Mahender Pratap vs Krishan Pal

R.L. Anand, J.—By this order I dispose of issues No. 6 to 10, which were framed by this order on 7.12.2000 in Election Petition No. 6 of 2000 titled Mahender Pratap v. Shri Kishan Pal and others, as these issues are ordered to be treated as preliminary. In order to appreciate the contentions of the parties on these issues, it has become necessary for this Court to give the background and the facts of the case.

Shri Mahender Pratap petitioner filed election petition under Sections 80, 81, 100, 101 and 123 of the Representation of the People Act, 1951 (hereinafter referred to as the Act'') against Shri Krishan Pal, respondent No. 1, the returned candidate, and 12 others vide which the election of respondent No. 1 to the Legislative Assembly, Haryana - 52 Mewla Maharajpur Constituency was challenged, The last date for filing of the nomination papers was 3.2.2000 and the date of scrutiny was 4.2.2000. The last date for withdrawal of candidatures was 7.2.2000 and the date of polling was 22.2.2000. The counting took place on 25.2.2000. The petitioner was the candidate of Bahujan Samaj Party having a symbol of elephant. Respondent No. 1 Shri Krishan Pal was the candidate of Bharatiya Janta Party and he was allotted the symbol of lotus. Other candidates were also allotted symbols and they hailed from Janta Dal Secular, Indian National Congress, Haryana Vikas Party, Samjwadi Party and independents. The election in this constituency took place through Electronic Voting Machines (in short ''EVMs'') and these machines were introduced for the first time in this constituency. It is averred by the petitioner that since the voting was to take place with the help of EVMs, therefore, it was the bounden duty of the Returning Officer and the assisting staff to educate and make familiar the electors, candidates and their agents with regard to the procedure and working of these EVMs. But this was not undertaken by the Returning Officer and his supporting staff and this has resulted to a lot of confusion. Before the start of the election process it was widely published through media and other ways by the Election Commission that the voters will be properly educated about the use of EVMs but this has not been done. Resultantly, large scale defective and irregular voting took place. The voters pressed wrong buttons on the machines. It is further averred that total number of votes polled were 1,29,574 and the petitioner was polled 50,751 votes, whereas respondent No. 1 had been shown to have been polled 50,952 votes. Other candidates have also been polled votes as enumerated in para No. 14 of the elect ion petition. In para No. 15 of the petition, it is alleged by the petitioner that Shri Inder Singh, Sub Divisional Magistrate, Faridabad, who was the Returning Officer, remained posted as General Manager in Haryana Roadways during the period when respondent No. 1 was the Transport Minister in the Haryana Government headed by Ch. Bansi Lal, i.e. prior to the present election when Ch. Om Parkash Chautala came in power with the support of Bharatiya Janta Party. Respondent No. 1 was having his influence and ensured the posting of the said Reluming Officer as Sub Divisional Magistrate, Faridabad and in this manner respondent No. 1 misused his official status as Transport Minister and also his influence in the Government of Ch. Om Parkash Chautala. Thus, respondent No. 1 has violated the Model Code of Con- duct for the conduct of free and fair elections. Since the aforesaid Returning Officer was posted in the constituency, he in order to ensure the victory of respondent No. 1 right from the day one started adopting various means and tactics for the benefit of returned candidate. Further, it has been pleaded by the petitioner that the election of respondent No. 1 is illegal, void and deserves to be set aside mainly on the following grounds:-

That counting took place on 25.2.2000 and the counting agents were allowed entry in the counting hall at 8.00 a.m., though actual counting started at 10.00 a.m. Immediately after the entry of the counting agents in the hall, where the counting was to take place, they were asked to sign certain blank forms and the various counting agents did sign the blank forms, which were presented before them for the purpose of record. There were 14 counting tables which were arranged in the said hall. Counting was carried out in the round- wise pattern i.e. when the counting of votes of the polling station had been completed on all the 14 tables, it was taken as one round. The total counting was held in 25 rounds, out of which 24 rounds were completed while in the 25 round the counting was carried out only on four tables.

That in the case of the constituency in question, the counting tables were required to be arranged in such manner that when voting machine is brought at a particular table pertaining to a particular booth, the counting agents of the candidates should have been able to check the paper seal put on the buttons of the voting machine to ensure that there is no tampering. Apart from the above, they ought to have also been arranged in a manner that the figures appearing in the digital counter/display of the machine are clearly visible to the counting agents, so that they are able to note down the same and are further able to safeguard the interest of their respective candidates.

That the counting agents were not allowed to carry with them the stationery which they had brought in order to enable them to have the notes of the result so displayed on their respective tables in order to check any discrepancy or mistake during the process of counting. The purpose of appointing the counting agents by the respective candidates was only to see that the counting had taken place fairly and correctly.

That the Returning Officer was under the direct influence of respondent No. 1 on account of his remained posted as General Manager of Haryana Roadways when respondent No. 1 was the Transport Minister. Therefore, in order to give the benefit to respondent No. 1, the counting agents of the petitioner were made to sit at a far away place from the place of process of counting. The EVMs were displayed in such a manner that they did not face the counting agents. Resultantly the counting agents were not in a position to read the figures properly and in this manner the instructions of the Election Commission have been violated.

That since the polling was through the EVMs, the counting procedure differed from the procedure which was applicable in the present case. The petitioner had a good chance of succeeding in the election. He was leading throughout till the 10th round by about 10,000 votes over respondent No. 1. The Returning Officer when realised that respondent No. 1 is trailing, he started manipulating the result of the election by manipulating the figures of the counting. Suddenly the margin of 10,000 reduced steeply. There was no discipline maintained with regard to the completion of one round and starting of another round. For some of these rounds the Returning Officer used blank forms on which the counting agents and already signed. Certain manipulations were done. Since the counting agents of the candidates were not in a position to read the display of the EVMs, hence the counting staff conveyed the figures as per their whims and fancies and finally they showed a lead of 161 votes to respondent No. 1. The petitioner raised the objections to the counting procedure but the Returning Officer did not pay any heed to those objections. Everything was done in a hurry and it was not possible for the counting agents of the petitioner to lodge a complaint in writing. The Returning Officer kept on rejecting the oral requests of the petitioner and his counting agents on the ground that whatever he is doing he is doing as per the instructions of the Election Commission and he would entertain the objections only at the completion of counting.

It was also alleged by the petitioner that the Returning Officer in order to help respondent No. 1 changed the various Part-II of Form 17-C, the result of counting sheets. It was also alleged by the petitioner that till the 9th round he was leading by a margin of 10,000 votes but this margin started reducing thereafter. The remaining rounds were allegedly completed within no time and it was shown by the Returning Officer that respondent No. 1 was leading by 1467 votes. This result is not correct. Rather, to the best of the information of the petitioner the result of counting was manipulated by the Returning Officer in order to ensure the victory for respondent No. 1. Further, the petitioner has tried to highlight in paras 17(xiii) and (xiv) that Forms 17-C and 20 were manipulated. Those were incorrectly prepared and this entire exercise has been done for the benefit of respondent No. 1. It was also alleged by the petitioner that he has tried to make out a case for recounting and that if recounting is ordered by the High Court, it will be noticed that the petitioner secured majority of votes and that respondent No. 1 would be found to have secured less number of votes, and on such recounting the petitioner would be liable to be declared elected. In short, the case set up by the petitioner on the question of counting is that the result declared by the Returning Officer is not true and correct and the same has no sanctity in the eyes of law and is liable to be set aside and a case of recount has become necessary. Since the margin of victory in the present case is less than 1% of the total valid votes, therefore, it was obligatory on the part of the Returning Officer to order for recounting as per the instructions of Election Commission but the Returning Officer made it clear that he was not going to follow the instructions and orders of the Election Commission and would proceed to declare the result. The petitioner exercised his right under Rule 63 of the Conduct of Election Rules and made an application for recount through his election agent Shri Vijay Singh. But the Returning Officer rejected the said application on false and flimsy ground that since the counting has been completed and the counting agents have signed Part-II of Form 17-C, therefore, it will be presumed that all the counting agents are satisfied with the counting procedure. It has also been alleged by the petitioner that the order of rejection was passed at about 3.30 p.m. on the plea that the counting was over, but the record would show that by that time me counting was not over. Rather it was completed much after the passing of the said order. When the petitioner made an application for recount, 23rd round was going on and in all 25 rounds were to take place. In order to help respondent No. 1 the request for recount had been declined in an illegal manner and this act on the part of the Returning Officer has materially affected the result of the election.

The election of respondent No. 1 has also been challenged by the petitioner on the ground of corrupt practices allegedly committed by respondent No. 1, his workers and agents and it was inter alia pleaded that respondent No. 1 resorted to fake registration of voters and also got their votes cast in the election. Respondent No. 1 used his influence on the official machinery conducting the elections, got registered 99 votes in Ashoka Enclave, Sector 37 and those votes were cast in an illegal manner. There were no houses on those plots. Similarly 102 bogus votes were got registered in Ashoka Enclave in the name of fake persons, who were not residing there. All these votes are liable to be deleted from the result of the election as the same were void votes. Since such votes are more in number than the margin of votes between the petitioner and respondent No. 1, the result of election has been materially affected by the reception of the above said votes and on this ground the election of respondent No. 1 is liable to be set aside u/s 100(1)(d)(iii) of the Act. It was also pleaded that respondent No. 1 with a view to further improve his election prospects got registered various electors in the electoral roll at two places in the same constituency. This was done illegally at the instance of respondent No. 1 as he had the complete control over the official machinery which was conducting the elections. Since one voter can cast only one vote in the election and in case he cast more than one vote in the same election, both votes are void votes and are liable to be deleted from the result of counting. Since the number of such votes cast are 3500 which were more than the margin of the votes between the petitioner and respondent No. 1, therefore, the result of the election is materially affected. Further, it was pleaded that respondent No. 1 used his influence upon the polling staff of polling station No. 150-A of the area of Sector 29, Faridabad and the polling staff used to indicate to the voters to press the vote button against the symbol of respondent No. 1. This malpractice was caught by the workers and polling agents of the petitioner. They took photographs of such EVMs containing the above marks, Despite the protest from the polling agents of the petitioner, the EVM was not changed and the polling staff kept on misguiding the voters and in this manner the voters were forced and hoodwinked in recording wrong voles against their wishes in favour of respondent No. 1. 102 votes are polled in such a manner in favour of respondent No, 1. These votes are liable to be deleted and in this manner the petitioner is entitled to be elected.

It was also the pleaded case of the petitioner that in order to ensure the victory of respondent No. 1, the Returning Officer while working as Sub Divisional Magistrate of the area undertook various development works in the constituency and this was done to create a false impression on the voters that respondent No. 1 being the sitting M.L.A. from the constituency is instrumental in getting the said works done. Respondent No. 1 in defiance of Model Code of Conduct and in defiance of the directions contained in letter dated 4.10.1994 of the Election Commission of India made public announcements that the voters of the constituency who had not paid the house tax should not pay the same as immediately on his being elected he would get the same waived. The above said promises and announcements as made by the respondent No. 1 himself were duly reported in the various newspapers namely Dainik Jagaran, Mazdoor Morcha etc. This was done only to influence the voters and to create a fear that in case respondent No. 1 does not got elected then the voters shall be deprived of the above benefits. This act on the part of respondent No. 1 has directly influenced the free and fair exercise of right of franchise. Also, it was pleaded that respondent No. 1 used his influence in the Government and got constructed new roads in the constituency during the election process and election campaign. Further, respondent No. 1 got new roads constructed in Sectors 7, 8, 9, 10, 11, 28, 37 and village Tikri Khera during the period from 3.2.2000 to 21.2.2000 even without proper sanction for the same. No tenders were invited. This has been done because respondent No. 1 was able to carry out the work in an illegal manner through his own family members, relatives and friends. Thus there is a gross violation of the provisions of Section 123(2) of the Act. It was also pleaded by the petitioner that respondent No. 1 distributed liquor illegally to various voters of the constituency at Sanjay Gandhi Memorial Nagar, Faridabad on 21.2.2000. The supporters of respondent No. 1 were caught red-handed and FIR was also registered in Police Station NIT, Faridabad vide No. 119 dated 22.2.2000 u/s 61 of the Excise Act. Still further, respondent No. 1 in complete violation and disregard of the Model Code of Conduct made illegal use of the government buildings, places, walls, grounds etc. without the official permission and had put banners, posters and wrote slogans and thus has materially affected the election of the petitioner. Thus, the election of respondent No. 1 has been challenged on the following three material grounds :-

That the process of counting the votes was defective and illegal; the request of the petitioner for recount has been illegally rejected; and certain bogus votes were polled in favour of the respondent No. 1.

That the Returning Officer while working as Sub Divisional Magistrate, Faridabad created false impressions upon the voters that respondent No. 1 being the sitting MLA from the constituency is instrumental in getting the works done in the constituency and the respondent No. 1 has taken undue advantage of the service of the public servants.

That respondent No. 1 has committed corrupt practices by exercising his alleged influence in the government for the construction of certain roads etc.

The notice of election petition was given to the respondents. It has been contested by respondent No. 1, who filed the written statement. He took certain-preliminary objections such as that the election petition in the present form is not maintainable as it does not disclose any cause of action and, therefore, it is liable to be dismissed in limine. It was also pleaded by respondent No. 1 that petitioner has failed to give material facts in support of his case and thus the election petition is liable to be dismissed. He has not given the specific number of votes wrongly accepted or rejected, the name of the work, date, time and place of the commission of alleged corrupt practices etc. and hence the election petition is liable to be dismissed in limine because of lack of facts. It was also pleaded that along with the election petition the petitioner has filed certain documents which include the copy of the alleged recount application along with the order passed by the Returning Officer on that application. It has been marked as annexure and has been signed and verified by the petitioner. However, copy of the same has not been supplied to the respondent No. 1. These documents are the integral parts of the election petition because a reference has been made in the election petition itself, therefore, it was incumbent on the part of the petitioner to have supplied the copies of these documents to the respondents along with the election petition. Since it has not been done, therefore, the copy of the election petition which has been supplied to the respondent No. 1 is not the true copy of the election petition and thus the election petition is liable to be dismissed. It was further pleaded by the respondent No. 1 that the affidavit as well as the election petition have been sworn in before the Oath Commissioner in Chandigarh but the name of the Oath Commissioner has not been supplied to the respondents. The photo copy of the affidavit as well as the copy of the election petition is so dim that the name of Oath Commissioner was not legible and in these circumstances the election petition is liable to dismissed at a preliminary stage.

It was also pleaded that the affidavit in support of the election petition has not been properly signed and verified as per law, It is not certain as to whether the affidavit was verified on 7.4.2000 or 4.4.2000. It was further pleaded by the respondent No. 1 that the finality of electoral rolls cannot be challenged in the election petition, therefore, the allegations of the petitioner to that effect are liable to be struck off being outside the purview of the election petition. Respondent No. 1 also took the preliminary objection that the affidavit attached by the petitioner is not proper. It has not been properly verified. It does not give the source of his information. Certain paragraphs have been verified as true on the basis of information received from his workers, agents, election agents, polling agents, counting agents and certain paragraphs have not been verified at all. The affidavit furnished by the petitioner is no affidavit in the eyes of law because he has not been able to give the source of information. On merits, the respondent No. 1 has denied each and every allegation of the petitioner and finally prayed for the dismissal of the election petition by alleging that he had not committed any corrupt practice. The counting was fair. The request of the petitioner through his counting agent has been rightly declined by the Returning Officer and that respondent No. 1 did not commit any corrupt practice nor he committed such acts of commission or omission as have been alleged by the petitioner.

A re-joinder was also filed by the petitioner in which he reiterated his allegation of the election petition by denying those of the written statement.

The record of this case would show that petitioner Shri Mahender Pratap filed one application u/s 87 of the Act read with Order 6 Rule 17 CPC and prayed that he may be allowed to amend and correct the verification aspect of his election petition. He alleged that as per the provisions of Section 83(1) of the Act he was to file an affidavit in the prescribed form in support of his allegations of corrupt practices. He did file the affidavit. However, due to inadvertence and typographical mistake the mentioning of "Section 123(2) of the Representation of People, 1951" was left out. The mistake is purely a clerical and bona fide and is not a material one and he may be allowed to amend the verification aspect. Notice of that application along with copy of the proposed amended affidavit was given to the respondents. Reply to the application was filed and this Court vide order dated 17.11.2000 allowed the miscellaneous application subject to payment of Rs. 2,000/- as costs by holding that the amendment sought for is of clerical nature and the cause of action has not been changed by the petitioner. It was further ordered that the amended election petition shall be placed on the record. But no amended election petition was placed on the record along with the affidavit in compliance to the order dated 17.11.2000. This fact I am incorporating because an argument was advanced by the learned counsel appearing on behalf of the petitioner which will be dealt subsequently.

The pleadings of the parties gave rise to the following issues :-

"1. Whether the respondent No. 1, his workers and agents have committed such acts amounting to commission of corrupt practice as alleged by the petitioner in para No. 17 (xx) of the petition ? If so, to what effect and whether the election of respondent No. 1 is liable to be set aside for the reasons set forth in this sub-para? OPP

Whether the respondent No. 1 with a view to further improve his election prospects got registered various electors in the electoral roll at two places, as alleged by the petitioner in para No. 17(xxi) of the petition? If so, to what effect and whether the election of respondent No. 1 is liable to be set aside for the reasons set forth in this sub-para ? OPP

Whether the election of respondent No. 1 is liable to be set aside for the reasons given in para No. 17 (xxii) of the petition ? If so, to what effect ? OPP

Whether there was any illegality in the counting of votes as alleged by the petitioner and if so, to what effect ? OPP

If issues No. 1 to 4 are decided in favour of the petitioner, whether he is entitled to be declared elected in place of respondent No. 1 ? OPP

Whether the copy of the election petition along with affidavit is not a true copy of the election petition as alleged by the respondent No. 1 and on this account whether the election petition is liable to be dismissed ? OPR

Whether the election petition lacks in material facts and hence is liable to be dismissed as alleged by the respondent No. 1 in his objections ? OPR

Whether the election petition and the accompaning affidaviting have not been verified properly as required under the law ? If so, to what effect ? OPR

Whether the finality of the electoral rolls cannot be challenged in the present election petition by the petitioner as alleged by the respondent No. 1 ? OPR

Whether the pleadings of the election petition are vague, indefinite and do not disclose any cause of action as alleged by respondent No. 1 ? OPR

Relief."

These issues were framed by this Court on 7.12.2000 and issues No. 6 to 10 were ordered to be treated as preliminary. The onus of issues No. 6 to 10 was placed on the respondents.

The learned counsel for the respondent No. 1 placed on record copy of the affidavit which was supplied to him when the petitioner made the application under Order 6 Rule 17 CPC for the amendment of the verification part of the election petition.

I have heard Mr. S.P. Jain, the learned senior counsel appearing on behalf of respondent No. 1, Mr. S.C. Kapoor, the learned senior counsel appearing on behalf of the petitioner and with their assistance have gone through the records of the case. My findings on issues No. 6 to 10 are as follows :-

Issue No. 9

First of all I will take up issue No. 9. The objection of the learned counsel appearing on behalf of respondent No. 1 was that the petitioner is challenging the electoral rolls of the constituency and, therefore, by virtue of the provisions of Section 30 of the Representation of the People Act, 1950, the jurisdiction of the Civil Court is barred. Section 30 of the said Act lays down as follows :-

"30. Jurisdiction of Civil Courts barred - No civil Court shall have jurisdiction - (a) to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency; or

(b) to question the legality of any action taken by or under the authority of an electoral registration officer, or of any decision given by any authority appointed under this Act for the revision of any such roll."

In order to decide this issue it is necessary for me again to refer to the pleadings because at this juncture 1 nave to see whether from the allegations of the election petition the jurisdiction of the Civil Courts has been taken away or not. In my opinion, the learned counsel appearing for respondent No. 1; has not rightly appreciated the controversy. I may make a mention here that the petitioner is challenging the election of respondent No. 1 and it is one of his grounds that the process of counting was bad by the Returning Officer, who, according to the petitioner, had shown undue favour to respondent No. 1. He had violated the procedure and the instructions of the Election Commission with regard to the counting process and it is also the case of the petitioner that certain bogus votes were polled in favour of respondent No. 1 which have been taken note of by the Returning Officer for the benefit of respondent No. 1 and since the margin in this case was hardly 161 votes, therefore, it has materially affected the result of this constituency. The petitioner nowhere has made a prayer for the deletion of certain votes from electoral rolls. Rather, he has made a prayer that the votes are void and are liable to be deleted from the result of the election. He wanted to elaborate the number of votes and their alleged location. It was the specific case of the petitioner that since the number of such votes was 3500, which were much more than the margin of votes between the petitioner and respondent No. 1, therefore, the result of the election has been materially affected so far as respondent No. 1 is concerned.

Making an endeavour that issue No. 9 may be decided in his favour, the learned counsel for the respondent No. 1 relies upon Ghulam Mohiuddin Vs. Election Tribunal for Town Area Sakit and Another, , a Full Bench decision of Allahabad High Court. In my opinion, this judgment is off the track and has nothing to do with the facts and circumstances of the present case. The controversy in hand has to be viewed from the angle of allegations levelled by the petitioner who alleged in the election petition that respondent No. 1 or the staff of the Returning Officer committed such acts and omissions in the matter of counting and polling that by their alleged acts a serious prejudice has been caused to the petitioner as a result of that the fate of the election has totally changed in favour of respondent No. 1. It is not the case of the petitioner that names of certain person who were not qualified to vote have been entered in the electoral rolls. Therefore, the judgment of Allahabad High Court is not applicable to the facts in hand. Similarly the judgment Roop Lal Mehta v. Dhan Singh and others, AIR 1968 Punjab and Haryana 1, is also not applicable to the facts in hand. In the cited judgment the point for determination was that if a vote has been cast by a duly registered voter, though he is below than 21 years of age on qualifying date, is a valid one or not and the answer of the Hon''ble Full Bench was that since such person is a registered voter, therefore, his vote is valid irrespective of the fact that his age was below 21 years. Yet reliance was also placed on Shyamdeo Pd. Singh Vs. Nawal Kishore Yadav, , in which it was observed that inclusion of person or persons in the electoral roll by an authority empowered in law to prepare rolls though they were not qualified to be so enrolled cannot be taken a ground for setting aside an election of a returned candidate under sub-clause (iii) or (iv) of clause (d) of sub-section (1) of Section 100 of the Act. The contention of the learned counsel for respondent No. 1 cannot be accepted for the reasons I have spelled above while discussing this issue. Mr. Jain also relied upon Inderjit Barua and others etc. etc. v. Election Commission of India AIR 1984 S C 1912. The controversy which was agitated before the Hon''ble Supreme Court in the cited case was different. I have already reproduced above the material averments of the election petition in order to appreciate the ground on which the petitioner wants to challenge the election of respondent No. 1. A reading of the same would show that this cause of action and the basis of the claim are totally different.

Resultantly, issue No. 9 is decided against the respondent No. 1 and in favour of the petitioner.

Issue No. 6

The onus of this issue was upon the respondents. This issue can be viewed in two parts - whether the petitioner supplied the copy of the election petition to respondent No. 1, and whether the affidavit which was supplied to respondent No. 1 was defective and if so to what effect ?

Section 81 of the Representation of the People Act, 1951 lays down that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Sections 100 and 101 to the High Court by any candidate at such election or any elector with in forty- five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidates at the election and dates of their election are different, the later of those two dates. According to sub-section (3) of Section 81 every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signatures to be a true copy of the petition. Thus the combined reading of Section 81 sub-sections (1) and (3) would show that in order to challenge the election of a successful candidate the election petition must be accompanied by as many copies thereof as there are respondents and every such copy shall have to be attested by the petitioner under his own signatures by writing "true copy of the petition".

When an election petition will become the valid election petition, we will have to import the contents of Section 83 into Section 81 of the Act. Section 83(1) lays down "An election petition shall contain a concise statement of material facts on which the petitioner relies." Thus the requirement of the law is that in order to constitute a valid election petition it must contain a concise statement of the material facts on which the petitioner relies. Meaning thereby that such concise statement of the material facts must disclose a cause of action in favour of the petitioner. The legislature has purposely used the words "concise statement of the material facts". An election petition is not supposed to be an encyclopaedia but it must contain brief allegations on which the petitioner wants to place his cause of action. The legislature further in its wisdom has used the words "material facts" which are to be understood differently from "material particulars". The purpose and object of the legislature, in my opinion, is that the opposite party must know what is the case of his opponent, if an election petition clearly spells out a concise statement of the material facts, such election petition is complete for the purpose of Section 83(1)(a). The legislature further has contemplated that if a petitioner also wants to succeed on the ground of corrupt practice, he must set forth the full particulars of the corrupt practice including full statement of all such facts as far as possible including the names of the parties who are alleged to have committed the corrupt practice, the date and place of the commission of each such corrupt practice. Meaning thereby that the Legislature never wanted to give the benefit to the petitioner of vagueness. Sub-clause (b) has been incorporated for the benefit of returned candidate so that he may not be taken by surprise and he may not be asked to face a trial like an accused on vague and indefinite allegations. But it is also not the intention of the law that each and every minutes detail of the corrupt practice must be given by the petitioner which a reasonable person even cannot comprehend but at the same time the particulars of the alleged corrupt practice be clear and concise so that the opposite party may have the right to rebut those allegations with certain amount of certainty. Ac- cording to Section 83(1)(c), in order to constitute a valid election petition it must be signed by the petitioner and verified in the manner laid down in the CPC for the verification of pleadings. We know that the pleadings of a civil suit/civil case are verified from personal knowledge or from the information supplied by a third person which is believed to be correct by the deponent. A proviso has also been added in Section 83(1), according to which when a petitioner has to succeed in an election petition on the ground of corrupt practice he will have to accompany an affidavit in the prescribed from in support of his allegations of corrupt practice and the particulars thereof. Thus if a petitioner does not want to succeed on the ground of corrupt practice but on different grounds as envisaged in Sections 100 and 101 of the Act, in such an eventuality the particulars of corrupt practice are not supposed to be incorporated and the affidavit is also not supposed to be accompanied. Section 83(2) further lays down that any schedule or annexure to the petitioner shall also be signed by the petitioner and verified in the same manner as the petition. Thus, if any schedule of annexure filed along with the petition is also an integral part of the pleadings and constitutes a material fact, such schedule or annexure has to be signed and verified in the same manner as the main election petition itself. Therefore, the legislature has rightly used the words "schedule or annexure to the petition" and not each and every document on which a party may rely ultimately at the time of leading of evidence though such documents are also annexed along with the petition. The situation can also be that one may get an impression that one is overlapping the other but the test is whether the petitioner is basing his cause of action on the schedule or annexure by making it as an internal part of the election petition, then in such eventuality such schedule or annexure is bound to be signed or verified by the petitioner in the same manner as if he is signing and verifying the election petition itself. Thus the resume of Section 83, which is an integral part of Section 81, is that in order to constitute a valid election petition, the following ingredients are necessary :-

i) Such election petition should contain a concise statement of the material facts which are to be understood differently from material particulars and the petitioner is not supposed to write the minutest details in the election petition so as to agitate a cause of action.

ii) The election petition must be signed and verified in the same manner as one is signing and verifying the pleading of a civil suit.

iii) If the petitioner relies on corrupt practice, he must give a full statement as far as possible of that corrupt practice by further enumerating the date, time, place and the manner of corrupt practice and by whom it was so committed and for whose benefit.

iv) In the event of relying upon a corrupt practice, an affidavit must be given in the prescribed form No. 25 and the copy of this affidavit should also be supplied to the respondents in the same manner as envisaged in Section 81(3) of the Act.

v) That if any schedule or annexure has become the integral pan of the election petition, that must be delivered to the respondents also and the copy of such schedule or annexure should also be signed and verified by the petitioner in the same manner as he had signed and verified the main election petition itself.

In the present case, the petitioner has relied upon corrupt practice and I have tried to incorporate concise statement of such corrupt practice in the earlier portion of this order.

Now it has to be seen what has happened in the present case. The election petition was filed under Sections 81 read with Section 83 of the Act. Along with the election petition the petitioner filed 9 documents in Form B which is for the purpose of list of documents produced by the petitioner. First is "allegedly prepared Counting Form Part-II 17-C by the Counting Supervisor, relating to round Nos. 12, 14 and 18". This document was attached along with the election petition to prove that counting was not fair, proper, in any manner with the various provisions of the Act and Rules of Representation of the People Act, 1951 and the documents have been forged in order to help respondent No. 1. The second document was the result-sheet round-wise, prepared by the Returning Officer at the time of the counting and this document was attached in order to prove that counting was still in progress when the application for recounting was rejected on the ground that the result had already been declared. The third document was the result-sheet prepared by the Returning Officer under Rule 64 and the declaration of result of election for 52-Mewla Maharaj put Assembly Constituency. The intention of giving this document along with the election was to prove that respondent No. 1 had been illegally and wrongfully declared elected. The fourth document was the application in original dated 25.2.2000 submitted to the Election Officer in order to prove that the application for recounting had been illegally, malafidely and wrongly rejected by the Returning Officer on wrong facts. The fifth document was the copy of the representations forwarded to the Chief Election Officer, Govt. of India in order to prove that the request was made by the petitioner for recounting. Documents six and seven are the extracts from the voters list to prove that 293 votes had been polled twice in the same ward and that there was no house in existence and 99 votes were got prepared in a faked manner. Documents 8 and 9 are the extracts from the voters list and the object of the petitioner was to prove that 3035 votes have been registered twice in the constituency. In my opinion, these documents are the documents of evidence which are not supposed to be pleaded. These documents ultimately are the documents of corroboration to the main allegations of the petitioner. They are not the schedule or annexure. They are not the integral part of the election petition but they are supplementing the allegations of the petitioner upon which evidence is yet to be led. Therefore, I repel the objections of the learned counsel for respondent No. 1 that the election petition is bad as the petitioner had not supplied to respondent No. 1 and 9 documents, which, according to Mr. Jain, are the schedules and annexures of the election petition.

Now it is to be seen whether the copy of the election petition and true copy of the affidavit has been supplied to the respondent No. 1 or not. Again, 1 will have to revert to part of the main proceedings itself, When the election petition was filed in the office, the copies of the election petition were also given. Those copies were attested to be true copies. The petitioner also gave an affidavit in Form 25 in support of corrupt practices. To this extent the objection of learned counsel appearing on behalf of respondent No. 1 is that the endorsement of the Oath Commissioner on the affidavit is so dim and that the copies of the election petition are so dim that he could not decipher. It was also his objection that he was not in a position to know the name of the Oath Commissioner, who actually attested the affidavit. The submission of the learned counsel for respondent No. 1 is liable to be rejected. The copy of the election petition which was signed and verified by the petitioner is completely legible. The affidavit in Form 25 is signed and verified on 7.4.2000. The deponent appeared before the Oath Commissioner Shri R.K. Bhardwaj. He was identified by Shri C.B. Goel, Advocate. The affidavit is at pages 66 and 67 of Part-II of the record. I have glanced this affidavit very carefully. Of course, it was typed on 4.4.2000, but it was presented for attestation by the deponent i.e. the petitioner on 7.4.2000 at Chandigarh. At two places correction has been made by overwriting digit "4" to "7", i.e. regarding the date of signatures and verification, but at one place the date has not been changed. It remains as 4th day of April, 2000. I may reproduce the verification part of the affidavit dated 7.4.2000 which runs as follows :-

" Verification

Solemn affirm/sworn by Mahender Pratap son of Shri Net Ram, resident of Nawadakoh, Post Office Palli, District Faridabad (Haryana) at Chandigarh on this 4th day of April, 2000.

Place: Chandigarh, Sd/-

Dated : 7.4.2000, (Mahender Pratap Singh)

Deponent"

Thus it would show that there is a discrepancy. At one place the date has been shown as 4th day of April, 2000 but at the other place it has been shown as 7.4.2000. The date immediately below the place i.e. Chandigarh has been shown as 7.4.2000. Meaning thereby that affidavit was presented, sworn and attested on 7.4.2000 and that is evident from the endorsement of Oath Commissioner Shri R.K. Bhardwaj. Thus, the copy of the affidavit as required u/s 83(b) and the proviso was supplied to respondent No. 1.

The things proceed further. An application was moved by the petitioner under Order 6 Rule 17 C.P.C. for the amendment of verification. Along with the application amended affidavit was also placed on record which is dated 9.10.2000. This time it is attested by Shri R.S. Rattan, Oath Commissioner and the deponent was identified by Shri C.B. Goel, Advocate. Copy of this affidavit in Form No. 25 was given to the counsel opposite in order to file the reply to the application under Order 6 Rule 17 C.P.C. That copy does not bear the attestation portion of the Oath Commissioner. The case which was built by the learned counsel for respondent No. 1 is that since the copy of the affidavit dated 9.10.2000 does not bear the attestation of the Oath Commissioner, therefore, this affidavit is bad in the eyes of law. Since the affidavit is an integral part of the corrupt practice and the corrupt practice is the integral part of the election petition, therefore, the election petition should be dismissed in limine by virtue of the provisions of Section 86 of the Act, which lays down that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The submission of the learned counsel for the respondent No. 1 is devoid of any merit. When this Court allowed the application under Order 6 Rule 17 C.P.C., the Court directed the petitioner to file the amended election petition. Admittedly, the amended election was to filed. What are the consequences in such a situation, that are enumerated in Order 6 Rule 18 C.P.C., which lays down "If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the Court." In other words, the petitioner cannot take the benefit of the amendment which was allowed by the Court. Again, we will have to revert to the election petition which contains the allegations of corrupt practice and was accompanied by an affidavit and the copy of that affidavit was supplied to respondent No. 1 along with the attestation part of the affidavit. Thus in no eventuality it can be held by this Court that the copy of the election petition and the copy of the affidavit were not the true copies of the election petition as alleged by respondent No. 1 and on this count the election petition is not liable to be dismissed. The learned counsel for the parties have relied upon some case law in this regard. Mr. Jain, the learned counsel for the respondent No. 1 relied upon Dr. (Smt.) Shipra etc. etc. v. Shanti Lal Khoiwal etc. etc. 1996(2) RCR 179 (SC) : AIR 1996 SC 1691, in which it was observed that if the copy of an affidavit, which has been supplied to the respondent, is without attestation by the prescribed authority, it cannot be considered as true copy of the election petition. Reliance was also paced on Prafulla Chandra Chadoi v. Sarat Rout AIR 1988 Ori 41, Purushottam v. Returning Officer, Amravati and others AIR 1992 Bom 227, Boota Singh Vs. Sher Singh and others, , Narain Chand Prashar Vs. Prem Kumar Dhumal and Others, , and it was vehemently contended by the learned counsel for the respondent No. 1 that admittedly the copy of affidavit dated 9.10.200, which was supplied along with the copy of the application under Order 6 Rule 17 CPC, did not bear the attestation part of the affidavit. Therefore, the election petition should be dismissed.

I have already stated above that the election petition cannot be thrown away in view of the provisions of Order 6 Rule 18 C.P.C. I will have to revert back to the main election petition and the affidavit. The first affidavit dated 7.4.2000 is in conformity with the law and the copy of the affidavit including attestation part of the Oath Commissioner had already been supplied to the respondent No. 1. This contention of Mr. Jain has to be rejected in view of the decision of a Constitutional Bench of the Hon''ble Supreme Court in T.M. Jacob v. C. Poulose and others 1999(3) RCR 33 (SC) : 1999(4) Supreme Court Cases 2 74, where it was held that non-compliance of Section 81(3) of the Act is a curable defect which will not attract Section 86(1). While interpreting the "true copy" of the election petition within the meaning of Section 81(3), the Constitutional Bench held that it does not mean absolutely exact copy but it is one which no reasonable person can misunderstand as not being the same as the original. The true copy should not contain any substantial variation of vital nature which can mislead such person to understand and meet the charges. It was observed that where copy of affidavit filed by the election petitioner in support of allegations of corrupt practice made in the petition contained endorsement that the affidavit had been duly signed, verified and affirmed by the petitioner before a Notary and the Notary had also signed below the endorsement but name, address and stamp and seal of the Notary was missing in the copy of the affidavit, it was held that there was substantial compliance with the requirements of Section 81(3) read with Section 83(1)(c) and the defect contained in the copy was not vital and had not misled the returned candidate or prejudiced him in formulating his defence so as to attract Section 86. The Hon''ble Constitutional Bench distinguished the judgment of Dr. Shipra''s case on facts and it was further held that doctrine of substantial compliance has been done. Also it was observed by the Hon''ble Supreme Court in Dr. Vijay Laxmi Sadho v. Jagdish JT 2000(1) SC 382, that an affidavit which has been filed in support of alleged corrupt practice, if not drawn-up in prescribed form, the election petition cannot be dismissed in limine on that ground because the non- compliance of the provisions of Section 843(1) is a curable defect.

This issue is decided against the respondent No. 1 and in favour of the petitioner.

Issues No. 7 and 10

In my opinion, both these issues can be discussed together.

The onus was upon the respondent No. 1 to show that the present election petition lacks in material facts and was liable to be dismissed in limine u/s 86(1) of the Act and that the pleadings of the election petition are vague, indefinite and dose not disclose any cause of action. Everybody has his own style to draft the pleadings. The legislature wants from a person who filed an election petition that his election petition must contain a concise statement of material facts upon which he wants to rely. This is the only requirement of the law. The averments of the election petition must not be vague, indefinite and must disclose a cause of action as it is a basic principle of law that pleadings of the parties have to be read as a whole. Cause of action has not been defined in the CPC or in the Representation of the People Act. In my opinion, cause of action is a bundle of allegations on which a litigant is to rely and if those allegations are proved without any rebuttal whether on those allegations a relief can be given to a person or not.

It was observed in Shri Udhav Singh Vs. Madhav Rao Scindia, , that a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleadings taken as a whole. In this very judgment the Hon''ble Supreme Court has distinguished the two terms "material facts'' and "material particulars". It was observed "All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of a charge of corrupt practice, "material facts" would mean alt the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those fads which are essential to clothe the petitioner with a complete cause of action, are "material facts" which must be pleaded and failure to plead even a single material fact amounts of disobedience of the mandate of Section 83(1)(a)". This very judgment then describes "material particulars" and it was observed that "material particulars" are the details of the case set up by the party and those details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition. This I have to be guided by these observations.

Mr. Jain, after reading in extenso all the paras of the lengthy election petition, submitted that the contents of the election petition are vague and it lacks in material facts. The material facts with regard to the corrupt practice have not been specifically alleged; how, in what manner and in whose presence the alleged corrupt practice has been committed have not been enumerated and, therefore, the election petition should be rejected u/s 86(1) of the Act in limine.

I am not in agreement with the learned counsel appearing on behalf of respondent No. 1. I have already stated that drafting of pleadings cannot be a uniform style of every individual. The guiding factor is whether the election petition discloses a complete cause of action or not. We will have to apply the provisions of Order 7 Rule 11 CPC and according to Order 7 Rule 11(a), a suit can be dismissed if it does not disclose a cause of action. If that very yard-stick is applied, again we will have to see whether the election petition narrates material facts which are primary facts disclosing some cause of action. These facts are supposed to be specifically pleaded and if there is a failure in this regard, it will entail the rejection of election petition. This was so observed by the Hon''ble Supreme Court in V.S. Achuthanandan v. P.J. Francis and another 2001(1) RCR 753 (SC) : (1999)3 Supreme Court Cases 737 and Ashwani Kumar Sharma v. Yaduvansh Singh and others 1998(1) RCR 224 (SC) : AIR 1998 SC 337. In my opinion, the petitioner has given material facts of the corrupt practice. From the material facts on which he wants to rely in order to dislodge the respondent No. 1 it cannot be said from any parameters that the allegations of the petitioner are vague, indefinite and do not disclose any cause of action. Even a weak petition is supposed to be tried. It cannot be thrown away on the ground that the chances of ultimate success are very bleak. Even a feeble cause of action is a triable cause of action and law Courts are in favour of trying a cause of action to its judicial proportions. At this juncture, I have not to see whether the election petition ultimately may or may not succeed. If the election petition discloses material facts by way of concise statement and the grounds taken in that concise statement is a ground of setting aside the election within the meaning of the Act, such election petition must be decided on merits. This is how I understand the matter.

Here, I also want to touch the objection of Mr. Jain that the documents relied upon by the petitioner were the integral part of the election petition. According to Mr. Jain, they were schedules and annexures. In A. Madan Mohan Vs. Kalavakunta Chandrasekhara, , it was observed by the Hon''ble Supreme Court that annexures to the election petition in the form of documents and schedules are not required to be served upon the respondent.

Mr. Jain relied upon Narendra Bhikahi Darada Vs. Kalyanrao Jaywantrao Patil and Others, and M. Karunanidhi Vs. Dr. H.V. Hande and Others, . These judgments are distinguishable on facts. In M. Karunanidhi Vs. Dr. H.V. Hande and Others, the allegations were based on a photograph. That photograph was considered as integral part of the election petition and it was not merely a piece of evidence. In that light the election petition was dismissed with the aid of Section 86(1). In the present case the evidence is not supposed to be pleaded. If we read the provisions of Order 7 Rule 14 CPC, a plaintiff is supposed to attach documents along with the suit on which he ultimately wants to rely. He can also rely upon certain documents which are in the power and possession of third party. Further, he can rely upon those documents which he may produce at the trial at the stage of evidence. The ultimate test is whether the respondent has been misled or is likely to be misled in his defence with the evidence which is going to be relied upon by the petitioner. In the present case, I am of the opinion that the documents 1 to 9, attached with the election petition, are only supplementary to the allegations. Those are the instances of evidence. They are not the integral part of the material facts. 1 am further of the opinion that the present election petition clearly spells out the entire and complete cause of action which is the requirement of law in the shape of material facts and, therefore, I decide issues No. 7 and 10 against the respondent No. 1 and in favour of the petitioner.

Issue No. 8

I have already held above that the election petition cannot be thrown away on the ground that the copy of the affidavit was defective. I have tried to show that the copy of the first affidavit dated 7.4.2000 bears the seal of the Oath Commissioner and the copy of the election petition is decipherable and not dim. Let us see now whether the main election has been properly signed and verified or not. Petitioner Mahender Pratap Singh has stated as follows :-

"I above named petitioner do hereby verify at Chandigarh on 4th day of April, 2000 that the contents of paras 1 to 7, 11 to 16, 17(v), 17(vii), 17(viii), 17(xii), 17(xiv), 17(xviii), 17(xxiv), 18 and its sub-paras (a) to (d) and 19 are true and correct to my personal knowledge, whereas, contents of paras Nos. 17(i) are based on my personal knowledge as also the information supplied by my Election Agent Shri Vijay Partap. Contents of para No. 17(ii) is based on information supplied by Shri Vijay Partap Singh, Election Agent and Shri Bhupinder Singh Yadav, Shri Jitender Ty-agi, Shri Shiv Kumar and Shri Sewa Ram, my counting Agents. Contents of para 17(iii) are based on information given to me by my counting agents namely Shri Bhupinder Singh Yadav, Shri Jatinder Tyagi, Shri Shiv Kumar and Shri Sewa Ram. Contents of para 17(ix) are based on the information given to by my Election Agent Shri Vijay Partap and my counting agents namely Shri Bhupinder Singh Yadav, Shri Jitender Tyagi, Shri Shiv Kumar and Shri Sewa Ram. Contents of para 17(x) are based on the information given to me by counting agents namely Shri Bhupinder Singh Yadav, Shri Jitender Tyagi, Shri Shiv Kumar and Shri Sewa Ram. Contents of para 17(xi) of the election petition are based on information derived by me from the official record, which I believe to be correct. Contents of para 17(iii) and 17(xv) are based on information derived from the official record, which I believe to be correct. Contents of para 17(xvi) are based on the information supplied to me by Election Agents Shri Vijay Partap Singh and Counting Agents namely Shri Bhupinder Singh Yadav, Shri Jitender Tyagi, Shri Shiv Kumar and Shri Sewa Ram. Contents of para 17(xix) are partly based on my personal knowledge and part of the contents are based on information given to me by my Election Agent Shri Vijay Partap Singh. Contents of para 17(xx) relating to enclave is based on information given to my by Shri Dinesh Kumar of Sarai Khawaja and Shri Pratap Singh son of Shri Tunda Ram of Sector 37, Faridabad, whereas the contents of para relating to Sector 37 is based on information given to my by Shri Partap Singh resident of Sector 37. With regard to Sector 28, contents are based on information supplied to me by Shri Rajinder Singh Chaprana R/o Sector 28 and rny Election Agent Shri Vijay Partap. Similarly, contents relating to Sector 18, Housing Board Colony are based on information given to my by Shri Sunil Sethi R/o Sector 18 and Shri Vijay Par-tap my Election Agent. The information supplied to my by the above persons detailed above is believed by me to be true and correct. Contents of para 17(xxi) are based on information given to me by Shri Vijay Partap Singh, my Election Agent and Shri M.K. Sharma, Advocate of Sector 8, Faridabad. The information given to me by these persons is believed to be true and correct. Contents of para 17(xxii) is based on information supplied to me by my workers namely Shri A.K. Singh and Shri R.K. Yadav r/o Sector 29, Faridabad, which I believe to be true and correct. Contents of para 17(xxiii) are based on information given to my election Agent Shri Vijay Partap Singh, which I believe to be true and correct. Contents of para 20 and 20A are based on the information derived from various newspapers, and the information supplied by Shri Yash Pal Singh, resident of Sector 16, Faridabad, which I believe to be true and correct. Contents of para 20, 20B are based on my personal knowledge and also the information supplied to me by my workers namely Shri M.K. Sharma, Advocate, Shri Ak-htyar Sarpanch and Vijay Kaushik of old Faridabad. Contents of para No. 20C are based on my personal knowledge and the information given by Vijay Pal of Sector 9, Shri M.M. Sharma, Advocate, Sector 8, Faridabad and Shri R.K. Yadav, R/o Sector 29, Faridabad. Contents of para No. 20D are based on my personal knowledge and information supplied by my workers, supporters and agents namely Shri Mohinder Bhadana, Rakesh Sharma r/o Badkhal, Faridabad. Contents of para No. 20E are based on information given by Vijay Pal Sector 9, Faridabad and Shri Vijay Kaushik, R/o Old Faridabad. Contents of para Nos. 8 to 10, 17(iv), 17(vi) (a) (b) and (c), 17(xvii), 21 to 28 are based on legal advice, which I believe to be true and correct."

Thus it will be clear from this verification that certain paras of the election petition have been verified from personal knowledge and certain paras have been verified from the information supplied and believed to be correct and certain paras have been verified on the basis of legal advice. The petitioner has taken pain in the source of the information. With regard to the affidavit dated 7.4.200 the petitioner was specifically alleged that the statement made in paragraph No. 18, 20, 20-A, 20-B, 20-C, 20-D and 20-E regarding commission of corrupt practice falling u/s 123(1) of the Act and the particulars of such corrupt practice mentioned in paragraph Nos. 18, 20, 20-A, 20-B, 20-C, 20-D, 20-E are based on the information received from his workers, agents, election agents, polling agents, counting agents and workers, agents of other candidates and from other candidates at the election and the information derived from the official records, newspapers, election records, etc. and are believed to be true and are also based on the legal advice received and believed to be true. This is the enough compliance. Even the subsequent affidavit contains the verification and I do not find any illegality in the matter of verification either in the election petition itself or in the accompanying affidavit.

This issue is also decided against the respondent No. 1 and in favour of the petitioner.

In view of my findings on issues No. 6 to 10, I repel the preliminary objections of the respondent No. 1 when it was urged that this election petition is liable to be dismissed u/s 86(1) of the Act.

Now the main case stands adjourned to 3.4.2001 for the evidence of the petitioner on issues No. 1 to 5 and 11. Let process fee, diet money of the witnesses and list of witnesses be furnished within 15 days. Documents may also be filed by the parties within this time.

Petition allowed