Gyanendra Pratap Singh v. Khurshed Ahmad — 1986 DIGILAW 239 (ALL)

JUDGMENT G. B. Singh, J. - In this election petition the dispute relates to the election from 151-Bhinga Assembly Constituency, District Bahraich. The Election Commission issued Notification for the election on 31-1-1985. Shri Gyanendra Pratap Singh petitioner, Shri Khurshed Ahmad, respondent 1 and 10 others, respondents 2 and 11, were contesting candidates. The poll was held on. 5-3-1985. The counting took place on 6-3-1985 and Shri Khurshed Ahmad, respondent 1 was declared elected. He secured 14504 votes whereas Shri Gyanendra Pratap Singh, petitioner got 14162 votes. Thus, there was a margin of 342 votes. The other candidates secured less votes than the petitioner and respondent 1 and it is not necessary to give figures of the votes secured by them. The petitioner feeling dissatisfied with the declaration of the result of the election, filed the present election petition seeking declaration that the election of respondent 1 is void and the petitioner is duly elected member of the legislative Assembly, Uttar Pradesh, from the said Assembly Constituency. An order of recount of the total votes polled has also been challenged mainly on the grounds of; (1) commission of corrupt practice, (2) improper reception and rejection of votes, and (3) non-compliance with the provisions of the Representation of the People Act, hereinafter referred to as "the Act" and rules framed thereunder. 2. Upon service of the notice, respondent 1 put in appearance and moved an application (C.M. Application No. 102(E) of 1985) for striking off paras 4 to 26 of the Election Petition under Order 6, R. 16, Civil P.C. on the ground that they do not contain material facts and as such the pleadings are embarrassing and for dismissing the election petition summarily for not filed reply (C.M. Application No. 126(E) of 1985) to this application denying that material facts have not been disclosed and the petition is not maintainable for not disclosing cause of action. Respondent 1 moved another application (C.M. Application No. 138(E) of 1985) for dismissal of the election petition for non-compliance of S. 82, Representation of the People Act, and in the alternative for deleting the names of respondents 12 and 13 on the allegation that Shri Krishna, A.D.M. Deputy District Election Officer, Bahraich and Dr. K. P. Gupta, S.D.O., Returning Officer, Bhinga Bahraich, respondents 12 and 13 have been unnecessarily impleaded in the case. K. P. Gupta, S.D.O., Returning Officer, Bhinga Bahraich, respondents 12 and 13 have been unnecessarily impleaded in the case. The petitioner filed reply (C.M. Application No. 157(E) of 1985) to this petition challenging the allegation of respondent 1. The points raised in both the applications were taken as preliminary grounds and parties' counsel were heard at length on them. 3. It was, firstly, argued by Shri Z. Jilani, learned counsel for respondent 1 that respondents 12 and 13 are unnecessary parties and their impleadment is not in conformity with S. 82 of the Act. There is much force in this contention. Section 82 reads as follows : "82. Parties to the petition : A petitioner shall join as respondent to his petition- (a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and whether no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom allegations of any corrupt practice are made in the petition." 4. There is another provision, i.e., S. 86(4) of the Act which also deals with impleadment of any candidate as respondent. It runs as follows : "Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent." 5. From these two provisions it is clear that only the contesting candidates as well as any candidate against whom allegations of corrupt practice are made in the petition or who wants his impleadment by making an application can be joined as respondents. Sri Shri Krishna, A.D.M. (Finance and Revenue) Deputy District Election Officer, Bahraich, respondent 12 and Dr. K. P. Gupta, S.D.O., Returning Officer, Bhinga, Bahraich, respondent 13 were not candidates in the election. Thus, they could not be joined as respondents in the election petition. There is no clear allegation in the election petition as to why they have been made the respondents. K. P. Gupta, S.D.O., Returning Officer, Bhinga, Bahraich, respondent 13 were not candidates in the election. Thus, they could not be joined as respondents in the election petition. There is no clear allegation in the election petition as to why they have been made the respondents. Even if some illegalities or irregularities as alleged by the petitioner were committed by them, they cannot be held to be necessary or proper parties in the election petition in view of the specific provisions contained in Sections 82 and 86(4) of the Act which provide as to who can be joined as respondents to the election petition. At the time of arguments also the learned counsel for the petitioner could not meet the argument of the learned counsel for respondent 1 that respondents 12 and 13 have been unnecessarily joined as respondents. 6. It has been held in Jyoti Basu v. Debi Ghosal, AIR 1982 SC 83 that no one may be joined as a party to the election petition otherwise than as provided in Sections 82 and 86(4) of the Act and a person who is not a candidate cannot be joined as a respondent to the election petition. 7. In view of this observation, there is no room for doubt that respondents 12 and 13 have been unnecessarily impleaded in the election petition. The observations made in Cheekati Parasuram Naidu v. Mariserla Venkatarami Naidu, AIR.1985 AP 169 and R. P. Nautiyal v. Chandra Mohan, AIR 1985 All 118 also indicate that respondents 12 and 13 have been unnecessarily impleaded in the case. 8. The point which remains to be seen in this connection is what is the effect of joinder of respondents 12 and 13 to the election petition and can their impleadment be fatal to the election petition. Sub-section (1) of S. 86 of the Act lays down that the High Court shall dismiss an election petition which does not comply with the provisions of S. 81, 82 or 170 of the Act. On the basis of this provision it was argued by the learned counsel for respondent 1 that the election petition is liable to be dismissed. I do not agree with this contention. On the basis of this provision it was argued by the learned counsel for respondent 1 that the election petition is liable to be dismissed. I do not agree with this contention. Where all the necessary parties have been joined to an election petition, the fact that a person who is not a necessary party has been impleaded does not amount to breach of the provisions of S. 82 of the Act. In such a case the Court can strike out the name of such a person under O. 1, R. 10 I of the Civil P.C. read with S. 87 of the Act. It may be mentioned here that by virtue of S. 87 of the Act, the provisions of Civil Procedure Code have been made applicable to the election petition. Order I, Rule 10, Civil P.C. lays down that the Court may, at any stage of the proceedings, strike out the name of the plaintiff or the defendant who has been improperly joined as a party. In view of this provision the names of respondents 12 and 13 can be struck out on the ground that they have been improperly joined as respondents to the election petition. This view gets support from Murarka Radhey Syam Ram Kumar v. Roop Singh, AIR 1964 SC 1545 . It was held in this case in para 7 that : "We agree with the High Court that if all the necessary parties have been joined to the election petition, the circumstance that a person who is not a necessary party has also been impleaded does not amount to a breach of the provisions of S. 82 and no question of dismissing the petition under sub-s. (3) of S. 90 arises. It is open to the Election Tribunal to strike out the name of the party who is not a necessary party within the meaning of S. 82 of the Act. The position will be different if a person who is required to be joined as a necessary party under S. 82 is not impleaded as a party to the petition." 9. In this reported case one Ballu alias Balji was not a contesting candidate within the meaning of S. 82 because his nomination paper had been rejected and all the contesting candidates had been joined to the petition as required by S. 82 of the Act. In this reported case one Ballu alias Balji was not a contesting candidate within the meaning of S. 82 because his nomination paper had been rejected and all the contesting candidates had been joined to the petition as required by S. 82 of the Act. Ballu alias Balji was joined in excess of the requirement of S. 82 of the Act. The question, therefore, was did the impleadment of Ballu alias Balji amount to non-compliance or contravention of the provisions of S. 82 of the Act. In connection with this point the aforesaid observations were made. It is, therefore, clear that the impleadment of respondents 12 and 13 does not make the election petition liable to dismissal and since they have been improperly joined in the election petition their names can be struck out under O. 1, R. 10, Civil P.C., read with S. 87 of the Act. C.M. Application No. 138 (E) of 1985 moved by respondent 1, therefore, partly succeeds. 10. It was argued in connection with C.M. Application No. 102(E) of 1985 by Shri Z. Jilani, learned counsel for respondent 1 that material facts have not been stated by the petitioner in connection with the grounds of challenge of the election of respondent 1 and since in their absence, complete cause of action has not been given, the petition is liable to be dismissed. The learned counsel for the petitioner Shri B. K. Singh, on the other hand, argued that all necessary material facts have been given and the contention of the learned counsel for respondent 1 cannot be allowed to prevail. In this connection the learned counsel for the parties referred to the allegations made in the election petition and some decisions of the Supreme Court. Before taking up each allegation contained in the election petition in order to see whether the pleadings satisfy the aforesaid requirement of material facts, it would be convenient to refer to the relevant provisions of the Representation of the People Act and the Supreme Court's decisions referred to at the time of arguments. 11. Section 80 of the Act lays down that no election shall be called in question except by an election petition presented in accordance with the provisions of part VI of the Act. This part consists of Sections 79 to 122. Section 83 which is, undoubtedly, of much importance reads as follows : "83. 11. Section 80 of the Act lays down that no election shall be called in question except by an election petition presented in accordance with the provisions of part VI of the Act. This part consists of Sections 79 to 122. Section 83 which is, undoubtedly, of much importance reads as follows : "83. Contents of petition - (1) An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings : (provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof). (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition." 12. Thus, in an election petition a concise statement of material facts on which the petitioner relies should be given. 13. Section 86 provides that the election petition which does not comply with the provisions of S. 81, 82 or 117 of the Act shall be dismissed. It does not mention S. 83 of the Act. However, S. 87 of the Act makes the Code of Civil Procedure applicable to the trial of election petitions. In view of this Section O. 6, R. 16 and O. 7, R. 11, Civil P.C. apply to the election petitions. Order 6, Rule 16, Civil P.C. is to the effect that the Court may, at any stage of the proceedings, order to be struck out any matter in the pleadings which is unnecessary, scandalous, frivolous or vexatious or which tends to prejudice, embarrass or delay a fair trial of the suit or which is otherwise an abuse of the process of the Court. In absence of material facts, pleadings become frivolous, vexatious and ,embarrassing and, thus, liable to be struck out under O. 6, R. 16, Civil P.C. 14. In absence of material facts, pleadings become frivolous, vexatious and ,embarrassing and, thus, liable to be struck out under O. 6, R. 16, Civil P.C. 14. The relevant portion of O. 7, R. 11, Civil P.C., lays down that the plaint is liable to be rejected when it does not disclose a cause of action. If the pleading being frivolous, vexatious or embarrassing is struck out under Order 6, R. 16, Civil P.C., and in their absence the election petition does not disclose a cause of action, it becomes liable to be dismissed. In this connection observations made in Hardwari Lal v. Kunwar Singh, AIR 1972 SC 515 can be referred to. 15. In the present case the election of respondent 1 has been mainly challenged on three counts; (1) respondent 1 committed corrupt practice, (2) there were mistakes in counting and improper reception and rejection of votes, and (3) there was non- compliance with the provisions of the Act and thr, Rules framed thereunder. There are some Supreme Court cases in which observations have been made on the point as to what can be material facts in a case of corrupt practice. 16. It has been held in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 at p. 1212 that, "Section 83 then provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also set forth -full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The Section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all." . 17. In Daulat Ram Chauhan v. Anand Sharma, AIR 1984 SC 621 . it was observed at page 625 that,"in order to constitute corrupt practices the following necessary particulars, statement of facts and essential ingredients must be contained in the pleadings : (1) Direct and detailed nature of corrupt practice as defined in the Act. (2) Details of every important particular must be stated giving the time, place, names of persons, use of words and expressions, etc., (3) It must clearly appear from the allegations that the corrupt practices alleged were indulged in by (a) the candidate himself, (b) his authorised election agent or any other person with his express or implied consent. (2) Details of every important particular must be stated giving the time, place, names of persons, use of words and expressions, etc., (3) It must clearly appear from the allegations that the corrupt practices alleged were indulged in by (a) the candidate himself, (b) his authorised election agent or any other person with his express or implied consent. A person may, due to sympathy or on his own, support the candidature of a particular candidate but unless a close and direct nexus is proved between the act of the person and the consent given to him by the candidate or his election agent, the same would not amount to a pleading of corrupt practice as contemplated by law. It cannot be left to time, chance or conjecture for the court to draw an inference adopting an involved process of reasoning. In fine, the allegation must be so clear and specific that the inference of corrupt practice will irresistibly admit of no doubt or qualm." 18. From the observations made in the above referred two cases, it is clear that material facts relating to the allegations of corrupt practice in order to formulate complete cause of action along with its material particulars to complete the picture of the cause of action should be given in the petition. A distinction is made between a statement of the material facts and material particulars. The word 'material' means necessary for the purposes of formulating a complete cause of action and if any one material fact is omitted the statement of claim becomes bad and liable to be struck out. The function of particulars is quite different. Their function is to fill in the picture of the plaintiffs cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. However, neither includes evidence which is required to prove the allegations. 19. Keeping in view the aforesaid legal position the allegations regarding corrupt practices said to be committed by respondent 1 shall be examined. The allegations relating to corrupt practice have been made in paras 6 and 7 of the election petition. 20. The election petition consists of 28 paras. Paras 1 to 3 are introductory. Para 4 contains 9 grounds, in brief, on which the election of respondent 1 has been sought to be declared void. The allegations relating to corrupt practice have been made in paras 6 and 7 of the election petition. 20. The election petition consists of 28 paras. Paras 1 to 3 are introductory. Para 4 contains 9 grounds, in brief, on which the election of respondent 1 has been sought to be declared void. Para 5 states that the concise statement of material facts has been given in the following paras. The material allegations commence from para 6 of the petition. 21. It has been alleged in para 6 that respondent 1 himself in village Badrahawa hamlet of village Hempur Tahsil Bhinga gave Mr. Wali Mohammad Khan, Pradhan of Gaon Sabha on 15-2-1985 a sum of Rs. 200/- on the condition that he should get the voters to vote for him in the election. It is further stated that respondent 1 similarly in villages Bachuwa and Katkuinya also distributed money for buying voters. This last sentence of this para does not contain material facts. It does not disclose to whom the bribe was given for buying voters and was it actually given to the voters. The other details about the date, time and place are also not given. Thus, the allegation that respondent 1 in village Bechuwa and Katkuinya distributed money for buying voters does not contain material facts and is liable to be struck out. As regards remaining para the specific amount said to be given as bribe has been stated and the persons who gave and accepted the bribe are also mentioned. It has also been disclosed that the object of giving bribe was to corrupt the voters. The date and place about giving the bribe has also been disclosed. Only time has not been given and it can be a material particular. If the material fact has been given its material particulars can be given by amending the election petition even after the period of limitation. In this connection reference may be made to the cases of Balwan Singh v. Laxmi Narain, AIR 1960 SC 770 , Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 and Raj Narain v. Indira Gandhi, AIR 1972 SC 1302 . It was argued by the learned counsel for respondent 1 that the petitioner has not disclosed the names of the voters who were to be bribed by the alleged sum and the bribery should be to an elector. It was argued by the learned counsel for respondent 1 that the petitioner has not disclosed the names of the voters who were to be bribed by the alleged sum and the bribery should be to an elector. This argument does not appear to have any substance. It has been clearly alleged that the alleged amount was given to the Gaon Pradhan to get the voters to vote for respondent 1. It was not necessary for the petitioner to disclose who were those voters to whom the aforesaid amount was to be given and in fact, actually given. In my opinion, material facts have been given in this para about the corrupt practice by bribery and it cannot be struck out as contended by the learned counsel for respondent 1. 22. Section 100(1)(b) of the Act lays down that the election of the returned candidate can be declared void if any corrupt practice has been committed by him. The corrupt practice by bribery has been defined in S. 123(i) of the Act. It shows that any offer of gratification to any person whomsoever with the object directly or indirectly of inducing an elector to vote or refrain from voting at an election or as a reward to an elector for having voted or refrained from voting is the corrupt practice. From this definition and the facts stated in the first portion of the para 6 of the election petition, it is evident that material facts with regard to corrupt practice by bribery have been given and this portion of para 6 is not liable to be struck out. 23. It is stated in para 7 of the election petition that respondent 1 himself published by words of mouth statements alleging that the petitioner, on 10-2-1985, while driving a car rashly caused death of a Harijan youth near village Chilariha Police Station, Sirsiya District Bahraich and when chased by an irate mob, he made good his escape and was saved through the intervention of the police. It has been further stated in this para that respondent 1 had repeatedly stated in public meetings in the constituency that the petitioner is a reckless person and not a fit person to represent the people in the assembly and these statements were made knowing them to be false with a calculated view to prejudice the prospects of the petitioner's election. Not only this respondent 1 through his agents and supporters got the above false statements published in the Newspapers namely Lokreet dated 14-2-1985, Nav Bharat Times dated 15-2-1985 and Amrit Prabhat of 16-2-1985. The aforesaid speeches were given by respondent 1 in village Bhartakalan, Hempur, Bechua, Kathkuniyan, Piprouvan and Jogagaon. From this allegation it appears that the petitioner wants to challenge the election of the returned candidate i.e., respondent 1 on the ground of publication of false and defamatory matter, a corrupt practice falling under S. 123(4) of the Act. According to this provision the publication by a candidate of any statement of fact which is false and which he either believes to be false and does not believe it to be true, in relation to the personal character or conduct of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate in election is a corrupt practice. The facts disclosed in para 7 of the election petition show that there was publication of a statement of fact by respondent 1 and that statement was false to his knowledge and belief and it was against the personal character and conduct of the petitioner calculated to prejudice his prospects in the election. Thus, all the material facts relating to the corrupt practice by publication of false and defamatory matter are given in para 7 of the election petition. The learned counsel for respondent 1 argued that the petitioner has not given the dates and time of the public speeches said to be made by respondent 1. These details are material particulars falling under S. 83(i)(b) of the Act and they can be subsequently given by amendment of the election petition when material facts about such a corrupt practice have been given in the election petition. The person who made the publication has been clearly mentioned in the election petition. If the allegations were false as alleged by the petitioner it was personal vilification and character assassination and they undoubtedly related to the personal character and conduct of the petitioner. A false propaganda that the petitioner was a murderer and reckless person and unfit to represent the Constituency undoubtedly comes under S. 123(4) of the Act. If the allegations were false as alleged by the petitioner it was personal vilification and character assassination and they undoubtedly related to the personal character and conduct of the petitioner. A false propaganda that the petitioner was a murderer and reckless person and unfit to represent the Constituency undoubtedly comes under S. 123(4) of the Act. The alleged speeches could lead voters to think that the petitioner had a low moral character and they were designed to prejudice the chances of the petitioner and to better the prospects of respondent 1 in the election. Thus, the material facts about the corrupt practice under S. 123(4) of the Act have been given in para 7 of the election petition, and the arguments of the learned counsel for respondent 1 to the contrary cannot be accepted. 24. Paras 8 to 11 of the election petition do not raise any material issue and they appear to be unnecessary and thus embarrassing. It has been stated in para 8 that respondent 1 used to carry on contract work and the same is now being continued by his sons. It is not clear as to how this contract business is relevant for the purposes of the controversy raised in the election petition. In para 9 it has been stated by the petitioner that respondent 1 is owner of several buildings in Bhinga Bazar and in one of such buildings the offices and Courts of Tahsil Bhinga are functioning on rent. It has been further disclosed in this para that respondent 1 was declared successful in the general election in Assembly in the year 1980. These allegations do not appear necessary for the grounds of challenge raised against the election of respondent 1. It is alleged in para 10 of the petition that on account of respondent 1 being sitting M.L.A. and because of his business connections he developed close personal relations with the officers of various departments and he used to entertain them at sumptuous dinners and thereby succeeded in securing various licences and permits for his close relations. Even if it is assumed as correct, these allegations do not appear to be material for purposes of the grounds on which the election has been sought to be declared void. It has been further alleged in para 11 of the election petition that Mr. Even if it is assumed as correct, these allegations do not appear to be material for purposes of the grounds on which the election has been sought to be declared void. It has been further alleged in para 11 of the election petition that Mr. Yaar Mohammad Raini one of the relations of respondent 1 is a clerk in Civil Court, Bahraich. Even if it is accepted as true, this relationship does not appear to be relevant for the allegations relating to the corrupt practice and improper reception and rejection of votes in the counting. It is, therefore, clear that the allegations contained in paras 8 to 11 of the election petition are unnecessary and embarrassing and are, thus liable to be struck out. 25. In the present case the petitioner has claimed inspection and recount of the total votes polled and challenged the election on the ground of improper reception and rejection of votes also. It has been held in Ram Sewak v. Hussain Kamil Kidwai, AIR 1964 SC 1249 that an order for inspection should not be granted as a matter of course and an order for inspection can be made when the petition for setting aside an election contains an adequate statement of material facts on which the petitioner relies in support of his case. The Supreme Court further held that an order for inspection of ballot papers should not be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. Mere allegations that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. In another case Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 the Supreme Court again emphasised that an election petition should contain a concise statement of material facts on which the petitioner relies and vague or general allegations that valid votes were improperly accepted would not serve the purpose. In both these cases it was also pointed out that the material facts should be stated in the light of the provisions of the Conduct of Election Rules dealing with the counting of ballot papers when the election has been challenged on the ground of mistakes in counting and the plea of improper reception and rejection of votes has been taken. 26. In Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276 also the election had been challenged on the ground of improper reception and rejection of votes and inspection was claimed. The relevant portion of the head note of this reported case is as given below : "The basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers are (1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case, and (2) the tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. The material facts required to be stated are those facts which can be considered as material supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. If an election petitioner in his election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts when the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the unsuccessful candidate cannot afford the necessary basis..... Similarly, as to the rejection of the votes polled in favour of the unsuccessful candidate under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore, it is quite easy for them to note down the serial number of the concerned ballot paper. Therefore, if the election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections; the material facts required to be stated are not satisfied and hence scrutiny of ballot papers should not be ordered." 27. In another case Sumitra Devi v. Shri Sheo Shanker Prasad Yadav, AIR 1973 SC 215 the election of Shri Sheo Shankar Prasad Yadav was challenged on the allegation that there was no proper lighting arrangement at the time of the counting and taking advantage of frequent failure of electricity the counting staff showed partiality to respondent 1 by counting the votes cast in favour of the other candidates for respondent 1 and thus the counting staff as well as some outsiders illegally managed to increase the number of votes in favour of respondent 1. The allegation of illegal rejection of ballot papers cast in favour of the petitioner-appellant and mixing up of several ballot papers of the appellant with the ballot papers of Shri Sheo Shanker Prasad Yadav and others was also made. There were allegations about other illegalities and irregularities in the counting also. It was held that the allegations in the election petition were vague and did not contain adequate statement of material facts. In this case emphasis was laid on giving of definite particulars about illegalities alleged to have been committed in the counting of the ballot papers. The Supreme Court in a case reported as Arun Kumar Bose v. Mohd. Furkan Ansari AIR 1983 SC 1311 in which the election had been challenged on illegalities and irregularities committed in the course of counting of the ballot papers held that number of wrongly rejected ballot papers, number of counting tables and booth number along with the grounds for rejection of ballot papers were material facts. In this case the particulars of the ballot papers said to have been wrongly rejected could not be given with the explanation that they could not be obtained during counting as they were not shown. In view of this explanation the particulars of the ballot papers wrongly rejected was held no material defect in the pleading of the election petition. 28. In Pratipal Singh v. Ranjit Rai, AIR 1984 Delhi 198 the observations at pages 206 and 208 are to the effect that serial number of ballot papers said to be wrongly rejected, reasons for rejection and break of total number of rejected votes polling stationwise are material facts. It has been further held that there must be some foundation or basis for the figure of the votes said to be wrongly rejected and it is also a material fact. It has been further held that there must be some foundation or basis for the figure of the votes said to be wrongly rejected and it is also a material fact. It was further held in this case that the consisted statement of material facts is a sine qua non of an election petition. 29. The observations made in all these cases clearly indicate that in an election petition where the election has been challenged on the ground of irregularities and illegalities in counting and improper reception or rejection of votes, the material facts relating to these allegations should be clearly and adequately pleaded and they should unambiguously indicate that in fact irregularities or illegalities in the polling or counting have been committed. Apart from this, in such a case the author of alleged irregularities and illegalities, the table number on which, the round number in which and the polling station in respect of which such mistakes were committed, the persons who detected them, did they make a note of them and raised any objection at the time of polling or counting, if so, what were their objection and the grounds of their rejection, did they claim recounting, was the procedure prescribed followed and what omissions were made in that connection, the particulars of the ballot papers said to be wrongly received or rejected and the basis on which the petitioner arrived at the figures of the ballot papers said to be wrongly received or rejected may be material facts according to its special facts and circumstances. The reason is that in an election petition whether 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, ground relied upon and the special circumstances of the case. It may also be added that in a case where the election has been challenged under S. 100(l)(d)(iii) of the Act and of some of the aforesaid facts are not disclosed in the election petition, their absence should be satisfactorily explained in the election petition itself. Having regard to all this the allegations contained in paras 12 to 20 of the election petition relating to improper reception and rejection of votes are taken up to see, if material facts have been stated in them. 30. Having regard to all this the allegations contained in paras 12 to 20 of the election petition relating to improper reception and rejection of votes are taken up to see, if material facts have been stated in them. 30. Paragraph 12 contains allegation to the effect that Counting Supervisors and the Counting Assistants were friends and relations of respondent 1. Such a sweeping allegation does not contain all necessary details as to how 60 persons of the Counting Staff at 20 counting Tables were related to or associated with respondent 1. It is significant to note that no such objection was made immediately before or at the time of the counting though five applications Annexures 6 to 10 for recount were moved by the petitioner his Counting Agents and Shri Krishna Bahadur respondent 2 one of contesting candidates. It does not contain any allegation as to what mistakes in counting were committed by them. It is, therefore, clear that para 12 does not contain material facts relating to the ground of mistakes:in counting and improper reception and rejection of votes. 31. According to para 13, the counting staff mentioned in Annexure 1 bolstered the number of votes polled by respondent 1. It has been further stated in this para that in the bundles of the ballot papers of respondent 1, the members of the counting staff put invalid votes of respondent 1 and valid votes polled by the other respondents and thus the number of-the votes secured by respondent 1 was inflated by more than 500 votes. It has not been mentioned by the petitioner in this para as to how he got information of this bungling and improper mixing up of votes. It is not less significant to note that he has not mentioned as to how he arrived at the figure of more than 500 votes. The applications Annexures 6 and 7 for recount were given by the counting agents of the petitioner. In Annexure 6 Shri Sudhir Gaur one of the,counting agents of the petitioner alleged that some of the valid votes of the petitioner were declared invalid and invalid votes of the other contesting candidates have been declared valid. The applications Annexures 6 and 7 for recount were given by the counting agents of the petitioner. In Annexure 6 Shri Sudhir Gaur one of the,counting agents of the petitioner alleged that some of the valid votes of the petitioner were declared invalid and invalid votes of the other contesting candidates have been declared valid. Similarly in Annexure 7 moved by Shri Sanjay Singh, Counting Agent of the petitioner it was alleged that irregularities were being committed in the counting and invalid votes of candidates other than Gyanendra Pratap Singh had been mixed up as their valid votes due to which the election of Shri Gyanendra Pratap Singh is likely to be adversely affected. The applications Annexures 8 and 9 were given by Shri Gyanendra Pratap Singh petitioner himself. In Annexure 8 he alleged that his several valid votes have been declared invalid whereas invalid votes of other contesting candidates have been counted as valid votes. Similar allegations were made in the application Annexure 9. The application Annexure 10 was given by Shri Krishna Bahadur Misra respondent 2. It does not contain any specific allegation with regard to counting of votes. The application was given to the District Election Officer on the allegation that he had ordered for recount and that order should not be withdrawn. It is, therefore, clear that the applications by which either objection to the counting was raised or claim for recount was made did not contain any allegation to the effect that the counting staff being interested in respondent 1 put less than 50 valid votes in the bundles of respondent 1 and the balance was made up by putting invalid votes of respondent 1 and valid votes of other contesting candidates. The number and particulars of the polling stations and the ballot papers said to be mixed up in the bundles of respondent 1 have not been given. It is, therefore, clear that the material facts are wanting in connection with para 13 and it contains vague and indefinite allegation of fact. Paras 12 and 13 are, therefore, embarrassing and are liable to be struck out under O. 6 R. 16, Civil P.C. 32. It has been stated in the para 14 that the Returning Officer and the counting staff did not follow the mandatory rules of the Conduct of Election Rules, 1961. Paras 12 and 13 are, therefore, embarrassing and are liable to be struck out under O. 6 R. 16, Civil P.C. 32. It has been stated in the para 14 that the Returning Officer and the counting staff did not follow the mandatory rules of the Conduct of Election Rules, 1961. It has been ,further stated in this para that R. 56(7)(a) and (b) of the Rules provide for filling up Part II of Form No. 16 about the result of counting but part II of Form 16 was not filled up by the Counting Supervisor and signed by him and the Returning Officer and thus the counting agents of the petitioner could not check or stop the manipulations in the counting. In support of this allegation he had filed copies of Form 16 of 4 polling stations Kath Kuiyan, Bharta Roshangarh, Bhinga and Rajgarh Gulahriya. They are Annexures 2 to 5. It is further stated in para 15 that these Annexures 2 to 5 indicate bungling committed by the counting staff and the objections of the petitioner's counting agents in relation to this illegality went unheeded. 33. It is true that Part II of Form 16 of these four polling stations were not filled up by the Counting Supervisors and signed by him and the Returning Officer as required by R. 56 of the Conduct of Election Rules, but this fact does not necessarily indicate that, in fact, no counting of votes of these four polling stations took place. The petitioner himself does not allege that the counting of votes polled at these four polling stations was not actually made. There is no doubt that the omission to make entries in part II Form 16 is a serious irregularity but on the basis of this fact alone it cannot be said that there has been improper reception or rejection of votes. Sub-rule (7) of Rule 56, Conduct of Election Rules, 1961, provided that after completion of counting of all the ballot papers contained in the ballot boxes used at a polling station the Counting Supervisor shall fill in and sign part II-Result of counting in Form 16 which shall also be signed by the Returning Officer and the Returning Officer shall make entries in the result sheet in Form 20 and announce the particulars. There is no allegation of the petitioner that Form 20 which is the result sheet was not filled up at the time of counting and the entries with regard to these four polling stations were made in it fictitiously. ln Form 20 serial number of polling stations, number of valid votes cast in favour of each candidate, total of valid votes, number of rejected votes and the total number of tendered votes and total number of votes recorded at polling stations are entered and signed by the Returning Officer. The result of each polling station as soon as the counting of votes of that polling station concludes, is declared on the basis of entries made in Form No. 20 as provided in para 17(r) Chapter XIV of Hand Book for Returning Officer. It is not the case of the petitioner that such declaration of results were not made in respect of these polling stations at the time of counting. It is also not the version of the petitioner that he got so many votes at each of the four polling stations and they were not entered in Form 20 or they were incorrectly shown therein. The sub paras (r) and (s) of Para 17 of Chapter XIV of the above mentioned Hand Book indicate that the result of each polling station is separately entered in loose sheets Annexure XXIX of that Hand Book and they are entered and totalled in Final Result Sleet Form 20 Annexure XXVIII. Thus some other material apart from entries of part II of Form 16 was available for completing Form No. 20 and due to this fact it has not been pleaded by the petitioner that entries in Form 20 relating to these four polling stations were fictitiously made. The petitioner could get copy of Form 20 under R. 93, Conduct of Election Rules, and file it in the case along with Form No. 16 Annexures 2 to 5 to show that in that Form also no corresponding entries were made. The petitioner in para 15 made allegation to the effect that the details of the counting of the votes indicate that respondent I got 384 votes in connection with a polling station (Kath Kuiyan Kalan) of which Form No. 16 is Annexure 2. The petitioner in para 15 made allegation to the effect that the details of the counting of the votes indicate that respondent I got 384 votes in connection with a polling station (Kath Kuiyan Kalan) of which Form No. 16 is Annexure 2. It indicates that votes were, in fact, counted, their details were noted in form 20 and by some mistake the details of votes secured by each candidate could not be noted in part II of Form No. 16. Thus the allegations contained in paras 14 and 15 do not contain material facts to show improper reception and rejection of votes. These paras appear to have been introduced on the basis of the omissions in part II of Form 16 of these polling stations and do not raise any triable issue. It is, therefore, clear that the pleas contained in paras 14 and 15 being indefinite and embarrassing are liable to be deleted under Order 6 R. 16, Civil P.C. 34. Paras 16 to 18 contain allegations to the effect that the counting staff indulged in treating the valid votes of the petitioner as invalid and a number of invalid votes of respondent 1 as valid and in that connection applications Annexures 6 to 8 were moved. It has been further stated that when the petitioner pressed for recounting and moved application Annexure 9, the Returning Officer agreed for the same but subsequently resiled due to which Shri Krishna Bahadur Misra respondent 2 gave an application Annexure 10. These applications for recounting were rejected by the Returning Officer because he was unduly influenced by respondent 1. These applications do not contain any details of the petitioners valid votes which were declared invalid and rejected and of the invalid votes of respondent 1 which were treated as valid votes. Similarly these paras do not disclose the number and particulars of such ballot papers. 35. These applications do not contain any details of the petitioners valid votes which were declared invalid and rejected and of the invalid votes of respondent 1 which were treated as valid votes. Similarly these paras do not disclose the number and particulars of such ballot papers. 35. Rule 56, Conduct of Election Rules, 1961, indicates that a Returning Officer should reject a ballot paper if it had any mark or writing by which an elector could be identified, it has no mark at all to indicate to whom the vote has been cast, vote is given in favour of more than one candidate or any mark indicating the vote thereon is placed in such a manner as to make it doubtful to which candidate the vote has been given, it is spurious ballot paper, it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, it bears a serial number or is of a design different from the serial number authorised for use at a particular polling station or it does not bear both the mark and the signature of the Presiding Officer which it should have under the provisions of sub-rule (1) of R. 38. Sub-rule (3) of R. 56 further lays down that before rejecting any ballot paper the Returning Officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper. 36. From all this it is evident that the ballot papers of the petitioner, if had been rejected as invalid votes as alleged in these paras, the counting agents would have noted the number and other particulars of such ballot papers. If any invalid vote of respondent 1 was counted as valid the counting agent could raise objection in that connection and in such a circumstance also he could come to know the number and particulars of such ballot papers. It is significant to note that the petitioner has not given the number and particulars of such ballot papers. It has not been clearly mentioned that such mistakes were committed at all the counting tables in respect of the votes of all the polling stations. The source of information about such an illegality or irregularity also has not been disclosed. As observed above the applications Annexures 6 to 9 do not contain details of the mistakes said to be committed in connection with counting. The source of information about such an illegality or irregularity also has not been disclosed. As observed above the applications Annexures 6 to 9 do not contain details of the mistakes said to be committed in connection with counting. The orders passed on the applications Annexures 6 to 8 show that these applications were moved sometime after completion of counting as 'perhbandi'. From this it appears that in fact no written objection was made with regard to counting while it was being made. Moreover, they do not contain clear details of the irregularities and' illegalities alleged to be committed in connection with the counting. 37. Similarly the applications Annexures 9 and 10 which relate to recounting are frightfully vague. Rule 63 lays down that the applications for recount of votes must state the grounds on which the candidate or his agent demand recount. Since no clear grounds were given in these applications, they were rejected by the Returning Officer. The orders passed on these applications indicate that the Returning Officer assigned reasons while rejecting them. This rule confers jurisdiction upon the Returning Officer while dealing with such an application. In absence of any clear instance he could reject them. It cannot, therefore, be said on the basis of these applications that mistakes were, in fact, committed in the counting of votes. The details of the mistakes alleged to be committed in counting are wanting and it can be easily said that for want of material facts these paras, which contain vague and indefinite allegations about objections said to be raised with regard to counting, are liable to be scored out: 38. In paras 19 and 20 the election has been challenged on five grounds, namely, (1) names of bogus persons were included in the electoral rolls and some persons impersonating them cast votes (2) minor persons were entered in the electoral rolls and they cast votes in favour of respondent 1 (3) some persons impersonating the dead voters gave votes in favour of respondent 1, (4) some persons cast votes in the name of electors who were at far away places and (5) some votes polled at two places in the same constituency. According to the petitioner, the polling stations and the approximate numbers of such votes are given in Annexure 11 of the election petition. According to the petitioner, the polling stations and the approximate numbers of such votes are given in Annexure 11 of the election petition. In this annexure the details of the persons said to be bogus and fictitiously entered in the electoral rolls have not been given. Similarly names of those persons who polled at two places have also not been given in this annexure. No copy of the electoral roll has been filed to show that the names of some electors are entered at two places and on the basis they polled at two places in the same constituency. It is, therefore, clear that material facts relating to first and fifth grounds have not been given and they are liable to be struck out. In Annexure 11 the details given indicate that 40 votes of minors, 112 votes in the name of dead persons and 428 votes in the name of electors who were at far away places on the date of poll were cast. It has not been mentioned in the election petition that when votes by the minors and of dead persons and absentees were polled, the petitioner or his polling agents raised any objection. Paras 19 and 20 of the election petition have been verified on the basis of information. It is not disclosed in the election petition as to who furnished this information to the petitioner and what was the source of his knowledge. It has been, no doubt, stated in ground 2 that two cases of impersonation and voting by minors were brought to the notice of the Presiding Officer at Bhinga Polling Station and the Presiding Officer got cases registered against them under S. 171 (f) I.P.C. From this allegation it transpires that two minors impersonated in the election. It does not indicate that this incident related to the electors who has been mentioned as minor in Annexure 11. Impersonation by minor does not necessarily lead to the inference that the elector was a minor and he in fact cast vote and that too in favour of respondent 1. Therefore, on the basis of this allegation it is difficult to believe that the votes were polled by minors in favour of respondent 1. The petitioner has not given parentage and address of minor, dead and absentee voters. Therefore, on the basis of this allegation it is difficult to believe that the votes were polled by minors in favour of respondent 1. The petitioner has not given parentage and address of minor, dead and absentee voters. It has also not been disclosed in the election petition where these absentee voters were on the date of election. Rule 36 of the Conduct of Election i Rules 1961 lays down that any polling agent may challenge the identity of a person claiming to be a particular elector and the Presiding Officer shall hold summary enquiry into the challenge. In the present case there is no allegation that the petitioner or his polling agents challenged the identity of such persons when they came to cast votes in the names of dead and absentee voters. It has also not been stated that the petitioner made subsequent enquiries and came to know,these facts. The petitioner has not given the exact number of votes said to be cast by the minors and in the name of dead and absentee voters. In para 20 he has given approximate number of such voters. The observation made in Hari Ram v. Hira Singh AIR 1984 SC 396 where one of the main grounds, put forward by the petitioner was that there were a number of dead persons for whom votes were cast, it was held that no details and particulars were given nor was it even mentioned whether the polling agent of the respondent made any note of the fact allegations made by the respondent in his application for inspection were frightfully vague and attempt was nothing but to fish out the material for challenging the election and it violated the sanctity and secrecy of the electoral process. From all this it is clear that paras 19 and 20 also do not contain all necessary material facts and in their absence complete cause of action has not been shown and the allegations made in these paras are also vague and embarrassing and thus, liable to be struck out under Order 6 R. 16, C.P.C. 39. In para 21 the petitioner has summarised the grounds taken by him to challenge the election of respondent 1. In para 21 the petitioner has summarised the grounds taken by him to challenge the election of respondent 1. Paras 22 to 24 contain summarised allegations about improper reception and rejection of, votes which have already been discussed in connection with the facts stated in paras 12 to 20 of the election petition. It has however been disclosed in them that the result of the election has been materially affected. The other paras 25 to 28 relate to the relief which the petitioner has sought for, deposit of the necessary security and the fact that the petition is within time. 40. Now the facts disclosed in para 4 of the election petition remain for discussion. From them it transpires that the petitioner wanted to challenge the election of respondent 1 on 9 grounds. First two grounds relate to bribery and corrupt practice by publication of a false statement to prejudice the prospects of the candidate at the election. Paras 6 and 7 relate to these grounds and they have been discussed above. It was alleged in ground 3 of para 4 that respondent 1 procured vehicles for free conveyance to the elections from their places of residence to the polling station. It appears from this allegation that the petitioner wanted to show that respondent 1 resorted to corrupt practice under S. 123(5) of the Act. It is significant to note that the petitioner did not give material facts about this ground and it is, therefore, liable to be struck out. In ground 4 of para 4 of the election petition, it was alleged that respondent 1 utilised the services of Rizwan Meraj and his father Mian Saheb of Gangapur, the religious peers of the majority of Muslim electors of the said Bhinga Constituency for inducing Muslim electors to believe that they would become object of divine displeasure and spiritual censure, by voting for the petitioner or by non-voting for respondent 1. In this connection also the material facts have not been stated in the election petition. It seems that on the basis of this allegation the petitioner wanted to challenge the election of respondent 1 on the ground of corrupt practice under S. 123(3) of the Act. In this connection also the material facts have not been stated in the election petition. It seems that on the basis of this allegation the petitioner wanted to challenge the election of respondent 1 on the ground of corrupt practice under S. 123(3) of the Act. In this connection the petitioner failed to allege that Rizwan Meraj and his father Mian Sahab of Gangapur, in fact, issued any appeal to the people to vote for respondent 1 on the ground of his religion, etc. It has also not been mentioned whether any article or pamphlets were published in this connection and if so what were their contents. Material facts about ground No. 4 are also, therefore, wanting and this portion of pars 4 is also, therefore, liable to be struck out. Grounds 5 to 9 relate to polling and counting. In this connection allegations have been made in paras 12 to 20 of the election petition and it has been mentioned above that they do not contain material facts and are liable to be deleted. The grounds 3 to 9 of para 4 are, therefore, liable to he expunged. 41. It appears from ground 7 of para 4 where the petitioner alleged that the Presiding Officers of the Polling Stations did not act in accordance with the provisions of the Representation of the People Act and para 14 where it has been stated that the counting staff and the Returning Officer did not observe Rule 56(7) of Conduct of Election Rules, 1961 that the petitioner wants to challenge the election of respondent 1 on the ground specified in S. 100 (1)(d)(iv) of the Act. No clear allegations have been made in the election petition as to which provisions of the Representation of the People Act, 1951 were not observed by the Presiding Officers in connection with the polling. It is, no doubt, alleged in para 14 that R. 56(7)(a) and (b), Conduct of Election Rules, 1961, were not observed by the Returning Officer. The clauses (a) and (b) of sub-r. (7) of R. 56 deal with filling up and signing of part II of result of counting in Form 16 and making entries in the result sheet in form No. 20 and announcing the particulars. The clauses (a) and (b) of sub-r. (7) of R. 56 deal with filling up and signing of part II of result of counting in Form 16 and making entries in the result sheet in form No. 20 and announcing the particulars. It is nowhere alleged in the election petition that the Returning Officer did not make entries in the result sheet in Form No. 20 and announced the particulars as required in cl. (h) of sub-r. (7) of R. 56. The allegation in para 14 mainly relates to cl. (a) of sub-r. (7) of R. 56 and in that connection Form No. 16 of four polling stations namely Kathkuiyan, Bhartha Roshangarh, Bhinga and Rajgary Gulhariya Annexures 2 to 5 were filed. It has not been alleged in the election petition that non-compliance with these rules the result was materially affected. The allegation of 'materially affected' has been made in the petition in connection with improper reception of void votes of minors, dead and absent voters and refusal of recount by the Returning Officer. Under S. 100 (i)(d)(iv) of the Act when the election is challenged on the ground of non-compliance with the provisions of the Act or the Rules, it must he alleged and shown by stating material facts that the result of the election in so far as it concerns the returned candidate has been materially affected. Thus, the allegation about the non-compliance with the provisions of the Act and the Rules for want of material particulars is also liable to he struck out. 42. From the above discussion, it is clear that C.M. Application No. 102(F) of 1985 and C.M. Application No. 138(E) of 1985 partly succeed. The Deputy District Election Officer, Bahraich, and the Returning Officer Bhinga, Bahraich, having been unnecessarily joined as respondents 12 and 13 are deleted from the array of respondents. Sub-paras 3 to 9 of para 4, the last sentence of para 6 as indicated above and paras 8 to 20 and 22 to 25 are struck out under O. 6 R. 16, Civil P.C. 43. Respondent I shall file written statement within 10 days.