C. M. Sundaram v. T. K. Noushad — 1997 DIGILAW 26 (KER)

Judgment :- Narayanan Nambiar, J. The petitioner was one of the candidates for election from No. 49 Palakkad Legislative Assembly Constituency for which poll was conducted on 27.4.1996 and results declared on 9.5.1996. The first respondent defeated the petitioner by a margin of 596 votes. According to the petitioner, the result of the election has been materially affected by violation of the provisions of the Representation of the People Act, 1951 (hereinafter referred to as "The act" ) and the Conduct of Election Rules, 1961 (hereinafter referred to as "The rules"). So, he prays for a declaration that the election of the first respondent is void under S.100(1)(d)(iv) of the Act. He also prays for an order of re-sorting and re-counting of the votes and for a declaration that he is duly elected. 2. A written statement was filed by the first respondent. Others did not choose to file any objection. In the written statement filed by the first respondent, apart from denying the entire averments contained in the Election Petition, it is stated in Paragraph 16 that the "petition and the grounds referred to therein lacks in material facts and particulars and is defective on this account and since it does not disclose a cause of action, petition is liable to be dismissed". 3. The first respondent filed CMP No. 5699 of 1996 in which he prayed for a preliminary hearing on the basis of his contention that in the absence of specific allegations of material irregularity and vague and ambiguous contentions, the Election Petition is liable to be dismissed. The application was allowed and the parties were given an opportunity to argue on the question whether the allegations, averments and material facts contained in the Election Petition are sufficient to satisfy the requirement of S.83(l) (a) of the Act and if not, the Election Petition is liable to be dismissed under S.86 of the Act. 4. Before I go into the details, I must mention that though there is a prayer in the Election Petition that the election is liable to be declared as void on the ground of corrupt practices, irregularities etc., there are absolutely no allegations in the Election Petition which will attract corrupt practices as defined under S.123 of the Act. No particulars of corrupt practices are stated in the Election Petition. No particulars of corrupt practices are stated in the Election Petition. The affidavit filed in support of the Election Petition also does not contain any statement or indication regarding corrupt practices. Counsel for the first respondent also did not address me anything basing on the allegation regarding corrupt practices. On a reading of the Election Petition, it could be seen that no attempt was made to allege and plead any corrupt practice alleged to have been committed by the first respondent. 5. The following are the allegations contained in the Election Petition which are made the basis for the prayers sought: 6. In Paragraph 8(A), it is stated that the Returning Officer has not complied with Rr. 55 and 63 of the Rules. The ballot boxes used in more than one polling station were not opened simultaneously but after long intervals. They were not sorted and bundled as prescribed in the said rules and thus there was complete violation and disregard of R.55 of the Rules. 7. It is mentioned in Paragraph 8(B) that counting of votes was done contrary to the specific provisions contained in R.56 of the Rules. Ballot papers taken out of boxes were not mixed together or arranged in convenient bundles and scrutinised. 8. What is stated in Paragraph 8(C) is that majority of the counting supervisors and counting assistants were members of different NGO Organisations who were supporters of the Left Democratic Front and the first respondent was a nominee of the Left Democratic Front. The counting personnel were, therefore, anxious to help the first'respondent to the determinant of the petitioner. 9. The allegation contained in Paragraph 8(D) is that the biased counting officials wilfully rejected several valid votes cast in favour of the petitioner as invalid and several votes which were actually invalid were accepted in favour of the first respondent. There is a further allegation that at Table Nos. 9 and 13, ballot papers containing valid votes cast i n favour of the petitioner were purposely mutilated by the counting officials. Those instances were brought to the notice of the Assistant Returning Officer who was in charge of the counting station by written complaints submitted before him by the petitioner and his election agent at 5.25 pm and 7.25 pm respectively on 8.5.1996. But the Assistant Returning Officer rejected the complaints observing that the ballot papers were 'mutilated'. Those instances were brought to the notice of the Assistant Returning Officer who was in charge of the counting station by written complaints submitted before him by the petitioner and his election agent at 5.25 pm and 7.25 pm respectively on 8.5.1996. But the Assistant Returning Officer rejected the complaints observing that the ballot papers were 'mutilated'. The Returning Officer also endorsed this view. 10. In Paragraph 8(E), it is stated that the counting supervisors and counting assistants adopted tactics purposely to help the first respondent by including votes secured by the petitioner to the credit of the first respondent. There were no proper sorting or bundling. There was notes checking either. 11. The allegation contained in Paragraph 8(F) is regarding serving of food and beverages to the counting officials at the time of counting thereby distracting the attention and concentration of counting work. According to the petitioner, this has affected the correctness of the results of counting. 12. What is stated in Paragraph 8(G) of the Election Petition is that the counting officials were anxious to finish their work at the earliest even at the risk of sacrificing the necessity to ensure correctness of the result of the election and because of this, the counting agents of the petitioner could not effectively supervise and prevent votes being incorrectly classified. There was no facility for the counting agents to effectively verify the sorting, classification and bundling of votes. This resulted in undue advantage being purposely given to inflate the votes in favour of the first respondent. 13. In Paragraph 8(I) it is alleged that though the total votes polled is only 90735, in Form No. 20, the total No. of votes is shown as 90745. Evidently, it is a mistake and the difference often votes is not explained. 14. Now, I will consider whether the allegations contained in the Election Petition satisfy the requirements of S.83(1) (a) of the Act which says that an Election Petition shall contain a concise statement of the material facts on which the petitioner relies. I will also consider whether the allegations contained in the Election Petition disclose a cause of action. 15. On going through the allegations and the material facts pleaded in the Election Petition, I am constrained to hold that those do not satisfy the requirements of the pleadings in an Election Petition. The allegations are lacking in material particulars and facts. I will also consider whether the allegations contained in the Election Petition disclose a cause of action. 15. On going through the allegations and the material facts pleaded in the Election Petition, I am constrained to hold that those do not satisfy the requirements of the pleadings in an Election Petition. The allegations are lacking in material particulars and facts. The allegation contained in Paragraph 8(A) of the Election Petition regarding opening of the ballot boxes are vague. It is not stated therein which ballot box of which polling station was opened first and which was opened last and the interval between the two. It is not stated when the opening of ballot boxes commenced and at what time it was over so that one will get an indication to conclude whether the ballot papers were opened simultaneously or after long intervals. Likewise, the allegations contained in Paragraph 8(B) also is very vague which merits no consideration. It is not stated as to how the result of the election in so far as it concerns the returned candidate is materially affected on the basis of the allegations contained in Paragraphs 8(a) and 8(B). The allegations contained in Paragraph 8(C) is regarding counting supervisors and counting assistants. What is stated therein is that majority of the counting supervisors and counting assistants were members of different N.G.O.Organisations. Neither the number of members belonging to the N.G.O.Organisations nor their names are mentioned in the Election Petition. It is not specified in which N.G.O.Organisation each of them belonged and in what manner had they acted to help the first respondent. Apart from saying in Paragraph 8(D) that several valid votes cast in favour of the petitioner were rejected as invalid, even the approximate number of such votes are not mentioned. The serial number of such votes are also not mentioned. As regards mutilation also, it is not mentioned as to how many ballot papers were mutilated and by which of the counting officials. Copies of the complaints submitted before the Assistant Returning Officer is not exhibited in the Election Petition. Mutilation of only two ballot papers are mentioned in the Election Petition which will not materially affect the result of the election. The allegations contained in Paragraph 8(E) are also very vague. Copies of the complaints submitted before the Assistant Returning Officer is not exhibited in the Election Petition. Mutilation of only two ballot papers are mentioned in the Election Petition which will not materially affect the result of the election. The allegations contained in Paragraph 8(E) are also very vague. What is stated therein is that the counting supervisors and counting assistants adopted tactics purposely to help the first respondent by including votes secured by the petitioner to the credit of the first respondent. Details of such votes are not mentioned. Though it is stated that timely objections were raised by the petitioner's counting agent, it is not clear whether such objections were oral or documentary and which counting agent raised objections. Such details are not mentioned in the Election Petition. Likewise, the allegation that the result of counting was affected as the counting officials were doing the counting operation simultaneously with consumption of food and beverages is also very vague and general. Only because of the reason that the officials were anxious to finish the work of counting, it cannot be said that the result of the election was materially affected. Even if the allegation regarding the difference often votes between the votes polled and counted is true, it will not affect the result of the election. 16. On a careful consideration of the allegations and material facts contained in the election petition, it is clear that those are very vague, general and ambiguous. Pleadings in the Election Petition should be precise, specific and unambiguous. 17. It is trite law that the Election Petition which does not contain material facts, as provided under S.83(1)(a) of the Act and which does not disclose a cause of action is liable to be dismissed under S.86 of the Act and also under O.6 Rr.1 and 16 and O.7 R.11(a) CPC. The dictum laid down in the decision reported in Charanlal Sahu v. Giani Zail Singh AIR 1984 SC 309 is to the following effect: "It is now well settled that in election petitions pleadings have be precise, specific and unambiguous and if the election petition does not disclose a cause of action, it is liable to the rejected in limine". The same view was expressed in the decision reported in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253. The same view was expressed in the decision reported in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253. The decision reported in Jyoti Basu v. DebiGhosal, AIR 1982 SC 983 also is relevant in this context which says that the court has got not only a right to reject the Election Petition on the ground that it does not disclose a cause of action, but also has a duty to do so. 18. S.100(1)(d) of the Act states that an order to declare an election to be void, the High Court should be of opinion that the result of election in so far as it concerns the returned candidate has been materially affected: see the decision reported in RamAutar v. Ram Copal, AIR 1975 SC 2182. Even if the entire allegations contained in the Election Petition are taken to be prima facie correct, it will not be possible for this Court conclude that the result of the election in so far as it concerns the returned candidate has been materially affected. 19. The prayer for re-counting also cannot be allowed on the grounds of vague allegations. As held in the decision reported in Bhabhi v. Sheo Govind, AIR 1975 SC 2117, before the Court can order inspection of ballot papers, the following conditions are imperative: "(1) 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 inquiry 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". The statement regarding mistake in counting and prayer for re-counting are too general and vague. The petitioner cannot seek a roving enquiry to find out if there is a mistake in the counting. It is well settled that the allegations regarding counting should be specific. Prima facie case for recounting should be made out in the Election Petition. Secrecy of votes should be kept in mind, being the paramount consideration. Contemporaneous documents are also lacking regard ng the prayer for re-counting. On the basis of very vague allegations, the prayer for re-counting does not merit consideration. In the decision reported in Satyanarain Dudhani v. Uday Kumar Singh, AIR 1993 SC 367, it has been held thus: "Securing of the ballot papers cannot be permitted to be tinkered lightly. Order of recounting cannot be granted as a matter of course. The secrecy of the ballot papers has to be maintained and only when the Court is satisfied on the basis of material facts pleaded in the petition and supported by contemporaneous evidence that recounting can be ordered". 20. To conclude, the Election Petition does not satisfy the requirement of S.83(1)(a) of the Act and O.6 Rr.1 and 16 and 0.7 R.11(a) CPC and as such, the same is liable to be dismissed under S.86 of the Act. The Election Petition is accordingly dismissed with costs of the first respondent which I fix as Rs. 1,500/ The Registrar shall intimate the substance of this decision to the Election Commission and the Speaker of the Kerala Legislative Assembly without delay and shall send to the Election Commission an authenticated copy of this decision as soon as possible, as required by S.103 of the Act.