Avadh Behari Rohatgi, J.
(1) By this election petition the petitioner. Pritpal Singh, has challenged the election of the returned candidate, Ranjit Rai Sharma, respondent No. 1. Both of them were contesting candidates at the Metropolitan Council election from the Metropolitan Constituency of Paharganj No. 44 held on 5-2-1983. Respondent No. I was declared as a successful candidate. He won by I Ii votes. At the first count he was declared elected by a margin of 113 votes. On a recount the margin was reduced to Iii votes. So the election petitioner is. his closest rival.
(2) The petitioner seeks to set aside the election of impendent No. I on four grounds; (1) that respondent No. I indulged in corrupt practice, (2) 336 valid votes of the petitioner were improperly rejected, (3) 85 votes from the ballot boxes of Municipal Corporation election were not counted, and (4) 89 void votes were counted in favor, of respondent No. 1. It is not, necessary to set out the pleadings of the parties at any great length as they are sufficiently reflected in the following issues and the discussion that follows those issues :
1. Whether the persons mentioned in annexure 'A' were the voters eligible to vote at the election in dispute and the said persons or any of them were denied the right of vote by the Presiding Officer at the polling station No. 313? If so, to what effect?
2.Whether the question of violation of Rule 2.1 -A of the Registration of Electors Rules, 1960 alleged in paragraph 12 of the petition can be gone into and forms subject matter of enquiry in the present proceedings? If not to what effect ?
3.Whether the persons mentioned in annexure 'B' were registered as voters at two places at two different polling station in the same Metropolitan Constituency No. 44 and whether any such voters voted twice at the election in dispute and as such any votes were received which were allegedly void? If so, to what effect?
4..Whether any void votes were received in the election in dispute materially affecting the result of election in so far as respondent No. I is concerned ?
5.Whether the persons mentioned in annexure 'C' were dead at the date of poll and votes were cast in their names by others and as such void votes were received and counted in the result of election? If so, to what effect 7
6.Whether the persons mentioned in aimexure 'D' were impersonated in the election in dispute and whether any votes were received in their names as void votes as alleged in paragraph 14 of the petition? If so, to what effect ?
7.Whether the result of counting as alleged is based on erroneous counting If so, to what effect?
8.Whether there was any improper rejection of valid votes, improper acceptance and reception .of votes in violation of the provisions of the Act and the rules affecting the result of election in so far as it concerns the returned candidate?
9.Whether respondent No. I obtained and procured the assistance oi the Governmem, Officers ror the furtherance of the prospects of his election, namley, Shri Hari Om son of late Shri Jagan Nath as alleged in paragraph 21 of the petition If so, to what effect?
10.Whether the allegations contained in paragraph 21 of the petition amount to a corrupt practice as alleged in paragraph 21 of the petition ?
11. Whether respondent No. I and persons mentioned in paragraph 23 distributed the handbills in Punjabi containing an alleged appeal of Harcharan Singh Longowal as .alleged in paragraph 22 and 23 of the petition? If so, to what effect ?
12.Whether the allegations contained in paragraph 22 and 23 of the petition amount to a corrupt practice If not, to what effect?
13.Whether any corrupt practice were committed in the interest of respondent No. I affecting the result of election materially in so far as it cancans respondent No. 1 ?
14.Whether the petition has set forth as full particulars of the corrupt practice alleged including a statement possible of the names of the parties alleged to have committed corrupt practice If not, to what effect ?
15.Whether the petitioner is entitled to be declared as elected in place of Respondent No. I ?
Issues No. 9 & 10
(3) Mr. Sapra on behalf of the petitioner conceded that these issues may be decided again st him. By my order dated 11-8-1983 I decided these two issues against the petitioner.
(4) Before I take up other issues I must mention that on an. application (C. M. No. 2980 of 1983) made by respondent No. I arguments were heard on all the remaining issues as it was urged that the parties need not go to a protracted trial and that evidence was unnecessary-. It was contended that the petition did not disclose a cause of action and the allegations, even if they are accepted as true, will not enable the petitioner to have the election of respondent No. I set aside. So without evidence the matter was argued. Issues NO. 10, 11,-12, 13 & 14
(5) These issues raise the question whether the returned candidate indulged in corrupt practice as defined in Section 123(3) and (3A) of the Representation of People Act (the Act). It is said that Sant Harcharan Singh Longowal issued two appeals in H the name of the Panth to all the Sikh voters to boycott Metropolitan Council and Municipal Corporation elections and respondent No. I widely circulated the printed appeals issued by the Sant and thereby asked the Sikh voters to refrain from voting for the petitioner. This, it is said, has prejudicially affected the election of the petitioner. Section 123(3) says : 'Corrupt Practice: -The following shall be deemed to be corrupt practices for the purposes of this Act : (1) xxx xxx xxx (2) xxx xxx xxx (3) The appeal by a candidate or his agent or by-any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste community or language or the use of, or appeal to, religious symbols or the use of, or appeal to national symbols, such as the national Flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate; Provided that no symbol allotted under 'this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.'
(6) The corrupt practice charged is that respondent No. I and his agents exploited the religious feeling's of the Sikh voters by distributing the appeal issued by Sant Harcharan Singh Longowal President of the Shiromani Akali Dal, Amritsar, asking the Sikh voters to boycott the elections. The first appeal which was in Gurmukhi has been translated by the petitioner as follows : 'GOD Is One God Can Be Visualised With The Blessing Of Gurus Boycott Elections In Delhi Sant LONGOWAL'S Appeal Brave and unique Sikhs of Delhi in the. perennial 'Dharamayudh' conducted under the leadership of Shiromani Akali Dal against the injustice and excess of the Government in independent India 77,672 sikhs have courted their arrest since 4th August, 1982. 108 Sikhs have cheerfully become mart's in the process of undergoing high-handedness and atrocities of the Government under the pretext or the other. The Government has refused to accept the legitimate and constitutionally demands of the Sikhs. The community has exhausted the patience and a War has entered into its last phase. The Sikh M.Ps and M.L.As of Punjab Legislative Assembly after kicking their memberships have resigned on 27th January, 1983, to uphold the dignity and honour of the Community. In the prevailing circumstances, I in the capacity of being a servant of the followers of Guru earnestly appeal to all the Sikhs ef Delhi thereby boycotting the forthcoming Delhi Municipal Corporation's election and Metropolitan Elections on 5-2-83 substantiating Panthak unity and the Panthak supremacy.. Servant of Guru Panth Harcharan Singh (Sant) Longowal President Shiromani Akali Dal Sri AMRITSAR. We make an earnest appeal to the Delhi Sikhs that in deference to the Panthak decision no sikh should go to cast his vote on 5-2-1983. Yours Servant Prof. AJaib Singh Chairman Parliamentary Board DELHI. Harcharan Singh President Akali Dal Delhi Bir Bahadur Singh Senior Vice President Delhi State Akali DAL.'
(7) The second appeal was also in Gurmukhi and is translated by the petitioner as follows : 'Sardar Sahib Ji, Vahe Guru Ji Ka Khalsa Vahe Guru Ji Ki Fateh. You are fully aware that since 4th August, 1982 Shiromani Akali Dal composed of martyrs' brave Sikh Community has launched a consistent Dharamyudh (crusadity) against the injustice and high handedness to which the Sikhs have been subjected. Till date 77672 Sikhs hove been arrested. Having been victimised by the atrocities and high handedness of the Government, Iii Sikhs have become martyrs to upheld the honour and dignity of the Sikh Community. The attitude of the Government towards Sikhs during Asian Games clearly demonstrated its discrimination and excesses. Not only Haryana, Himachal and H.P. Borders were sealed to prevent the Sikh influence into Delhi, but started with an ordinary sikh. The Journals who make sacrifices to the Country were harassed and humiliated by. installing check-posts at the national high-ways from place to paice. Every Sikh was looked down with suspicion and numerous innocent were put behind the bars without any law. By cordoning the pious, religious places the sikhs aspiring to have Guru Darshan were harrassed. The Constitution of India entitles every person to give vent to his grievances peacefully. But when in Taran Taran we paid homage in the memory of 34 sikhs who became martyrs against the indifference and conspiracy of the Government, we proceeded towards Parliament on 11th October, 1982 demanding judicial enquiry; unarmed, peaceful sikhs were fired at making four sikhs martyrs. The Congress Government in Punjab has eclipsed even 'the Nathershahi atrocities. Hundreds of Sikh youths have been killed in fake police encounters. Sikh heads cany price tags. The Policy of the Government in killing the Sikhs, every Panthak Sympathiser is regretting on the part of our Leaders who were mislead and had joined India at the time of partition. The Sikh Community have sacrificed more vigorously in obtaining the Independence of the Country and out of ] 14 martyrs 96 were Sikhs. To preserve the security and independence of country the ' Sikhs have sacrificed themselves but their rights have not been safeguarded. Even they have to fight with the Government to preserve their rights, religious and cultural rights. Government has even refused to hand over the portion of Kotwali where Guru Teg Bahadur sacrificed Us life. In spite of the assurance give by the then Home Minister Giani Zail Singh, now the President of India, the Government has not established University in the name of Guru Teg Bahadur in spite of its assurances. The Government has refused to give the land adjacent to the Gurdwara Bala Sahib which was earlier promised. Guru Teg Bahadur who was the savior of Hindu Community, even his Martyr Day is not being celebrated at the National Level. The Punjabi language in Gui-mukhi script is not being taught in Government Schools of Delhi though 60 per cent of the Delhi Population is Punjabi and even the demand to make Punjabi language as second language of Delhi has not been considered. For how long we can tolerate the false assurance promises of the Government. The Government is repeatedly saying that it is prepared to accede the religious demands of the Sikh Community but even that has nut been announced. The arrest of 77672 Sikhs and sacrifice of 111 sikhs had not made any impact, on the Government as if the Government is in a mood to confront with the Sikh Community. The struggle has entered in a new phase and on 27th January, 1983 the Akali M.L.As. of Punjab and Members of Parliament have resigned from their respective elected seats to protest against the apartheid and genocide policy of the Congress Community towards the Sikhs. At This Juncture the Supreme Authority of Sikh Panth, Sri Sant Harcharan Singh Longowal, President Shiromani Akali Dal and Director, Dharamyudh Morcha has appealed the entire Sikh Community to boycott Delhi Municipal Corporation and Metropolitan Council Elections by not casting their votes. We earnestly hope that the Sikhs of Delhi who are known for their sacrifices and respect will obey the orders of the Panth and will pay homage to the Sikh Martyrs by refraining them from voting and shall struggle for achieving their rights and mora unity for Sikh Community.'
(8) The petitioner .says that respondent No. 1 exploited the 'religious sentiments and feelings of the Sikhs' and ''promoted the feelings oi' enmity and hatred between the Congress (1) Government and Sikhs' and this prejudicially affected his election prospect because the Sikh voters did not vote for him. The petitioner mainly relied on Sees. 123(3)(3A) and (4) of the Act. In arguments Mr. Sapra abandoned his ground of Sub-section (4).
(9) It is said that this was an appeal by respondent No. I on the ground of religion for the furtherance of his election prospects. I do not think it is a religious appeal. Akali Dal party is a recognised political party by the Election Commission notwithstanding the fact that its members are only Sikhs. There are several parties which subscribe to different political and economic idiologies, but their membership is confined to members of a particular community or religion. The appeal was made by the President, the Sant. This appeal may be influenced by considerations of religion, race, community or language. There may be social or religious overtones. There may be ethnic tinge in the appeal.
(10) But what is important to note is that it was an appeal to boycott the elections. It is an appeal for non-intercourse for political reasons. It is an expression of disapproval or means of coercion. It is not an appeal in favor of one candidate and against the others, as is generally the case. It is a concerted refusal to have anything to do with elections held by the party in power, fn order to 'force acceptance of certain demands by the gcrvemment, it is an anti-feeling against the Government. It is an appeal of non-participation in and non-cooperation with the democratic process of elections. I do not think it, falls within the contemplation of Section 123(3) of the Act.
(11) On a fair and reasonable construction it is not possible to construe it as a religious appeal. There is no doubt a reference to the Panth and the Gurus. Though the word 'Panth' by itself has come to indicate the Sikh religion, in the context in which it is used in the appeal it means the Akali Dal Party. It is to-the members of the party that the appeal is addressed. The members are asked to boycott the elections, not because their religion forbids them to vote but because the Congress Government does not keep its promises. 'How long can we tolerate the false assurances and promises of the Government'. The appeal is a 'protest against the apartheid and genocide policy of the Congress' towards the Sikhs. It is a call to the Sikh community 'for achieving their rights and more unity'. The appeal is not born out of the Sikh religion but out of a dissatisfaction with the party in power, though religion is rallied in its support. So the appeal to 'boycott is essentially a protest against the ruling party. The appeal is from a political platform. It is not an appeal Favoring one .candidate against the other. It is an appeal for total abstinence from elections which is an apparatus devised for participation by all parties in the democratic process. This is how the appeal should be construed.
(12) The appeal highlights the Sikh demands. 'The Government has refused to accept the legitimate and constitutional demands of the Sikhs' so Akali Dal has launched a 'crusade' 'against the injustice and high-handedness to which the sikhs have been subjected'. It 'is a 'fight with the Government to preserve their, religious and cultural rights'. This shows that it is a political appeal such as is generally made at the hustings. Though it is described as a 'war' and a 'crusade', it is essentially a political agitation. Various elements are mixed in the appeal -social religious, cultural and apolitical. But ethnic elements dominate it.
(13) In Kultar Siagh v. Mukhtiar Singh, : 7SCR790 the Supreme Court laid down that the appeal should be construed in the light of the relevant political controversy. In similar circumstances 'it was held that the appeal was not on the point of religion within the meaning of Section 123(3) and did not amount to corrupt practice.
(14) Suppose it was a religious .appeal. The critical words io the sub-section are 'his religion'. This means the religion of the candidate. (Kanti Prasad v. Pursnotmm Das, : 3SCR400 . So this was not an appeal by the respondent Ranjit Rai Sharma, 'on the ground of his religion'. He is a Brahmin and not a Sikh. It is ai'ieged that he was issuing the appeal to furthe? his pro'spects and to prejudicially affect the election prospects of the petitioner. But the sub-section says' that it must be an appeal by the candidate,orhis agent or by any other person with the consent of the candidate or his election agent to vote or refrain from voting for any person on 'the ground of his religion'. This appeal of the Akali Leader does not fall within the confines of Section 123(3) and is not a corrupt practice.
(15) Mr. Sapra, counsel for the petitioner, then said that there was an appeal tcf religious symbol. He argued that Panth is a symbol. The Gurus, he said, are asymbol. In 'any case the party symbol of the sword appears in the appeals' at the top and so these are appeals to religious symbols. This case of use of or appeal to religious symbols has not been pleaded anywhere. A case not pleaded cannot be allowed to be argued. . In the petition the plea of use of or appeal to religious symbols is conspicuous by its absence.
(16) Symbol is different from the written or spoken appeal. Ii Symbol is a conventional sign which may assume the form of a character, a diagram, a letter, or. an abbreviation in writing or printing. The symbol represents an abstract, thought. It signifies a vhible thing that stands for or suggests something invisible or intangible. .K'seeinsras arij outward sign ^80106^^ else usually sacred or religious.. If expresses the invisible; intangible or spiritual by means of a visible representation, It may be a representation of a divine being to indicate qualities, powers or otter attributes. It may be a pictorial representation or device. It may be a credo or symbol of a faith, doctrine or creed. For example the Cross is always' one of the symbols of Christianity.
(17) In Jagdev Singh Sidhanti v. Pratap Singh : 6SCR750 the Supreme Court held that the flag on which' '0m' is printed Was not a religious symbol within-the meaning of Section 123(3) of the Act. Normally the appeal to religious symbols must b5 an appeal to the candidate's religion and the symbols ofthafreligion. That is not the case here.
(18) The petitioner must confine to his case as set out to the pleadings. There .he has referred to the two hand bills issued by the Santas' not to any religious .symbol. An appeal is the power or property of arousing a sympathetic :response from those to whom it is addressed. The petitioner's; case 'is that respondent No. I made use of the Sant's appeals and thereby furthered his prospects and ruined petitioner's .chances of being elected. On this I have come to the conclusion that it is not a .religious' appeaf. It is not an-appeal'oni.the.groa'i'ofrespaadenf8 religion and thereforee not a corrupt practice.
(19) A fainthearted attempt was made.by Mr Sapra to bring his case within Section 123(3A). That. sub-section says : 'Section 123: .,... .. . ... (1) xx xx xx (2) xx xx xx (3) xx xx xx (3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent, of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.'
(20) It is said that respondent No. I by distributing the appeals of the Sant promoted 'feelings of enmity and hatred against the Congress Government'. The short answer to this argument is that the Congress Government cannot be comprehended within the expression 'different classes of the citizens of India'. Promotion of feelings of enmity or hatred between different classes of citizens on grounds of religion, race, caste, community or language is a corrupt practice. But it is the light of every candidate to criticise, however angrily, the opposite parties or the party in power against whom he is fighting the election and whom he wishes to dislodge from power. This is the 'brief moment of freedom' of which the people make use during elections. This is the system of democratic Government which led Jean-Jacques Rousseau to make this pregnant observation :
'THE English people believes itself to be free; it is gravely mistaken; it is free only during election of members of Parliament; as soon as the members are elected, ''the'people is enslaved; i't is no'hing. In the brief moment of its freedom, the English people makes such a use of that freedom that it deserves to lose it.'
(21) The Government, if it is democratic, is of the people, for the people and by the people. It cannot be said to be composed of any one class of citizens based on the ground of caste, religion, language or community. It is coterminous with the people as a whole. It is an authority set over them by themselves in a democratic set-up. On this part of the case I have reached the conclusion that the respondent is not guilty of corrupt practice. Issues No. 7 and 8
(22) It is said that 85 votes were cast in the ballot boxes of She Municipal Corporation election which was held comempraneously with the Metropolitan Council election. Those votes were to be counted after the counting of votes of the Municipal Corporation election was over. Some instructions of the Election Commission were said to have been issued for counting them after sorting them out from the ballot boxes of the Municipal Corporation. There is mo substance in this point. No ins'truction was produced before me in the course of arguments. Mr. Sapra frankly admittedly that he was unable to cite any instructions on the subject.
(23) Apart from this the law on the subject is clear. Section 67 says 'when the counting of the votes has been completed the returning officer shall, in the absence of any direction by the Election Commission to the contrary, forthwith declare the result of the election in the manner provided by the Act or the rules made there under'.
(24) The key expression is 'forthwith'. This means that the returning officer cannot wait after the counting is complete. He cannot wait for counting of votes of the Municipal Corporation election. He cannot wait and find how many votes of the Metropolitan Council election are in the ballot boxes of the other election. There is no law or instruction to count them. They are invalid votes if cast in boxes other than those marked for the Metropolitan Council elections. Section 66 uses the expression 'the result of the election'. It clearly means the result on the basis of valid votes. (Hari Vishnu Kamath v. Ahmad Ishaque 10 ELR 216 (4). Metropolitan Council votes cast in the Municipal Corporation ballot boxes are void votes. This conclusion is irresistible.
(25) One other allegation of the petitioner is that his 336 valid votes were wrongly rejected by the returning officer without giving him an opportunity to be heard as provided in Section 56(3) of the Act. The petitioner has not furnished material facts with regard to the rejected ballot papers. His case is that there was a wholesale rejection of his valid votes behind his back by the returning officer, though he promised that at the end of entire counting he will decide whether to reject or accept 336 votes sent to him by the counting supervisors.
(26) The relevant facts of this objection are these. At the first counting 676 votes were rejected. The petitioner asked for recounting. The Returning Officer acceded to his request. On recounting 675 votes were rejected. It was found that 5 valid votes had wrongly been rejected at the first count. The rejected votes ought to have been 671 and not 676. At the recount it was further found that out of the valid votes 4 were liable to be rejected. So at recounting rejected votes became 675. The petitioner's case is -that 336 votes cast in his favor were wrongly rejected and Rule 56(3) of the Conduct of Election Rules, 1961 was violated. He has given the break up of these 336 votes in this manner. 'From table I to 14, 336 valid votes cast in favor of the petitioner i.e. 25,35,37,3141, 17, 13, 29, 39, Ii, 16, 12, 9 and 21 respectively from the said tables' were rejected. This is the sum and substance of the allegation. He goes on to allege 'that he approached the Returning Officer Shri Kane to show him the votes because the counting agents of the petitioner had informed him that oi; t o[ 486 votes which Were sent as doubtful by the counting staff to the Returning Officer, 336 were perfectly valid votes cast in favor of the petitioner. The Returning Officer however informed the petitioner that after the completion of the counting on the tables and completion of other formalities he would call the petitioner before passing the orders on those votes. After completion the petitioner approached the Returning Officer regarding the doubtful votes and to his utter surprise and shock the Returning Officer informed that he had already rejected all the 675 votes'. He further alleges that these 336 votes were valid votes cast in his favor and 'the Returning Officer grossly violated the mandatory provision contained in sub-rule 3 of Rule 56 of the Conduct of the Election Rules, as no opportunity was given. The Returning Officer was acting arbitrarily. It is further submitted that after the counting was complete at about 9.30 a.m. on 7-2-1983 the petitioner made an application for recount of votes including the rejected votes. There was a recount ordered by the Returning Officer of the votes but he refused to recount and examine the said 675 votes which were rejected by him. The recount was done on four tables from 4.30 p.m. on 7-2-1983 and was completed by 9.00 p.m. on the same day'. 'The counting was done in a very partisan manner so far as the petitioner was concerned'. This is the case set up.
(27) The petitioner's case is that there were 14 counting tables. He has given the names of his counting agents- at all the 14 tables. Now I have to examine this complaint and see whether it discloses a cause of action and whether on the allegations made any case has been made ;out for inspection.
(28) We have to survey the scene in the counting hall. There were 14 counting tables. At each table there were two counting supervisors. They are counting the votes. The petitioner's counting agents are present. 486 votes were doubtful which the counting supervisors took to the Returning Officer. The petitioner alleges that out of these 336 were perfectly valid votes cast in his favor. But without hearing the petitioner the Returning Officer rejected 336 votes. A recount was allowed but at recount also, it is said, that the Returning Officer 'refused to recount and examine the said 675 votes which were rejected by him'. This seems to me to be a cock and bull story. It is impossible that this can happen unless and until the petitioner also challenges the entries made in Part Ii of Form 16 and Form 20 as fraudulent and spurious.
(29) What has to be remembered is that counting took place in respect of each polling station. In Form 16 Part It the result of counting polling station-wise was entered by the counting supervisors. Then it was entered in Form 20. Result of polling station-wise cannot be prepared unless the question of doubtful votes is decided, namely, whether the doubtful votes should be rejected or accepted. There were 47 polling stations. There are 47 sheets of Part Ii in Form 16 which the Returning Officer has filed before me. He has also filed Form 20. These original documents clearly show that the petitioner's allegation is without foundation. How can Form 16 Part 11 and Form 20 be filled in unless every vote has been counted and the rejected votes have been excluded This remains an enigma. The petitioner has not explained it. He has come out with a story which I find impossible to accept. In my opinion Form 16 Part Ii is a complete refutation of the petitioner's case. There is intrinsic evidence to show that the - petitioner's allegations are baseless. Rule 56(7) says : 'After the counting of ballot papers contained in all the ballot boxes used at a polling station has been completed,
'(A)the counting supervisor shall fill in and sign Part Ii Result of Counting, in Form 16 which shall also be signed by the returning officer; and (b) the returning officer shall make the entries in a result sheet in Form 20 and announce the particulars.'
Rule 63 deals with the right of a candidate to apply for a recount. This was done at the petitioner's request, Section 66 says that after the counting is completed the Returning Officer shall forthwith declare the result. In the light of these statutory provisions we have to see whether it is at all possible to fill in and sign Part Ii of Form 16 and Form 20 unless the Returning Officer give his decision on doubtful votes and declares whether he rejects certain votes or not.
(30) The petitioner has not stated the material facts. (1) He has not given the Seriall number of the 336 ballot papers which were, according to him, wrongly rejected by the Returning Officer, (2) he has not given the reasons for rejection, and (3) that ha has not given the break up of 336 votes polling station-wise. It was essential for him to give the polling station numbers and the rejected votes at each polling station. All that the petitioner has given is the number of rejected votes at each of the 14 counting tables. This takes us nowhere. This information is not polling station-wise which he must give in order to succed. As I have said, counting was polling stationwise. It cannot now be discovered as to what was the polling station at these tables to which the rejected votes related. Table is not a substitute for polling station. The polling station is the unit of counting under the rules. 'From tables I to 14, 336 valid votes cast in favor of the petitioner i.e. 25, 35, 37, 31, 41, 17, 13, 29, 39, Ii, 16, 12, 9 and 21 respectively from the said tables' were rejected. Unless the information is given polling station-wise this allegation is worthless.
(31) The petitioner had ample opportunity to examine the voting papers before they were counted. In respect of each voting paper he is in a position to set out precisely his objection for its acceptance or its rejection. He was also in a position to note down the ballot paper numbers. It is only if the ballot paper numbers are given that the particular ballot papers in regard to which the petitioner complains can be taken out and scrutinised, in the absence of such information, which the petitioner should know or should be deemed to know, any inspection of ballot papers would be merely a roving and fishing inspection and the purpose of Section 83(1)(a) is precisely to prevent this. There was ample opportunity to the candidates and their agents to inspect the ballot papers to enable them to raise objection and to note down the numbers of the ballot papers in respect of which the objections were raised. It would not be unreasonable to expect the candidate or his counting agent present at the time of counting to bear in mind that these may arise an occasion to file an election petition when the particulars in regard to the number of ballot papers and the polling stations will have to be mentioned.
(32) It wss not disputed before me that the petitioner and his counting agents were present at the time of counting. I was quite easy for them to note down the number of the ballot papers with regard to which his agent objected at the time of counting. It. is necessary to note down the number of the ballot paper so as to make precise allegations as to how the said ballot paper ought or ought not to have been rejected.
(33) Rule 56(3) provides that before rejecting any ballot papers, the Returning Officer shall allow each counting agent present, a reasonable opportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper. Sub-rule 4 provides that the Returning Officer shall endorse on every ballot paper which he rejects letter 'R' and the grounds of rejection in an abbreviated form either in his own hand or by means of rubber stamp and shall initial such endorsement. So the counting agent has reasonable opportunity to inspect the ballot paper. He can look at. both sides of the ballot paper and inspect it. This will afford a chance to the counting agent to note down the number of the ballot paper as also other particulars relating to it.
(34) The petitioner's case is that Rule 56(3) was violated and thereforee he cannot supply any more information because he was never heard. I cannot accept this. At the counting table In's agents had ample opportunity to note down the particulars of the ballot papers which were sent to the Returning Officer. So the petitioner should have given the Seriall number of the ballot paper and the polling station number and the nature of the objection in relation to each ballot paper.
(35) On a careful consideration of the allegations made by the petitioner seeking an inspection of the ballot papers, I am of the opinion that they are vague and general and if an ins- pection is ordered it will. lead to a fishing enquiry with a view to find out some material to support the petitioner's case that he would have secured a large number of votes than what he actually secured. The allegation in regard to tie improper rejection of votes, is vague and indefinit. The material facts are lacking because the number of the ballot papers and the number of the polling stations are sadly lacking.
(36) Then there was a recount of the ballot papers. That recount was done is not denied by the petitioner. The recounting is a complete answer. On recounting some rejected votes went to the petitioner, as laid votes, some went to respondent No. 1. Valid votes of the petitioner sometimes increased as a result of recount and sometimes of respondent No. 1. Form 16 Part Ii shows that votes were added sometimes to the petitioner and sometimes they were substracted. The same thing happened to respondent No. 1. This can happen only if the rejected votes are also recounted and re-examined. As I have said Part 11 of Form 16 and Form 20 cannot be filled in as is the statutory requirement unless the rejected votes are sent back by the Returning officer with his decision endorsed thereon to the counting supervisors. Because the counting supervisors have to fill in Part Ii of Form 16 and the Returning officer has to sign the same.
(37) The Supreme Court has observed that 'the statutory' rules framed under the Act we intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting' (Dr. Jagit Singh v. Giani Kartar Singh, : AIR1966SC773 . The Supreme Court has again and again emphasised that an election petitioner who is a defeated candidate has ample opportunity under the rules to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, ha knows precisely the nature of the objections raised by him and the voting papers to which those objections related
'IT is after these objections are examined and dealt with according to Rule 56 that the stage of counting votes arrives'.
(Dr. Jagjit Singh supra p. 784). It is in the light of the statutory rules that the worth of petitioner's allegations have to be considered.
(38) Has the petitioner on his pleadings made out a case for inspection In Ram Sewak Yadav v. Hussain Kamil Kidwai and others, : 6SCR238 , the Supreme Court said: 'An order for inspection may no: be granted as a matter of course having regard to the insistence upon the secrecy of the ballot papers. The Court would be justified in granting an ord.ir for inspection prov'.ded two conditions are fulfillled:
(I)that the petition for setting aside an election contains an adequate sacrament of the material facts on which the petitioner realises in support of his case, and
(II)the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice. require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection.'
(39) In Dr. Jgjit Singh v. Giani Kartar Singh and others : AIR1966SC773 , the Supreme Court said :
'VAGUE or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which Section 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of. the secrecy of the ballot papers can not be ignored.'
They also observed; 'Care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void'.
(40) In Samant N. Balakrish.na v. George Fernandez and others etc. : 3SCR603 , Hidayatullah, C.J. said : 'Section 83 is mandatory and requires the election petition to contain first a concise statement of material facts and then requires the fullest possible particulars. The ward 'material' showing that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad.' The election petition without the material facts is no election petition at all.
(41) In Jitendra Bahadur Singh v. Krishna Behari and others, : 1SCR852 , the Supreme Court held that it is quite easy for the counting agents to note down the Seriall numbers of the concerned ballot papers. thereforee 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 rel.ating to the validity of those ballot papers. if so who those agents are, and what are the Seriall numbers of the ballot papers to which each one of them advanced their objections, the material facts required to be stated are not satisfied and hence scrutiny of ballot papers should not be ordered.
(42) On the whole case I have come to the conclusion that the figure of 336 rejected votes given by the petitioner is a figment of his imagination. It has no foundation, no basis. It is vague and indefinite because material facts have not been stated. All that the petitioner has done is that he has taken an imaginary figure of 336 rejected votes and has broken it up into the fictional figures of 25, 35, 37, 31,41, 17, 13, 29, 39, 11,16,12,9 and 21 with respect to 14 tables. The pleadings lack the material facts inasmuch as the number of polling stations and he number of ballot papers are not given. These are basic requirements. A concise statement of material facts is a sine qua non of an election petition as of any other statement of claim. The petition violates the mandatory provision of Section 83(1)(a) and does not disclose any cause of action.
(43) Mr. Sapra relied on Manphul Singh vs. Surinder Singh : 1SCR52 in support pf his submission that the material facts set out by him in the petition are sufficient and that in the circumstances he could do no more. I do not agree. Manphul's case does not apply because that was a case of corrupt practice and the particulars of corrupt' practice The plea of rejection of 336 votes is not a corrupt practice. All that I say is that material facts of the plea are not stated. The election petition is no petition as it does not disclose a cause of action Issues 3, 4, 5 and 6.
(44) These issues relate to 89 void votes cast in favor of respondent No. 1, according to the allegation of. the petitioner. In the annexures the break-up given is as follows : (1) 21 votes are cases of double voting (Annexure 'B'). (2) 5 votes cast were dead persons. (Annexure 'C'). (3)18 votes were of persons who had left Delhi. (Annexure 'D'). (4) 11 votes were of persons who had left India. (Anoexure 'E'). (5) 34 votes were not allowed to be cast because 34 persons were refused ballot papers. (Annexure T'). Total is 89 votes.
(45) It is unnecessary to discuss the question of 89 votes because admittedly the margin between the petitioner and respondent No. 1 is III. Even if all 89 votes arc granted in favor of the petitioner he cannot succeed. For these reasons the petition is rejected with costs, Counsel's Fee Rs. 1,000.00.