Jagdish Sahai, J.
1. This is an appeal directed against the order passed by the Election Tribunal, Lucknow, on the 2nd of March, 1963, dismissing the election petition filed by the appellant, Kidwai Husain KamiI (Husain Kamil Kidwai). The Bara Banki Parliamentary Constituency No. 30 (hereinafter referred to as the Constituency) consists of the following five U.P. Legislative Assembly Constituencies:--
In the last general election the appellant Kidwai was acandidate from the constituency on Congress ticket. Opposedto him were Yadav Ram Sewak (Ram Sewak Yadav) on theSocialist Party ticket, Sri Kishna Das on the Jan Sanghticket, Krishna Behari on the Swatantra Party ticket, andAutar on the Communist Party ticket.
2. The counting of the votes took place between the 26th of February and 28th of February, 1962. Yadav Ram Sewak was declared elected. The number of votes secures by each of the candidates is as follows:
(1)Kidai Husain Kamil(Congress-Petitioner)76,224.(2)Yadav Ram Sewak(Socialist-respondent No.1)76,545.(3)Sri Krishna Das (JanSangh-respondent No.2).33,602.(4)Krishna Behari (Swatantra Party respondent No.3)18,971.(5)Autar(Communist-respondent No.4)13,134.
3. The petitioner Kidwai presented the election petition giving rise, to this appeal before the Election Commission on 10th of April, 1962. The Election Commission constituted a Single Member Tribunal presided over by Sri S. Malik for deciding this petition. The election petition which is dated the 6th of April, 1962, was published in the Gazette nf India dated the 5th of May, 1962. On the 1st of June, 1962, it was received by Sri S. Malik, (at present District Judge, Lucknow) for decision. Several grounds were taken in the petition including those relating to corrupt practice on the part of Yadav 'Ram Sewak, the respondent No. 1 the main ground however, was that a large number of ballot papers had been declared to be invalid by the returning officer, though, in fact, they were valid and that the returning officer committed an error in not accepting a large number of tendered votes which should have been accepted. It was also alleged in the petition that there was a discrepancy in the total number of votes in form No. 16 prepared by the presiding officer and form no. 20 prepared by the returning office, that there were glaring mistakes in totalling up of the figures and that a large number or votes, which were polled in his favour, were not so counted and many of them were counted erroneously in favour of the respondent No. 1.
4. A written statement was filed on behalf of Yadav Ram Sewak (hereinafter referred to as the contesting respondent) in which all the allegations of the petitioner, including those relating to corrupt practice, wrong inclusion of votes in favour of the contesting respondent and wrong exclusion from those of the petitioner were controverted. Inter alia, an objection was also taken that the petitioner had not complied with the provisions of Section 83 of the Representation of the People Act, 1951, and that the allegations made in the petition were vague and the petition has liable to be dismissed.
5. On the 8th of August, 1962, an application was made on behalf of Kidwai for permission to inspect the ballot papers by eleven persons whose names were given in the application. This application was supported by an affidavit. This affidavit was verified on solemn affirmation in the following manner:
'Contents of Paragraph 1, 2, 3 and 7 were verified to be 'true on knowledge', those of paragraphs 4(a) to 4(p) and those of paragraphs 5, 6, 6(i) to 6(iii) and 8, 9, 10 and 12 were verified to be 'true on information received and believed to be true' while the contents of paragraphs 13 and 14 were verified to be 'true on legal advice received.'
6. An objection to this application was taken on behalf of the contesting respondent in writing on the 18th of August, 1962. One of the prayers contained in this objection, which was in the form of an application, was that the preliminary issues be first decided so that the parties may not be put to unnecessary expenses and the Tribunal's time be also saved. It was also prayed that the application for Inspection of the ballot papers be rejected. Paragraph 4 of this objection stated the election petition was liable to be dismissed on the ground of want of proper verification and also because ,no affidavit was filed along with it as required by the proviso to Section 83 of the Act. Sri Malik after, hearing the counsel for the parties dismissed the application of the petitioner for permission to inspect the ballot papers, even though the same were available in Court, having been summoned by him earlier and in spite of the certified copy of the Return clearly disclosing mistakes in totalling having been shown to him.
The petitioner made another application on the 8th of September, 1962 praying that
'issues arising out of the positive averments contained In the election petition be framed, and in due course scrutiny of the ballot papers be made and, at the proper stage, Inspection of the ballot papers by the petitioner and his counsel be allowed as observed by this Tribunal in itsorder dated August 25, 1962.'
This application was founded mainly on an observation made by the Tribunal in its earlier order which reads as follows:
'If in future from facts that may be brought to the notice ef the Tribunal, it appears that in the interest of justice, an inspection should be allowed, necessary orders allowing an inspection could always be passed.'
This application was also contested and the prayer for permission to inspect the ballot papers was rejected, but the learned member of the Tribunal again observed as follows:
'It may also be pointed out that while rejecting the Petitioner's application for inspection of ballot papers, the Tribunal observed that if from the evidence that may be adduced by the petitioner, it appears that an inspection should be allowed for a just decision of the petition, the inspection shall be allowed. If all the grounds regarding reception and rejection of ballot papers and wrong counting are struck off, the petitioner would be deprived of an opportunity of showing to the Tribunal that there is substance in the grounds taken by the petitioner justifying an inspection or general scrutiny and recount. Under the circumstances, the objections put forward, on behalf of the respondent are hereby rejected.
Let an early date be fixed for framing of issues.'
The petitioner repeated his effort for an inspection of the ballot-papers and made an application dated the 16th of November, 1962, in which he prayed for either of the two following reliefs:
'(a) allow the petitioner assisted by his counsel, subject to such conditions and terms as appear to it to be reasonable, to inspect the ballot papers and the said forms and to put the result of that inspection in a concise and tabulated form before this Hon'ble Tribunal for its scrutiny. (b) This Hon'ble Tribunal be pleased itself to inspect and scrutinise the ballot papers in the presence of the counsel of both the parties, and record the result of such examination and scrutiny and then pronounce its decision accordingly.' This application was also opposed on behalf of the contesting respondent by means of a written reply dated the 26th or November, 1962, with the result that the prayer for the inspection of the ballot papers either by the parties or for the scrutiny of the same by the Tribunal was refused though the Tribunal permitted the parties to file such documents as they liked. The same day i.e. on 26th of Nov., 1962, the learned counsel for the petitioner made a statement that he did not wish to produce any documents and that the prayer of the petitioner-appellant for the inspection of the ballot papers be reconsidered. The learned member of the Tribunal fixed the 3rd of December 1962, for arguments on the question as to whether in view of the statement made by the petitioner, the question of inspection of ballot papers by him should be reconsidered and in case the Inspection be not allowed, whether the Tribunal should itself make a scrutiny of the ballot papers as prayed for.
7. It seems that no orders were passed on the 3rd of December, 1962, and the matter was taken up by the presiding officer on the 17th of December, 1962. On that date the learned counsel for the appellant formally tendered in evidence all the ballot papers by means of an application of the same date and withdrew all allegations relating to corrupt practice on the part of the contesting respondent. The exact words used in the application made on behalf of the appellant are as follows:
'3 of the issues, viz., issues 3, 4 and 5 do not now require decision in view of the statement made by the petitioner's counsel. As regards the surviving issues, viz. issues 1, 2 and 6 it is impossible for the petitioner to produce any oral evidence and the only evidence decisive of those Issues can be the ballot papers themselves. The petitioner, to set all controversy at rest, does hereby formally tender in evidence all the ballot papers. That being so, the ballot papers have to be opened, inspected or scrutinised. It may be noted here that all the ballot papers were summoned by an order of the Tribunal dated 6-7-1962 and are present in the record room of the Tribunal.'
To this application, the contesting respondent gave a written reply, opposing the opening of the ballot papers on the ground that no prima facie case had been made out for their inspection. With regard to the allegation of the appellant that the certified copy of the return issued to him by the returning officer clearly disclosed totalling mistakes which affected the result of the election, the reply on behalf of the contesting respondent was that 'the alleged mistake in the certified copies of the return, can be tested with the original'. It was also stated in the written reply that in fact there was no mistake in the original and the factual position was that some mistake had been committed in the certified copy issued to the appellant. The Tribunal dismissed the election petition without allowing Inspection by the parties or scrutinising the ballot papers itself:--
8. In all the following six issues were framed In the case:
(1) Whether there was improper reception, refusal or rejection of votes at the time of counting and if so, whether the result of the election was materially affeeted due to the same?
(2) Is there any discrepancy between the total number of votes mentioned in Form No. 16 and Form No. 20 as alleged hi paragraph 6(C) and (D)? If so, its effect?
(3) Whether the tendered votes were wrongly rejected by the Returning Officer and if so, was the result of the election materially affected due to the same?
(4) Whether at the polling station No, 29, Majgawan, in Bhitauli Unit and Kursi, Polling Station in Kursi Assembly Unit, the Polling Officers did not give ballot papers to the voters as mentioned in paragraph 10 of the petition? If so, its effect?
(5) Whether counting of votes of Bhitauli Assembly Unit went upto 8.30 P.M. in the night and after 5-30 P.M. It was done in failing and insufficient light in spite of protests as alleged in paragraph 11 of the petition? If so, its effect?
(6) Whether the petitioner received a majority of valid votes and is entitled to be declared duly elected?
9. The Tribunal decided issues Nos. 3, 4 and 5 against the appellant and in favour of the contesting respondent, on the finding that a heavy burden lay on the appellant which he had failed to discharge. On issue No. 2 it recorded the finding that 'there is nothing before the Tribunal to snow that the allegations made by the petitioner regarding these forms in paragraphs 6(C) and (D) are correct' and decided that issue against the appellant and in favour of the contesting respondent. On issues Nos. 1 and 6 it recorded the finding that the 'petitioner has failed to prove any fact justifying inspection of the ballot papers and there is nothing on the record to show that the respondent No. 1 was wrongly declared to have been elected'. Having thus disposed of the six issues in the case, he dismissed the petition and awarded a sum of Rs. 1,000/- as costs to the respondent No. 1.
10. Dissatisfied with this decision, the appellant has filed the present appeal in this Court.
11. We have heard Sarvasri Iqbal Ahmad and Bishan Singh for the appellant and Sarvasri Hargovind Dayal ana Umesh Chandra Srivastava for the contesting respondent.
12. Two submissions have been made on behalf of the appellant. They are as follows:
(1) That the Tribunal was in error in having supposed that the effect of Rule 93 of the Rules framed under we Representation of People Act, 1951 (hereinafter referred to as the Act) was that the policy of the law was to reject an application for the inspection of ballot papers except tor very strong reasons.
(2) That in any case the petitioner had given prima facia evidence and placed before the Tribunal all the material that any person in his position could have placed in support of the request for the inspection, of the ballot-papers and connected documents.
13. On behalf of the contesting respondent not only these submissions have been opposed, but an objection has been taken to the maintainability of the appeal as also or the petition on the ground that the petition did not fulfil the requirements ef Section 83 of the Act and consequently was not maintainable. It urged that even though no cross appeal or cross-objection has been filed, this ground is being taken In order to support the order or the decree passed by the Election Tribunal on principles analogous to those enshrined in Order 41, Rule 22 C.P.C., which permits a respondent to raise such pleas in support of the decree of the Court below which would sustain the degree.
14. With a view to appreciate fully the submissios made at the bar it is necessary to consider some provisions of the Act. Section 80 of the Act reads as follows:
'80 Election petitions, -- No electten shall be called in question except by an election petition presented in accordance with the provisions of this Part,'
Section 81 of the Act deals with the manner, in which an election petition is to be presented. Section 82 provides as to who would be the parties in the petition. Section 83 of the Act deals with the contents of the petition. That provision reads as follows:
'83. Contents of petition.-(1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908 V of 1908), for the verification of pleadings.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the some manner as the petition: Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.' Section 100 of the Act provides the grounds for declaring am election to be void.
15. Before we come to the merits of the submissions made on behalf of the appellant, we would like to dispose of the submission made on behalf of the respondent No. 1 with regard to the maintainability of the election petition and the appeal before us. It was strenuously contended by the learned counsel for the contesting respondent that the petition was not maintainable on account ef the vagueness, of allegations made therein and also because it was not properly presented. The submission is founded on two contentions. The first contention is that in the petition charges had been made with regard to corrupt practice on the part of the contesting respondent and inasmuch as there was no affidavit in support of those charges, the petition could not have been received. The second contention is that in any case the details of the manner in which the votes were allegedly counted in favour of the contesting respondent and allegedly wrongly excluded from that of the appellant had not been given. We are unable to accept either of these contentions.
We have already reproduced Section 83 of the Act earlier. It would be noticed that so far as Clause (a) or Section 83 is concerned, unlike Clause (b) it does not require 'full particulars'. On the other hand, all that it requires is 'a concise statement of the material facts on which the petitioner relies.' When the petition was filed, it was founded on the ground of wrong inclusion and wrong exclusion of votes as also on the ground of corrupt practice. Therefore, so far as the charge of corrupt practice was concerned, full particulars of the same bad to be given-without which, the petition was obviously defective. But so far as the allegation relating to the wrong inclusion and wrong exclusion of the votes is concerned, that did not at all require full particulars being given and the requirement of Clause (a) of Section 83 of the Act would have been completely satisfied if what was given amounted to a 'concise statement' of the material facts on which the petitioner relies.'
A bare perusal of these provisions reveals that the legislature has worded the clauses in distinctly different phraseology. Whereas the law requires emphatically that the particulars of any corrupt practice should be disclosed in the petition, it does not require similar particulars to be given in respect of other matters. We have looked into the Shorter Oxford Dictionary in order to find out the meaning of the word 'concise'. Amongst others, the following meanings have been given: 'Brief in expression (of speech, style person)'. In short all that 'concise' means is a brief though definite statement of the facts on which the petitioner relies. We cannot equate the requirements of Clause (a) with those of Clause (b) of Section 83 of the Act because the words used in one are so different from the words used in the other. Having carefully perused the allegations of the appellant contained in the petition relating to the wrong inclusion of votes in the count of the contesting respondent and wrong exclusion of votes from those of the appellant, we are of the opinion that proper compliance with the law has been made in this case and a concise statement of facts relied upon by the appellant has been given. We are, therefore, unable to hold that the petition as presented was defective, in respect of wrong inclusion and wrong exclusion of votes and other connected matters. 16. So far as the charge of corrupt practice o' the part or the contesting respondent is concerned, we have already said earlier that during the course of the trial the same was withdrawn with the result that no issue was even framed in respect of the same. The question, therefore, that remains to be considered is whether the mere fact that at the time of the presentation of the petition, charges relating to corrupt practices were also included and there was no aftidavit filed in support of it, would justify the conclusion, that the petition was improperly presented and is liable to be dismissed on that ground alone even after those charges have been withdrawn. Section 83 of the Act does not pro-vide for the dismissal of the petition for want of an affidavit to support the allegations relating to corrupt practice.
17. There are two provisions which deal with the summary dismissal of an election petition. These are sections 85 and 90(3) of the Act. Section 85 deals with the powers of the Election Commission to dismiss an election petition while Section 90(3) deals with the powers of the 'Tribunal. Section 85 reads as follows:
'85. Procedure on receiving petition: If the provisions of Section 81 or Section 82 or Section 117 have not been complied with, the Election Commission shall dismiss the petition,: Provided that the petition shall not be dismissed witn-out giving the petitioner an opportunity of being heard.'
18. Having carefully considered the provisions of Section 85 of the Act, we are of the opinion that it is exhaustive of the grounds on which an election petition can be dismissed by the Election Commission. The result is that the petition could have been dismissed by the Election Commission only on the ground of non-compliance with the provisions of Section 81 or 82 or 117. Admittedly, the circumstance that in support of the allegations relating to the corrupt practice made by the appellant, there is no affidavit, ;l is not a ground which is covered by any of the Sections 81, 82 and 117 of the Act. Consequently, the Election commission could not have dismissed the petition on the ground that it was not supported by an affidavit in respect of the charges relating to corrupt practice. Similarly the Election Tribunal could dismiss a petition only on the ground that it did not comply with the provisions of Section 81 or Section 82 of the Act. None of the contingencies contemplated by this provision are to be found in the present case. No other provision has been brought to our notice by the learned counsel for the parties and we are not ourselves aware of any under which' a petition could have been dismissed, otherwise than on merits, by the Tribunal.
19. Consequently, we are satisfied that the defect of the charges relating to corrupt practice not being supported by an affidavit was not fatal to the maintainability of the election petition and even though its effect could be considered at the time of the final, hearing of the petition, the same could not be dismissed summarily on that ground either by the Election Commission or by the Election Tribunal. The argument of the learned counsel for the contesting respondent, therefore, that the petition could not have been received or was liable to be summarily dismissed on the ground or want of an affidavit or full particulars cannot be accepted.
20. Having given our, anxious consideration to the relevant provisions of the Act, specially of the proviso to Section 83 of the Act, we are of the opinion that the proviso is not in the nature of a mandatory provision the non-compliance of which would result in the summary dismissed of the petition, it is not necessary to go into the various cases which deal with the question as to what meaning should be given to the words 'shall' or 'may' occurring in a particular provision and whether the use of the former is conclusive of the mandatory nature of the provision and that of the latter only of directory. It is well established that nothing depends upon the use of the word 'may' or 'shall' and an enactment in form mandatory might in substance be directory, (see Julius v. Bishop of Oxford (1880) 5 AC 214, H. V. Kamath v. Ahmad Ishaque : 1SCR1104 , Narayan Rao v. State of Andhra Pradesh (S) AIR 195/ SC 737, State of U.P. v. Manbodhan Lal, : (1958)IILLJ273SC , K.S. Srinivasan v. Union of India, : 1SCR1295 and Drigraj Kuer v. Amar Krishna Narain Singh (AIR 1950 SC 444).
It is also settled that in order to decide whether a provision is directory or mandatory, not only the actual words used but the scheme of the statute, the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention or the same have got to be seen, (see Banwari Lal v. State of Bihar : (1961)IILLJ140SC . In Collector of Mongtiyr v. Keshav Prasad : 1SCR98 , it was held that the employment of the auxiliary verb 'shall' is inconclusive and similarly the mere absence of the imperative is not conclusive either in order to determine whether a provision is directory or mandatory, it has got to be seen whether any consequences are provided for the omission to observe the requirement and what is the purpose for which the requirement has been indicated, having special regard to the context in which it has been provided, the other, provisions of the Act as' also the general scheme thereof.
In : 2SCR431 (supra) it was held that even a directory provision is intended to be obeyed but failure to obey does not render a thing, duly done, in disobedience of it, a nullity and that in every case the intention of the Legislature has got to be gathered from the whole of the statute. Judging the provisions of Section 83 by the test given above, it appears to us that the proviso to Section 83 of the Act is not mandatory. There is no provision in the Act providing for a penalty for the non-obedience of the proviso. The scheme of the Act lays insistence on giving full details of corrupt practices and on filing an affidavit in support thereof to give greater solemnity to the allegations made in the petition and to ensure that the same were not lightly and cursorily made. If the Legislature intended the non-observance of the proviso as fatal either to the entertainment or to the maintainability of the petition, it would have provided either for the dismissal of the petition on that ground or for any other penal consequence.
21. It is well settled that plaints not properly verified, when presented, do not entail their dismissal even if the defect is removed after the expiry of the period of limitation. On principle, we see no difference between a plaint and an election petition and are of the opinion that, if, before the hearing of a case is concluded, an affidavit is filed as required by the proviso to Section 83, the Election Tribunal would not be justified in rejecting the petition on that ground.
22. Having thus disposed of the preliminary objection of the learned counsel for the contesting respondent, we proceed to deal with the submissions made by the learned counsel for the appellant. Rule 93 deals with matters relating to inspections and reads as follows:
'93. Production and inspection of election papers.-- (1) While in the custody of the returning officer-
(a) the packets of unused ballot papers;
(b) the packets of used ballot papers whether valid, tendered of rejected,
(c) the packets of the marked copy of the electoral roll or, as the case may be, the list maintained under Subsection (1) or Sub-section (2) of Section 152; and
(d) the packets of the declarations by electors and the attestation of their signatures;
shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent Court or tribunal.
(2) All other papers relating to the election shall be open to public inspection subject to such conditions and to the payment of such fee, if any, as the Election Commission may direct.
(3) Copies of the returns by the returning officer forwarded under Rule 64 or as the case may be, under Sub-rule (3) of Rule 84 shall be furnished by the Chief Electoral Officer of the State concerned on payment of a fee of two rupees for each such copy.'
23. It is trite that the provision is based upon a rule of public policy, the same being that the secrecy of the ballot must be maintained. The rule is divided in three parts: the first part deals with packets of unused ballot-papers, packets of used ballot-papers, packets of marked copy or electoral roll, the list maintained under Sub-section (1) or (2) of Section 152 and packets of declaration by electors and attestation of their signatures. The second Part deals with all other papers relaing to elections. The third part deals with copies of the return by the returning officer. So far as the documents mentioned in Sub-rule (1), i.e., the first part of Rule 93 are concerned, it has been clearly provided that nobody shall be entitled to open or look into them except under the order of a competent Court or tribunal.
Papers mentioned in Sub-rule (2) of Rule 93 are open to public inspection. Copies of returns provided for in sub-rule (3), i.e., the third part of Rule 93, have got to be furnished by the Chief Electoral Officer on payment of a fee of Rs. 2/-. The petitioner wanted the inspection of the papers mentioned in Sub-rule (1) also. The question for consideration is whether in the circumstances of the present case, the Election Tribunal should have permitted their inspection. The Tribunal observed as follows in this connection:
'Thus the question as to whether inspection of ballot-paper should be allowed has been left to the discretion of the Tribunal. If the intention of the Legislature had been to allow scrutiny or inspection of ballot papers easily, a rule would definitely have been framed allowing such inspection on certain conditions. The fact that it has been left to the discretion of the Tribunal shows that inspection should ordinarily be refused unless the Tribunal considers such inspection necessary in the interest of justice,'
We are unable to share the view of the Tribunal that the law is that inspection should ordinarily be refused. There is nothing in Rule 93 which warrants such a conclusion. There is no other provision in the Act or the Rules framed thereunder which can lead to a similar result. Rule 93 is very widely worded. The powers of the Court or the Tribunal have no fetters appended and the mere fact that the tribunal has been given a discretion in the matter does not mean, as has been wrongly assumed by the Tribunal, that it should ordinarily be refused. The principles on which a judicial Officer is to exercise his discretion are so well known and there cannot be any controversy about them. In substance the principle is that discretion should always be exercised in order to advance the cause of justice and not to defeat the same. Whenever discretion is vested in a Court or a Judicial Officer, it has got to be exercised judicially,
24. Having considered the facts of the case, the pleadings of the parties and the evidence on the record, we are of the opinion that in the present case, the Tribunal exercised its discretion wrongly. The learned Member of the Tribunal was led into this error because he thought that the circumstance that the matter had been left to the discretion of the Tribunal indicated that normally inspection should be refused. We have already said above that there is nothing in the Act or the Rules which can justify such a conclusion. We have found it difficult to see as to what better, method could there be of proving that votes cast In favour of the appellant were excluded from his count and a large number of votes had been wrongly included in the count of the contesting respondent than allowing inspection of the ballot-papers and enabling counsel to point out on the ballot-papers which he thought have been wrongly excluded from the count of the appellant or wrongly included in the count of the contesting respondent.
The appellant not only made repeated applications for inspection being allowed but also tendered all the ballot-papers solemnly and formally as evidence on his behalf. Admittedly, the ballot-papers were before the Tribunal. Under these circumstances, we have found it extremely difficult to appreciate the objection of the Tribunal either to inspection being allowed or to himself looking into the ballot-papers. Mr. Har Govind Dayal, who appeared for the respondents had to admit that no restrictions had been placed on the powers of the Tribunal and it committed a manifest error of law in assuming that the scheme of the Rules was to normally refuse inspection, but he has contended that the affidavit filed in support of the first application for the inspection of the ballot-papers was not in proper form and has not been verified in accordance, with the law. It is contended that it has not been shown in the verification clause as to on whose knowledge paragraphs 1, 2, 3 and 7 of the affidavit have been sworn to be true. It is also complained that it has not been, mentioned in the verification clause as to on whose information the deponent of the affidavit believed the contents of paragraphs 4(a) and 4(b), 5, 6(i) to 6(iii), 8, 9, 10 and 12 to be true. It is true that the verification clause is not very happily worded, but it must also be remembered that at the time when the affidavit was filed, neither the Tribunal nor the contesting respondent nor his counsel objected to the acceptance of the same. It was open to the contesting respondent or the Tribunal to object to the affidavit and in that case another affidavit could have been filed by the appellant No prayer was also made for the cross-examination of the deponent of the affidavit by the contesting respondent. The affidavit was not intended to be a piece of evidence in the case but was required only to support an application made for the inspection of the ballot papers and other connected documents. Consequently, we are of the opinion that the objection not having been raised in the trial Court, it cannot be allowed to be raised for the first time before us.
Apart from it, the Rules provide the form in which an affidavit is to be verified in connection with election petitions, Form 25 reads as follows:
'. .... the petitioner in the accompanying election petition calling in question the election of Shri/shrimati..... .... .(respondent No. ...... in the said petition) make solemn affirmation/oath and say-
(a) that the statements made in paragraphs. . . of the accompanying election petition about the commission of the corrupt practice of. ....... .and the particulars of such corrupt practice mentioned in paragraphs. . .. . .of the same petition and in paragraphs . . ... .of the Schedule annexed hereto are true to my knowledge;
(b) that the statements made in paragraphs. ... .of thesaid petition about the commission of the corrupt practice of ...... .and the particulars of such corrupt practice given in paragraphs ........of the said petition and in paragraphs ....... .of the Schedule annexed thereto aretrue to my information; .......'
learned counsel for the appellant submitted that the form for verification to be adopted in matters relating to election petitions should be one in conformity with form 25 of the Rules and that the rules of the High Court contained in Chapter VI of the Rules of this Court are not applicable to election petitions and connected proceedings. In our judgment, there is substance in this submission. Learned counsel for the contesting respondent has invited our attention to Order 19, Rule 3, C.P.C. as amended by this Court also and has made a reference to Rules 8 to 15 added by this Court.
In our opinion, the amendment made by this Court to the Code of Civil Procedure cannot govern a matter relating to tha conduct of election petitions in derogation of the provisions of the Act and the Rules framed thereunder. In the first place when Section 92 of the Act made the Code of Civil Procedure applicable to proceedings before the Election Tribunal, it contemplated the Civil Procedure as passed by the Legislature and not inclusive of local amendments. The Act is an all India statute and an election petition from whatever State it may arise, can be sent for trial by we Election Commission before any Tribunal situated in any part of India. Consequently, it cannot be said that if an election petition is tried in Allahabad, the Code with local amendments would apply but if the same petition was to be tried in Madras or in Bombay or in Punjab, the local amendments of Allahabad would not apply. There has got to be a uniform taw and practice for the whole of the country in a matter like this. Consequently, we are of the opinion that when Section 92 of the Act made the Code of Civil Procedure applicable to proceedings in an election petition, it only made the provisions of the Code, exclusive of the local amendments, applicable.
But quite apart from it, there is nothing in the Code or any local amendments which can apply in derogation of the Act or the Rules framed thereunder. In Mallappa Basappa v. Desai Basavaraj Ayyappa : 1SCR611 the Supreme Court clearly held that the provisions of the Representation of the People Act as a whole constitute a seif-contained Code governing the trial of election petitions. The Allahabad amendments cannot override form No. 25. The affidavit filed by the petitioner is in substantial compliance with form No. 25 and even though it is not in strict conformity with Rules 8 and 9 of the Rules added by this Court to Order 19, C.P.C., it cannot be said that the defect is vital and the prayer for inspection was rightly refused.
25. In the end, the learned counsel for the respondents cited State of Bombay v. Purshottam Jog : 1952CriLJ1269 , and invited our attention to the following passage in the judgment:
'We wish, however, to observe that the verification of the affidavits produced here is defective. The body of the affidavit discloses that certain matters were known to the Secretary who made the affidavit personally. The verification however states that everything was true to the cost of his information and belief. We point this out as slipshod verification of this type might well in a given case lead to a rejection of the affidavit. Verification should invariably be modelled on the lines of Order 19, Rule 3 of the Civil Procedure Code, whether the Code applies in terms or not. And when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed.' This decision is distinguishable firstly on the ground that in the present case we have held that the affidavit is in conformity with form 25 and consequently not defective and secondly because the decision is no authority for the proposition that even though an affidavit is admitted, without objection, in the trial Court, not as a piece of evidence in the case but only in connection with an application made for the inspection of the records, it should be rejected on the abjection made in the appellate Court long after It had been admitted. This case, therefore, does not advinee the case of the contesting respondent.
26. For the reasons mentioned above, we see no force in the submission of the teamed counsel that inspection of the ballot-papers should be refused on the ground that the affidavit was not properly verified and that the Tribunal was justified in refusing to permit inspection of the billot papers.
27. In this connection, we would tike to point out that the learned counsel for the appellant had, before the Tribunal, produced a certified copy of the return from which it clearly appeared that there was a mistake in totalling. With regard to this certified copy, the learned counsel for the respondent in his written application had not only not objected to the original return being seen but had actually stated that 'the alleged mistake in the certified copy of the return can be tested with the original.' Even though both the parties agreed that it was proper to see the original return, Sri S. Malik, surprisingly enough refused to do so on the ground that the original return had not been summoned. We have found it difficult to comprehend what the learned member of the Tribunal meant by the words that the 'original return had not been summoned.' The entire papers including the original return had not only been summoned by him but were also before the Tribunal. Besides, he should have appreciated that the allegations made in the affidavit filed in support of the application and production of the certified copy of the return clearly showed that the inspection was required not to harass the contesting respondent but in the interest of justice and with a view to prove the case of the appellant. We are constrained to say that the Tribunal erred grievously in not allowing the inspection even under these circumstances.
28. We have again not been able to understand as to what did the learned member of the Tribunal mean by saying that he did not see the original return because no today had applied for its inspection. Under the provisions of Section 92 (a) of the Act, discovery and inspection is permitted. It was contended that this provision gave the Tribunal jurisdiction to permit inspection of the ballot-papers. The Tribunal, however, observed as follows in this connection:
'Order 11, Rules 15 to 18 lay down under what circumstances inspection can be allowed. It is apparent that under the Code of Civil Procedure inspection could be allowed only of documents referred to in the pleadings and in the possession of any of the parties to the suit. In this case, the ballot-papers are not documents in the possession of any of the parties to the petition. They obviously were in the possession of the returning officer who is not a party to the case. Therefore, the inspection prayed for cannot be allowed under Section 30 read with Order 11, C. P. C.' We have already said earlier that it is a fact which isadmitted by both the parties before us that the ballot-papers and the returns were in the custody of the Tribunal, having been summoned from the returning officer. Inour opinion, the provisions of the Code of Civil Proceduredo net bar the inspection of the papers in the custodyof the Court. We are, therefore, satisfied that the Tribunal rejected the application for inspection of the ballotpapers and the returns without any adequate reason fordoing so.
29. Both Sarvasri Iqbal Ahmad and Har Govind Dayal, learned counsel for the parties, who appeared also before the Tribunal, stated that most of the authorities on which they were placing reliance before us were also cited before the Tribunal but the Tribunal did not notice them. All that the Tribunal did was to mention the following three cases at the fag end of the judgment saying that its attention was drawn to them:
(1) Case No. LXXIV Punjab North (M) 1924 Ghazanfar Ali v. Choudhary Bahawal Bux and others. -- Election cases India and Burma (1920-35).
(2) Hammond's Election Cases 1920-35 at Order 307 (K.V. Krishnaswami Nayakar v. A. Ramaswami Mudaliyar and another) at p. 671 -- V. P.P. Pillai v. R.B. Venkatarama Ayyar and others at p. 137 (Barellly city case).
(3) (1952-53) 2 ELR 51 -- R. Swaminatha Merconder v. S. Ramlineam.
In the first place, the Tribunal did not even notice the other cases which were placed before it Secondly it did not say as to what the three cases mentioned above laid down and whether it was following them or distinguishing them.
30. On behalf of the appellant Shim Sen v. Gopall, 22 ELR 288 at p. 296 (SC), was cited before us and the following passage from the judgment of the Supreme Court placed for our consideration:
'Thus construed, the averment in the said paragraph also indicates that according to the plea of the appellant, respondent 1 could get void votes because of the failure of the returning officer to discharge his duty. In the context 'could receive' really meant 'did receive' and not 'might have received'. In this connection it must be borne in mind that particulars in regard to the allegation of this kind could be more definitely supplied only after the ballot box is opened and not till then. Rule 138 provides for the production and inspection of election papers. Until the said papers are produced and inspected as provided by the said rule it would be difficult, if not impossible, for any party to allege affirmatively how many void votes, had been counted in favour of the candidate declared to be duly elected. Considerations which apply to the allegations of misconduct specified in Section 83(1)(b) would, not be relevant in the case of the present allegations; and so, reading the original petition itself, we are satisfied that the material allegations had been made with sufficient, clarity by the appellant.'
Rule 138 referred to by their Lordships is Rule 93 now without there being any change in the language. Their Lordships were also considering a case relating to wrong inclusion and wrong exclusion of votes. The Supreme Court clearly held that full details could be given only after the inspection of all the ballot-papers -- a conclusion to which we ourselves have arrived at. The election petition was mainly founded on the allegation relating to wrong exclusion of votes from the count of the petitioner and wrong inclusion of votes in the count of the contesting respondent. That being so, we are of the opinion that it was imminently just to have allowed the inspection of the ballot papers and connected documents. We have already said earlier that the appellant even formally tendered all the ballot-papers and asked the Tribunal to look into such of them as were to be pointed out to it. The Tribunal, however, refused to do even that.
31. In this connection we would like to reproduce the provisions of Section 100(1)(d) of the Act which read as follows:
'100. -- Grounds for declaring an election to be void. -- (1) subject to the provisions of Sub-section (2), if the Tribunal is of opinion -
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(iii) by the improper reception, refusal or rejectionof any vote or the reception of any vote whichis void, or ....... ' the Tribunal shall declare the election of the returned candidate to be void.'
32. The law, therefore, is that an election 'petition can be presented on the ground that votes had been wrongly received or wrongly rejected, or that any vote was void. In other words, when such allegations are made, the matter is justiciable and it is the duty of the Tribunal to adjudicate in respect of that matter. Allegations like these can best be proved by placing the particular ballot-papers which, according to a party, have been wrongly received or wrongly rejected or which are void. It is not possible to do so unless an inspection Is allowed. Consequently, we see no justification on the part of the Tribunal, to have refused the inspection of the ballot-papers and the I return.
33. Learned counsel for the respondent placed before us a large number of cases, both English and Indian. In England the relevant provision relating to inspection of ballot-papers and other election papers is Section 57 of the English Representation of the People Act, 1949. !t is not necessary to reproduce that provision. Suffice It to say that the law in England is that the ballot-papers can be opened at two stages, i.e., in the pre-election petition stage and the post-election petition stage. Before the election petition is filed, they can be opened only with the permission of the House of Commons. After the petition has been filed, the same can be opened with the permission of the Election Tribunal. In our country, the law does not permit inspection at pre-election petition stage and no such power has been conferred either on the Parliament or the local Legislatures.
34. Learned counsel for the respondent placed reliance upon Stowe v. Jolliffe (1874) 9 CP 446. We have carefully seen that judgment. In our opinion, it does not provide us any assistance in deciding the case before us.
35. The next case on which reliance was placed is The Queen v. Beardsal!, (1876) 1 QBD 452. This case is also not an authority for the proposition that inspection of ballot-papers should not be allowed even though one of the grounds or the sole ground in the. petition is that votes had been wrongly excluded from the count of the petitioner and had wrongly been included in the count of the respondent.
36. These are two English cases that have been cited before us.
37. So far as Indian cases are concerned the first one relied upon is Abdul Majeed v. Bhargavan AIR 1953 Ker 18 at p. 25. The following passage from that judgment was placed before us by the learned counsel for the respondent:
'it remains to dispose of the third and the last contention advanced for the appellant, that the prayer in the election petition for a recount of the ballot papers ought to have been allowed by the, Tribunal. Of course, the margin of difference in the votes secured by the appellant and the respondent was only 122. In the election petition the chief ground relied on for recount was that a large number of counting assistants employed by the Returning Officer were sympathisers of the Communist Party and since the candidates were allowed only one counting agent for three tables to supervise the sorting and counting of ballot papers, manipulation by interested counting assistants was not impossible. '
The allegation against the counting assistants has not been sustained. On the evidence of the Returning Officer, it is seen that for every two counting assistants, to a table there was a supervisor, and the Officer himself seated on a platform facing the counting assistants. The seating arrangement was according to a plan or diagram supplied with instruction by the Election Commissioner. On the same day, the same counting assistants had been engaged in the counting of ballot papers In the Kottarakara constituency where, as sworn to by P.W. 6, a P. S. P. candidate had contested. What was pressed before us chiefly, was that the total number of counting agents sanctioned to a candidate was inadequate. Section 47 of the Act provides, that a contesting candidate may appoint one or more persons but not exceeding such number as may be prescribed, to be present as his counting agent or agents at the counting of votes.'
38. This case is clearly distinguishable. In the first place, it does not deal with an application made for the inspection of the ballot papers with a view to substantiate the allegations contained in the petition that some voles were wrongly excluded from those polled by the appellant and some others were wrongly included in those received by the contesting respondent. It was not a case where inspection was required in order to substantiate the allegations made in the election petition and give proof in respect of the facts in issue. In that case a prayer was made for the disposal of the petition on the ground that inasmuch as the number of counting agents of the petitioner were few and the counting agents belonged to a different political party, chances of the results having been manipulated could not be excluded. The Kerala High Court was considering whether in view of the material on the record it should declare the election void, and not whether it should permit inspection before the hearing. Secondly, it was not a case where it had been definitely alleged that the result had been manipulated. Alt that had been alleged was that the possibility of its being manipulated could not be excluded. We are, therefore, of the opinion that this case too is of no assistance to us in deciding the one before us.
39. Learned counsel then placed before us the case of Basaviah v. Bachiah, 17 ELR 293 (Mys). This case is only an authority for the proposition that a person challenging the result of the election on the ground of wrong inclusion or wrong exclusion of votes is not entitled to have a recount of the votes as a matter of absolute right. He would be entitled to it only if he makes out a prima facie case that the votes were wrongly excluded and wrongly included. In this case also, their Lordships were not concerned with an interim application made during the trial of the election petition for the inspection of the ballot papers in order to substantiate the allegations contained in the petition that votes had been wrongly excluded from those of the appellant and wrongly included in those of the respondent but were dealing with the question as to whether on the basis of the evidence on the record the petitioner was entitled to get the election declared void under Section 100(1)(d)(iii) of the Act. We reproduce below the exact words used in the judgment:
'The main complaint of the petitioner is that the returning officer did not allow him to appoint more than one counting agent, while under Section 47 of the Act read with Rule 54 of the Rules, he is entitled to appoint as many as 12 counting agents ........ It is notthe case of the petitioner that he appointed more that one counting agent and the Returning Officer refused them access to the place of counting.'
While dealing with the question of recount, the learned Judges observed as follows:
'It is next urged that the margin of difference between the petitioner and the first respondent is very narrow, being only 42 votes; and that the petitioner feels that if the votes are recounted he will be able to establish that he had obtained more votes (valid) than the first respondent. The petition does not disclose the reason why the petitioner feels that he is likely to have obtained more votes than the first respondent nor does the evidence adduced by him disclose any prima facie case, to indicate that the petitioner is likely to have obtained more votes than the first respondent. It may be noted that neither the petitioner nor his agent raised any objection to any of the votes at the time of the counting. It is further necessary to notice that at the request of the petitioner the returning Officer retotalled the votes before he declared the result. We have not been shown any reason why there should be a recounting, which term includes scrutiny of the votes polled. It appears as if the petitioner wants to try one more chance. But it is urged on behalf of the appellant that he has a right to demand a recount, as he has claimed the seat in his petition, irrespective of the fact whether he has made out a prima facie case or not ........ 'It is well established law that a recount will only be granted In cases which are substantiated by specific instances and by reliable prima facie evidence. Where, therefore, the application for recount rested on a nebulous allegation of the agent about the counting of batches of votes twice over, the application was refused'.' (Underlined [here in ' ') by us).
40. It would be noticed that in the abovemantionad case there was no definite allegation with regard to wrong exclusion or wrong inclusion of votes. All that was contended was that the margin between the votes of the parties being so thin it may be that a recount may disclose that the petitioner had secured the majority of votes polled. In other words, all that was contended was that since there was a difference of only 42 votes, the possibility of a wrong counting could not be excluded. Their Lordships after pointing out the circumstance that at the request of the petitioner in that case the returning officer had already recounted the votes before declaring the result; of the election, there could be no justification for repeating the request specially when the petitioner was unable to show as to why he thought that there had been a wrong counting. Actually this case clearly contemplates the possibility of a recount if there is prima facie evidence justifying such a course.
No case has been brought to our notice, decided by any of the Indian High Courts, or by the Supreme Court where an inspection was prayed for in order to substantiate the allegations made in the petition and was refused on the ground that no oral evidence had been led in order to show that some votes had really been wrongly excluded or included. It is trite that in all judicial proceedings only the best evidence on a point should be given. Whether or not a vote has been wrongly excluded or wrongly Included can best be proved by a look at the ballot paper' itself. To require a party to first bring in parole evidence to prove what can best be demonstrated by a look at the ballot paper Itself, in our opinion, is neither required by the law nor rules of practice. All inspections must precede the hearing of the case. Inspections should not normally follow the hearing.
41. Under the circumstances, we are of the opinion that the request made by the learned counsel for the appellant for the inspection of the ballot papers for the lawful purpose of placing before the Tribunal such of the ballot papers which in his opinion had wrongly been included in the votes of the contesting respondent and had wrongly been excluded from those of the appellant should not have been refused.
42. We have already said above that the Tribunal neither permitted the appellant's counsel to Inspect We ballot papers and connected documents nor looked into them itself even though all of them were tendered in evidence before it and were available in the Court. For the reasons mentioned above, we allow the appeal, set aside the order passed by the Election Tribunal dismissing the election petition filed by the appellant and remand the case to the Election Tribunal, Lucknow, for retrial. The Tribunal shall give a reasonable opportunity to both the parties to inspect the ballot papers and other connected documents subject to the directions which are given below :
(1) The inspection must be made only between the notified hours of which prior notice has been given to the parties' counsel.
(2) The inspection must be made in the presence of the Munsarim and no other junior officer.
(3) At the time of making the inspection neither party should be allowed to handle any ballot-papers,
(4) At one time only one bundle of ballot papers should be opened.
(5) As soon as one hundle has been inspected, it should be sealed by the Munsarim, in the presence of the parties' counsel such as are present and if both the parties' counsel are not present, the Munsarim will make a note as regards the party which is not represented. Further, the parties' counsel should also be asked to put their seals on the same bundle.
(6) As a further precaution all the bundles or the ballot-boxes, i.e. outsider-containers must be sealed even before inspection by the Munsarim and the parties' counsel if they are present. If any parties' counsel is riot present, a note to that effect should be made by the Munsarim, at the time of sealing.
(7) The inspection will be confined only to the bailor papers and form No. 16.
The parties will be entitled to produce such evidence as they consider necessary. In the circumstances of the case, we direct the parties to bear their own costs.
43. A substance of our decision shall be communicated to the Election Commission and the Speaker of the House of the People immediately and a copy of the order shall also be sent to the Election Commission and the Election Tribunal, Lucknow, as soon as It Is ready.