Nirmal Kumar Upadhyay v. Manager Singh — 1986 DIGILAW 622 (ALL)

ORDER B.D. Agrawal, J. - Election to the U.P. Legislative Assembly Constituency No. 226, Doaba, took place in the month of March, 1985. Last date for filing the nomination was Feb. 6, 1985; the scrutiny took place on Feb. 7 and withdrawal could be had up to Feb. 9. Polling took place on March 2, 1985, followed by counting on March 6. The respondent No. 1 was declared elected having secured 50311 votes; the votes obtained by the petitioner were 27758. Aggrieved, the petitioner has filed this election petition under S. 81 of the Representation of the People Act, 1951, on grounds stated as under in para 5 of the petition :- (A) Because the agents and workers of the respondent 1, with the consent of the respondent 1 committed the corrupt practice of undue influence under S. 123(2) of the Representation of the People Act, 1951, by interfering, with the elector's right to vote. In any case, the said corrupt practice was committed by the agents and workers of the respondent 1 in the interest of the respondent 1 and the result of the election has been materially affected thereby, in so far as it concerns the respondent 1, as he has received more than 30,000 votes through this corrupt practice. (B) Because the result of the election, in so far as it concerns the respondent No. 1, has been materially affected by non-compliance with the provisions of the Conduct of Election Rules, 1961, the Representation of the People Act, 1951, and the Rules and orders made under the said Act inasmuch as :- (i) the petitioner's valid votes were improperly rejected; (ii) invalid ballot papers were improperly accepted in favour of the respondent No. 1; (iii) spurious ballot papers were improperly accepted and counted as votes of the respondent No. 1; (iv) the counting of votes and declaration of result of election has been in breach of the Conduct of Election Rules and the orders issued by the Election Commissioner of India; (v) there has been other breaches of, and non-compliance with, the provisions of the aforesaid Act and the Rules and orders made thereunder. 2. For respondent I there is application made under O. VI, R. 16, O. VII, R. 11 Civil P.C. read with S. 83 of the Representation of the People Act, 1951 (hereinafter referred to as the `Act'), which is opposed by the petitioner. 2. For respondent I there is application made under O. VI, R. 16, O. VII, R. 11 Civil P.C. read with S. 83 of the Representation of the People Act, 1951 (hereinafter referred to as the `Act'), which is opposed by the petitioner. 3. I have heard the learned counsel for the parties and perused the record. 4. Taking up ground (B) first, the relevant paragraphs, to which the petitioner refers in the petition, are numbers 17 to 22, which read as follows :- 17. That at the time of counting a number of petitioner's valid votes were improperly rejected. The counting agent of the concerned table raised the objections to it but they were rejected by the Returning Officer. The particulars of such ballot papers are mentioned in the chart given below :- Polling Station No. No.of ballot papers rejected. 8 30 15 13 153 30 151 22 170 28 130 24 122 12 93 14 72 8 180 8 18. That a large number of invalid ballot papers were improperly treated as valid votes of the respondent 1. Objection was raised in every round by petitioner's counting agents against such improper acceptance but it was illegally rejected by Returning Officer. The particulars about these ballot papers are given below :- Polling Station No. No of ballot papers accepted for respondent No. 1 179 260 170 172 167 210 166 173 165 154 164 313 163 218 161 363 213 430 189 640 180 530 19. That there were a large number of spurious ballot papers on which the voting seal was in the column of respondent 1 but the signature of the Presiding Officers of the polling stations concerned were forged and did not tally with their signatures on Part I of Form 16. The petitioner's counting agent raised objection regarding their genuineness on table No. 1 of polling station No. 1. The counting Supervisor accepted and took the ballot papers to the Returning Officer who accepted the objection and rejected the ballot papers numbering 50. But when similar ballot papers relating to other polling stations contained forged signatures of the Presiding Officer and votes in favour of the respondent 1, were challenged, the objection was overruled and the ballot papers were counted as valid votes of the respondent No. 1. The number of such ballot papers is more than 25,000. But when similar ballot papers relating to other polling stations contained forged signatures of the Presiding Officer and votes in favour of the respondent 1, were challenged, the objection was overruled and the ballot papers were counted as valid votes of the respondent No. 1. The number of such ballot papers is more than 25,000. Thus a uniform principle was not adopted for accepting or rejecting the ballot papers. 20. That the petitioner and his counting agents were not allowed to note down the serial numbers of the improperly accepted and rejected ballot papers and the aforesaid spurious ballot papers. 21. That an inspection, scrutiny and re-count of the ballot papers will disclose all the aforesaid mistakes and illegalities and will further show that in fact the petitioner has received a majority of valid votes. 22. That after a proper and correct counting of votes, it will be found that the petitioner having received a majority of valid votes, is entitled to be declared elected. 5. The settled principle is that to justify an order for the inspection of ballot papers one of the conditions essential to be fulfilled is that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his cause. "But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection". Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 . In that case this Court had relied upon certain observations appearing in Bhim Sen v. Gopali, (1961) 22 ELR 288 (SC). But a mere allegation that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection". Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 . In that case this Court had relied upon certain observations appearing in Bhim Sen v. Gopali, (1961) 22 ELR 288 (SC). The Supreme Court distinguished Bhim Sen pointing out that that case does not lay down any general principle that a party is entitled without making allegations of material facts in support of his pleas to set aside an election, to claim an order for inspection and seek to supply "the lacuna in his petition by showing that if all the votes are scrutinised again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at time of counting" It was added :- "To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend upon the facts of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers." 6. Their Lordships in this connection also made a pointed reference to the provisions contained in the Conduct of Election Rules, 1961, (Rr. 53, 55, 56, 57, 63) and the conclusion drawn on the basis thereof was : "There can therefore be no doubt that at every stage in the process of scrutiny and counting of votes the candidates or his agents have an opportunity of remaining present at the counting of votes, watching the proceedings of the returning officer, inspecting any rejected votes and to demand a re-count. Therefore a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes at the time of counting has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinised and opened, and the votes were counted. He has also opportunity of inspecting rejected ballot papers, and of demanding a re-count. He has also opportunity of inspecting rejected ballot papers, and of demanding a re-count. It is in the light of the provisions of S. 83(1) which require a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting or watching and of claiming a re- count that the application for inspection must be considered." 7. The question arose again in Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 . The Supreme Court reiterated that :- "Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which S. 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to prove adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the Ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void." 8. The averment in the election petition in that case also was that a very large number of votes purported to have been cast in favour of the appellant had been improperly rejected, and that had materially affected the result of the election; there was also an allegation that a large number of votes which were invalid had been improperly accepted in favour of respondent and the Returning Officer disclosed a partisan attitude, and the counting and examination of votes was done in a very irregular manner. The Supreme Court took the view that the said allegations were very vague and general, and the whole objection of the appellant in asking for inspection was to make a fishing enquiry with a view to find out some material to support his case that the respondent No. 1 had received some invalid votes and that the appellant had been denied some valid votes. 9. The averments in the election petition in Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276 were, it will appear, better pleaded than in the present one. The allegations as reproduced in para 2 of the reported judgment were :- (1) only one counting agent was permitted at each table whereas three persons were doing the counting work simultaneously and it was impossible for one man to look into and detect the wrong. Under this head it was further mentioned that the counting staff was from amongst the Government servants who had gone on two months strike before the election and during the elections they had adopted hostile attitude towards the congress candidates and had made efforts to bring about their defeat; (2) the bundles of votes of either candidates were neither properly made nor properly scrutinised; (3) about 5,000 votes of the congress candidates were improperly rejected ignoring the protests of Mr. Malhotra, the election agent of the congress nominee; (4) invalid votes were counted in favour of the returned candidate. The votes of the congress candidates were counted for the, returned candidate." 10. There was also a Schedule appended to the petition showing the alleged improperly rejected as well as accepted votes pertaining to certain booths. 11. The Supreme Court endorsed the view taken in Ram Sewak Yadav, ( AIR 1964 SC 1249 ) (supra) and Dr. Jagjit Singh ( AIR 1966 SC 773 ) (supra) that a basic requirement to be satisfied before an election tribunal can permit the inspection of ballot papers is 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. It was observed :- "In the instant case apart from giving certain figures whether true or imaginary, the petitioner has not disclosed in the petition the basis on which he arrived at those figures. It was observed :- "In the instant case apart from giving certain figures whether true or imaginary, 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 congress nominee cannot afford the necessary basis." 12. Commenting further on the averments made in relation to the irregularities in counting it was observed in para 10 :- "Now coming to the rejection of the votes polled in favour of the congress nominee, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot paper. Therefore it was quite easy for them to note down the serial number of the concerned ballot papers. 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. These again are the material facts required to be stated." 13. Upon almost parallel allegations appearing then in Smt. Sumitra Devi v. Shri Sheo Shanker Prasad Yadav, (1973) 3 SCC 330 : ( AIR 1973 SC 215 ), the Supreme Court observed that the averments were vague and the petition did not contain an adequate statement of material facts. A recount could not be granted as a matter of right but only on good grounds to believe that there had been a mistake in the counting. A mere doubt or small lead or unspecified blemish in the manner of the counting falls short of the needs of R. 63. Frequent or flippant recount directed by the Court is apt to disturb the amount of stability in the election process in addition to exposing the secrecy of the ballot neither of which is deviable. The best surmise, if it be nothing more than surmise, it has been held, should not induce the Court to break open the ballot boxes. Frequent or flippant recount directed by the Court is apt to disturb the amount of stability in the election process in addition to exposing the secrecy of the ballot neither of which is deviable. The best surmise, if it be nothing more than surmise, it has been held, should not induce the Court to break open the ballot boxes. No doubt it would be a fair exercise of power if there is a serious flaw or travesty of the rules or gross interference but for this purpose there must be clear, cogent and material facts pleaded and then substantial evidence to constitute a prima facie, case (Chandra Singh v. Ch. Shiv Ram Verma), (1975) 4 SCC 393 : ( AIR 1975 SC 403 ). See also : S. Baldev Singh v. Teja Singh Swatantra, (1975) 4 SCC 406 : AIR 1975 SC 693 ; Beliram Bhalaik v. Jai Beharilal Khachi, (1975) 4 SCC 417 : AIR 1975 SC 283 ; Bhabhi v. Sheo Govind, (1976) 1 SCC 687 : AIR 1975 SC 2117 ; Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822 : AIR 1975 SC 376 ; R. Narayanan v. S. Semmalai, (1980) 2 SCC 537 : AIR 1980 SC 206 ; D. P. Sharma v. Commr. and R.O., AIR 1984 SC 654 at 656. 14. In the case of Arun Kumar Bose v. Mohd. Furkan Ansari, (1984) 1 SCC 91 AIR 1983 SC 1311 relied on for the petitioner the pleading in para 9(1) of the petition was to the following effect :- "On table No. 1 booth No. 10 (Fukhandi Primary School) 74 ballot papers of the petitioner were wrongly rejected on the ground that they did not contain the signature of the Presiding Officer. Similarly 31 ballot papers of the petitioner were rejected on different tables on the ground that they do not contain the signature of the Presiding Officer. The aforesaid ballot papers were rejected by the Assistant Returning Officer in spite of the objections raised by the petitioner and his counting agents." 15. Referring to this it was observed that the number of ballot papers alleged to have been wrongly rejected had been furnished, the counting table number had been given, the booth number had also been disclosed and "the ground for rejection had even been pleaded". Referring to this it was observed that the number of ballot papers alleged to have been wrongly rejected had been furnished, the counting table number had been given, the booth number had also been disclosed and "the ground for rejection had even been pleaded". Respondent No. 1 therein had pleaded that the particulars of the ballot papers could not be obtained as during counting they were not shown. This was found substantiated upon evidence also and it was held accordingly that in the facts and circumstances of the case, the High Court was not wrong in taking the view that the pleading in para 9(1) set out the material facts in a proper way. The pleading in the case before us, as will presently appear, stands on different footing. The noteworthy feature is that in Arun Kumar Bose, ( AIR 1983 SC 1311 ) the plea raised was confined to one aspect, viz, the want of the presiding officer's signature with reference to 74 ballot papers cast at a particular booth and counted on a particular table and the same had been rejected. This obviously was specific enough. 'The only specific detail which, the Supreme Court remarked, was wanting was the serial number of the 74 ballot papers. Upon evidence it was borne out that these particulars were not available to the election petitioner in spite of attempt made on his behalf. It is in this backdrop that their Lordships though expressly agreeing with the view expressed in Bhabhi's case ( AIR 1975 SC 2117 ) (supra) felt inclined to think on the facts before them that the inspection had rightly been ordered. There is no departure on principle from the verdict in the cases preceding referred to above. In face of the facts pleaded including the ground for rejection of the ballot papers narrated in para 9(1), the specification of the particulars of the ballot papers remained only a matter of further detail, and this to my mind constitutes a prominent distinguishing feature. 16. I had occasion to consider the question in the light of these citations in Election Petn. 16. I had occasion to consider the question in the light of these citations in Election Petn. No. 63 of 1985 (Ramji Pandey v. Vikramaditya Prasad) dated 5th March, 1986 (All), and the view expressed was :- "The trend reflected by the authorities thus definitely is that since an order for a re-count touches upon the secrecy of the ballot papers and introduced the element of uncertainty and also as there are abundant safeguards provided in this behalf under the Conduct of Election Rules, 1961, and the counting is entrusted to the technical hands, recount should not be made lightly or as a matter of course. The Court would not be justified to order re-count or permit inspection of the ballot papers if all the material facts on which the allegations of irregularity or illegality on counting are founded are not pleaded adequately in the election petition. Where the allegations are mostly general and vague floating on suspicions or belief of the petitioner and not precise or the inspection/recount claimed tantamounts to seeking a roving inquiry of a fishing nature under the remote expectation of being benefited thereby there is no firm foundation laid for the Court to interfere. The relief of recounting cannot be acceded to merely on the possibility of there being an error." Election Petn. No. 50 of 1985 Vishnu Dayal Sharma v. Balbir Singh etc., dated 6th March, 1986; Election Petn. No. 56 of 1985, Devendra Bahadur Singh v. Jauhari Lal Trivedi, dated 7th August, 1986 reported in 1986 All LJ 1471. 17. Considered in the light of the above it will be observed that in para 17 the petitioner barely gives the total number of ballot papers pertaining to certain polling stations mentioned by him. The total comes to 189. It is averred that these votes were `improperly' rejected. There is no indication, whatever, regarding the impropriety involving in the rejection or the basis on which the rejection is claimed to have been invalid. The petitioner then proceeds to say that the counting agent of the concerned table raised objections, but that was not accepted by the Returning Officer. We are not told the precise content of the objections raised nor is there mention made of the counting agent, who raised the objection or even of the tables of the concerning polling station over which the objections came to be raised. We are not told the precise content of the objections raised nor is there mention made of the counting agent, who raised the objection or even of the tables of the concerning polling station over which the objections came to be raised. No such objection is alleged in the para to have been raised in writing. In para 18 likewise the assertion is that a large number of invalid ballot papers were improperly treated as valid votes of the returned candidate. In this too all that the petitioner does is to make a mention of eleven polling stations and give the total number of ballot papers relating to each without enumeration of the serial numbers of any of such ballot papers. The total number of the ballot papers mentioned in the paragraph comes to 3463. In this also, there is no specification of the impropriety or invalidity involved in the ballot papers in question being taken into account to the benefit of the returned candidate. In the absence of serial numbers of the ballot papers it is not possible to correlate the same with the ground of objection raised, if any. It is also not averred what was the point or objection taken by the counting agents, if any, nor do we have their names or even a mention of the tables relating to the polling station where such objections came to be raised. The bald allegations, such as appearing in para 17 or 18 for that matter, cannot be claimed to make out a plausible case for recount or inspection being directed. 18. Coming to paragraph 19 of the petitioner again repeats, without specification, that there were a large number of spurious ballot papers containing the voting seal of the respondent 1 but the signature of the presiding officer of the polling station concerned were forged. Even those various polling station where this occurred, are not mentioned. The para gives no idea, even roughly, of the number of ballot papers thus involved in controversy. In the following sentence appearing in this para also the particular polling station is unnamed. In the third sentence the expression "when similar ballot papers relating to other polling stations xxx" remains altogether vague and un-specified. There is no mention either of the polling station, as I said above, or of the counting agent raising the objections. 19. In the following sentence appearing in this para also the particular polling station is unnamed. In the third sentence the expression "when similar ballot papers relating to other polling stations xxx" remains altogether vague and un-specified. There is no mention either of the polling station, as I said above, or of the counting agent raising the objections. 19. Para 20 is, on its face, extremely general, which leads nowhere left to itself. From what is averred therein we cannot gather as to which is the polling station that the petitioner intends to refer nor do we know who are the counting agents who were prevented in this manner besides the petitioner. There is no mention of objection being raised in writing at any stage in any of the polling stations to the effect that the petitioner or his counting agents were being prevented from making a note of the serial numbers of the ballot papers concerned. It does not suffice for purposes of the pleadings to make a general allegation, as in the present appearing, without supplying even the most material facts to substantiate the same. The petitioner had necessarily to furnish the requisite material to make out a case that the provisions contained in Rr. 53, 55, 56, 57 and 63 of the Conduct of Election Rules, 1971, were observed in breach only. The pleadings must, prima facie, disclose justification for the secrecy of the ballot being pierced; the law does not envisage a kind of roving or fishing enquiry such as the petitioner would like to enter into in the present. With an eye to the total number of votes polled and the large margin involved, the petitioner had necessarily to give a concise statement of substantial facts to show that the result of the election in favour of the returned candidate may be claimed to be materially affected due to the irregularities committed in the process of counting and this he has undoubtedly failed to plead. 20. 20. I now pass on to ground (A) in connection with which the reference made in the petition is to paras 8 to 15, which read as below :- 8(a) That the agents and workers of the respondent 1 acting with the consent of the respondent 1, committed the corrupt practice of undue influence or threatening the voters and interfering and attempting to interfere, with their right to vote at a number of polling stations. They prevented voters from casting their votes in accordance with their free will and compelled them to leave the polling stations under threat of physical injury. The details of such corrupt practice are mentioned below. (b) That polling station No. 99 was situate in the building of primary Pathshala Bazidpur (North). Sri Manager Singh, respondent 1, along with Bal Ram Singh resident of village Bazidpur Police Station Bairiya District Ballia and 12 others came to aforesaid polling stations at about 2.25 p.m. The respondent 1 and his companions forcibly took the ballot papers from the Presiding Officer/the polling staff and affixed the voting seal on a large number of ballot papers in the column of the respondent 1 and forged signatures or thumb impression of the voters on the counter-foils of the ballot papers. They also took unsigned ballot papers from the polling staff and affixed the voting seal on a large number of ballot papers in the column of the respondent 1. The aforesaid persons threatened the voters who had come to the polling station to vote, that they will be killed if they tried to cast votes and asked the voters to run away. The voters had thus no option except to leave the polling stations and go back without casting their votes. The aforesaid persons also threatened and terrorised the polling staff. The aforesaid polling stations were captured by the respondent I and his aforesaid men and corrupt practice of undue influence was committed by them. The persons accompanying the respondent 1 were working with the consent of the respondent 1 and for the furtherance of the prospects of the election of the respondent 1. About 200 votes were cast at this polling station in the aforesaid manner by the aforesaid persons. (c) That polling station Nos. 123 and 124 were situate in the building of Higher Secondary School, Jamalpur, East and West. About 200 votes were cast at this polling station in the aforesaid manner by the aforesaid persons. (c) That polling station Nos. 123 and 124 were situate in the building of Higher Secondary School, Jamalpur, East and West. Sri Manager Singh respondent 1 along with Daya Shankar Singh r/o village Jamalpur P. S. Bairiya Distt. Ballia came to,the aforesaid polling stations at about 10 a. m. A number of voters were standing for casting their votes at the aforesaid polling stations. The aforesaid persons terrorised the voters and threatened them to kill if they tried to vote and asked them to go back and thereafter forcibly captured the polling stations, took possession of the ballot papers and illegally cast votes for the respondent 1 on a large scale. The aforesaid persons cast about 1500 votes forcibly and illegally in favour of the respondent 1 at aforesaid polling station. (d) That on 2-3-1985 at about 9.15 a.m. polling station No. 126 situate at Primary Pathshala, Chakia, West, District Ballia, was also captured by Sri Manager Singh, respondent 1, along with Kedar Singh, resident of village Talempur, Police Station Bairiya District Ballia and 10 others, all of whom were the agents and workers of the respondent 1. The voters who had come to vote at the aforesaid polling station were also threatened with physical injury and forced to go back without casting their votes by the respondent 1 and the agents and workers of the respondent 1 and the agents and workers of the respondent 1 who had accompanied them. These persons thus committed the corrupt practice of undue influence and after capturing the aforesaid polling stations, snatched the ballot papers from the polling staff of the said polling station and cast votes in favour of the respondent 1. The aforesaid persons cast about 610 votes forcibly in favour of respondent No. 1. (e) That on the same day Sri Manager Singh respondent 1 along with Vikram Singh, Abhi Ram Singh resident of village Gonia Chapra Police Station Bairiya, District Ballia reached the polling station No. 159 at about 12 noon. The aforesaid persons cast about 610 votes forcibly in favour of respondent No. 1. (e) That on the same day Sri Manager Singh respondent 1 along with Vikram Singh, Abhi Ram Singh resident of village Gonia Chapra Police Station Bairiya, District Ballia reached the polling station No. 159 at about 12 noon. They extended threats to the polling agents of the petitioner at the aforesaid polling stations, threatened the voters, who had gathered at the said polling stations to cast their votes, prevented them from casting their votes by making them to go back and forcibly cast votes in favour of the respondent No. 1 at the aforesaid polling stations after capturing the said polling stations and taking possession of the ballot papers. About 650 votes were cast in favour of the respondent No. 1 in this manner. 9. That apart from the above polling stations, the agents and workers of the respondent 1, acting with the consent of the respondent 1 also threatened the voters at other polling stations, forced the voters to go back without voting under threat of physical injury and threat of being killed and forcibly and illegally captured the polling stations, took possession of the ballot papers at those polling stations and illegally cast votes in favour of the respondent 1. Particulars .including the date, time, place, the number of polling stations and the names of such agents and workers of the respondent 1, who did the aforesaid acts, are mentioned in Schedule `I' to this petition. 10. That the ballot papers of polling stations Nos. 99, 123, 124, 126, 159 and other polling stations mentioned in Schedule `I' in which votes were cast as aforesaid in favour of the respondent No. 1 as a result of the captured polling stations, did not have the signatures of the Presiding. Officers of the said polling stations. 11. That on 2-3-1985 a telegram regarding aforesaid booth capturing was sent to the Election Commission of India and a written complaint regarding the same was also given to the District Magistrate, Ballia. 12. That a written petition with allegation of booth capturing was filed before Election Commission of India and it was prayed that re-polling be ordered in respect of the polling stations which had been captured, but the Election Commission did not consider the matter and refused the request for re-polling. 13. 12. That a written petition with allegation of booth capturing was filed before Election Commission of India and it was prayed that re-polling be ordered in respect of the polling stations which had been captured, but the Election Commission did not consider the matter and refused the request for re-polling. 13. That the aforesaid action of the respondent 1 and of the agents and workers of the respondent 1, who acted with the consent of the respondent No. 1, amounts to corrupt practice within the meaning of S. 123(2) of the Representation of the People Act, 1951 and the election of the respondent No. 1 is liable to be declared void under S. 101(1)((b) of the Representation of the People Act, 1951. 14. That even if it is assumed that the aforesaid corrupt practice was not committed by the aforesaid agents and workers of the respondent No. 1 with his consent, then the same was committed in his interest by his aforesaid agents and workers and this has materially affected the result of the election in so far as it concerned the respondent No. 1 as he has secured more than 30,000 votes by this corrupt practice. 15. That but for more than 30,000 votes secured by the respondent 1 through the said corrupt practice, the petitioner would have obtained a majority of valid votes and as such is liable to be declared elected from the constituency even otherwise. - also. 21. Section 123(2) of the Act relates to the corrupt practice of undue influence meaning thereby any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right. Clause (i) of the proviso (a) to this sub-section, which is illustrative in nature, points to the threat given to any candidate or any elector or any person in whom candidate or elector is interested with injury of any kind. Elector in relation to a constituency means a person whose name is entered in the electoral roll of the constituency and who is not subject to any of the statutory disqualifications : Vide S. 2(1) (e). Elector in relation to a constituency means a person whose name is entered in the electoral roll of the constituency and who is not subject to any of the statutory disqualifications : Vide S. 2(1) (e). To attract S.100(1)(d)(ii) the petitioner has to establish :- i. that the result of the election in so far as it concerns the returned candidate has been materially affected; ii. that this is by reason of the corrupt practice. 22. These ingredients must co-exist. If these are there, the law does not require that the consent of the candidate or his election agent for the alleged corrupt practice be also averred or proved. The consent of the returned candidate or his election agent becomes relevant where the petitioner puts his case under S. 100(1)(b). For purposes of Clause (b) the petitioner is required to show that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent. The distinction between these provisions is well recognised Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 . 23. In the present case the petitioner has sought to import S. 100(1)(d), as appearing from para 14, in the alternative while in para 13 he refers to S. 100(1)(b). The pleas taken, as appearing from these paragraphs 13 and 14 extracted above, are in the alternative. There, is no bar under the provisions of the Civil P.C. applicable in these matters to pleas being raised in the alternative or even if they are mutually inconsistent. A person may rely upon one set of facts, if he can succeed in proving them, he may rely upon another set of facts if he can succeed in preying them; but then as to each of those he ought to set out the facts upon which he would have to rely as facts to maintain that right (Mulla ; CPC Volume II 14th Edition page 979). The pleas taken in other words may be in the alternative but each of those would still be required to be precise or specific. 24. Applying these criteria it would be observed that in so far as para 14 of the petition is concerned that falls far short of revealing a cause of action based under S. 100(1)(d)(ii). The pleas taken in other words may be in the alternative but each of those would still be required to be precise or specific. 24. Applying these criteria it would be observed that in so far as para 14 of the petition is concerned that falls far short of revealing a cause of action based under S. 100(1)(d)(ii). It has been baldly stated therein that the respondent 1 managed to secure more than 30,000 votes by adoption of the corrupt practice of undue influence. The margin of votes by which the respondent 1 succeeded as against the petitioner is 22,553. The total number of votes, which the petitioner avers in paras 8(b), (c), (d) and (e), extracted above, comes to 2960 only. This is almost ten per cent. of the 30,000 votes, which he has gone to assail in para 40. In this state of pleadings, the petitioner may not reasonably claim that he has given material facts setting up a cause of action as to the election of the returned candidate being materially affected due to the adoption of the alleged corrupt practice, as contemplated under S. 100(1)(d),(ii). 25. So far as the case taken by the petitioner for purposes of S. 100(1)(b) in the alternative is concerned, the argument advanced for the respondent has been that the relevant paragraphs do not contain the material particulars. For the petitioner it is submitted that if that be so the petitioner may be given opportunity to furnish now the requisite particulars in this behalf, but the petition may not be dismissed outright on that score. There is, to my mind, force in this contention, Para 8(a), it will be noticed, is general and only introductory in nature. In para 8(b) the averment is that the respondent 1 was accompanied with one Balram Singh and 12 others. There is no specification made of any of those other 12 persons nor has it been said that they are unknown to the petitioner. In para 8(d) likewise the respondent 1 is alleged to have been accompanied with one Kedar Singh and 10 others, but there is no specification of any of those other 10 persons nor has it been said that they are unknown to the petitioner. This is true also of the Schedule appended in reference to para 9 because therein too we find reference in col. This is true also of the Schedule appended in reference to para 9 because therein too we find reference in col. 4 to persons like 10 others/8 others et cetera without any specification relating to those other persons. In the Schedule also it is not stated that those others are unknown to the petitioner. In col. 3 of the schedule moreover the date and time is found missing relating to several polling stations. These are matters of details which the petitioner may now be permitted to furnish by way of better particulars. In so far as the consent is concerned, the petitioner asserts this by attributing presence of the returned candidate himself at several places, in addition to what has been said in para 13. Counsel for the respondent argued that all the persons referred to in the various paras could not have done the entire job and that the role of to respondent or others has not been demarcated or denoted. This would, strictly speaking, be a matter of evidence and that is not required to be pleaded also. 26. For the respondent it was urged then that the petitioner has not given the names of the voters in the paras relating to the plea taken under S. 100(1)(b) and that it has not been said either that they were the electors as such in the particular constituency. In aid of this contention reliance is placed for the respondent on a decision of the Patna High Court reported in AIR 1961 Patna 189, (Chandrashekar Singh v. Sarjoo Prasad Singh). That case has been distinguished by the Supreme Court in Ambika Sharan Singh v. Mahant Mahadev Giri, (1969) 3 SCC 492 at page 498 pointing out that therein the allegations were of intimidation and assault to certain workers and voters, who, as a result of the injuries caused to them, had to be admitted in a hospital. The incident referred to was a single one. Where particulars are practical and not of a corrupt practice alleged to have been committed in respect of a large group of persons at different places, the question would be different. The extent to which particulars may be required, would necessarily vary with the nature of the charge alleged. The incident referred to was a single one. Where particulars are practical and not of a corrupt practice alleged to have been committed in respect of a large group of persons at different places, the question would be different. The extent to which particulars may be required, would necessarily vary with the nature of the charge alleged. To insist upon the names of the voters being, therefore, as well given in the context, in which the averments of intimidation or threat are made in the present would amount more to requiring evidence being specified, which is not the object of the pleadings (vide Manphul Singh v. Surinder Singh, AIR 1973 SC 215 8. In Ram Sharan Yadav v. Th. Muneshwar Nath Singh, (1984) 4 SCC 649 : AIR 1985 SC 24 , moreover, the Supreme Court observed in a case wherein reliance was on alleged corrupt practice of undue influence :- "While insisting on standard of strict proof, the Court should not extend or stretch this doctrine to such an extreme extent as to make it well-nigh impossible to prove an allegation of corrupt practice. Such an approach would defeat and frustrate the very laudable and sacrosanct object of the Act in maintaining purity of the electoral process." 27. There is no dispute that where the petition required better or fuller particulars to be given as distinct from a narration of material facts, the Court has to grant opportunity to the petitioner to furnish the particulars and thereby amend the petition (See Balwan Singh v. Lakshmi Narain, AIR 1960 SC 770 , Harish Chandra Bajpai v. Triloki Singh, (1956) 12 ELR 461 : ( AIR 1957 SC 444 ). Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under O. VI, R. 16, Civil P.C. If the petition is based solely on those allegations which suffer from lack of material the petition is liable to be summarily rejected for want of cause of action. But so far as the particulars are concerned, they may be asked to be furnished later in the form of amendment (vide Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511 : ( AIR 1976 SC 744 ). A reference in this connection may be made to the provisions contained in Ss. 86(5)/87(1) of the Act. But so far as the particulars are concerned, they may be asked to be furnished later in the form of amendment (vide Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511 : ( AIR 1976 SC 744 ). A reference in this connection may be made to the provisions contained in Ss. 86(5)/87(1) of the Act. In case the opportunity is not availed to amend the pleadings, the paras in question, on that account, would remain open to be deletes. 28. Having regard to the discussion made in the above it is directed that in so far as ground (B), paras 16 to 22 are concerned they have to be deleted for the reasons above mentioned. Concerning ground A, para 14 is to be deleted. The reference to S. 100(1)(d)(ii) and S. 100(1)(d)(iv) in para 23 of the petition has to be deleted also. In paras 8(b)/(d) and the Schedule appended to the petition the better and fuller particulars may be furnished by the petitioner by amending the petition as discussed above within three weeks. The application of the respondent 1 is allowed in part accordingly.