ‘and’ can some time mean ‘or’ is true neither in law nor in English usage (1968) 12 F.L.R).

23. At page 133 we find it noted also:—

(3) In a notice to quit containing several grounds the grounds were corrected by the expression “and/or” it was held that the notice was uncertain (1950) V.L.R 94.

(4) It is undesirable to use the expression “and/or” in formal legal writs.

(5) per Lord Reid: The symbol “and/or” is not yet part of the English Language (1965) AC. 890.

24. Taking these extracts on their face I wonder how may these assist the petitioner. The role that the context plays in these matters cannot be exaggerated. Divorced, there from the words remain empty shells. In ordinary usage “and” is conjunctive and ‘or’ disjunctive, but to carry out the intention of the legislature it may some times be necessary to read “and” in place of the conjunction “or” and vice versa (Maxwell: The Interpretation of Statutes, 12th Ed. page 232). Where as in the present the use of the words “and/or” throughout the petition leads to numerous permutations and combinations, it is reasonably impracticable to assign a sensible meaning. Learned counsel presented a draft in the course of arguments and urged illustratively that para 11 be read as under:—

“1. That on 2nd and 3rd of March, 1985 i.e two or three days prior to the date of poll, respondent 1 and his election agent and such other person with the consent of respondent 1 and his election agent paid the money.

2. That on 2nd and 3rd March, 1985 i.e 2 or 3 days prior to the date of poll, respondent 1 paid money.

3. That on 2nd and 3rd March, 1985 i.e 2 or 3 days prior to the date of poll, his election agent paid money.

4. That on 2nd and 3rd March, 1985 i.e 2 or 3 days prior to the date of poll such other person with the consent of respondent 1 and his election agent paid money.

5. That on 2nd and 3rd March, 1985 i.e 2 or 3 days prior to the date of poll, such other person with the consent of his election agent gave money.”

25. It is not reasonably possible in my view to construe this para as attempted in this draft and moreover, this draft too suggests a number of alternatives. How to choose among them? The entire pleadings along those lines speak of non-application of mind, lack of certainty, ignorance as to who did what and a sort of initiating a fishing or roving inquiry into which evidence of any or all kinds of might be filled in as and when the occasion arises. This by no means satisfies the accepted norms for pleadings. In Nihal Singh v. Rao Birendra Singh, (1970) 3 SCC 239 it was observed:—

“The pleadings was so vague that it left a wide scope to the appellant to adduce evidence in respect of a meeting at any place on any date that he found cinvenient or for which he could procure witnesses. The pleading, in fact, was so vague and was wanting in essential particulars that no evidence should have been permitted by the High Court on this point……….”

26. This description very much fits in with the state of pleading in the instant case. For the respondent I am referred to the standard which has been set out in Azhar Hussain v. Rajiv Gandhi, (1986) All LJ 625 (SC) (supra) including in regard to the plea of ‘consent’ pertaining to corrupt practice. There is criticism made in para 18 to the effect that:—

“It is not mentioned as to who procured or obtained the services of Shri Beg, in what manner he obtained the services and what were the facts which went to show that it was with the consent of the respondent”

27. In para 31 we find it commented—

“The essence of the charge is that this book containing alleged objectionable material was distributed with the consent of the respondent Even so strangely enough even a bare or bald averment is not made as to:

(i) whom the returned candidate gave consent;

(ii) in what manner and how; and

(iii) when and in whose presence the consent was given.”

28. The averments of the relevant paras, we are here concerned with fall far short of the requisite standard as analysed above.

29. Upon being confronted with a charge couched in the language such as employed in para 11 before us which is only a specimen of similar phraseology in the rest, the person charged would naturally feel confounded not knowing what case he is called upon to meet and this thus constitutes an utter negation of the object behind the insistence upon a precise statement of the material facts.

30. Para 12 is only an adjunct to para 11 and fails for the same reason.

31. An additional ground which the respondents counsel submits in this connection is that there is no properly verified affidavit in support of the corrupt practice averred in paras 11 and 12. The petitioner's affidavit in question is divided in two parts. In part (a) para 11 of the election petition is verified on personal knowledge; in part (b) this same para 11 is verified on ‘information received from workers and supporters’. Para 12 is verified likewise in part (b) on information received from workers and supporters. The exeption taken to the verification is two fold—

(i) it is unspecified which part of para 11 is verified on personal knowledge and what is that on information received from workers and supporters;

(ii) the source of information is undisclosed except vaguely.

32. The proviso to S. 83(1) of the Act requires 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. As per R. 94-A of the Conduct of Election Rules, 1961 the form prescribed is Form 25. This Form 25 refers to (a) true to personal knowledge and (b) true to information. The Form does not require the source for information to be also specified. In R. 11 Chap. XV-A of the Rules of Court (Allahabad) it is only said that subject to the proviso to S. 83(1) of the Act, the provisions of Chap. IX as to affidavit shall apply to proceedings under this Chapter. There is no specific provision contained in Chap. IX in relation to the verification of affidavits.

33. The decision in V.K Saklecha v. Jagjiwan, (1972) 1 SCC 826 : AIR 1974 SC 1957 relied for the respondent proceeds on consideration of M.P High Court Rules. Para 12 is no doubt widely stated wherein reference is made to State Of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317; Barium Chemicals Ltd., AIR 1967 SC 295 and A.K Nambiar v. Union of India, (1969) 3 SCC 864 : AIR 1970 SC 652 which lay down in substance that the verification should invariably be modelled on the lines of O. XIX, R. 3, C.P.C, whether the Code applies in terms or not and therefore, the sources of information should be clearly disclosed.

34. The decision in Virendra Kumar Saklecha (supra) has, however, been considered later by the Supreme Court on the point and distinguished in K.M Mani v. P.J Antony, (1979) 2 SCC 221 (para 12): ((1979) 2 SCC 221 : AIR 1979 SC 234) (Para 11) in the following words:—

“It has also been argued that the election petition has not been properly verified as it has not been stated which of the averments, in paras 3 to 6 were true “according to the information received by the petitioner” and which were “believed” by him to be true. Our attention has in this connection been invited to a judgment of this Court in Virendra Kumar Saklecha v. Jagjiwan, ((1972) 1 SCC 826 : AIR 1974 SC 1957). We find that the only objection which was taken in the written statement (para 11) was that the “affidavit filed along with the petition (was) not in conformity with the requirements of law”. The law in that respect is contained in the proviso to S. 83(1) which requires that the affidavit, shall be in the “prescribed form”. A cross reference to R. 94-A and form 25 of the Conduct of Elections Rules, 1961, shows that it was enough for the election petitioner to say that the statements made in the relevant paragraphs (3 to 6) were true to his “information” and that is what he has done. The decision in Saklecha turned on the rules of the High Court, but no breach of any rule of the Kerala High Court has been brought to our notice.”

35. Keeping in view the Rules of Court (Allahabad) referred to above, it may be legitimately contended that non-disclosure of the source of information would not be fatal. We may not, therefore, on this ground assail para 12 of the election petition, but the fact remains that so far as para 11 goes, there is no demarcation as to which portion is verified on personal knowledge and which portion is referable to information received. The verification of para 11 consequently is in any case invalid and as to that the proviso to S. 83(1) is unsatisfied.

36. In relation to para 13 besides the ambiguity concerning the person offering the, gratification and in regard to the element of consent, there is the further infirmity namely that according to Schedule II (which is appended to this para) the payment took place on March 1, 1985 which was subsequent to the date notified for withdrawal namely, Feb. 9, 1985. The settled Law is that to constitute corrupt practice such gift offer or promise of gratification to candidates who have filed their nomination must precede the Scheduled date of withdrawal, in the light of Ss. 123(1)(A)(a) read with S. 37 of the Act vide Rahim Khan v. Khurshid Ahmad, (1974) 2 SCC 660 : AIR 1975 SC 290 Shri Umed v. Raj Singh, (1975) 1 SCC 76 : AIR 1975 SC 43. This para/Schedule II do not, therefore, on their own showing furnish any cause of action to the petitioner.

37. Ground No. (ii) covers paras 15 to 20 of the petition. Learned counsel points to S. 123(3) as the legal base for these pleadings. Paras 15 and 16 read as under:—

“15. That in 293 Sarasaul constituency, the total number of electorates is about 1,62,000. Out of which 35,000 are Brahmins. Respondent 1 and/or his election agent and/or other persons with his consent and/or his election agent, issued an appeal and distributed pamphlets to the electorate belonging to Brahmins community to vote for in the name of Brahmins caste/community for respondent 1 and/or refrain from voting for any other community.”

“16. That three such pamphlets containing the appeal to the above effect were widely distributed by respondent 1 and/or his election agent and/or persons with the consent of respondent 1 and/or his election agent at election meetings and otherwise. True copies of these three pamphlets are attached to this petition and marked as Annexures 1, 2, and 3.”

38. The ambiguity or the uncertainty which I discussed above permeates here too both in regard to the person who distributed the impugned pamphlets (whether the respondent, election agent or other persons or all of them or some of them we are unable to make out) and the person with whose consent this was done (whether of the respondent or his election agent or both of them). Corrupt practice for purpose of S. 123(2) as well contemplates that the impugned act be done ‘by a candidate or his agent or any other person’ and further this be ‘with the consent of a candidate or his election agent’. The pleadings as they are do not evidently state these material facts with any degree of precision. Moreover, the averment contained in para 15, that the appeal made and distribution of the pamphlets was to vote in the name of particular caste/community for the respondent and/or refrain from voting for any other community also bristles with vagueness. The respondent must after all be in position to gather from the pleadings what the petitioner intends to convey; this indeed is the object behind S. 83; O. VI, R. 2, of Civil P.C also requires statement in a concise form of the material facts in pleadings; the pleadings are neither puzzles nor should they constitute booby traps.

39. Paras 17 to 20 are only in sequence to or consequential upon paras 15 and 16; in para 17 there is reference to meetings where the pamphlets were distributed; in the rest the petitioner dilates upon the contents of those pamphlets. In view of my comments relating to paras 15 and 16, the requisite foundation to seize of S. 123(3) is not laid.

40. Ground No. (iii) rests upon para 23 the relevant part whereof recites:—

“23. That in the meeting held on 22nd Feb., 1985 and 28th Feb., 1985 and 2nd March, 1985, respondent 1 and/or his election agent and/or other persons with the consent of respondent 1 and/or his election agent, in their meetings addressed to the general public promoted hatred between brahmins and Kashattriya community and also distributed pamphlets aimed at promoting such hatred between the members of brahmins and Kashtriya communities.”

41. This suffers from the common malady and there needs be nothing more added to the discussion made above on the point except that both in Schedules III and IV in the column meant for ‘name of persons who made the appeal and distributed pamphlets ‘there is one person (Ramakant) alone named with the suffix” “and his associates” leaving the same unspecified. The ingredients of S. 123(3 A) of the Act are not spelled out.

42. For Ground No. (iv) the reference made is to para 25 which narrates:—

“25. That respondent 1 and/or his election agent and/or other persons with the consent of respondent No. 1 and/or his election agent hired tractors-trollies for the free conveyance of the electors to and from polling station Sarsaul, Kherba, Sapai, Jamu and Prempur and other polling stations. These tractors were hired and/or procured from different places and from different persons for the free conveyance of the electors to and from the polling stations on the date of poll i.e 5th March, 1985.”

“Details and particulars of the aforesaid corrupt practice would appear from Schedule V to this petition.”

43. The Schedule V does not shed further light except stating in para 5 that voters from certain villagers named therein were transported freely the respective vehicles. To establish the corrupt practice under S. 123(5) of the Act the election petitioner has to prove—

(i) that any vehicle was hired or was procured, whether on payment or otherwise by the returned candidate or by his election agent or by any other person with the consent of the candidate or of his election agent;

(ii) that it was used for the conveyance of the electors to and from any polling station and;

(iii) that such conveyance was free of costs to the electors.

44. (See: D.D Pawar, (1978) 1 SCC 504 : AIR 1978 SC 351; Razik Ram, (1975) 4 SCC 769 : (AIR 1975 SC 667); Dharmesh Prasad Verma v. Faiyazal Azam, (1984) 4 SCC 3 : (AIR 1984 SC 1516). The ingredient No. (i) is not to be found pleaded in the instant case with the requisite clarity or precision.

45. I pass on now to paras 27 to 49 on the footing whereof the petitioner seeks to invoke S. 100(1)(d)(iii) of the Act. It is indisputable that inspection or recount of ballot papers is not granted to support vague pleas made in the petition not based on 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. A mere allegation that there has been an improper reception, refusal or rejection of votes is insufficient to support an order for inspection vide Ram Sewak v. Hussain Kamil Kidwai, AIR 1964 SC 1249.

46. Their Lordships in this connection also made a pointed reference to the provisions contained in the Conduct of Election Rules, 1961, (Rr. 53, 55, 56, 57, 63) and the conclusion drawn on the basis thereof was:—.’

“There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidate or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting rejected votes and to demand a recount. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes 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 re-count. It is in the light of the provisions of S. 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.”

47. The question arose again in Dr. Jagjit Singh v. Gaini Kartar Singh, AIR 1966 SC 773. The Supreme Court reiterated that:—

“Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which S. 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing inquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void.”

48. The averment in the election petition in that case also was that a very large number of votes purported to have been cast in favour of the appellant had been improperly rejected and that had materially affected the result of the election; there was also an allegation that a large number of votes which were invalid had been improperly accepted in favour of respondent and the Returning Officer disclosed a partisan attitude and the counting and examination of votes was done in a very irregular manner. The Supreme Court took the view that the said allegations were vague and general and the whole objection of the appellant in asking for inspection was to make a fishing enquiry with a view to find out some material to support his case that the respondent 1 had received some invalid votes and that the appellant had been denied some valid votes.

49. The averments contained in the election petition in Jitendra Bahadur Singh v. Krishna Behari, (1969) 2 SCC 433 : AIR 1970 SC 276 were akin more or less to those we are concerned with. The allegations as reproduced in para 2 of the reported judgment were:—

(1) Only one counting agent was permitted at each table whereas three persons were doing the counting work simultaneously and it was impossible for one man to look into and detect the wrong acts of three persons at the same time.

Under this head it was further mentioned that the counting staff was from amongst the government servants who had gone on two months' strike before the election and during the elections they had adopted hostile attitude towards the congress candidates and had made efforts to bring about their defeat;

(2) the bundles of votes of either candidates were neither properly made nor properly scrutinised;

(3) about 5,000 votes of the congress candidates were improperly rejected ignoring the protests of Mr. Malhotra, the election agent of the congress nominee;

(4) invalid votes were counted in favour of the returned candidate. The votes of the congress candidates were counted for the returned candidate.”

50. There was a schedule appended to the petition showing the alleged improperly rejected as well as accepted votes pertaining to certain booths. The Supreme Court referred to the importance of maintaining the secrecy of ballot papers and after citing Ram Sewak Yadav (AIR 1964 SC 1249) and Dr. Jagjit Singh (AIR 1966 SC 773) (supra) with approval it laid down that:—

“In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any; The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. The facts stated in paras 13 and 14 of the election petition and in Schedule ‘E’ are mere allegations and are not material facts supporting these allegations. This Court in insisting that the election petitioner should state in the petition the material facts was referring to a point of substance and not of mere form. Unfortunately the trial court has mistaken the form for the substance. The material facts disclosed by the petitioner must afford an adequate basis for the allegations made.”

51. Upon almost parallel allegations appearing then in Smt. Sumitra Devi v. Sri Sheo Shanker Prasad, (1973) 3 SCC 330 : (AIR 1973 SC 215), the Supreme Court observed that the averments were vague and the petition did not-contain an adequate statement of material facts. A recount could not be granted as a matter of right but only on good grounds to believe that there had been a mistake in the counting. A mere doubt or small lead or unspecified blemish in the manner of the counting falls short of the needs of rule 63. Frequent or flippant recount directed by the Court is apt to disturb the amount of stability in the election process in addition to exposing the secrecy of the ballot neither of which is deaviable (desirable?). The best surmise, if it be nothing more than surmise, it has been held, should not induce the court to break open the ballot boxes. No doubt it would be a fair exercise of power if there is a serious flow or travesty of the rules or gross interference but for this purpose there must be clear, cogent and material facts pleaded and then substantiated on evidence to constitute a prima facie, case Chandra Singh v. Ch. Shiv Ram, (1975) 4 SCC 393 : (AIR 1975 SC 403) see also: S. Baldev Singh v. Taja Singh Swantantar, (1975) 4 SCC 406 : (AIR 1975 SC 693); Baliram Bhelaik v. Jai Behari Lal Khachi, (1975) 4 SCC 417 : (AIR 1975 SC 283) Bhabhi v. Sheo Govind, (1976) 1 SCC 687 : (AIR 1975 SC 2117); Suresh Prasad v. Jai Prakash, (1975) 4 SCC 822 : (AIR 1975 SC 376); R. Narayanan v. S. Semmalai, (1980) 2 SCC 537 : (AIR 1980 SC 206); D.P Sharma v. Commr. and R.O (1984 Supp SCC 157 : AIR 1984 SC 654 at p. 656).

52. In the case of Aran Kumar Bose v. Mohd. Furkan Ansari(1984) 1 SCC 91 : (AIR 1983 SC 1311) upon which the petitioner's counsel relies the pleading in para 9(i) of the petition was to the following effect:—

“On table No. 1 booth No. 10 (Fukbandi Primary School) 74 ballot papers of the petitioner were wrongly rejected on the ground that they did not contain the signature of the Presiding Officer. Similarly 31 ballot papers of the petitioner were rejected on different tables on the ground that they do not contain the signature of the Presiding Officer. The aforesaid ballot papers were rejected by the Assistant Returning Officer in spite of the objections raised by the petitioner and his counting agents.”

53. Referring to this it was observed that the number of ballot papers alleged to have been wrongly rejected had been furnished, the counting table number had been given, the booth number had also been disclosed and “the ground for rejection had even been pleaded”. Respondent 1 had pleaded that the particulars of the ballot papers could not be obtained as during counting they were not shown. This was found substantiated upon evidence also and it was held accordingly that in the facts and circumstances of the case, the High Court was not wrong in taking the view that the pleading in para 9(i) set out the material facts in proper way. The pleading in the case before us, as will presently appear, stands on different footing. The noteworthy feature is that in Arun Kumar Bose, the plea raised was confined to one aspect, viz., the want of the Presiding Officer's signature with reference to 74 ballot papers cast at a particular booth and counted on a particular table and the same had been rejected. This obviously was specific enough. The only specific detail which, the Supreme Court remarked, was wanting was the serial number of the 74 ballot papers. Upon evidence it was borne out that this particular was not available to the election petitioner in spite of attempts made on his behalf. It is in this background that their Lordships though expressly agreeing with the view expressed in Bhabhi's case ((1976) 1 SCC 687 : AIR 1975 SC 2117) (supra) felt inclined to think on the facts before them that the inspection had rightly been ordered. There is no departure on principle from the verdict in the case preceding referred to above, in face of the facts pleaded including the ground for rejection on the ballot papers narrated in para 9(1), the specification of the particulars of the ballot papers remained only a matter of further detail and this to my mind constitute a prominent distinguishing feature.

54. I had occasion to consider the question at some length in Vishnu Dayal Sharma v. Balbir Singh Election Petn. No. 50 of 1985 Dt. 6th Mar. 1986 cited by Sri Khare and the conclusion reached therein was:

55. The trend reflected by the authorities thus definitely is that since an order for a recount touches upon the secrecy of the ballot papers and introduced the element of uncertainty and also as there are abundant safeguards provided in this behalf under the Conduct of Election Rules, 1961 and the counting is entrusted to the technical hands, recount should not be made lightly or as a matter of course. The Court would not be justified to order recount or permit inspection of the ballot papers if all the material facts oft which the allegations of irregularity or illegality in counting are founded are not pleaded adequately in the election petition. Where the allegations are mostly general and vague floating on suspicions or belief of the petitioner and not precise or the inspection/recount claimed tantamounts to seeking a roving inquiry of a fishing nature under the remote expectation of being benefited thereby. There is no firm foundation laid for the Court to interfere. The relief of recounting cannot be acceded to merely on the possibility of there being an error.

56. Viewed in this light a close examination of the pleadings reveals that they fall far short of the required standard on this aspect as well. Schedule X just gives the total number of valid ballot papers improperly/legally rejected by the Returning Officer as 250 with no other specification making it thereby impossible for any one to ascertain the identity or put in effective rebuttal. Para 33 recites barely that there is clear proof of mixing up of spurious ballot papers at the time of counting of the votes and also of removal of genuine ballot papers from the ballot boxes at the time of counting. In the absence of supporting material facts a bald assertion as this is of little avail. The discrepancy in the ballot paper accounts referred to in paras 34 to 38 read with Schedule VIII relates to 45 ballot papers only in all which obviously cannot be claimed to materially affect the result of the election. Paras 42 and 41 are no less vague. There is no mention whatever of any particular counting agent of the petitioner who may have raised objection during the entire process of counting nor is there appended copy of any objection or application made in this behalf. The alleged ground of wrongful rejection or acceptance of ballot papers becomes meaningless and remains incomplete unless that is co-rrelated with reasonable specification to certain ballot papers. These are only some of the deficiencies glaring at their face which demonstrably show that these pleadings are lacking in requisite details to warrant a case for inspection of ballot papers or their recount.

57. In so far as paras 49 and 50 sought to be related to 123(6) of the Act are concerned they need not detain us long. Those paras narrate only—

“49. That respondent 1 did not file full and correct account of expenditure incurred by him in his election. In fact the amount incurred by him in his election was more than what is authorised by the rules.

50. That respondent 1 having incurred an expenditure of more than Rs. 50,000/- has contravened the provision of S. 77 of the Act and has thus rendered his election liable to be set aside.”

58. It appears overlooked that the corrupt practice consists of incurring or authorising of expenditure in excess of the prescribed limit vide S. 123(b) read with S. 77(3) of the Act Non-maintenance of complete or correct accounts is not a corrupt practice in itself vide Dalchand Jain v. Narayan Shankar Tewari, (1969) 3 SCC 685; Ghavar Ali Khan v. Keshav Gupta (AIR 1959 All 264; Balak Ram v. Badri Prasad, AIR 1969 All 88). Para 50 too is clearly unsupportable due to vagueness writ large at its face.

59. For the discussion made above, the irresistible conclusion to my mind is that petition fails since there is no cause of action disclosed. The petition is dismissed consequently under S. 86(1) of the Representation of the People Act, 1951 read with O. VIII, R. 11, C.P.C with cost to the respondent 1 which I assess at Rs. 500/- only.

60. Petition dismissed.