Avadh Behari Rohatgi,j. ( 1 ) BY this election petition the petitioner,pritpal Singh, has challenged the election of the returned candidate, Ranjitrai Sharma, respondent No. 1. Both of them were contesting candidates atthe Metropolitan Council election from the Metropolitan Constituency ofpaharganj No. 44 held on 5-2-1983. Respondent No. 1 was declared as asuccessful candidate. He won by III votes. At the first count he was declered elected by a margin of 113 votes. On a recount the margin was reduced to111 votes. So the election petitioner is his closest rival. ( 2 ) THE petitioner seeks to set aside the election of respondent No. 1 onfour grounds : (1) that respondent No. 1 indulged in corrupt practice, (2) 336valid votes of the petitioner were improperly rejected, (3) 85 votes from theballot boxes of Municipal Corporation election were not counted, and (4) 89void votes were counted in favour of respondent No. 1. It is not necessaryto set out the pleadings of the parties at any great length as they are sufficiently reflected in the following issues and the discussion that follows those issues : 1. Whether the persons mentioned in annexure a were voters eligible to vote at the election in dispute and the said persons or anyof them were denied the right of vote by the Presiding Officerat the polling station No. 313 If so, to what effect ? 2. Whether the question of violation of Rule 21-A of the Registration of Electors Rules, 1960 alleged in paragraph 12 of the petition can be gone into and forms subject matter of enquiry in thepresent proceedings ? It not the result of election in so farrespondent No. 1 is concerned ? 3. Whether the 3 persons mentioned in annexure c were dead atthe date of poll and votes were cast in their names by others andas such to what effect ? 4. Whether the persons mentioned in annexure b were registered asvoters at two places at two different polling stations in the samemetropolitan Constituency No. 44 and whether any such voterstwice at the election in dispute and as such any votes were received which were allegedly void ? If so, to what effect ? 5. Whether any void votes were received in the election in disputematerially affecting the result of election in so far as respondentno. 1 is concerned ? 6. If so, to what effect ? 5. Whether any void votes were received in the election in disputematerially affecting the result of election in so far as respondentno. 1 is concerned ? 6. Whether the persons mentioned in annexure c were dead atthe date of poll and votes were cast in their names by othersand as such void votes were received and counted in the resultof election ? If so, to what effect ? 7. Whether the persons mentioned in annexure d were impersonated in the election in dispute and whether any votes were received in their names as void votes as alleged in paragraph 14 ofthe petition ? If so, to what effect ? 8. Whether the result of counting as alleged is based on arroneouscounting ? If so, to what effect ? 9. Whether there was any improper rejection of valid votes, improper acceptence and reception of votes in violation of the provisions of the Act and the rules affecting the result of election inso far as it concerns the returned candidate ? 10. Whether respondent No. 1 obtained and procured the assistanceof the Government Officers for the furtherance of the prospectsof his election, namely, Shri Hari 0m son of late Shri Jagan Nath as alleged in paragraph 21 of the petition ? If so, to whateffect ? 11. Whether the allegations contained in paragraph 21 of the petition amount to a corrupt practice as alleged in paragraph 21 ofthe petition ? 12. Whether respondent No. 1 and persons mentioned in paragraph23 distributed the handbills in Punjabi containing an allegedappeal of Harcharan Singh Longowal as alleged in paragraph 22 and 23 of the petition ? If so, to what effect ? 13. Whether the allegations contained in paragraph 22 and 23 ofthe petition amount to corrupt practice ? If not, to whateffect ? 14. Whether any corrupt practice were committed in the interest ofrespondent No. 1 affecting the result of election materially in sofar as it concerns respondent No. 1 ? 15. Whether the petition has set forth as full particulars of thecorrupt practice alleged including a statement as possible of thenames of the parties alleged to have committed corrupt practice ?lfnot,towhateffect? 16. Whether the petitioner is entitled to be declared as elected inplace of Respondent No. 1 ? 17. Relief. Issues No. 9 and 10 ( 3 ) MR. 15. Whether the petition has set forth as full particulars of thecorrupt practice alleged including a statement as possible of thenames of the parties alleged to have committed corrupt practice ?lfnot,towhateffect? 16. Whether the petitioner is entitled to be declared as elected inplace of Respondent No. 1 ? 17. Relief. Issues No. 9 and 10 ( 3 ) MR. Sapra on behalf of the petitioner conceded that these issues maybe decided against him. By my order dated 11-8-1983 I decided these twoissues against the petitioner. Before I take up other issues I must mention that on an application (C. M. No. 2980 of 1983) made by respondent No. 1 arguments were heard on allthe remaining issues as it was urged that the parties need not go to aprotractedtrial and that evidence was unnecessary. It was contended that the petitiondid not disclose a cause of action and the allegations, even if they are acceptedas true, will not enable the petitioner to have the election of respondent No. 1set aside. So without evidence the matter was argued. Issues No. 10, 11, 12, 13 and 14 ( 4 ) THESE issues raise the question whether the returned candidate indulged in corrupt practice as defined in Sec. 123 (3) and (3a) of the Representationof People Act (the Act ). It is said that Sant Harcharan Singh Longowal issuedtwo appeals in the name of the Panth to all the Sikh voters to boycott Metropolitan Council and Municipal Corporation elections and respondent No. 1widely circulated the printed appeals issued by the Sant and thereby asked thesikh voters to refrain from voting for the petitioner. This, it is said, hasprejudicially affected the election of the petitioner. This, it is said, hasprejudicially affected the election of the petitioner. Section 123 (3) says : "corrupt Practice.--The following shall be deemed to be corruptpractices for the purposes of this Act - (1) (2) (3) The appeal by the candidate or his agent or by any other personwith the consent of a candidate or his election agent to vote orrefrain from voting for any person on the ground of his religion,race, caste, community or language or the use of, or appeal to,religious symbols or the use of, or appeal to national symbols,such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or forprejudicially affecting the election of any candidate ;provided that no symbol allotted under "this Act to a candidate shall be deemed to be a religious symbol or a nationalsymbol for the purposes of this clause. " ( 5 ) THE corrupt practice charged is that respondent No. 1 and his agentsexploited the religious feelings of the Sikhs voters by distributing the appealissued by Sant Harcharan Singh Longowal President of the Shiromani Akali Pal,amritsar, asking the Sikh [voters to boycott the elections. The first appealwhich was in Gurmukhi has been translated by the petitioner as follaws : "god IS ONEGOD CAN BE VISUALISEDWITH THE BLESSING OF GURUSBoycott Elections in Delhisant LONGOWAL s APPEALBrave and unique Sikhs of Delhi in the perennial dharamayudhconducted under the leadership of Shiromani Akali Dal against theinjustice and excess of the Government in independent India 77,672sikhs have courted their arrest since 4/08/1982. 108 Sikhshave cheerfully become martyrs in the process of undergoing highhandedness and atrocities of the Government under the pretext orthe other. The Government has refused to accept the ligitimate andconstitutionally demands of the Sikhs. The community has exhausted the patience and a War has entered into its last phase. Thesikh M. Ps. and M. L. As. of Punjab Legislative Assembly afterkicking their memberships have resigned on 27/01/1983, touphold the dignity and honour of the Community. In the prevailing circumstances, I in the capacity of being aservant of the followers of Guru earnestly appeal to all the Sikhs ofdelhi thereby boycotting the forthcoming Delhi Municipal Corporation s election and Matropolitan Elections on 5-2-1983 substantiatingpanthak unity and the Panthak supremacy. In the prevailing circumstances, I in the capacity of being aservant of the followers of Guru earnestly appeal to all the Sikhs ofdelhi thereby boycotting the forthcoming Delhi Municipal Corporation s election and Matropolitan Elections on 5-2-1983 substantiatingpanthak unity and the Panthak supremacy. Servant of Guru Panthsd/-Harcharan Singh (Sant) Longowalpresidentshiromani AKALI DALSRI AMRITSARWe make an earnest appeal to the Delhi Sikhs that in deferenceto the Panthak decision no Sikh should go to cast his vote on5-2-1983. Yours Servantharcharan Singh Prof. Ajaib Singhpresident, Chairman,akali DAL DELHI PARLIAMENTARY BOARDDELHIBir Bahadur Singhsenior Vice-Presidentdelhi STATE AKALI DAL. " ( 6 ) THE second appeal was also in Gurmukhi and is translated by thepetitioner as follows "sardar Sahib Ji,vahe Guru Ji ka Khalsa Vahe Guru Ji Ki Fateh. You are fully aware that since 4/08/1982 Shiromani Akali Dal composed of martyrs brave Sikh Community has launched a consistant Dharamyudh (crusadity) against the injustice andhigh-handedness to which the Sikhs have been subjected. Till date77672 Sikhs have been arrested. Having been victimised by the attrocities and high-handednessof the Government, 111 Sikhs have become martyrs to upheld thehonour and dignity of the Sikh Community. The attitude of the Government towards Sikhs during Asiangames clearly demonstrated its discrimination and excesses. Notonly the Haryana, Himachal and U. P. Borders were sealed toprevent the Sikh influence into Delhi, but started with an ordinary. sikh. The Journals who make sacrifices to the Country were harrassed and humiliated by installing check-posts at the national highways from place to place. Every sikh was looked down with suspicion and numerous innocent were put behind the bars without anylaw. By cordoning the pious, religious places the sikhs aspiring tohave Guru Darshan were harrassed. The Constitution of Indiaentitles every person to give vent to his grievances peacefully. Butwhen in Ta ran Taran we paid homage in the memory of 34 sikhswho became martyrs against the indifference and conspiracy of thegovernment, we proceeded towards Parliament on 11/10/1982 demanding judicial enquiry; unarmed, peaceful sikhs were firedat making four sikhs martyrs. The Congress Government in Punjabhas eclipsed even the Nathershahi attrocities. Hundreds of Sikhyouths have been killed in fake police encounters. Sikh heads carryprice tags. The policy of the Government in killing the Sikhs,every Panthak Sympathiser is regretting on the part of our Leaderswho were mis-lead and had joined India at the time of partition. The Congress Government in Punjabhas eclipsed even the Nathershahi attrocities. Hundreds of Sikhyouths have been killed in fake police encounters. Sikh heads carryprice tags. The policy of the Government in killing the Sikhs,every Panthak Sympathiser is regretting on the part of our Leaderswho were mis-lead and had joined India at the time of partition. The Sikh Community have sacrificed more vigorousely in obtainingthe Independence of the Country and out of 114 martyrs 96 weresikhs. To preserve the security and independence of country thesikhs have sacrificed themselves but their rights have not been safeguarded. Even they have to fight with the Government to preservetheir rights, religious and cultural rights. Government has evenrefused to hand over the portion of Kotwali where Guru Teg Bahadursacrificed his life. In spite of the assurance given by the then Homeminister Giani Zail Singh, now the President of India, the Government has not established University in the name of Guru Tegbahadur in spite of its assurances. The Government hasrefused to give the land adjacent to the Gurdwara Balasahib which was earlier promised. Guru Teg Bahadur who was thesaviour of Hindu Community, even his Martyr Day is not beingcelebrated at the National Level. The Punjabi language in Gurmukhiscript is not being taught in Government Schools of Delhi though60% of the Delhi Population is Punjabi and even the demand tomake Punjabi language as second language of Delhi has not beenconsidered. For how long we can tolerate the false assurance/promises of the Government. The Government is repeatedly sayingthat it is prepared to accede the religious demands of the Sikh Community but even that has not been announced. The arrest of 77672sikhs and sacrifice of 111 sikhs had not made any impact on thegovernment as if the Government is in a mood to confront with thesikh Community. The struggle has entered in a new phase and on 27/01/1983 the Akali M. L. As of Punjab and Members ofparliament have resigned from their respective elected seats toprotest against the aparthied and genecoid policy of the Congresscommunity towards the Sikhs. AT THIS JUNCTURE the Supreme Authority of Sikh Panth,sri Sant Harcharan Singh Longowal, President Shiromani Akali Daland Director, Dharamyudh Morcha has appealed the entire Sikhcommunity to boycott Delhi Municipal Corporation and Metropolitan Council Elections by not casting their votes. AT THIS JUNCTURE the Supreme Authority of Sikh Panth,sri Sant Harcharan Singh Longowal, President Shiromani Akali Daland Director, Dharamyudh Morcha has appealed the entire Sikhcommunity to boycott Delhi Municipal Corporation and Metropolitan Council Elections by not casting their votes. We earnestly hopethat the Sikhs of Delhi who are known for their sacrifices and respect will obey the orders of the Panth and will pay homage to thesikh Martyrs by refraining them from voting and shall struggle forachieving their rights and more unity for Sikh Community. " ( 7 ) THE petitioner says that respondent No. 1 exploited the "religioussentiments and feelings of the Sikhs and "promoted the feeling of enmityand hatred between the Congress (1) Government and Sikhs" and this prejudicially affected his election prospect because the Sikh voters did not vote forhim. The petitioner mainly relied on Sees. 123 (3) (3a) and (4) of the Act. In arguments Mr. Sapra abandoned his ground of Sub-see. (4 ). ( 8 ) IT is said that this was an appeal by respondent No. 1 on the groundof religion for the furtherance of his election prospects. I do not think it is areligious appeal. Akali Dal party is a recognised political party by the Election Commission notwithstanding the fact that its members are only Sikhs. There are several parties which subscribe to different political and economicidiologies, but their membership is confined to members of a particular community or religion. The appeal was made by the President, the Sant. Thisappeal may be influenced by considerations of religion, race, community orlanguage. There may be social or religious overtones. There may be ethnictinge in the appeal. ( 9 ) BUT what is important to note is that it was an appeal to boycott theelections. It is an appeal for non-intercourse for political reasons. It is anexpression of disapproval or means of coercion. It is not an appeal in favourof one candidate and against the others, as is generally the case. It is a concerted refusal to have anything to do with elections held by the party in power. In order to force acceptance of certain demands by the government. It is ananti-feeling against the Government. It is an appeal of non-participation inand non co-operation with the democratic process of elections. I do not thinkit falls within the contemplation of Sec. 123 (3) of the Act. In order to force acceptance of certain demands by the government. It is ananti-feeling against the Government. It is an appeal of non-participation inand non co-operation with the democratic process of elections. I do not thinkit falls within the contemplation of Sec. 123 (3) of the Act. ( 10 ) ON a fair and reasonable construction it is not possible to construeit as a religious appeal. There is no doubt a reference to thp Panth and thegurus. Though the word panth by itself has come to indicate the Sikhreligion, in the context in which it is used in the appeal it means the Akalidal Party. It is to the members of the party that the appeal is. addressed. Themembers are asked to boycott the elections, not because their religion forbidsthem to vote but because the Congress Government does not keep its promises. "how long can we tolerate the false assurances and promises of the Government". The appeal is a "protest against the apartheid and genocide policyof the Congress" towards the Sikhs. It is a call to the Sikh community "forachieving their rights and more unity". The appeal is not born out of thesikh religion but out of a dissatisfaction with the party in power, thoughreligion is rallied in its support. So the appeal to boycott is essentially aprotest against the ruling party. The appeal is from a political platform. Itis not an appeal favouring one candidate against the other. It is an appealfor total abstinence from elections which is an apparatus devised for participa-tion by all parties in the democratic process. This is how the appeal shouldbe construed. ( 11 ) THE appeal highlights the Sikh demands. "the Government hasrefused to accept the legitimate and constitutional demands of the Sikhs", soakali Dal has launched a "crusade" "against the injustice and high-handednessto which the sikhs have been subjected". It is a "fight with the Governmentto preserve their religious and cultural rights". This shows that it is a political appeal such as is genarally made at the hustings. Though it is describedas a war and a crusade , it is essentially a political agitation. Variouselaments are mixed in the appeal-social, religious, cultural and political. Butethinic elements dominate it. ( 12 ) IN Kultarsingh v. Muhktiar Singh, A. 1. R. 1965 S. C. 141 thesupreme Court laid down that the appeal should be construed in the light ofthe relevant political controversy. Variouselaments are mixed in the appeal-social, religious, cultural and political. Butethinic elements dominate it. ( 12 ) IN Kultarsingh v. Muhktiar Singh, A. 1. R. 1965 S. C. 141 thesupreme Court laid down that the appeal should be construed in the light ofthe relevant political controversy. In similar circumstances it was held thatthe appeal was not on the point of religion within the meaning of Sec. 123 (3)and did not amount to a corrupt practice. ( 13 ) SUPPOSE it was a religious appeal. The critical words in the subsection are "his religion", this means the religion of the candidate. Kanti Prasad vs. Purshotam Das, A. I. R. 1969 S. C. 851 ). So this wasnot an appeal by the respondent, Ranjit Rai Sharma, "on the groundof his religion". He is a Brahmin and not a Sikh. It is allegedthat he was issuing the appeal to further his prospects and to prejudicially affect the election prospects of the petitioner. But the sub-section saysthat it must be an appeal by the candidate or his agent or by any other personwith the consent of the candidate or his election agent to vote or refrain fromvoting for any person on "the ground of his religion". This appeal of theakali Leader does not fall within the confines of Sec. 123 (3) and in not acorrupt practice. ( 14 ). Mr. Sapra, counsel for the petitioner, then said that there was anappeal to religious symbol. He argued that Panth is a symbol. The Gurus,he said, are a symbol. In any case the party symbol of the sword appears inthe appeals at the top and so these are appeals to religious symbols. This caseof use of or appeal to religious symbol has not been pleaded anywhere. A casenot pleaded cannot be allowed to be argued. In the petition the plea of use orappeal to religious symbols is conspicuous by its absence. ( 15 ) SYMBOL is different from the written or spoken appeal. Symbol is aconventional sign which may assume the form of a character, a diagram, aletter, or an abbreviation in writing or printing. The symbol represents anabstract thought. It signifies a visible thing that stands for or suggests something invisible or intangible. It seems as an outward sign for something elseusually sacred or religious. It expresses the invisible, intangible or spritual bymeans of a visible representation. The symbol represents anabstract thought. It signifies a visible thing that stands for or suggests something invisible or intangible. It seems as an outward sign for something elseusually sacred or religious. It expresses the invisible, intangible or spritual bymeans of a visible representation. It may be a representation of a divine beingto indicate qualities, powers or other attributes. It may be a pictorial representation or device. It may be a credo or symbol of a faith, doctrine orcreed. For example, the Cross is always one of the symbols of Christianity. ( 16 ) IN Jagdev Singh Sidhanti vs. Pratap Singh A. I. R. 1965 S. C. 183 thesupreme Court held that the flag on which 0m is printed was not a religioussymbol within the meaning of Sec. 123 (3) of the Act. Normally the appeal toreligious symbols must be an appeal to the candidate s religion and the symbolof that religion. That is not the case here. ( 17 ) PETITIONER must confine to his case as set out in the pleadings. Therehe has referred to the two hand bills issued by the Sant and not to any religioussymbol. An appeal is the power or property of arousing a sympathetic response from those to whom it is addressed. The petitioner s case is that respondent No. 1 made use of the Sant s appeals and thereby furthered his prospects and ruined petitioner s chances of being elected. On this I have come tothe conclusion that it is not a religious appeal. It is not an appeal on theground of respondents s religion and therefore not a corrupt practice. ( 18 ) A faint hearted attempt was made by Mr. Sapra to bring his casewithin Sec. 123 (3a ). That sub-section says :- "section 123 : (1) (2) (3) (3a) The promotion of, or attempt to promote, feelings of enmityor hatred between different classes of the citizens of India ongrounds of religion, race, caste, community, or language, bya candidate or his agent or any other person with the consent,of a candidate or his election agent for the furtherance of theprospects of the election of that candidate or for prejudiciallyaffecting the election of any candidate. " ( 19 ) IT is said that respondent No. 1 distributing the appeals of the Santpromoted "feelings of enmity and hatred against the Congress Government". " ( 19 ) IT is said that respondent No. 1 distributing the appeals of the Santpromoted "feelings of enmity and hatred against the Congress Government". The short answer to this argument is that the Congress Government cannot becomprehended within the expression "different classes of the citizens of India". Promotion of feelings of enmity or hatred between different classes of citizenson grounds of religion, race, caste, community or language is a corrupt practice. But it is the right of every candidate to criticise, however angrily, theopposite parties or the party in power against whom he is fighting the electionand whom he wishes to dislodge from power. This is the "brief moment offreedom" of which the people make use during elections. This is the system of democratic government which beda lean jacques Rousseau to make thispregnant observation: "the English people believes itself to be free; it is gravely mistaken;it is free only during election of members of Parliament; assoon asthe members are elected, the people is enslaved; it is nothing. It thebrief moment of its freedom, the English people makes such a useof that freedom that it deserves to lose it. " ( 20 ) THE Government, if it is democratic, is of the people, for the people andby the people. It cannot be said to be composed of any one class of citizensbased on the ground of caste, religion, language or community. It is coterminous with the people as a whole. It is an authority set over them by themselves in a democratic set-up. On this part of the case I have reached theconclusion that the respondent is not guilty of corrupt practice. Issues No. 7 and 8 ( 21 ) IT is said that 85 votes were cast in the ballot boxes of the Municipalcorporation election which was held contempraneously with the Metropolitancounail election. Those votes were to be counted after the counting of votes ofthe Municipal Corporation election was over. Some instructions of theelection Commission were said to have been issued for counting them aftersorting out from the ballot boxes of the Municipal Corporation. There is nosubstance in this point. No instruction was produced before me in the course ofarguments. Mr. Sapra frankly admitted that he was unable to cite anyinstructions on the subject. ( 22 ) APART from this the law on the subject is clear. There is nosubstance in this point. No instruction was produced before me in the course ofarguments. Mr. Sapra frankly admitted that he was unable to cite anyinstructions on the subject. ( 22 ) APART from this the law on the subject is clear. Section 67 says "whenthe counting of the votes has been completed the returning officer shall, inthe absence of any direction by the Election Commission to the contrary,forthwith declare the result of the election in the manner provided by the Actor the rules made thereunder". ( 23 ) THE key expression is "forthwith". This means that the-returningofficer cannot wait after the counting is complete. He cannot wait forcounting of votes of the Municipal Corporation election. He cannot waitand find how many votes of the Metropolitan Council election are in theballot boxes of the other election. There is no law or instruction to countthem. They are invalid votes if cast in boxes other than those marked forthe Metropolitan Council elections. Section 66 uses the expression "theresult of the election". If clearly means the result on the basis of valid voter. (Hari Vishnu Kamath vs. Ahmad Ishggue 10 Election Law Reports 216 (241 ). Metropolitan Council votes cast in the Municipal Corporation ballot boxesare void votes. . This conclusion is irresistable. ( 24 ) ONE other allegation of the petitioner is that his 336 valid voteswere wrongly rejected by the returning officer without giving him an opportunity to be heard as provided in Sec. 56 (3) of the Act. The petitioner hasnot furnished material facts with regard to the rejected ballot papers. Hiscase is that there was a wholesale rejection of his valid votes behind his backby the returning officer, though he promised that at the end of entire countinghe will decide whether to reject or accept 336 votes sent to him by the countingsupervisors. ( 25 ) THE relevant facts of this objection are these. At the first counting676 votes were rejected. The petitioner asked for recounting. Thereturning Officer acceeded to his request. On recounting 675votes were rejected. It was found that 5 valid votes had wronglybeen rejected at the first count. The rejected votes ought to have been 671and 676. At the recount it was further found that out of the valid votes 4 wereliable to be rejected. So at recounting rejected votes became 675. Thereturning Officer acceeded to his request. On recounting 675votes were rejected. It was found that 5 valid votes had wronglybeen rejected at the first count. The rejected votes ought to have been 671and 676. At the recount it was further found that out of the valid votes 4 wereliable to be rejected. So at recounting rejected votes became 675. The petitioner scase is that 336 votes cast in his favour were wrongly rejected and Rule 56 (3)of the Conduct of Election Rules, 1961 was violated. He has given the breakup of these 336 votes in this manner. "from table 1 to 14, 336 valid votescast in favour of the petitioner i. e. 25, 35, 37, 31, 41, 17,13, 29, 30, 11,16,12,. 9 and 21 respectively from the said tables" were rejected. This is the sumand substance of the allegation. He goes on to allege "that he approachedthe Returning Officer Shri Kane to show him the votes because the countingagents of the petitioner had informed him that out of 486 votes which were sentas doubtful by the counting staff to the Returning Officer, 336 were perfectlyvalid votes cast in favour of the petitioner. The Returning Officer howeverinformed the petitioner that after the completion of the counting on thetables and completion of other formalities he would call the petitioner beforepassing the orders on those votes. After completion the petitionerapproached the Returning Officer regarding the doubtful votes and to hisutter surprise and shock the Returning Officer informed that he had alreadyrejected all the 675 votes". He further alleges that these 336 votes werevalid votes cast in his favour and "the Returning Officer grossly violatedthe mandatory provision contained in sub-rule 3 of Rule 56 of the Conductof the Election Rules, as no opportunity was given. The Returning Officerwas acting arbitrarily. It is further submitted that after the counting wascomplete at about 9. 30 a. m. on 7-2-1983 the petitioner made an applicationfor recount of votes including the rejected votes. There was a recount orderedby the Returning Officer of the votes but he refused to re-count and examinethe said 675 votes which were rejected by him. The recount was doneon four tables from 4. 30 p. m. on 7-2-1983 and was completed by 9. 00 p. m. on the same day". "the counting was done in a very partisan manner sofar as the petitioner was concerned". This is the case set up. The recount was doneon four tables from 4. 30 p. m. on 7-2-1983 and was completed by 9. 00 p. m. on the same day". "the counting was done in a very partisan manner sofar as the petitioner was concerned". This is the case set up. ( 26 ) THE petitioner s case is that there were 14 counting tables. Hehas given the names of [his counting agents at all the 14 tables. Nowhave to examine this complaint and see whether it discloses a cause of actionand whether on the allegations made any case has been made out forinspection. ( 27 ) WE have to survey the scene in the counting hall. There were14 counting tables. At each table there were two counting supervisors. They are counting the votes. The petitioner s counting agents are present. 486 votes were doubtful which the counting supervisors took to the Returningofficer. The petitioner alleges that out of these 336 were perfectly validvotes cast in his favour. But without hearing the petitioner the Returningofficer rejected 336 votes. A recount was allowed but at recount also, itis said, that the Returning Officer "refused to recount and examine the said675 votes which were rejected by him". This seems to me-to be a cockand bull story. It is impossible that this can happen unless and until thepetitioner also challenges The entries made in Part II of Forms 16 and form20 as fraudulent and spurious. ( 28 ) WHAT has to be remembered is that counting took place in respectof each polling station. In Form 16 Part II the result of counting pollingstation-wise was entered by the counting supervisors. Then it was enteredin Form 20. Result of polling station-wise cannot be prepared unless thequestion of doubtful votes is decided, namely, whether the doubtful votesshould be rejected or accepted. There were 47 polling stations. There aresheets of Part II in Form 16 which the Returning Officer hasfiled beforeme. He has also filed From 20. These original documents clearly showthat the petitioner s allegation is without foundation. How can Form 16part II and Form 20 be filled in unless a every vote has been counted andthe rejected votes have been excluded ? This remains an enigma. Thepetitioner has not explained it. He has come out with a stroy which Ifind impossible to accept. In my opinion Form 16 Part II is a completerefutation of the petitioner s case. This remains an enigma. Thepetitioner has not explained it. He has come out with a stroy which Ifind impossible to accept. In my opinion Form 16 Part II is a completerefutation of the petitioner s case. There is intrinsic evidence to show that thepetitioner s allegations are baseless. Rule 56 (7) says: "after the counting of ballot papers contained in all the palletboxes used at a polling station has been completed. : (a) the counting supervisor shall fill in and sign Part II-Resultof Counting, in Form 16 which shall also be signed by thereturning officer; and (b) the returning officer shall make the entries in a result sheet inform 20 and announce the particulars. "rule 63 deals with the right of a candidate to apply for a recount. This wasdone at the petitioner s request. Section 66 says that after the counting iscompleted the Returning Officer shall forthwith declare the result. In thelight of these statutory provisions we have to see whether it is at all possibleto fill in and sign Part II of From 16 and Form 20 unless the Returningofficer give his decision on doubtful votes and declares whether he rejectscertain votes or not. ( 29 ) THE petitioner has not stated the material facts. (1) He has notgiven the serial number of the 336 ballot papers which were, according to him,wrongly rejected by the Returning Officer, (2) he has not given the reasonsfor rejection, and (3) that he has not give the break up of 336 votes pollingstation-wise. It was essential for him to give the polling station numbersand the rejected votes at each polling station. All that the petitioner hasgiven is the number of rejected votes at each of the 14 counting tables. Thistakes us nowhere. This information is not polling station-wise which hemust give in order to succeed. As I have said, counting was polling stationwise. It cannot now be discovered as to what was the polling station atthese tables to which the rejected votes related. Table is not a substitutefor polling station. The polling station is the unit of counting under therules. "from tables 1 to 14, 336 valid votes cast in favour of the petitioneri. e. 25, 35, 37, 31,41,17, 13,29, 39,11,16, 12, 9 and 21 respectively fromthe said tables" were rejected. Unless the information is given polling stationwise this allegation is worthless. Table is not a substitutefor polling station. The polling station is the unit of counting under therules. "from tables 1 to 14, 336 valid votes cast in favour of the petitioneri. e. 25, 35, 37, 31,41,17, 13,29, 39,11,16, 12, 9 and 21 respectively fromthe said tables" were rejected. Unless the information is given polling stationwise this allegation is worthless. ( 30 ) THE petitioner had ample opportunity to examine the voting papersbefore they were counted. In respect of each voting paper he is in a positionto set out precisely his objection for its acceptance or its rejection. He wasalso in a position to note down the ballot paper numbers. It is only if theballot paper numbers are given that the particullar ballot papersin regard to which the petitioner complains can be taken outand scrutinised. In the absence of such information, which the petitionershould know or should be deemed to know, any inspection of ballot paperswould be merely a roving and fishing inspection and the purpose of Section83 (l) (a) is precisely to prevent this. There was ample opportunity to thecandidates and their agents to inspect the ballot papers to enable them toraise objection and to note down the numbers of the ballot papers in respect ofwhich the objections were raised. It would not be unreasonable to expect thecandidate or his counting agent present at the time of counting to bear in mindthat there may arise an occcasion to file an election petition when the particularsin regard to the number of ballot papers and the polling stations will haveto be mentioned. ( 31 ) IT was not disputed before me that the petitioner andhis counting agents were present at the time of counting. It was quite easyfor them to note down the number of the ballot papers with regard to whichhis agent objected at the time of counting. It is necessary to note down thenumber of the ballot paper so as to make precise allegations as to how thesaid ballot paper ought or ought not to have been rejected- ( 32 ) RULE 56 (3) provides that before rejecting any ballot paper, theraturning Officer shall allow each counting agent present, a reasonableopportunity to inspect the ballot paper but shall not allow him to handle itor any other ballot paper. Sub-rule 4 provides that the Returning Officershall endorse on every ballot paper which he rejects letter r and the groundsof rejection in an abbreviated form either in his own hand or by means ofrubber stamp and shall initial such endorsement. So the counting agenthas reasonable opportunity to inspect the ballot paper. He can look atboth sides of the ballot paper and inspect it. This will afford a chance tothe counting agent to note down the number of the ballot paper as also otherparticulars relating to it. ( 33 ) THE petitioner s case is that Rule 56 (3) was violated and thereforehe cannot supply any more information because he was never heard. I cannotaccept this. At the counting table his agents had ample opportunity to notedown the particulars of the ballot papers which were sent to the Returningofficer. So the petitioner should have given the serial number of the ballotpaper and the polling station number and the nature of the objection inrelation to each ballot paper. ( 34 ) ON a careful consideration of the allegations made by the petitionerseeking an inspection of the ballot papers, I am of the opinion, that they arevague and general and if an inspection is ordered it will lead to a fishingenquiry with a view to find out some material to support the petitioner scase that he would have secured a larger number of votes than what heactually secured. The allegation in regard to the improper rejection of votesis vague and indefinite. The material facts are lacking because the numberof the ballot papers and the number of the polling stations are sadly lacking. ( 35 ) THEN there was a recount of the ballot papers. That recount wasdone is not denied by the petitioner. The recounting is a complete answer. Onrecounting some rejected votes went to the petitioner, as valid votes, some wentto respondent No. 1. Valid votes of the petitioner sometimes increased as aresult of recount and sometimes of respondent No. 1. Form 16 Part IIshows that votes were added sometimes to the petitioner arid sometimesthey were substracted. The same thing happened to respondent No. 1. Onrecounting some rejected votes went to the petitioner, as valid votes, some wentto respondent No. 1. Valid votes of the petitioner sometimes increased as aresult of recount and sometimes of respondent No. 1. Form 16 Part IIshows that votes were added sometimes to the petitioner arid sometimesthey were substracted. The same thing happened to respondent No. 1. Thiscan happen only if the rejected votes are also recounted ana re-examined As I have said Part II of Form 16 and Form 20 cannot be filled in as is the statutoryrequirement unless the rejected votes are sent back by the Returning Officerwith his decision endorsed thereon to the counting supervisors. Becausethe counting supervisors have to fill in Part II Form 16 of and the Returningofficer has to sign the same. ( 36 ) THE Supreme Court has observed that "the statutory rules framedunder the Act are intended to provide adequate safeguard for the examinationof the validity or invalidity of votes and for their proper counting" (Dr. Jagjitsingh-vs. Giani Kartar Singh A. I. R. 1966 S. C. 773atp. 783) The Supremecourt has again and again emphasised that an election petitioner whois a defeated candidate has ample opportunity under the rules to examine thevoting papers before they are counted, and in case the objections raised byhim or his election agent have been improperly overruled; he knows preciselythe nature of the objections raised by him and the voting papers to whichthose objections related. ( 37 ) IT is after these objections are examinedand dealt with accordingto Rule 56 that the stage of counting votes arrives. "(Dr, jagjit Singh suprap. 784 ). It n in the light of the statutory rules that the worth of petitioner sallegations have to be considered. 38. Has the petitioner on his pleadings made out a case for inspection ?in Ram Sewak Yadav vs. Hussain Kamil Kidwai and others, A. I. R. 1964 S. C. 1249, the Supreme Court said : "an order for inspection may not be granted as a matter of coursehaving regard to the insistence upon the secrecy of the ballot papers. 38. Has the petitioner on his pleadings made out a case for inspection ?in Ram Sewak Yadav vs. Hussain Kamil Kidwai and others, A. I. R. 1964 S. C. 1249, the Supreme Court said : "an order for inspection may not be granted as a matter of coursehaving regard to the insistence upon the secrecy of the ballot papers. The Court would be justified in granting an order for inspectionprovided two conditions are fulfilled : (i) that the petition for setting aside an election contains anadequate statemant of the material facts on which the petitionerrelies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decidethe dispute and to be complete justice between the parties,inspection of the ballot papers is necessary. But an order forinspection of ballot papers cannot be granted to support vaguepleas made in the petition not supported by material facts orto fish out evidence to support such pleas. The case of petitioner must be set out with precision supported byaverments of material facts. To establish a case so pleaded anorder for inspection may undoubtedly, if the interests of justicerequire, be granted. But a mere allegation that the petitionersuspects or believes that there has been an improper reception,refusal or rejection of votes will not be sufficient to support anorder for inspection. "indr. Jagjit Singh vs. Giani Kartar Singh and others, A. I. R. 1966 S. C. 773,the Supreme Court said : "vague or general allegations that valid votes were improperlyrejected, or invalid votes were improperly accepted, would not servethe purpose which Sec. 83 (l) (a) has in mind. Anapplication madefor the inspection of ballot boxes must give material facts whichwould enable the Tribunal to consider whether in the interests ofjustice, the ballot boxes should be inspected or not. In dealingwith this question, the importance of the secrecy of the ballotpapers can not be ignored. "they also observed ; "care must be taken to see that election petitioners donot get a chance to make a roving of fishing enquiry in the ballot boxes so asto justify their claim that the returned candidate s election is void". ( 39 ) IN Samant N. Balakrishna vs. George Feranandez and other etc. ,a. I. R. 1969 S. C. 1201. ( 39 ) IN Samant N. Balakrishna vs. George Feranandez and other etc. ,a. I. R. 1969 S. C. 1201. Hidayatullah, C. J. said : "section 83 is mandatory and requires the election petition tocontain first a concise statement of material facts and then requiresthe fullest possible particulars. The word material shows thatthe facts necessary to formulate a complete cause of action mustbe stated. Omission of a single material fact leads to an incompletecause of action and the statement of claim becomes bad. "the election petition without the material facts is no election petition at all. ( 40 ) IN Jitendra Bahadw Singh vs. Krishna Behari and others, A. I. R. 1970 S. C. 276, the Supreme Court held that it is quite easy for the countingagents to note down the serial numbers of the concerned ballot papers. Therefore if the election petition is silent as to the inspection of the ballotpapers or whether the counting agents had noted down the serial numbers ofthose ballot papers or whether those agents raised any objection relating to thevalidity of those ballot papers, if so who those agents are, and what are theserial numbers of the ballot papers to which each one of them advanced theirobjections, the material facts required to be stated are not satisfied and hencescrutiny of ballot papers should not be ordered. ( 41 ) ON the whole case I have come to the conclusion that the figure of336 rejected votes given by the petitioner is a figment of his imagination. Ithas no foundation, no basis. It is vague and indefinite because materialfacts have not been stated. All that the petitioner has done is that he hastaken an imaginary figure of 336 rejected votes and has broken it up into thefictional figures of 25, 35, 37, 31, 41, 17, 13, 29, 39, 11, 16, 12, 9 and 21 withrespect to 14 tables. The pleadings lack the material facts inasmuch as thenumber of polling stations and the number of ballot papers are not given. These are basic requirements, A concise statement of material facts is a sinequa non of an election petition as of any other statement of claim. Thepetition violates the mandatory provision of Sec. 83 (l) (a) and does notdisclose any cause of action. ( 42 ) MR. Sapra relied on Manphul Singh vs. Surinder Singh A. I. R. 1973s. These are basic requirements, A concise statement of material facts is a sinequa non of an election petition as of any other statement of claim. Thepetition violates the mandatory provision of Sec. 83 (l) (a) and does notdisclose any cause of action. ( 42 ) MR. Sapra relied on Manphul Singh vs. Surinder Singh A. I. R. 1973s. C. 2158 in support of his submission that the material facts sat out by himin the petition are sufficient and that in the circumstances he could do nomore. I do not agree. Manphul s case does not apply because that was acase of corrupt practice and the particulars of corrupt practice. The plea ofrejection of 336 votes is not a corrupt practice. All that I say is that materialfacts of the plea are not stated. The election petition is no petition as itdoes not disclose a cause of action. Issues 3, 4, 5 and 6 ( 43 ) THESE issues relate to 89 void votes cast in favour of respondentno. 1, according to the allegation of the petitioner. In the annexures thebreak up given is as follows : (1) 21 votes are cases of double voting. (Annexure b ) (2) 5 votes cast were of dead persons. (Annexure c ) (3) 18 votes were of persons who had left Delhi. (Annexure d ) (4) 11 votes were of persons who had left India. (Annexure e ) (5) 34 votes were not allowed to be cast because 34 persons wererefused ballot papers. (Annexure f )TOTAL is 89 votes. ( 44 ) IT is unnecessary to discuss the question of 89 votes becauseadmittedly the margin between the petitioner and respondent No. 1 is111. Even if all 89 votes are granted in favour of the petitioner he cannotsucceed. ( 45 ) FOR these reasons the petition is rejected with costs. Counsel s feers. 1,000. 00