Amrish v. Mahabir Singh Rana — 1987 DIGILAW 195 (ALL)

ORDER V.K. Mehrotra, J. - Elections to the U.P. Legislative Assembly were held early in 1985. Hardwar Assembly Constituency (Assembly Constituency No. 422) went to poll on March 5, 1985. Counting of votes took place the next day, namely, on March 6,1985. Mahabir Singh Rana, the first respondent, a candidate of Congress(I) Party, was declared elected. He is said to have secured 42,324 valid votes. Amrish, an independent candidate, who polled the highest votes after Mahabir Singh Rana is said to have obtained 42, 253 valid ) votes. The difference in the votes polled by the returned candidate and Amrish was, thus, only of 71 votes. On April 11, 1985, Amrish filed an election petition in this Court assailing the election of Mahabir Singh Rana. In it, the grounds upon which the election of Mahabir Singh Rana was said to be invalid have been enumerated in paragraph 6. Principally, they relate to the alleged improper reception of votes cast in favour of Amrish and other contesting candidates as votes of Mahabir Singh Rana; incorrect counting of votes in favour of Mahabir Singh Rana and non-compliance with the provisions of the Representation of the People Act, 1951, the rules framed thereunder and the order, directions and instructions issued by the Election Commissioner which are all said to have been materially affected the election in so far it related to Mahabir Singh Rana. The 'petition runs into 41 paragraphs. Paragraphs 20 to 37 recite, what are related to be, material facts in support of the grounds upon which the election of Mahabir Singh Rana is assailed. In paragraph 20 of the petition it has been asserted that : "................... The crucial issue presented for trial by the petitioner is that he had secured majority of valid votes and yet the Returning Officer illegally declared respondent No. 1 the Congress(I) candidate duly elected although he had not received the majority of the valid votes. The counting was so manipulated that the petitioner was robbed of his victory secured by majority of valid votes cast in his favour and his application for recount was rejected arbitrarily although his counting agents were deprived of the 1 opportunity to prevent manipulation of the result in favour of the returned candidate. 2. The counting was so manipulated that the petitioner was robbed of his victory secured by majority of valid votes cast in his favour and his application for recount was rejected arbitrarily although his counting agents were deprived of the 1 opportunity to prevent manipulation of the result in favour of the returned candidate. 2. Before arguments were heard on this application (Paper No. A-9) Sri G. C. Bhattacharya, appearing for the election petitioner Amrish said that in view of the proceedings which took place prior to the filing of the application by the first respondent, the application could not be heard on merits before evidence of the parties was actually recorded on the petition. He pointed out that on July 18,1985, when appearance was put in by the first respondent, two months time was allowed to him for filing the written statement. The first respondent filed a recriminatory petition (A-12) on July 26, 1985. Since no written statement had been filed by the first respondent, an order was made by the Court on September 19, 1985 that the case will proceed ex parte against him. Thereafter, on September 23, 1985, an application (Paper No. A-5) was filed by the first respondent for recalling this order on September 19, 1985. After exchange of affidavits, this application (A-5) was allowed on November 20, 1985 and the order of September 19, 1985 was recalled. The same day, that is, on November 20,1985, an application (A-8) for inspection of ballot papers was made by the petitioner in which time was allowed to the first respondent for filing objection. On December 13, 1985, a report was made by the office that the written statement has been filed. On that very date, this application (dated December 12, 1985) under Order VI, Rule 16, C.P.C. was filed. Both these applications, namely, the one for inspection of ballot papers and the present application under Order VI, Rule 16, C.P.C. were directed to come up for disposal on January 13, 1986. On January 7, 1986 dasti summons were issued for witnesses in support of the inspection application. On January 17, 1986, when the case was actually put up before the Court, counsel for the parties asked for a change of date as "all the witnesses have not come". The case was directed to come up for evidence, on February 6 and 7, 1986. On January 17, 1986, when the case was actually put up before the Court, counsel for the parties asked for a change of date as "all the witnesses have not come". The case was directed to come up for evidence, on February 6 and 7, 1986. On January 28, 1986, another application (A-15) was filed by the first respondent for the disposal of the application (A-9) under Order VI, Rule 16, C.P.C. Sri Bhattacharya argued that the order of January 17, 1986 for changing the date for recording of evidence to February 6 and 7, 1986 was made by the Court on the joint request of counsel for both the parties. It was, thus, a consent order. The first respondent could not be permitted to go back upon it and ask the Court to dispose of his application under Order VI, Rule 16, C.P.C. He was estopped from doing so by his own conduct of seeking adjournment of the case for recording of the evidence earlier. Attractive though, the submission cannot be sustained. A prayer to strike out part of the pleading under Rule 16 of Order VI can be considered at any stage. In the present case, admittedly, the recording of evidence had not commenced. The parties have only exchanged their pleadings. Where any part of the election petition deserves to be struck out, it is appropriate that the matter should be considered now and not postponed till after the evidence has been recorded. 3. In the application (A-15) made on January 28,1986, the claim is that after striking out certain paragraphs of the petition, under Order VI, Rule 16, C.P.C. nothing would survive in the petition which may disclose any cause of action so that the petition itself be dismissed as disclosing no cause of action. As such, the petition be examined from this aspect. In essence, therefore, what is to be considered is whether some paragraphs of the petition deserve to be struck off under Rule 16 of Order VI, C.P.C. and also whether the petition contains a concise statement of material facts in support of the grounds taken therein so as to disclose a cause of action or does the petition disclose no cause of action and deserves to be dismissed without trial. 4. 4. Over three decades back, a Constitution Bench of the Supreme Court made some observations in Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 which may well be recalled even now. It said (in paragraph 7 of the Report) that : "................an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law . power: And further that: "....................... though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices." Reiterating the same sentiments, the Supreme Court extracted in K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687 the observations of Morris, J. in Tipperary Case (1875) 3 OM & H 19 at P. 25(C) that: "a petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested." And those in A. Sreenivasan v. Election: Tribunal Madras, (1955) 11 Ele LR 278 at p. 293(B) that: "An election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process. The citizens at large have an interest in seeing and they are justified in insisting that all elections are fair and free and not vitiated by corrupt or illegal practices. In a civil action the only persons who are interested are the individuals arrayed as plaintiffs or defendants but that is not so in an election petition." 5. In the same year the Supreme Court said again in Inamati Mallappa Basappa v. Basavaraj Ayyappa, AIR 1958 SC 698 (in paragraph 11. of the Report) that: " It is this interest of the constituency as a whole which invests the proceedings before the Election Tribunals with a characteristic of their own and differentiates them from ordinary civil proceedings." 6. In the same year the Supreme Court said again in Inamati Mallappa Basappa v. Basavaraj Ayyappa, AIR 1958 SC 698 (in paragraph 11. of the Report) that: " It is this interest of the constituency as a whole which invests the proceedings before the Election Tribunals with a characteristic of their own and differentiates them from ordinary civil proceedings." 6. This being the nature of proceedings in an election petition, what is the rule which would govern examination of pleadings in an election petition. One has only to look to what the Supreme Court says about it in some pronouncements. To begin, its observations in S.M. Banerji v. Sri Krishna Agarwal, AIR 1960 SC 368 may be read. In paragraph 12 of the report it observed that: " Courts and Tribunals are constituted to do justice between the parties within the confines of statutory limitations, and undue emphasis on technicalities or enlarging their scope would cramp their powers, diminish their effectiveness and defeat the very purpose for which they are constituted ". And then, what it said in Raj Narain v. Smt. Indira Nehru Gandhi, AIR 1972 SC 1302 where it observed (in paragraph 20 of the report) that: "Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle, It is the duty of the Court to ascertain that ; principle and implement it " And in S. Raghbh Singh Gill v. S. Gurcharan Singh Tohra, AIR 1980 SC 1362 where, indicating the approach to be adopted in considering the pleadings and claim of secrecy of ballots and purity of election, it said (in paragraphs 22 and 23 of the report) that : " Secrecy of ballot was mooted to ensure free and fair elections. If the very secrecy of ballot instead of ensuring free and fair elections strikes at the root of the principle of free and fair elections this basic postulate of democracy would be utilised for undoing free and fair elections which provide life blood to parliamentary democracy" "Secrecy of ballot though undoubtedly a vital principle for ensuring free and fair elections, it was enshrined in law to subserve the larger public interest, namely, purity of election for. ensuring free and fair election. The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections, viz. purity of election. They can co-exist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play." 7. These observations assume importance because what is urged on behalf of the returned candidate before me is that before permitting trial of the issues raised by the election petitioner, the court should examine the petition with a view to find out whether any triable issue arises therein on the allegations made by the election petitioner and that this examination should be strict and every omission on the part of the petitioner to state, what are described as, material facts, should visit him with the penalty of dismissal of the petition as disclosing no cause of action. This approach, however, overlooks the cardinal principle of construing pleadings, namely, that pleadings are to be read as a whole and the substance of the allegation and not the form in which it is made is to be seen. 8. To recall the words of the Supreme Court in Udhay Singh v. Madhav Rao Scindia, AIR 1976 SC 744 (contained in paragraph 30 of the report) : "this ingenious method of construction after compares in tantalisation, dissection, segregation and inversion of the language of the paragraph, suggested by counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the contest, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole". And in K. M. Mani v. P. J. Antony, AIR 1979 SC 234 (in paragraph 12 of the report) that : "The proper way to examine a controversy like this is to consider the substance of the allegation and not its mere form. It may be that a part of the allegation may be made in a separate sentence or sentences, and it may also be that it may appear to be disjointed from the earlier allegation because of inartistic drafting, but it is the substance of the allegation which is material and not the mere form. It is equally necessary that the allegation should be read as a whole and construed properly so as to understand its true nature and content". 9. Before examining the allegations made in the petition with a view to find out whether some of the paragraphs of the petition deserve to be struck off, as prayed on behalf of the first respondent under Order VI, Rule 16, C.P.C. it has to be kept in mind that this question has to be decided on consideration . of the averments in the election petition alone, without taking the allegations in the written statement into account, and on assumption that the averments contained in the petition are true and further that having regard to the language of Rule 16 of Order VI, C.P.C. it has to be found out whether the averments sought to be struck off are either unnecessary, frivolous or vexatious or that they are such as may tend to prejudice, embarrass or delay ; fair trial of the election petition or that they constitute an abuse of the process of the court. In addition what has to be kept in mind is that the burden of disclosing facts which are not within his knowledge cannot be cast on the election petitioner. In addition what has to be kept in mind is that the burden of disclosing facts which are not within his knowledge cannot be cast on the election petitioner. (See : Roop Lal Sathi v. Nachhattar Singh, AIR 1982 SC 1559 ). 10. Another aspect which deserves to be kept in mind is that there is a distinction between a case where there is allegation of any corrupt practice and the one in which there is no such allegation. As observed by the Supreme Court in Arun Kumar Bose v. Mohd. Furkan Ansari, AIR 1983 SC 1311 . " The scheme in section 83(1) of the Act makes the position very clear. Clause (a) refers to general allegations and requires a concise statement of material facts to be furnished while clause (b) referring to corrupt practice requires all details to be given." And that the observations, contained in the decision of the Supreme Court in Samant N. Balkrishna v. George Fernandez, AIR 1969 SC 1201 to the effect that the petition must contain a concise statement of the material facts on which the petitioner relies and fullest possible particulars should be given and further that material facts and material particulars may overlap, have to be confined to a case where allegations of corrupt practice are made, because the allegations of corrupt practice being in the nature of a criminal charge, the Act required full particulars to be given. 11. The principles having regard to which the court could grant inspection or sample inspection of ballot papers were stated by the Supreme Court in the case of Bhabhi v. Sheo Govind, AIR 1975 SC 2117 after culling them out from a large number of its earlier decisions. The recital of these principles is contained in paragraph 15 of the report. The principles having regard to which the court could grant inspection or sample inspection of ballot papers were stated by the Supreme Court in the case of Bhabhi v. Sheo Govind, AIR 1975 SC 2117 after culling them out from a large number of its earlier decisions. The recital of these principles is contained in paragraph 15 of the report. The principles are these: - "(l)That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the court should not be exercised in such a way so as to enable the applicant to indulge in a roving enquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials." 12. The Supreme Court also said in D.P. Sharma v. Commr. and Returning Officer. AIR 1984 SC 654 (in paragraph 4 of the report) that : "It is well established that in order to obtain recount of votes a proper foundation is required to be laid by the election petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidate which had in reality been cast in favour of the defeated candidate.........." 13. It is clear that foundation for an answer to the aforesaid requirement should be laid in an election petition before the election petitioner can ask the court to proceed with the trial of the petition. The allegations should be such which, read as a whole, disclose the material facts upon which the election petitioner can ask for trial of the basic issue between the parties. 14. Application A-19 with the prayer that some paragraphs of the petition be struck off under Order VI, Rule 16, C.P.C. is supported by an affidavit of respondent Mahabir Singh Rana. In paragraph 3 of this affidavit, it has been asserted that the election petition suffers from vagueness and contains irrelevant, scandalous, vexatious and frivolous allegations which cannot be answered without adequate particulars and, therefore, merits to be struck off, and further that "specific objections in respect of such paragraphs of the election petition are given in on coming paragraphs. In paragraphs 4 to 31 of this affidavit are enumerated various paragraphs individually in respect whereof the prayer is that they be struck off. There is, in these paragraphs of the affidavit, almost a mechanical reproduction of the words contained in clause (A) of Rule 16 of Order VI. C.P.C. In some of them it has been stated that the allegation is vague and lacks in material particulars. During the course of submissions before me what was stressed on behalf of the first respondent by his learned counsel was that the assertions in paragraphs 8 to 20 of the petition were unnecessary and did not raise any triable issue. In respect of paragraphs 21 to 37 the submission principally was that they lacked any material particulars and were vague. In respect of these paragraphs the submission did not amount to saying that the allegations were either unnecessary, scandalous, frivolous or vexatious. The emphasis, in respect of the allegations contained in these paragraphs of the petition, namely, paragraphs 21 to 37, was upon nondisclosure of cause of action due to vagueness in them and absence of statement of material facts therein. The deficiency of this nature in the pleadings cannot justify an order striking off paragraphs 21 to 37 under Rule 16 of Order VI, C.P.C. 15. The deficiency of this nature in the pleadings cannot justify an order striking off paragraphs 21 to 37 under Rule 16 of Order VI, C.P.C. 15. Coming now to the assertions made in paragraphs 8 to 20 of the petition, suffice it to say that they give out the antecedent circumstances, by way of background, leading to the grounds (mentioned in paragraph 6 of the petition) upon which the election of the first respondent has been assailed. May be, read individually, the assertions in these paragraphs may not give rise to a triable issue as such but as the background which prompted the acts and omissions said to have taken place, the facts stated in paragraphs 8 to 20 cannot be said to be unnecessary in the sense that they are so unrelated to the dispute raised in the petition that they deserve to be struck off under Order VI, Rule 16, C.P.C. The result, therefore, is that none of the paragraphs of the petition from amongst paragraphs 8 to 37, alluded to in the application A-9, nor paragraphs 6 of the petition which contains the grounds and avers that the first respondent was wrongly declared elected by the Returning Officer under the pressure of some Ministers of the Uttar Pradesh Government and on account of manipulations in the result in favour of the returned candidate, need be struck off. The prayer in that regard is rejected. 16. Coming now to the next question about which learned counsel for the parties made serious submissions, namely, whether the petition deserves to be dismissed without trial as disclosing no cause of action under Order VII, Rule 11, C.P.C. the allegations in these paragraphs and the submissions about them may be noticed. 17. In paragraph 22 of the petition, it has been stated that 38 tendered votes had not been counted and if counted the election petitioner would have got majority of votes. Further that a written protest, of which a copy is Annexure to the petition was made by the petitioner to the Returning Officer. No comments were made in respect of these allegations by the learned counsel for the first respondent. 18. In paragraph 23 the statement is that many of votes of the election petitioner were rejected on the ground that the Polling Officer had not supplied the voters with proper seal. No comments were made in respect of these allegations by the learned counsel for the first respondent. 18. In paragraph 23 the statement is that many of votes of the election petitioner were rejected on the ground that the Polling Officer had not supplied the voters with proper seal. The objection to it is that the names of the Polling Station, the number of voters and the ground in which the counting of the votes of the polling station took place has not been mentioned. 19. In paragraph 24 the assertion is that the ballot boxes of polling stations were manipulated and by way of an example, are cited the ballot boxes of some specific polling stations and the deficiency in or excess of ballot papers found in these ballot boxes in relation to the number of ballot papers issued to the voters. The criticism is that the identity of the person manipulating or the time of manipulation, before at or after polling has not been alleged in this paragraph. Further that part of the statement is sworn to be true on the basis of the record and part thereof on the basis of information without disclosing the source of information. 20. In paragraph 25 it has been stated that barricades were put in the counting hall to keep the counting agents away from the counting table and to make it impossible for them to perform their duties including keeping a check on the counting. As such, no counting agent could keep a check. The irregularities including the fact whether in the bundles of ballots shown in favour of one candidate, the ballots of the other Candidates were not included without enabling the agents to scrutinise the correctness of the bundles prepared and the improper reception of votes in favour of the first respondent. The criticism about this paragraph is that by itself it does not raise any triable issue. 21. The criticism about this paragraph is that by itself it does not raise any triable issue. 21. In paragraphs 26 and 27 it has been stated that in preparing the bundles the counting officials started folding the ballots in a manner that the blank side was visible and the marked side was concealed from the view of the counting agents and further that the counting agents could only take down the figures of votes polled by candidates as given out by the counting officials, and had no opportunity to verify the correctness of either the ballot or the numbers of ballot included therein. The criticism about these paragraphs is that the table on which or the round of counting in which this took place has not been given. 22. The allegation in paragraph 28 of the petition is that the method of counting was objected to orally as it was against the Act and the Rules and the orders and instructions of the Election Commission and further that the election petitioner had informed the Election Commission about the manipulation of the result of the counting initially on telephone on the night of March 6/7 followed by a telegram (copy of which being Annexure 2 to the petition) and a deputation met the Secretary to the Commission on March 7, 1985 at Delhi and handed over a representation to him (copy filed as Annexure 3) who clarified that no instructions had been issued to put the barricade of poles between the counting agents and the counting officials. The criticism in respect of this paragraphs is that the name of the Officer to whom the complaint was made orally and by whom was it made has not been disclosed. 23. In paragraph 29 it has been asserted that counting was going on 24 tables. The method aforesaid was followed up to the fifth round of counting and in spite of the handicaps, the petitioner was leading by a margin of over 2000 votes till the fifth round of counting was completed. Thereafter, on instructions from Congress leaders not to permit the congress (I) candidate to be defeated, the manipulation of the result was secured by extreme high handed behaviour of the counting staff and the authorities. Thereafter, on instructions from Congress leaders not to permit the congress (I) candidate to be defeated, the manipulation of the result was secured by extreme high handed behaviour of the counting staff and the authorities. It has been asserted that a bare look at the cuttings in Form No. 20 which is the basis of the result, was enough to prove it. This assertion has been sworn on the basis partly on record and partly on the personal knowledge. The criticism is that the name and identity of the counting staff and the authorities who behaved in the manner attributed to them has not been disclosed M and further that the petitioners own case being that he was not personally present at the counting, part of the assertion sworn to on the basis of the personal knowledge could not be accepted. It has also been urged on behalf of the first respondent that Annexure 6 to the petition, which is a copy of Form 20, itself shows that not only up to the fifth round but also later i.e. in the 6th and 7th round sometime the petitioner and sometime the first respondent was found to be leading and further that on some tables it was the petitioner and on some the first respondent had led. 24. The statement in paragraph 30 is that at that stage the counting agents of the petitioner were physically removed from the counting hall, which gave rise to commotion and the petitioner was given to understand that a large number of counting agents of some other candidates except that of Congress (I) were driven out of the hall. The criticism is that the identity of the counting agents who were driven out has not been disclosed, and further that the statement in this paragraph has been sworn to be correct partly on personal knowledge and partly on information. The source of information has not been disclosed. 25. In paragraph 31 of the petition, the statement is that in the aforesaid manner, contrary to the true state of votes polled, the Returning Officer announced that the Congress (I) candidate had received majority of votes. The statement in this paragraph has been verified on the basis of personal knowledge. No criticism has been made in respect of these assertions. 26. The statement in this paragraph has been verified on the basis of personal knowledge. No criticism has been made in respect of these assertions. 26. In paragraph 32 of the petition, the statement is that the petitioner was not present throughout the counting as he was not well. He was resting at the house of his friend where he was informed that the counting was wrong and illegal and the result was being manipulated. He immediately rushed to the counting hall and on being told that the Returning Officer announced majority of votes in favour of the first respondent under R. 63(1), he applied immediately under R. 63(2) for a recount before the result was declared. The Returning Officer arbitrarily and illegally rejected the application as he was determined against the petitioner. Copies of the application for recount and the order thereon have been appended as Annexures 4 and 5 to the petition. What has been put forward by way of criticism is that on his own showing the petitioner was not present during the counting so that the claim that he made the prayer for recount at the appropriate time cannot be accepted and further that it ,was clear from Annexures 4 and 5 filed by the petitioner himself, that the objection was not in the form in which it is now being put forward in the election petition. The only objection, as is clear from the order passed by the Returning Officer, was that there was a narrow margin which ground was found to be insufficient in law by the Returning Officer to direct a recount. 27. In paragraph 33 the statement is that the certified copy of Form No. 20 which was secured by the petitioner shows that the initial lower number of votes found to have been cast in favour of the first respondent has been altered by over-writing to inflate the number of votes to turn his defeat into victory. Overwriting was conspicuously absent in cases of votes shown to have been received by the election petitioner or other candidates and if that overwriting is ignored the Congress(I) candidate who had received several hundred votes less than the votes he is shown to have received, he ought to have been declared defeated by the petitioner. Overwriting was conspicuously absent in cases of votes shown to have been received by the election petitioner or other candidates and if that overwriting is ignored the Congress(I) candidate who had received several hundred votes less than the votes he is shown to have received, he ought to have been declared defeated by the petitioner. It has also been stated that in polling station No. 115, the total of votes was wrong because the same was inflated by out votes. The inference of the petitioner, therefore, was that if forgery and fabrication have not been resorted to in Form 20 (certified copy whereof, as supplied to the petitioner being Annexure 6 to the petition) the petitioner ought to have been found to have received majority of valid votes and should have been declared elected. The criticism in respect of these allegations is that over-writing and correction is to be found in Form 20 even in the rounds earlier to round Nos. 6 and 7 when, according to the petitioner also, every thing had gone well. Also, that there were corrections in cases of other candidates as well and further that in spite of corrections the petitioner was found to have led in some rounds. It was further urged, by way of criticism, that the accuracy of Form 16, which is the basis of the entries in Form 20, having not been assailed the petitioner could not receive any relief even if there is some error in Form 20. 28. The statement in paragraph 34 is that postal ballots were not issued to various officials who were busy in election duty on March 5,1985 nor were they afforded facility to cast their votes at the polling station where they were appointed for election duty. If they had been allowed to cast their votes a large number of them certainly more than 71 (which figure denotes the difference in the votes cast in favour of the petitioner and the returned candidate) would have cast their votes in favour of the petitioner. If they had been allowed to cast their votes a large number of them certainly more than 71 (which figure denotes the difference in the votes cast in favour of the petitioner and the returned candidate) would have cast their votes in favour of the petitioner. It was further stated that Sri D. P. Juyal, Executive Officer of the Municipal Board, Hardwar made a request to the District Election Officer, Saharanpur to give 150 Form 12-A through a letter (Annexure 7 to the petition) on which an order was passed that the same would be given at the time of rehearsal but they were not given either at the time of rehearsal or at any point of time. The petitioner was the President of the employees of the Municipal Board, Hardwar and in case Form 12-A had been issued, the employees who were on election duty would have cast their votes in favour of the petitioner. Their votes were got cast in favour of the first respondent by his supporters. The criticism is that the assertions in this paragraph which have been verified partly on the basis of the record and partly 'on personal knowledge do not disclose the names of the officials who were denied postal ballot nor the date and time of the request and not even the name of the authorities who refused to issue the ballot. The further criticism is that even in Annexure 7 which shows that these ballot would be given at the time of rehearsal, there is no assertion that any request was made at that time. It has also been said, by way of criticism, that there is no allegation that any request was made by the voters themselves who were refused postal ballots nor has it been mentioned as to whose votes were cast in favour of the first respondent and at which polling station and further that who were the supporters of the first respondent who did it. 29. 29. About paragraph 35, in which the statement is that the counting staff and the Returning Officer failed to count all valid votes during the counting nor was Form 20 correctly prepared the Returning Officer failed to declare the result on the basis of the majority of valid votes nor did he prepare Form 20 reflecting the true state of votes cast and that he did not give the certificate of election to the petitioner as required by Rule 66 read with Form 22 of the Conduct of Election Rules, 1961, the criticism is that the allegations are vague and there is no disclosure as to the round and the table on which the petitioners valid votes were not counted. The further criticism is that in some rounds and on some tables, the petitioner is found to have obtained more votes which gave a He to the allegations made. 30. In paragraph 36 of the petition the statement is that as a result of gross irregularities and illegalities the petitioners success in the election has been turned into defeat on the command of the superiors and that the Returning Officer has carried out the wish of those who, in order to please the Prime Minister, had made up their mind that they would not allow the petitioner to be declared elected to the U. P. Legislative Assembly no matter how large is the lead of the petitioner. The criticism about this paragraph is that the assertions are vague and they do not specify the gross irregularities and illegalities nor do they specify the superiors of the Returning Officer at whose behest he has acted in the manner alleged by the petitioner. 31. In paragraph 37 the allegation is that the petitioner was physically manhandled by the police in the counting hall when he demanded the recount, in order to suppress the protest against the high-handedness and terror and intimidation practised by the authorities and that the approach of the Returning Officer during the counting had reduced democracy to a farce. It has also been alleged that the details of various irregularities, illegalities and atrocities at the time of counting of votes had been published in Hindi daily Punjab Keshari dated March 11, 1985 and Hindi daily Roorkee Express dated March 18, 1985 of which photostat copies of the relevant extract are 11 Annexures 8 and 9 to the petition. It has also been alleged that the details of various irregularities, illegalities and atrocities at the time of counting of votes had been published in Hindi daily Punjab Keshari dated March 11, 1985 and Hindi daily Roorkee Express dated March 18, 1985 of which photostat copies of the relevant extract are 11 Annexures 8 and 9 to the petition. The criticism is that the authorities who had practised intimidation, terror and high handedness had not been specified and also the facts about manhandling etc. mentioned by the petitioner in the application. It has been urged that the newspaper reports have been prepared for the purpose of election petition and form the recital contained in Annexures 8 and 9 it was clear that they had been written out by the same person. 32. When invited to specify as to what would constitute material facts which should have been stated in the election petition so as to make out a triable issue, it was urged on behalf of the first respondent by his learned counsel that what should have at least been stated was : (i) the serial number of the ballot papers rejected; (ii) the nature of illegality in it given out as aground for its rejection; (iii) the number and name of the polling station and the booth number at which the illegality was committed; (iv) specification of the table and the round of counting at which the illegality had been committed; (v) the names of the counting and other agents who gave information about the commission of irregularity; (vi) the reason of rejection given by the Returning Officer in respect of each ballot paper said to have been improperly rejected; and (vii) the objection raised on behalf of the election petitioner to the rejection in respect of each ballot paper. 33. Some decisions were relied upon by the learned counsel for the first respondent in support of this submission. The decisions pressed into aid are of this Court to which reference will be made a little later. Decisions of the Supreme Court which were brought to my notice by the learned counsel for the parties during their submissions, and which related to a dispute about an election founded upon counting of votes were those where the matter had been examined after recording of evidence in the case. 34. Decisions of the Supreme Court which were brought to my notice by the learned counsel for the parties during their submissions, and which related to a dispute about an election founded upon counting of votes were those where the matter had been examined after recording of evidence in the case. 34. Before considering the submission about the rejection of the petition as not disclosing any cause of action further, the plea that the averments made in various paragraphs of the petition were not properly verified in the sense that the source of information of that part of the allegation which was verified on the basis of information had not been disclosed and that in the paragraphs containing assertions which had partly been verified on personal knowledge and partly on information, it had not been specified which part was being verified on what basis, be considered. 35. This criticism, in so far as it relates to specific paragraphs, has been noticed earlier. What Sri G. C. Bhattacharya argued, and in my opinion rightly, in regard to this objection is that Section 83(1) of the Representation of the People Act, 1951 does not require an affidavit except in a case where corrupt practice is alleged and the petition- is to be verified, like a plaint under Order VI, Rule 15, C.P.C. A faulty verification of the plaint under this rule is not a ground for striking out the pleadings under Rule 16 of Order VI, C.P.C. nor for the rejection of a plaint under Rule 11 of Order VII, C.P.C. 36. In Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore, AIR 1964 SC 1545 it was observed by a Constitution Bench of the Supreme Court (in paragraph 8 of the report) that : "It seems clear to us that reading the relevant section in Part VI of the Act, it is impossible to accept the contention that a defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings is fatal to the maintainability of the petition." 37. In the case before the Supreme Court one of the defects was that the verification stated that the averments made in some paragraphs of the petition were true to the personal knowledge of the petitioner and the averments in some other paragraphs were verified to be true on the basis of the advice and information received by the petitioner from legal and other sources. The petitioner did not state in so many words that the advice and information received was believed by him to be true. 38. It has been urged by Sri Bhattacharya that an election petition cannot be dismissed without trial where it is found that it did not disclose a cause of action because there is nothing in Section 86 of the Representation of the People Act, 1951 which ordains dismissal of a petition for breach of Section 83. He says that the penalty of dismissal of the petition under Section 86 is envisaged only when there is a breach of the provisions of Sections 81 and 82 or 117 as mentioned specifically in Section 86. Before its amendment by Parliament Act, No. 47 of 1966, Section 86(1) also mentioned Section 83 as one of the provisions of which breach would entail the dismissal of the petition. Since Section 83 was deliberately omitted by the amendment from amongst the provisions whose breach would result in the dismissal of the petition, the same consequence could not be brought about, as was done by the Supreme Court, by bringing in Order VII, Rule 11, C.P.C. and holding that a petition could be dismissed under Section 86(1) when it did not disclose any cause of action. It has further been urged by Sri Bhattacharya that the provisions of the Code of Civil Procedure have been made applicable to a limited extent under Section 87(1) of the Act when it says that they would apply "subject to the provisions of the Act." It could not be said, argued Sri Bhattacharya, that the Parliament intended to exclude Section 83 from Section 86 by a conscious amendment in the year 1966 and yet intended the same consequence by permitting dismissal of an election petition under Order VII, Rule 11, C.P.C. without trial. Attractive though it may be, the submission cannot be accepted in view of the pronouncements of the Supreme Court in Hardwari Lal v. Kanwal Singh, AIR 1972 SC 515 and Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 : (1986 All LJ 625). 39. The case of the election petitioner is that in the Handbook for Returning Officers issued by the Election Commission of India in 1984, it has been clearly provided in paragraphs 4(a) and 17(c) of Chapter XIV, read with the table at page 2414 that there can be no obstruction to a counting agent watching the entire proceedings of counting on behalf of a candidate. This envisaged that there should be no barricade between the place where the counting agents of a candidate are to be seated and the counting tables so that it is possible for the counting agents to clearly watch the counting of votes. In a case like the present where the instructions were not complied with and the counting agents of the election petitioner had no access to the tables where counting took place it was not possible for them to notice the details spoken of by the learned counsel for the first respondent nor could these details be, therefore, expected to be mentioned in the election petition. The first respondent could not be permitted to urge, in the circumstances, that the petition should be dismissed without trial on the ground that it did not disclose a cause of action merely because some of these details were not mentioned in the election petition. Argument of Sri Bhattacharya is that the decisions which lay down that certain details should be disclosed in the election petition presuppose that the relevant rules and directions in regard to the counting were faithfully observed and the counting agents were in a position to watch the details. In the present case, according to him, that opportunity was lacking on account of the breach aforesaid. In the present case, according to him, that opportunity was lacking on account of the breach aforesaid. He also says that in the Recriminatory petition filed by him, the first respondent has himself acknowledged that irregularity had taken place in the counting by saying in paragraph 6 that under the influence of the election petitioner the counting staff counted invalid votes in favour of the election petitioner and put the same in the bundle of valid votes in favour of the election petitioner and that, in fact, counting was manipulated and several invalid votes which had double marking and were cast in favour of the first respondent and other candidates were counted in favour of the election petitioner. And also in paragraph 7 by saying that many votes of the first respondent were rejected on the ground that the polling Officer had supplied improper seal which was used by the voters to indicate their preference by using that seal though similar ballot papers were accepted as valid and counted in favour of the election petitioner. In this situation, according to the counsel for the election petitioner, the petition deserved a trial. According to him, the assertions contained in the Recriminatory petition could be taken into account for deciding whether the petition merited trial because necessary facts were on the record of the election petition. Sri Bhattacharya drew my attention to a decision of the Supreme Court in Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276 in which the assertions made in the affidavit filed in support of the application for inspection were taken into consideration to decide whether inspection of valid votes deserved to be allowed or not. Support in this respect was drawn from what was contained in paragraph 5 of the Report. 40. In Rhooplal Sathi v. Nachhattar Singh, ( AIR 1982 SC 1559 ) it has been laid down in unmistakable terms that the assertions contained in the petition alone are to be examined without taking into account the allegations made in the written statement and the Court has to proceed on the assumption that the averments contained in the petition are true. At this stage all that is to be seen is whether the facts stated in the petition, on assumption that they are true, raise any triable issue between the parties h and disclose a cause of action. At this stage all that is to be seen is whether the facts stated in the petition, on assumption that they are true, raise any triable issue between the parties h and disclose a cause of action. For the purpose, the facts given out in the Recriminatory petition cannot be looked into. 41. The election petitioner has chosen not to challenge the election of the first respondent on account of any corrupt practice committed by him. He had said so in paragraph 20 of the petition. The challenge' is confined, according to the petitioner, to the so-called manipulation in the counting of votes which had material effect upon the election. What should, therefore, appear, as a concise statement of material facts, in the petition is the assertion of those facts which provide a cause of action for a challenge to the election under section 100(l)(d)(iii) and 6 (iv) of the Act. The facts which should be stated in the petition should be those which, prima facie, show that the result of the election, in so far as it concerns the returned candidates, has been materially affected (a) by improper reception, refusal or rejection of any vote or the reception of any vote which is void or (b) any non-compliance with the provisions of the Constitution or of the Act or any rules or order made under the Act, Foundation for an enquiry about this aspect alone is to be laid by giving out the facts, as distinct from such details which fall in the category of particulars. 42. The averments which have been made in paragraphs 22 to 37 of the petition have been summarised earlier. Do they amount to a concise statement of material facts or not. The answer, to my mind, appears to be in affirmative. 42. The averments which have been made in paragraphs 22 to 37 of the petition have been summarised earlier. Do they amount to a concise statement of material facts or not. The answer, to my mind, appears to be in affirmative. If, for example, the fact that 38 tendered votes had not been counted is correct, the circumstance that the difference in the votes received by the election petitioner and the first respondent was only of 71 votes would impel one to the view that these tendered votes, in case in favour of the petitioner, would reduce the margin of the difference between the votes received by the first respondent and the election petitioner and further that the case set up by the election petitioner in the petition deserved examination on merit when the facts stated in the other paragraphs of the petition are read in conjunction with what is stated in paragraph 22. 43. In paragraph 34 of the petition, the allegation is that the Executive Officer of Municipal Board, Hardwar had made a request to the District Election Officer for issuance of 150 postal ballots in Form 12-A to enable the various Officers, who were busy in election duty on March 5, to cast their votes. These forms were not given, as promised at the time of the rehearsal or at any other point of time. If these votes had been permitted to be cast by the various Officers at the Polling Stations where they were appointed for election duty, a large number of them, certainly more than 71, would have cast their votes in favour of the petitioner. If true, these allegations, together what has been stated in paragraph 22, would prima facie, establish that the result of the election, in so far as it concerned, the first respondent, had been materially affected by the improper refusal of votes in favour of the election petitioner and by non compliance with the provisions of the Act and the Rules. The assertion in paragraph 24 of the petition if true would prima facie establish the petitioners grievance that there has been non-compliance with the provisions of the Act and the Rules framed under it. The assertion in paragraph 24 of the petition if true would prima facie establish the petitioners grievance that there has been non-compliance with the provisions of the Act and the Rules framed under it. Further, that the inspection of ballot papers would be necessary to discover the precise number of ballot papers issued to voters and the number of votes actually polled at the specified polling stations with a view to find out the actual number of votes cast in favour of the various candidates. 44. The statement in paragraph 25 is that barricade was put in the counting hall contrary to the directions issued by the election commission as contained in the Hand-book for Returning Officers, making it impossible for the counting agents to perform their duty, including a check on the counting. The counting officials, according to what has been said in paragraphs 26 and 27, folded the ballot papers in a manner where only the blank side was visible and the marked side was concealed from the view of the counting agents. The result was that the details of the ballot papers, including the correctness of the ballot or the number of ballot included in the bundle, could not be noticed. After the 5th round of counting, till which round the election petitioner was leading by a margin of over 2000 votes, the counting agents of the election petitioner were physically removed from the counting hall. These are allegations contained in paragraphs 29 and 30. Thereafter, the Returning Officer, contrary to the true state of the votes polled, announced that the first respondent had received majority of votes. This is said in paragraph 31. 45. Broadly, the criticism of the learned counsel for the first respondent is that the various details (mentioned in the earlier part of this order) which, according to his submission, should have been stated have not been disclosed in the petition. The petition is, therefore, bereft of a concise statement about material facts. This criticism overlooks that where, on account of the supervening circumstances, it is not possible for an election petitioner to disclose some facts which he is supposed to know if the correct rules in regard to counting process are observed by the authorities, the election petition cannot be thrown out without a trial. This criticism overlooks that where, on account of the supervening circumstances, it is not possible for an election petitioner to disclose some facts which he is supposed to know if the correct rules in regard to counting process are observed by the authorities, the election petition cannot be thrown out without a trial. Supervening circumstance may be, as in the instant case, the placement of barricades removing the counting agents from counting tables to such a distance which makes it impossible for them to note down various details and of the counting agents being thrown out of the counting hall. At this stage of the proceedings, the allegations made in the petition are to be accepted to be correct. Insisting upon disclosure of details of the nature canvassed by the counsel for the first respondent even in such a situation would virtually negate the remedy of questioning the election through an election petition by an election petitioner who is faced with insurmountable difficulty by the authorities, may be under a mistaken impression of law or under the influence of a candidate belonging to the ruling party. That would be a sad day for a democratic set up like the one obtaining in our country. The f safety valve provided by the Representation of the People Act, 1951, for assailing the declaration of an election got made by questionable means, would get clogged and may result in damaging the entire fabric of the election process and, ultimately, the body politic of a democracy like ours. 46. The various decisions of the Supreme Court, as mentioned earlier, to which my attention was drawn were those in which the matter had been examined by the Court after parties had adduced their evidence and the petition had been tried. In none of the cases, relating to counting of votes, had the Supreme Court been called upon to examine the matter at the threshold. The submission of Sri R.C. Srivastava is that even where the election petitioner alleges some supervening circumstances as the reason for his failure to disclose the various details about the ballot papers, there should be some contemporaneous material disclosed with the petition which may lend credence to the grievance made by him that it was impossible for him to know those details. By asking for such material what Sri Srivastava is really asking for is the evidence in support of the allegation and not for a statement of some material fact. This approach is not countenanced by the principles governing construction of pleadings and, in particular, those governing the examination of a plaint with reference to Rule 11 of Order 7, C.P.C. 47. Coming now to the decisions of this Court on which great reliance has been placed on behalf of the respondent. 48. In Election petn. No. 63 of 1985 (Ramji Pandey v. Vikramaditya) B.D. Agarwal, passed an order on March 5, 1986 (Reported in AIR 1987 All 92 ). He allowed the application of the returned candidate for dismissal of the petition as disclosing no cause of action. The petition was itself dismissed without further trial. In that petition, one of the two grounds raised was that there had been breach of the provisions of the Act/Conduct of Election Rules, 1961 in the matter of counting of ballot papers and thereby affecting the result materially. The Eliminate petitioner had prayed, inter alia, for inspection, scrutiny and recounting of the entire set of used and rejected ballot papers and the counterfoil. The substance of the averment in respect of the grounds, contained in paragraphs 22 to 42 of the petition, as noticed by the learned Judge, disclosed error in the seating arrangement for the counting due to which the counting agents could not clearly discern the marks appearing on the ballot papers and effectively supervise the counting and the irregularity in conducting the counting itself. After noticing some decisions of the Supreme Court, the learned Judge felt that absence of the names of. the counting agents who had been prevented by the counting supervisors or the table at which the irregularity took place and of allegation that any objection now raised was actually raised during the counting or immediately thereafter from the side of the election petitioner, the absence of specification of ballot papers allegedly accepted or rejected wrongly were instances of material facts which has not been stated in the petition. As such, the allegations made in the petition about those grounds fell short of disclosing the cause of action for the trial of the petition. As such, the allegations made in the petition about those grounds fell short of disclosing the cause of action for the trial of the petition. The learned Judge felt that permitting inspection recounting in the case would amount to permitting a roving enquiry of fishing nature of mere possibility of there being an error. 49. This decision is to be seen in the background of the circumstance that the allegation about the failure of the counting agents to observe the irregularities, said to have been committed in the counting, was not such from which one could even, prima facie, feel that it was well nigh impossible for them to observe the process of counting in accordance with the rules and invoke the safeguards provided therein at the appropriate time. The allegation basically was that there was distance of 3 feet between the counting table and the first row of the benches provided to the counting agents with ball is in between and that the counting supervisor and the Returning Officer did not permit the noting down of the Serial numbers of the ballot papers objected to. The learned Judge was not considering a case where invoking the safeguards provided in the Conduct of Election Rules, 1961 during the course of the process of counting was prima facie not possible. 50. On August 21, 1986 Om Prakash, J. dismissed Election Petn. No. 17 of 1985 (reported in 1986 All LJ 1446) (Raifaqat Hussain v. Rama Shanker Kaushik) after striking out certain paragraphs of the petition under Order VI, Rule 16, C.P.C., read with Order VII, Rule 11 C.P.C. Ground A in the petition related to improper acceptance and rejection of votes and irregularities committed during the course of counting. The facts which had been stated in respect of this ground did not disclose the serial number of the ballot papers, the names of the counting agents, the details of the counting tables, the names of the counting supervisors, the round number, the detail of the objection made to the counting staff and the notes, if any, kept by the counting agents as also the basis of information. These according to the learned Judge, were material facts which should be disclosed to give a complete picture of cause of action. These according to the learned Judge, were material facts which should be disclosed to give a complete picture of cause of action. Ground B contained the claim that the election petitioner had received majority of votes which was reiterated in paragraphs 31 and 32 of the petition. Relying upon some decisions of the Supreme Court, of which some related to a challenge to an election on the ground of commission of corrupt practice, the learned Judge felt that the non-disclosure of the aforesaid details was fatal to the petition. A perusal of the judgment shows that there was no allegation that circumstances existed which made it impossible for the election petitioner to have knowledge of these details. The decision is ; thus inapplicable to the facts of the case before me. 51. On the same day another Election Petn. No. 6 of 1985 (Hamidul Zafar Khan v. Mohammad Mahfooz Ali Khan) was dismissed by Om Prakash, J. without directing its trial. That election related to Boron Assembly Constituency. Grounds A and B put forward in the election petition related to corrupt practices committed with the consent or in the interest of the returned candidate. Ground C related to non-compliance with the provisions of the Act and the Rules in respect of counting of votes. Facts in regard to this ground were asserted in paragraphs 29 to 47. The learned Judge found that the failure to mention the serial numbers of the ballot papers, the numbering of counting table, the N number of round of counting, the names of the agents and of counting supervisors, the details of objection raised which were integrated part of cause of action relating to ground C was fatal, The petition was filed by an elector and not either by the candidate or an election agent or any other agent of that candidate. No disclosure of the source of information was made though the verification of most of the paragraphs in the petition was based on information. The decision does not help the returned candidate in the present case for there was no allegation in that petition that it was not possible for the petitioner to have access to the details which were found lacking in the petition. 52. The decision does not help the returned candidate in the present case for there was no allegation in that petition that it was not possible for the petitioner to have access to the details which were found lacking in the petition. 52. Eventually, the decision whether the allegations made in an election petition constitute a cause of action for the trial of the petition would depend upon the circumstances obtaining in a particular case, No inflexible rule can be laid down in this respect. Basically, it is the prima facie, satisfaction of the court, on the facts stated in the petition, about the desirability of going further into the circumstances of a case with a view to decide whether the matter should be decided after the parties have adduced evidence or at an earlier stage. In coming to this prima facie satisfaction, the Court cannot overlook the golden rule that it should approach the problem realistically, without casting upon the election petitioner the burden of disclosing facts which cannot be within his knowledge on account of the circumstances of a particular case. 53. In conclusion, the prayer for striking out some paragraphs of the petition under Order VI, Rule 16, C.P.C. and dismissing the petition as disclosing no cause of action under Rule 11 of Order VII, C.P.C. is rejected. The case shall now be listed on March 9,1987 for framing of issues and consideration of the petitioners application (A-8) for an order for inspection of ballot papers.