M.L. Jain, J.
(1) In Tic general elections of 1983 to the Metropolitan Council, Delhi, respondent No. 1 Hari Ram was returned from Narela, Constituency No. 22. His close rival petitioner Hira Singh was defeated by a margin of 238 votes. In this election petition, he prays that (i) the election of the returned candidate be declared void, and (ii) that he be declared to have been duly elected under section 98 of the Representation of the People Act, 1951 (herein the Act), His grounds arc :
(I)that corrupt practice has been committed; (n) that the result of the election was. materially affected (a) by commission of corrupt practice; (b) by improper reception, refusal and rejection of votes and acceptance of void votes; and (c) by non compliance of the provisions of the Act, and the Rules and orders made there under. It is also alleged that manipulation in the matter of issue of ballot papers, casting of votes and counting of ballot papers has taken place: see section 100(1) (b)&(d) (ii), (iii) and (iv); and
(III)that in fact he was received the majority votes and further that but for the votes obtained by the returned candidate by corrupt practice, he would have obtained the majority of the valid votes see section 101 of the Act.
(2) Respondent No. 1 has denied all the allegations. Though at one time, he intend to file a recrimination under section 97 of the Act, vide his reply dated 16-3-1983, yet he seems to have changed his mind later on. What are the consequences of want of recrimination were also discussed before me, but I need not talk about them as that does not seem material at the present moment. The petitioner has filed a rejoinder. The parties were examined under Order 10 Rule I Civil Procedure Code Thirty-two issue were framed. Out of them, the following first nine issues were taken up in the first instance:
1. Whether the petition does not contain a concise statement of material facts on which the petitioner relies as required by law? If so, what is its effect? Opr
2.Whether the petitioner discloses no cause of action? If so, what is its effect? OPR
3.Whether the petitioner has not been signed and verified in the manner required by law and if so, what is its effect? Opr
4.Whether the schedules and annexures to the petition have not been verified in the manner laid down by law? If so, what is its effect? OPR
5.Whether the petition is not accompanied by requisite number of copies? If so, what is its effect? Opr
6.Whether the petitioner has not filed as many copies of the petition as the respondents in the case are? If so, to what effect? OPR
7.Whether the copies filed by the petitioner were not true copies and not properly attested If so, what is its effect? OPR
8.Whether the annexures of the copies were not filed along with the petition nor were they served upon the answering respondents? If so, what is its effect? OPR
9.Whether the petition is bad for misguide of parties? OPR
(3) Before I proceed to deal with the issues, I wish to make one observation. The election to the Metropolitan Council and the Delhi Municipal Corporation were held simultaneously on 5-2-1983 and the results were announced on 6-2-1983 and notified on 8-2-1983, by the same team of offucers. Section 9 of the Delhi Administration Act, 1966 provides that the provisions of Part I and Parts Iii to Xt of the Act, and the Rules and Orders made there under for the time being in force shall apply in relation to an election to the Metropolitan Council as they apply in relation to an election to the legislative Assembly of a State subject to such modifications, as the. 'Central Government may after consultation with the Election Commission by order direct. Section 7 of the Delhi Municipal Corporation Act, 1957 on the other hand, provides that subject to the superintendence, direction and control of the Central Government, the Director of Elections shall conduct tile election of the members of the Corporation. Thus, there is a complete control of the Central Government over the conduct of elections to the Corporation, while in case of the elections to the Metropolitan Council the Election Commission of India Alias such control. Even (Though the procedure prescribed for the two elections is more of less the same, the holding of the two elections together under the control of these two different authorities appears to me to hurt the idea of free election and it 13 at least some time difficult to see the two elections in isolation. Indeed, the petitioner has attempted to show discrepancies in these elections and how one has affected the other. Here two separate boxes were provided and the allegation is that ballot papers cast in a wrong box were rejected or accepted so as to favor the first respondent. But, be that as it may, Mr. Bansal contends that we are not concerned in this election petition as to what happended in the elections to the Corporation and we have to confine ourselves to the validity of the elections to the Council. For the present, I will bear this division in mind. So, the issues. Issues 1 and 2 :
(4) According to section 83(1) of the Act, an election petition shall contain a concise statement of material facts on which the petitioner relies and in case of an allegation of a corrupt practice shall subject to any amendment and implication permitted under section 86(5) of the Act, set forth full particulars thereof 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 such practice. The first respondent contends that in substance, the claim of the petitioner is for inspection, security and recount to the substance of the matter and not to the form. The Coordination and irregularities and it is in this light that the statement of material facts should be examined. The petitioner has failed to give the material facts (as distinguished from particulars) in support of his claim. The petition, thereforee, suffers from want of complete cause of action and is no election petition in the eye of law and must be rejected. He relies upon the decision of this court in E.P. 1172, Suraj Bhan v. Hukam Siogh (1). decided on 21-1-1974.
(5) In Bruoe v. Odhams Press Ltd. (1936) 1 All E.R. 287 (2), Scott L. J. observed that word 'material' means necessary for the purpose of formulating a complete cause of action; if any one material statement is omitted, the statement of claim is bad. There is a radical distinction between material facts and particulars and nontheless in cases near the dividing line there is a penumbra where the two may and often do overlap just as between night and day there is zone of doubt which we all dusk. In practice it is often difficult to distinguish between a 'material fact' and a 'particular' piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet. Following these observations, in Samant N.. Balakrishna etc. v. George Fernandez & others, : 3SCR603 , it was held that section 83 is mandatory and an omission of a single material fact means an incomplete cause of action and the statement of claim becomes bad. In stating material facts it will not do merely to quote the words of the section. In Hardwari Lal v. Kanwal Singh, : 2SCR742 , and Udhav Singh v. M. R Scindia, : 2SCR246 , it was explained that material facts are those primary facts which are essential to establish the cause of action. Material facts are facts which if established would give the petitioner the relief asked for. But Harishchandra Bajpai and another v. Trilokhi Singh and another, : 1SCR370 , and Udhav Singh (supra) para 30, have cautioned that pleadings would not be strictly construed and that regard should be had to the substance of the matter and not to the form. The Cardinal canon of construction is that a pleading has to be read as a whole to ascertain its true import. Election petition is noth ing but a pleading and that is why section 86 which provides for dismissal of a petition does not include non-compliance of section 84. The respondent can invoke Order 7 Rule Ii Civil Procedure Code read with section 87 of the Act which provides that a plant can be rejected if it does not disclose a cause of action: Hardwari Lal (supra) para 26. But, the learned counsel for the respondent No. 1 refused to rely upon this provision. I have also been referred to several statutory' provisions and decisions. The decisions are : Ram Sewak Yadav v. Hussain Kamil Kidwai and others, : 6SCR238 , Swami Rameshwaranand v. Madho Ram and another Elr 281 (8) D). Jagjit Singh v. Giani Kartar Singh, : AIR1966SC773 , Jitendra Bahadur Singh v. Krishna Behari and others, : 1SCR852 , Ram Slirat Singh V. Harish Chandra Mahato, : AIR1975SC701 , Bhabhi v. Sheo Govind and others, : AIR1975SC2117 , Chaitanya Kumar Adatiya v. Smt. Sushila Dixit and others, : AIR1975SC1718 , Udhav Singh v. Madhav Rao Scindia, : 2SCR246 (Supra), S. Raghbir Singh Gill v. S. Gurcharan Singh. Tohra, : 3SCR1302 , Babali Charan Mallik Alias Tapash Kumar Das v. Prahallad Mallik & others Elr 339 (15), and this court's decisions in Kanwar Lal Gupta v. Amar Nath Chawla, E.P. 2 of 1971(16), decided on 19-5-1972, Banarsi Das v. Sumcr Chand and others, C. W. 1228)71(17), decided on 27-11-1972, Banarsi Dasv. Sumer Chand, Lpa 289172(18), decided on 18-4-1973 and Balraj Madhok v. Shashi Bhushan Ep 1171 (19), decided on 13-3-1972. Upon their reading, it seems to me that sufficient legislative and executive guidelines and safeguards have been provided to ensure that elections are free and fair. In order that they are free, secrecy of the ballot is required to be maintained. In order that they are fair, the elections arc conducted in full gaze of the contesting candidates and timely protests are permitted. There is, thereforee, a presumption in favor of the returned candidate that he has been duly elected and that the officers concerned have performed their functions bona fide in accordance with law. Yet, one cannot altogether rule out malpractices, dereliction of duties, breaches of the law and other factors which vitiate this process. The law had, thereforee, to provide that an election can be challenged by an election petition. But it cannot, however, be lodged on vague frivolous or indefinite allegations. The court must insist that an adequate statement of primary facts essential to the determination of the dispute is made concisely. It need not be precise nor detailed. Yet, an order for inspection of the ballot papers cannot be. granted just to allow the petitioner to fish out evidence to support his pleas. The defeated candidate has to place before the court evidence prima facie indicating that an order for inspection was necessary in the interest of justice. A mere allegation that he suspects or even believes or claims that by inspection and scrutiny of ballot papers he will demonstrate that there has been a misconduct is not sufficient to support an order for inspection. Yet, facts differ from case to case and it is dangerous to lay down any rigid test in the matter of ordering an inspection. But where there are serious irregularities in the matter of counting of votes, scrutiny of ballot papers should be allowed. In the special facts of a given case a sample inspection may. however, be ordered to lend further assurance to the prima facie satisfaction of the court regarding the truth of the allegations made for a recount. It can in a given case be restricted to those ballot papers only in respect of which commission of errors has been proved. In Km. Shardha Devi v. Krishna Chandra Pant & others, : 1SCR681 , it was observed that it is not the law that in respect of each ballot paper rejected as invalid a specific averment must be so made as to identify the ballot paper and only those that can be correlated to the allegations in the petition specifically and not generally shall be recounted. If errors in counting are prima facie established, a general recount ca.n be ordered. In P. Malaichaimi v. M. Andi Ambalam & others, : 3SCR1016 and Ch. Manphul Singh v. Ch. Surinder Singh, : 1SCR52 . and : 2SCR680 , the petitioner challenged the elections on similar allegations as in the present petition, but no fault was found with these types of allegations on the ground of want of material facts, rather it extracted a complement from the court that one would have to search long and wide in order to come across any election petition which gives such claborate; details.
(6) Let us then make a survey of the present petition in order to see if the facts stated in the petition formulate the grounds of challenge. If they do without being vague, then there is no non-compliance of section .S3. I will, thereforee, broadly state the substance of the relevant sections of the petition. :
PARA14: The total number of votes polled were 32834 (including tendered votes) but the ballot papers found by the counting supervisors in the ballot boxes were short by 128 or 129 votes. He has filed annexures to support this allegation. Ballot papers meant for the Council were found in the Mcd boxes. But those which were in favor of the respondent were sent for counting while house market in favor of the petitioner were rejected. Some of the valid votes of the petitioner and other respondents had been put in the bundles of respondent No. 1.
PARA15: 102 voters had died before polling but they were impersonated and their votes cast in favor of the respondent No. 1. These votes have got to be excluded from the tally of the respondent. The petitioner has given a chart showing the Seriall number of such dead voters. He has also filed death certificates of 50 such voters.
PARA16 : 35 voters were absent from the polling area on the) polling day but they were impersonated. He has given the places where these persons were to be found on that day. These votes have to be excluded from the number of valid votes polled by the first respondent. He supported this allegation with an affidavit from the Pradhan Gram Sabha, Kheda in regard to eight such persons.
PART18 and 19 : 450 votes polled in favor of the petitioner were rejected on illegal grounds. One such ground was like this. The name of the petitioner was printed last in the ballot paper. Some part of the stamp fixed by the voter fell below the bottom enclosure. Such votes were rejected in contravention of rule 56(2) second proviso of the Conduct of Election Rules, 1961. One other ground was that the mark of the instrument also contained some mark of thumb impression. About 150 such ballot papers were rejected.
PARA20 : 220 votes were polled twice over in favor of the respondent. He has demonstrated this in an annexure which contains the Seriall number of the voters twice mentioned in the electoral roll. Out of them about 200 votes have been cast in favor of the returned candidate. These votes arc required to be excluded from the tally of the respondent vide s. 62(4) of the Act.
PARA21 : About 85 voles were spirited away by the counting staff which should be counted in favor of the petitioner.
PARA23 : There were 50 counting officers and it was not possible for the petitioner and his agents lo note the Sr. number of the votes improperly rejected or accepted, nor were they allowed to do so.
PARA24 : According to the notified schedule, the counting was to commence at 8.00 a.m. but it commenced at 9.00 p.m. The petitioner alleged that he was not informed. The returning officer has admitted that the time was changed but information thereof was sent to the candidates. The counting was completed hurriedly between 8.25 p.m. to 10.30 p.m. The result was declared at 11.30 p.m.
PARA25 : There was on the counting tables a tray No. 8 containing the invalid votes. These were rejected without showing them to the petitioner or his agents and without allowing them to note the Seriall numbers of the ballot papers. Some candidates were not represented at the time of counting. Their votes were put in the bundles of respondent No. 1. This was done in the case of respondent No. 3 in polling station Nos. 28, 31, 33, 35 and 41, in the case of respondent No. 4 in polling station Nos. 2 and 8, in the case of respondent No. 5 in polling station Nos. 4, 5 and 31.
PARA26: The petitioner's agents called upon the returning officer to see for himself the rejected votes. 'The returning officer did not accede to the request. He did not perform the last check nor did he make a test check of 5 per cent of the bundles. He has contravened the rules and orders in this regard.
PARA27 : Out of 1455 rejected votes, about 800-900 were votes polled by the petitioner and were wrongly rejected. The returning officer himself did not sign the orders and reasons for rejection. He got it done by the Assistant Returning Officer.
PARA28 : For the furtherance of his prospects in the election respondent No. 1 procured the assistance of his brother Ramesh Chand/Rameshwar Singh, an S. T. Police. He took leave prier to 5-2-1983 and was on leave on 6-2-1933. He canvassed for him and acted as his counting agent.
PARA31: In polling stations Nos. 2, 31, and 45 there is a difference in total votes polled as given by the polling officer concerned and the result sheets prepared. It showed negligence in counting.
There were tendered votes but the returning officer showed no such votes in Form 21-E.
PARA33 : Out of the 13 tendered votes, those polled in favor of the petitioner be added to his tally.
PARA34 : In polling station No. 33, signatures of the voters were not taken on the counterfoils. Rule 38 of the Conduct of Election Rules was' intentionally violated. Such votes are required to be rejected.
PARA41 : The petitioner and his election agents had requested the returning officer for recounting but he declined to do so.
(7) Mr. Marwaha also pointed out that there is no specific denial in the written statement and. thereforee, the statements in the petition should be deemed to be admitted. But in Dr. Jagjit Singh (supra) para 25, it was held, that the strict rule of pleading prescribed by Order 8 Rule 5 of the Code of Civil Procedure cannot be blindly invoked in election proceedings. Yet, the aforesaid summary of grounds clearly shows that all the material facts have been stated.
(8) It was contended on behalf of respondent No. 1 that the votes polled in favor of the petitioner but found in the ballot box of Mcd have been rightly rejected under rules 56(2)(g) of the Conduct of Election Rules, 1961, Hari Vishnu Kamath v. Ahmed Ishaque and others, 10 Elr 216(24), was cited in support. It was urged tilt this allegation should even be omitted. The further thrust of the objection of Mr. Bansal is directed on the use of 'about' in paras 19 and 20, 'large number' in para 17, and 'some' in para 14 as illustrative of vagueness and of an attempt at a roving inquiry. It is urged that this type of allegations does not comply with section 83(1)(a) of the Act. Reliance was placed on Jitendra Bahadur Singh (supra) wherein it was held that if an election petition gives some figures as to the rejection of valid votes and acceptance of invalid votes, the same must not be considered as an adequate statement of material facts, when the petitioner, has not disclosed in the petition the basis on which Sic arrived at those figures. His bald assertion that he got those figures from the counting agents of the unsuccessful candidate cannot afford the necessary basis. Under the rule 56(3) and relevant instructions, before a vote is rejected the agents of the candidates are permitted to examine the concerned ballot paper and note down the Seriall number. thereforee, it is quite easy for them to note down the Seriall number of the concerned ballot papers. It will not be a statement of material facts if the election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the Seriall numbers of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers and. if so who' those agents are and what the Seriall numbers of the ballot papers to which each one of them advanced their objections arc. Scrutiny of ballot papers cannot be directed in such a case. On the other hand, in Bhimsen v. Gopal and others Elr 218 (25), it was held that the Definite particulars about number and nature of valid notes that had been counted could only be supplied after inspection of the ballot papers. In H. R. Gokhale v. Bharucha Noshir C. arid oilier : AIR1969Bom177 , it was pointed out that even at the time of counting She votes, the candidates or their counting agents have no right to handle the ballot papers and rule 56(3) makes it clear that even the right of inspection is limited to rejected ballot papers alone and that in respect of ballot papers which are alleged to have been wrongly accepted, the law does not even confer a right of inspection on the candidates or their counting agents The law itself contemplates continuous and rapid counting of votes, as is ^ clear from rule 60 and rule 53(4) and it would obstruct that process' if the counting agents of the various candidates were to be at liberty to note down the Seriall numbers. The provisions of section 83(1)(a) do not seem to require that Seriall number of the votes should be specified in the petition. I am inclined to follow the view taken in Bhimsen (supra) and Gokhale (supra). That apart, the contention of the petitioner is that his agents were not allowed to note down the numbers of the rejected votes. What the law requires are facts' material to the determination of the dispute. Use of the word 'about' or 'some' docs not show vagueness of the allegation. The figures are not firm but that does not mean that they are not material.
(9) It is further pointed out that in regard to the plea of corrupt practice, the time, date and place of canvassing made by the police officer have not been shown. It is also not stated in what manner respondent No. 1 obtained or procured the assistance of the police officer. In Hardwari Lal (supra), para 22, it was held that the petition must state as to what kind or form of assistance was obtained or procured, etc. and how it affected election. Unless that is done it lacks in material particulars. But the present petition state's how such assistance was obtained and rendered. What the respondent seems to refer is to particulars which have also been given in the petition. Moreover, any deficiency in them does not affect the validity of the petition. It was; also urged that what was alleged did not amount to corrupt practice at all.- If the Government servant acts of his own for the furtherence of the election of a particular candidate, it does not amount to corrupt practice. This proposition finds support from the decision reported as Raj Krishna Bose v. Binod Kanungo, and others Elr 294 (27). The policy of law is to keep Government servants aloof from politics and also protect them from being imposed on by those with influence or in. position of authority and power, and to prevent the machinery of Government from being used in furtherence of a candidate's return. But at the same time it is not the policy of. law to disenfranchise them or to denude them altogether of their rights or ordinary citizens of the land. In K. M. Mani etc. v. P. J. Antony and others : 1SCR701 , it was held that a police officer as a citizen is entitled to have his own belief that a particular candidate would win, and to express that belief without lending an impression that it was meant to assist him in the election in any manner, but it is open to objection if he says that the candidate should win. It seems to me that the petition purports to state that the first respondent procured the assistance of a police officer or at least connived at it. How he did it relates to particulars and not material facts. thereforee, the objection cannot be sustained. I decide issues Nos. 1 and 2 in favor of the petitioner and against the first respondent. Issues 3 and 4 :
(10) These issues relate to verification of the petition, schedules and annexures. Verification is covered by section 83 and a defect therein is not fatal under section 86. As held in Murarka kadhey Shyam Ram Kumar v. Roop Singh Rathore & others. : 3SCR573 , a defect in verification can be cured. Proper verification has , however, in this case been made in the petition, the schedules and the annexures staling the paragraphs which were true to the knowledge of the petitioner and the paragraphs which were based on information. It was urged that the sources of information must be disclosed in the verification. I do not see that there is any such requirement of law. Virendra Kumar Sacklecha v, Jagjiwan and others Elr 299 (30) only requires that grounds or sources of information with regard to corrupt practice arc to be set out in the affidavit in an election petition. It was also pointed Out that para 30 of the petition relating to corrupt practice is verified on information but in the accompanying affidavit para I, it is said that the particulars of the corrupt practice are true to knowledge. [Form 25-B in respect of affidavit permits verification on knowledge or information. That apart this' discrepancy being under section 83 is not fatal to the petition.] I, thereforee, decide issues Nos. 3 and 4 in favor of the petitioner and against the first respondent. Issues 5, 6 and 8 :
(11) There is no doubt that procedure has primacy over substantial justice under see. 86 and in order to prevent dismissal of the petition a requisite number of copies of the petition attested as true copy are required to be filed along with the petition within the limitation period. That the requisite number of copies of the election Petition were not filed and supplied to the respondents in a vague allegation. The office has found no fault. Relying upon Smt. Sahodra Bai Rai v Ram Singh Aharwar and others, : 3SCR13 and M. Karunanidhi v]s H.V. Handa and others : 2SCR629 , respondent No. I next complains that the annexures are integral parts of the petition and have not been supplied to him. He has also filed a copy of the petition, he says, he had received without the annexures. He submits that the petition, thereforee entails dismissal. Mr. Marwaha contends that it is not correct. Mr. Marwaha is right because in his written statement the first respondent has referred to the marks of some qf the annexures and the reply of others' shows that he had seen the annexures. There is no specific denial that the copies of the annexures have not been received. Moreover, [having furnished the requisite copies, it was not for the petitioner to show whether annexures have been sent to the respondents or not. The High Court Election Rules cast a duty on the office of the Registrar to check the filing of papers and proper service is also the duty of the court and not of the petitioner. I see force in the reply of Mr. Marwaha. No one can suffer for the fault of the court. Issues Nos.5, 6 and 8 are, thereforee, decided in favor of petitioner and against the first respondent. Issue No. 7:
(12) Nothing is urged about this issue. This issue is decided in favor of the petitioner and against the first respondent. Issue No. 9:
(13) It was held by the Supreme Court in Jyoti Basu and others v. Debi Ghosal and others, : 3SCR318 , (two Judges) that only the parties which are mentioned in section 82 are required to be added as parties. There is no question of proper parties in the election petition. It is clear from section 82 and see. 86(4) of the Act that the contest of the election petition is designed to be confined to the candidates at an election and all others are excluded. The strict consequence of these observations was that where those who are excluded, are joined it will be a contravention of section 82 and yet the court did not invoke section 86 and ended with a mild direction that a person who is not a candidate may not be joined as a respondent to an election petition and the names' of some respondents were taken off the petition. This seems to have been done because section 81(1) envisages that even an elector can challenge the returned candidate to a fight. This is so further because Section 86(4) permits a candidate who has not been joined to be added as' a respondent and after such addition, the petition cannot be dismissed for non-compliance of section S2: vide Shiv Chand v. Jagar Singh and another, : 1SCR520 .. This was so again because five Judges in Murarka (supra) had rejected the argument that no persons other than those mentioned in section 82 can be joined as respondents. It was held that the court had the option to delete the name of a party which is not a necessary party. According to Shri Syed Nisam-Ud-Din v.. Shri Hissam-Ud-Din & others Elr 275 (35), and Mr. Rajir V. B. v. Kalanta Ibrahimbhai Kasambhai and others Elr 24 (36), and Returning Officer v. G. C. Kondaih Elr 45 (37), the returning officer is neither a necessary nor a proper party. In Dwijendralal Sengupta v. Hare Krishna Konar, : AIR1963Cal218 , and H. R. Gokhalc (supra), it was, however, held that the returning officer was a proper party. To my mind, where the returning officer's specific conduct is involved, he can in appropriate cases be added as a party. Mr. Marwaha pointed out that in all cases which came before the Supreme Court returning officer was party and no exception wa' ever taken to his' being there. No relief is sought against him. He may or may not defend himself. It is not possible to understand why the first respondent wants the returning officer to be omitted. However, in view of Jyoti Basu (supra) I have no option but to delete him from the array of respondents. I thereforee decide issue, No. 9 in favor of the first respondent and against the petitioner and direct that respondent No. 7 be struck off.