http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

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 122 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

             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               123               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?"

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

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 124 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

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 125 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

             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 126 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

             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. 127 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

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. 128