Full Judgment Text
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PETITIONER:
JAGIT SINGH
Vs.
RESPONDENT:
DHARAM PAL SINGH & ORS.
DATE OF JUDGMENT07/11/1994
BENCH:
SEN, S.C. (J)
BENCH:
SEN, S.C. (J)
AGRAWAL, S.C. (J)
PARIPOORNAN, K.S.(J)
CITATION:
1995 SCC Supl. (1) 422 JT 1995 (1) 120
1994 SCALE (5)130
ACT:
HEADNOTE:
JUDGMENT:
SEN, J.:
1. The appellant, Jagjit Singh, has challenged the
result of the election to the Haryana Legislative Assembly
at Charkhi Dadri Constituency. The polling took place on
20th May, 1991. The results were declared on 17th June,
1991. Dharam Pal Singh was declared elected having secured
20918 votes as against 20838 votes polled for Jagjit Singh,
the appellant herein. Having lost by a narrow margin of 80
votes, Jagjit Singh presented an Election Petition in the
High Court of Punjab & Haryana at Chandigarh, challenging
results declared and demanding a recount of votes cast. The
controversy before the Trial Court has been summarised by
the Trial Judge in the
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following manner
"The case, as set out by the petitioner is
that the counting arrangements were so made
that no effective vigilance of the process of
counting was possible, resulting in grave
irregularities to his detriment like large
scale rejection of valid votes cast in his
favour, many of his votes being rendered
missing, besides virtual booth capturing of
polling both 15 -A.
One of the other respondent, namely Gobind
Ram Garg filed a return seeking to endorse the
stand of the petitioner.
The returned Candidate, on his part,
besides controverting the petitioner’s
averments, on merits and asserting that
counting of votes had been fair and in
accordance with the procedure prescribed, also
took the preliminary objection that the
petition disclosed no cause of action as there
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was non-compliance with the provisions of
Section 83 of the Representation of People’s
Act, 1951 (hereinafter referred to as ’the
Act’), inasmuch as there was no concise
statement of material facts. Great stress was
also laid upon the absence of a plea to the
effect that the result of the returned
candidate had been materially affected. A
plea was also raised that after each round of
counting the petitioner and all other
contesting candidates had affixed their
signatures on the prescribed proforma, to
denote that the counting in that round had
been fair and ’ valid and to the entire
satisfaction of the candidates. It was thus
the respondents’ case that the petitioner
merely sought a fishing and roving inquiry for
collecting evidence, which was not permissible
according to law."
The Trial Judge also noted that the following
preliminary issues were raised at the
hearing:-
"(1) Whether the election petition discloses
any cause of action, if not,,what is its
effect? OPR.
(2) Whether the pleadings of the Election
Petition are frivolous, vexatious and
unnecessary and as such deserves to be struck
out as envisaged under Order 6 Rule 16,
C.P.C.? OPR.
(3) Whether the Election Petition contains a
concise statement of material facts as
required under Section 83(1)(a) of the Act and
if not, what is its effect? OPR.
(4). Whether the Election Petition discloses
any ground as envisaged under Section 100 of
the Act for declaring the election of the
returned candidate as void and, if not, what
is its effect? OPR.
(5) Whether the petitioner. after admitting
the counting to be fair and to his
satisfaction, is still competent to ask for
recount? OPR.
(6) Whether the petition contains material
facts and particulars of the alleged corrupt
practice of booth capturing and, if not, what
is its effect? OPR.
(7) Whether the paragraphs 5, 6, 7, 8, 9, 1 O,
11, 12, 13 and 18 of the Election Petition
disclose any cause of action and, if not, what
it its effect? OPR.
(8) Whether the paragraphs 14, 15, 16, 17, 19,
20, 21, 22, 23, 25, 30 and . 35 contain
material facts and particulars which disclose
a cause of action and, if not what is its
effect? OPR.
(9) Whether the paragraphs 26, 27 and 31
disclose material facts and particulars of the
alleged corrupt practice of booth capturing
pertaining to
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booth 15-A and, if not, what is its effect?
OPR.
(1 O) Whether the written statement is not
properly verified, if so, its effect?"
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2. No arguments were advanced on issue No. 10 and
consequently the issue was decided in favour of the
respondents and against the appellant.
3. Issues 6 and 9 pertain to corrupt practice of booth
capturing. The Advocate appearing on behalf of the
appellant, specifically stated that those two issues were
not being pressed on the ground of booth capturing. But, it
was stated that had there been proper polling at Booth No.
15A, the result of the election would have been different.
As regards issue No.5 the trial Judge has observed that it
deserves to be taken up with the other issues on merit.
Issues Nos. 1 to 4, 7 and 8 were taken up together and were
decided against the appellant and in favour of the returned
candidate.
4. The grievance of the appellant is that after framing
of the issues, the Designated Judge of the High Court
ordered on 17.9.91 that a list of witnesses be presented
within a week and the evidence of the appellant was to be
adduced on and from 21.10.1991. The appellant, accordingly,
prepared an application along with the list of witnesses.
But, the Designated Judge without recording any evidence
took up the case for hearing on 21.10.1991. The judgment was
reserved and after a period of three months on 21.1.1992
this judgment under appeal was passed.
5. The election petition filed by the appellant was
dismissed mainly on the ground that it did not contain a
concise statement of material facts on which the appellant
relied. It was also held that vague and general allegations
were made about improper rejection of votes. It was further
held that serial numbers of the ballot papers, which were
wrongly rejected, had not been specifically stated in the
petition. The Court ultimately held that material
particUlars, as required under Section 83(1)(a) of the Act,
had not been given. It was held that the appellant had
really attempted to embark upon a roving and fishing inquiry
which was not permissible under the law. It was also held
that as there was no plea in the election petition that the
result of the returned candidate had been materially
affected by the improper reception or rejection of votes,
the election petition was devoid of any cause of action.
6. In our view, the election petition should not have
been summarily dismissed. It is true that the appellant
had not given the serial numbers of the ballot papers which,
according to the appellant, were wrongly rejected. The case
of the appellant is that counting of votes took place behind
an iron net. The counting agents were made to sit 5-6 feet
behind the net and as such could not take down the numbers
properly. But he had given full particulars of the valid
votes which, according to the appellant, were improperly
rejected.
7. Rule 56 of the Conduct of Election Rules, 1961,
enumerated the situations in which the returning officer can
reject the ballot paper. One of the grounds of rejection is
if the mark indicating the vote thereon is placed in such
manner as to make it doubtful to which candidate the vote
has been given. Sub-rule (3) of rule 56 provides that before
rejecting any ballot paper, the returning officer shall
allow
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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.
8. It is the case of the appellant that at no stage any
ballot paper was shown to the agents of the candidates or
the candidates at the time of the counting.
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9. It has been specifically alleged in paragraph 14 of
the election petition that when ballot boxes of Booth No.l
were opened at Table No. 1, the Returning Officer rejected
94 votes. All these 94 rejected votes were polled in
favour of the appellant. The main defect in those votes was
that even though the mark was made at the proper place in
front of the name of the appellant, yet the internal cross
within the circle did not come out properly in the stamp
mark. The stamping was done with an instrument provided by
the Presiding Officer. The voters had clearly indicated
their intention to vote in favour of the appellant. The
internal cross within circle of the stamp may be either
defective or dim. This could not be made the basis for
rejection of votes. Shri Surinder Singh, Counting Agent of
the appellant at Table No. 1, raised objection from a
distance from behind the iron barricade created by the
Returning Officer between counting agents and the counting
officers, but nobody bothred to listen to him. Like this, at
least 94 valid votes of the appellant were declared
invalid on Table No. 1 the in first round. In fact, an
allegation of animus has been made against the Officer-in-
Charge at Table No. 1.
10. Similar allegations about improper rejection of votes
on the same ground are contained in paragraph 15 regarding
rejection of 44 votes relating to Booth No.73 at Table No.
1, in paragraph 16 regarding rejection of 110 votes relating
to Booth No.49 at Table No. 1 and in paragraph 17 regarding
rejection of 65 votes relating to Booth No. 100 at Table
no.4. In paragraph 34 it is alleged that 13 votes relating
to Booth No.55 were improperly rejected at Table No.7 on the
ground that the seal of the Presiding Officer, which he has
to affix to make a vote valid, was so put that the
impression was also visible on the front side of the ballot
paper and that this could hardly be a ground for rejecting
the votes.
11. It would thus appear that in the aforementioned
paragraphs of the election petition the appellant had set
out the number of votes which were improperly rejected, the
particular booth to which they related, the particular table
at which the said votes were counted and the grounds on
which the votes were rejected. All that was lacking was the
serial numbers of the rejected ballot papers. Explanation
for the same is offered in paragraph 12 of the election
petition wherein after referring to the requirement laid
down in Rule 56(3) of the Conduct of Election Rules, 1961 it
is stated that in view of the seating arrangement at no
stage any ballot paper was shown to the agents of the
candidates or to the candidates at any stage during the
counting. The truth or falsity of this explanation will have
to be decided on the basis of evidence that is adduced at
the trial. But at this stage the said explanation cannot be
ignored.
12 The pleadings in the instant case, are no different from
the pleadings in Arun Kumar Bose v. Mohd. Furkan Ansari &
Ors., (1984) 1 SCR 118, wherein similar averments were
contained in paragraph
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9(1) of the election petition. This Court observed:-
"So far as averment in paragraph 9( 1 ) of the
election petition is concerned, we find that
the number of ballot papers alleged to have
been wrongly rejected has been furnished, the
counting table number has been given, the
booth number has also been disclosed and th
e
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ground for rejection has even been pleaded.
Respondent ’No. 1 pleaded that the particulars
of the ballot papers could not be obtained as
during counting they were not shown. (pp. 126-
127)
We agree with the High Court that in the facts
and circumstances of the case the pleading in
paragraph 9( 1 ) set out the material facts in
a proper way and no defect can be found with
it."
13. The trial Judge was, therefore, in error in holding
that the averments in paragraphs 14, 15, 16, 17 and 34 read
with paragraph 12 of the election petition do not contain
material facts as required by Section 83( 1 )(a) of the Act.
14. With regard to complaint about missing votes, we find
that though in paragraph 22 a general allegation has been
mad in respect of 49 votes stated to be missing the
necessary facts setting out the booth number, the number of
votes and table number are contained in paragraph 24. The
mere fact that the total number of votes in respect of which
these facts are mentioned in paragraph 24 is less than 49,
does not justify the conclusion that the averments in the
said paragraphs do not contain a concise statement of
material facts.
15. There is also another serious grievance. It has been
alleged that Booth No, 15A for the purpose of polling was
arranged in a tent in Harijan Basti of village Dohka Moji.
After the voting had started, and hardly a score of people
had cast votes, a storm broke out. The Presiding Officerin-
Charge of the Polling Booth realised that the majority of
the voters were casting vots in favour of the appellant. Due
to the storm, some papers inside the booth wre scattered as
the tent was in the open. Instead of collecting those papers
and controlling the situation, he declared the polling
closed. All the people who had come to cast their votes were
sent home.
16. When the storm subsided, Shri Ram Phal, Polling Agent
of Smt. Bimla, Respondent No. 12, requested the Presiding
Officer to rstart the polling, but he replied that since the
polling had been interrupted, it could not be restarted as
the intimation had already been sent to the higher
authorities.
17. The polling agent of the appellant remained in the
village till the evening, but the polling was not started.
On that very day, late in the evening, the said polling
agent informed the appellant that the polling in Booth No.
15A had been disrupted due to storm and not more than 15/ 20
votes were polled.
18. Strangely enough at the time of the counting, total
votes polled were shown as 167, whereas total voters on this
booth were 181. Therefore, there was more than 90 per cent
polling at this booth, which was impossible. Out of 167
polled votes, 152 were said to have been polled in favour of
the returned candidate which, according to the appellant,
was more than 90 per cent of the polled votes and was an
impossibility.
19. Reference was made to the
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instructions issued by the Chief Election Commissioner. The
Deputy Commissioner-cum-District Election Officer, Bhiwani,
sent a wireless message dated 22nd April, 1991 to the
Returning Officers-cum-Sub Divisional Officer (C), Dadri,
Lohari and Siwani, stating therein:-
"NO.546/ELECTIONS DATED 22.4.91. CEO MR’S W.M.
NO.ELEC. 91/1AE2400 DATED 10.4.91 REPRODUCED
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BELOW FOR NECESSARY ACTION AT APPROPRIATE
TIME. QUOTE. ELECTION COMMISSION OF INDIA’S
W.M. N0.464/91 L & A DATED 13.4.91 IS
REPRODUCED BELOW. QUOTE. REGARDING
INSTRUCTIONS ON BOOTH CAPTURING CONTAINED AT
ITEM XVIII OF THE CONSOLIDATED INSTRUCTIONS,
IT IS CLARIFIED THAT HEREAFTER, IF THE
RETURNING OFFICER AT THE STAGE OF COUNTING OF
VOTES FINDS THAT IN A PARTICULAR POLLING
STATION NINETY PERCENT VOTES HAVE BEEN CAST
AND OUT OF THEM NINETY PERCENT HAVE GONE IN
FAVOUR OF ONE CANDIDATE AND THE VOTES CAST IN
FAVOUR OF THE OTHER CANDIDATE ARE VERY
NEGLIGIBLE, HE SHOULD KEEP ASIDE THE BALLOT
PAPERS CONTAINED IN THE BALLOT BOXES USED IN
THAT PARTICULAR POLLING BOOTH IN A SEALED
COVER IN THE’ PRESENCE OF COUNTING AGENTS OF
CANDIDATES WITHOUT TAKING THEM INTO ACCOUNT IN
THE RESULT SHEET, IF AND ONLY IF THE RESULT OF
THE ELECTION IS NOT AFFECTED AFTER IGNORING
THESE VOTES. RETURNING OFFICER MAY DECLARE THE
RESULT, IF ON THE OTHER HAND THE MARGIN
BETWEEN THE FIRST TWO CANDIDATES IS LESS THAN
THE TOTAL VOTES SET APART, THE RETURNING
OFFICER IS PROHIBITED FROM DECLARING THE
RESULT AND HE SHOULD SEEK ORDERS OF THE
COMMISSION AND ONLY AFTER RECEIPT OF THE
ORDERS OF THE COMMISSION SHOULD PROCEED
FURTHER. THESE ORDERS ARE NOT RELAXABLE BY
ROS UNDER ANY CIRCUMSTANCES. UNQUOTE. YOU ARE
REQUESTED TO KINDLY ENSURE THAT THE ABOVE
DIRECTIONS OF THE ELECTION COMMISSION ARE
COMPLIED WITH IN THE FORTHCOMING GENERAL
ELECTIONS TO LOK SABHA AND VIDHAN SABHA."
20. It has been alleged that the Returning Officer ignored
the directions of the Election Commission and despite
objections raised on behalf of the appellant proceeded to
count the votes and declared the result. It has been alleged
that the objection made by the appellant was torn off on the
ground that this objection did not fail within the
jurisdiction of the Returning Officer.
21. On behalf of the respondent, it has been pointed out
that the allegations made in the election petition are
vague. The appellant had lost narrowly in the election and
wanted to make a roving and fishing inquiry to nullify the
declared result. It was contended that after each and every
round of voting, the appellant and the respondent No. 1 had
affixed their signatures on the prescribed proforma. This
indicated that both sides were satisfied about the counting
of the votes. No explanation, however, was given on behalf
of the respondents as to why the instructions of the Chief
Election Commissioner were ignored in counting the votes
cast at polling booth ’ No. 15A.
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22. We are of the view that no satisfactory explanation
has been given as to why the instruction of the Chief
Election Commissioner was not followed in the matter of
counting of votes polled in Booth No. 15A. These votes had a
material bearing on the outcome of the election.
23. The trial Judge has held that since, there is no
averment in the petition that the result of the election was
materially affected by improper rejection or acceptance of
votes, it is devoid of cause 0 action. We arc unable to
agree that the absence of such an averment in the facts of
this case is fatal. As pointed out by this Court, there may
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be cases where the obvious conclusion to be drawn from the
circumstances is that the result of the election has been
materially affected and that Section 100( 1 Xd) of the Act
is not intended to provide a convenient technical plea in a
case where there can be no dispute at all about the result
of the election being materially affected by the alleged
infirmity. [See:Durai Muthuswami v.N. Nachiappa, (1974) 1
SCR 40]. In the present case, the appellant in the election
petition has stated that he has lost by a margin of 80 votes
only. From the various averments in the election petition it
was evident that the number of valid votes of the appellant
which are alleged to have been improperly rejected is much
more than 80. From the averments contained in the election
petition it is thus obvious if the appellant succeeds in
establishing his case as set out in the election petition
the result of this election, insofar as it concerns the
returned candidate, would be materially affected.
24. For the reasons aforementioned we are of the view
that in the facts of this case the election petition should
not have been dismissed on the ground that it does not
contain a concise statement of material facts and is devoid
of any cause of action.
25. In that view of the matter, we allow the appeal and
remit this case back to the trial court, to hear it afresh
and decide finally the aforesaid contentions raised on
behalf of the appellant.
26. We make it clear that we have not expressed any
opinion on the merits of the case or correctness of the
allegations made by the appellant or the respondents. It
will be entirely open to the trial court to find out the
facts and to decide the case in accordance with law and as
it thinks fit.
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