AI Structured Summary
Not yet generated for this judgment
Judgment
Election to the Punjab State Legislative Assembly from Dharmkot Constituency was held on 25-9-1985 in accordance with the following dates notified by the Election Commission:
l. Last date filing. 2-9-1985
nomination papers.
Scrutiny. 3-9-1985
Withdrawal of nomination 5-9-1985
papers and allotment of symbols.
Date of poll. 25-9-1985.
After withdrawal, Sital Singh was left in the field as an independent candidate, who has filed the election petition, besides five other candidates out of whom Gurdev Singh Gill belongs to Congress-I, another candidate of C.P.I., one candidate of Shiromani Akali Dal (Longowal Group) and two other independent candidates.
After the poll, the counting was started on 26-9-1985 at 8.00 a.m. in the Government High School for Boys at Zira by the Returning Officer who was the S.D.M., Zira. After counting, Gurdev Singh Gill, Congress-I candidate was declared elected as he had polled the highest number of votes. The returned candidate had polled 16,573 votes whereas the election petitioner, who secured the next highest votes, had polled 16,29 j votes, i.e., there was a difference of 277, votes between them.
Within the time prescribed, Sital Singh filed the present Election Petitioner. The Election Petition was primarily based on the allegation that certain ballot papers polled in his favour were smudged and were ultimately rejected. In para 27 of he petition it was pleaded that the petitioner was entitled to recount of votes were polled in his favour were improperly rejected, whereas the votes which were marked by the instrument otherwise then the instrument provided by the Election ''Commission polled in favour of the elected candidate were improperly considered as valid. Since there was a narrow margin of 277 votes and 3223 votes had been declared as rejected, it was a fit case for ordering recount by the Court. In para 28 of the petition plea was raised that the ballot papers which have been rejected as smudged, were not in fact smudged and there was no such mark on them from which the elector could be identified. In para 29 of the petition, the election of the elected candidate is sought to be set aside and recount is asked for on the '' following grounds:--.
"(1) That the result of the election so far as it concerns the returned candidate has been materially affected by improper reception of votes and by improper rejection of votes as detailed hereinbelow:--
(a) That the Assistant Returning Officer improperly rejected the ballot papers which were validly polled in favour of the petitioner.
(b) That while rejecting the ballot papers validly polled in favour of the petitioner, the Assistant Returning Officer orally conveyed that the ballot papers were being rejected because they were smudged with thumb impression of the electors and, therefore, the electors could be identified. The Assistant Returning Officer, however, did not record any ground of rejection as required by sub-rule (4), of R. 56 of the Rules.
(c) That the ballot papers which were polled in favour of the petitioner were wrongly rejected and thereby the number of votes in favour of the petitioner was reduced.
(d) That the ballot papers which were marked by the instrument otherwise than the instrument provided by the Election Commission were improperly counted as validly polled in favour of the respondent No. 1 at polling stations Nos. 30 to 33 mentioned hereinabove"
The petition was opposed by the returned candidate who filed the reply. After notice of the petition was issued to the defeated candidates, respondents 2 and 5 did not put in appearance and were proceed ex parte. Respondents 3 and 4, who were other defeated candidates, put in appearance but did not file any written statement. The returned candidate in his written statement denied the allegations made in the petition and specifically pleaded that the allegations in regard to recount and rejection and acceptance of votes are absolutely vague and do not conform to the provisions of S. 83(1) of the Representation of the People Act, 1950 (1951) (hereinafter called the Act). As regards para 2 of the petition regarding recount, it was stated in the written statement that the allegations made in the election petition are vague baseless and do not justify recount and similar was the reply to para 29 of the petition that no case whatsoever was made out for recounting. The returned candidate also raised a preliminary objection in his written statement that the averments made in paras 15, 22, 27 and 29 along with their sub-clauses, do not conform to the provisions of S. 83(1) read with S. 100(1)(d) of the Act as they do not contain material facts and particulars and are thus liable to be struck off. In replication filed by the election petitioner regarding preliminary objection noticed above, besides denying the allegations, it was stated as follows:--
"As no corrupt practice has been alleged so it was not necessary for the petitioner to give particulars."
As regards para 15 of the written statement that the allegations were vague and did not furnish the material particulars, it was stated in the replication that there was no vague allegation raised in the petition particularly in view of the fact that in para 25 A of the election petition it was stated that the petitioner was winning by 1031 votes which could be proved by producing Jagtar Singh Counting Agent of the petitioner.
As regards para 27, it was stated that 3223 votes were declared rejected as improper and, therefore, recount was rightly claimed.
On the contest of the parties, the following issues were framed, out of which issue No. 1 was treated as a preliminary issue:--
Whether the averments made in paras 15, 22, 27 and 29 along with their sub-clauses are liable to be stock off being vague and not in accordance with the provisions of S. 83(1) and 100(1)(d) of the Representation of the People Act, 1951? O.P.R.
Whether the petitioner is entitled to recount in view of the averments made in paras 15, 22, 27 and 29 along with their sub-clauses? O.P.P.
On hearing arguments of the learned counsel for the parties on the preliminary issue, I have come to the conclusion that the allegations are vague and indefinite. In the Election Petition the petitioner has to be precise, specific and unambiguous in regard to the number of votes which had been polled in his favour and had been wrongly rejected. He has further to state the specific facts in regard to those votes which were cast in his favour and the ground on which each such vote was wrongly rejected. The mere fact that in para 27 it has been stated that total number of 3223 votes have been declared as rejected, does not warrant any inference that all those votes were wrongly rejected; nor does it warrant any conclusion as to on what ground each of the said votes was wrongly rejected. Moreover, 3223 votes, which have been declared rejected, are the total votes of all the contesting candidates which stand rejected. Since there was a margin of 277 votes between the election petitioner and the elected candidate it was necessary for the election petitioner to state in the petition as to how many votes which were polled in his favour were wrongly rejected and the ground for wrong rejection of each vote had to be stated. This not having been done, the mere fact that there was a difference of 277 votes, would not call for re-count or re-checking of votes by the Court.
In spite of specific objections on behalf of the returned candidate that the allegations are vague and no case for re-count is made out, in replication instead of clarifying the matter, the same vague allegations have been repeated. The allegation contained in para 25-A of the Election Petition that the petitioner was winning by 1031 votes, is again vague without giving material particulars so as to show a cause of action. Any defeated candidate can raise a plea that he was getting so many more votes. If by adding the same he would be securing more votes than the returned candidate, then in every case a roving enquiry will have to be started which is not permitted either by the Act or by the cases decided by the Courts.
The election process is a time consuming one and an expensive process. That is why the highest Court of the land has been observing in its judgments from the very beginning that material allegations must be made and if they are not made, then the Election Petition can be thrown out at the threshold. Where material allegations are raised and sometimes particulars are not furnished, the Courts have given opportunity to place better particulars before them, but if no cause of action is shown, then the election petition deserves to be rejected outright.
At the time of counting of votes, a Counting Agent of every candidate is allowed to be present as required by R. 56 of the Conduct of Election Rules, 1961, (hereinafter called the Rules). The Counting Agents are allowed a reasonable opportunity to inspect the ballot papers. This opportunity is afforded so that the Counting Agents can make a note in respect of each vote, which is either wrongly accepted or wrongly rejected, besides making notes of all other matters. Then R. 63 of the Rules permits re-count of votes after the completion of counting which is recorded in the result-sheet in form-20 and the total number of votes polled by each candidate is announced. Sub-rule (2) of the said rule provides that after announcement of the votes polled by each candidate, a candidate or, in his absence, his Election Agent or any of his Counting Agents may apply in writing to the Returning Officer to re-count the votes either wholly or in part stating the grounds on which he demands such re-count. This again shows that the candidate, his Election Agent or Counting Agent has to be specific on the point or ground on which re-count is asked for. Mere asking for re-count without giving any reason or ground, is not to be entertained. Therefore, this further supports that each candidate has to know the ground on which re-count before the declaration of result, can be asked for.
Section 100(1)(d) and Ss. 101 and 102 of the Act and R. 93 of the Rules implicitly give the Court trying an Election Petition the power to order re-count or production of ballot papers and permit their inspection by the parties. However, re-count touches upon the secrecy of the ballots. It is not to be ordered lightly or as a matter of course. Further judgments of the highest Court of the land had indicated that the Court would be justified in ordering a re-count or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded and pleaded adequately in the election petition and (ii) the Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do. complete and effectual justice between the parties: Reference for this proposition of law may be made to Beliram Bhalaik Vs. Jai Beharilal Khachi and Another, . In Beliram Bhalaik''s case (supra), it was found that the allegations were not precise, were mostly general and vague floating on suspicions and beliefs rather than resting on terra firma of material facts. Reliance was placed on an earlier decision of that Court in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, , wherein it was held that mere allegations that the petitioner suspects or believes that there has been improper reception, refusal or rejection of votes or there have been irregularities in the counting of ballot papers, will not be sufficient to support an order of recount and inspection.
Recently in Hari Ram Vs. Hira Singh and Others, , the following rule was laid down:--
"It is now well settled by a long course of. decisions of this Court that inspection of ballot papers and counterfoils should be allowed very sparingly and only when it is absolutely essential to determine the issue. This Court has further laid down that in the garb of seeking inspection the defeated candidate should not be allowed to make a roving inquiry in order to fish out materials to set aside the election. In the case of Bhabhi Vs. Sheo Govind and Others, , this Court clearly observed thus:--
"Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a Court can grant inspection, or for that matter sample inspection of the ballot papers:
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations:
(2) That before inspection is allowed the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts:
(3) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish (out) materials for declaring the election to be void: and
(4) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima'' facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.'' "
After referring to the rule laid down in Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, , it was further observed as follows:
"A perusal of this rule clearly shows that the Legislature intended to make a clear distinction between one set of documents and another. So far as the counterfoils and the marked copy of the electoral rolls were concerned, there was a strict prohibition for opening these documents unless the Court; was fully satisfied that a cast-iron case was made out for the same: whereas documents mentioned in Cls. (a) and (b) of sub-rule (2) of R. 93 (as amended) could be liberally allowed to be inspected."
In the aforesaid case, the main ground put forward was that there were a number of dead persons for whom also votes were cast. Despite this allegation, no details and particulars were given, nor was it even mentioned whether the Polling Agent of the respondent had made any note of the fact that votes were actually cast for dead persons and the number of these votes. The allegations made by the election petitioner were found to be frightfully vague.
Applying the aforesaid rules laid by the highest Court of the land, I find that the allegations are vague, indefinite and the petitioner wants to indulge in a roving inquiry with a view to fish out material. It has not been precisely stated as to how many votes cast in favour of the election petitioner were wrongly rejected and on what grounds or that specified number of votes were wrongly counted in favour of the elected candidate whereas they were invalid for such and such reasons with the result that the election petitioner would have been elected and the returned candidate would have been defeated. If this had been done, the matter would have been different.
At this stage at the risk of repetition, I would like to state the precise facts relevant for recount or inspection of ballot papers, which are as follows:--
(1) In para 15 of the petition it is stated that when ballot papers were issued to illiterate persons, they had thumb-marked the counterfoils, and the ballot papers were smudged with ink remaining on their thumbs. Such ballot papers which were cast in favour of the election petitioner which had smudged thumb impression, were declared as disputed and were later on rejected. It is not mentioned as to how many ballot papers were found smudged. In view of R. 63 of the Rules, the candidate or his Polling Agent or Counting Agent had the opportunity and it is mentioned in para 15 that the Counting Agent had seen those ballot papers yet it is not specified as to how many ballot papers were smudged which were cast in favour of the petitioner and were rejected.
(2) In para 27 of the petition the total number of rejected votes belonging to all the candidates has been mentioned as 3223. It is not shown as to how many votes out of these votes should have been considered valid for the election-petitioner and on what grounds.
(3) In para 21 of the petition it is mentioned that all smudged votes cast in favour of the election-petitioner were declared invalid. The number of such votes has not been specified.
(4) In para 25 of the petition it is pleaded that the Assistant Returning Officer did not afford any opportunity to the petitioner as required by sub-rule (2) of R. 63 of the Rules and the petitioner moved an application for recount before the result was announced, which application was rejected by the Assistant Returning Officer and the result was announced thereafter. The petitioner protested against this procedure and did not sign the declaration of result and sent telegrams to the concerned authorities. Along with the petition, copy of any such application was not annexed nor in para 25 it was stated as to what were the precise objections which. were raised before the Assistant Returning Officer for claiming recount. Then m para 25-A, it is mentioned that on the calculations made by the Counting Agents of the petitioner, the petitioner was winning by 1031 votes, but again here no material facts have been mentioned as to how the petitioner was winning by 1031 votes and what were the calculations which have been given to the petitioner by his Counting Agents.
The net result of the aforesaid averments made in the Election Petition is that all material facts have been withheld and in the absence of the same, no roving inquiry is permissible. It was not disputed before me during, the course of arguments that if paras 15, 22, 27 and 29 are to be deleted, nothing would be left in the Electron Petition for being tried. Paras 12 and 22 to 24 have been deleted on the basis of agreed order passed today in C.M.No. 13-E of 1986.
l9. For reasons recorded above, paras 15, 22, 27 and 29 along with their sub-clauses are hereby struck off being vague and indefinite. In view of the striking, off the aforesaid paras, nothing survives in the Election Petition and the trial on issue No. 2 has became unnecessary, hence, the Election Petition is hereby dismissed with costs.
Petition dismissed.