S.S. Chadha, J.
(1) This petition under Article 227 of the Constitution of India seeks the quashing of the order dated February 18, 1984 passed by Shri S.P. Singh Chaudhary, Additional District Judge, Delhi (Election Tribunal) dismissing the election petition of the petitioner under Section 15 of the Delhi Municipal Corporation Act, 1957.
(2) The polling for election of 100 Councillors for Municipal Corporation of Delhi took place on February 5, 1983 under the provisions of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Act) and also under the Delhi Municipal Corporation (Election of Councillors) Rules,1962(hereinafter referred to as the Rules). The petitioner was a candidate for election to Municipal Ward No : 68 in the election held on February 5, 1983. In all five candidates earlier filed their nomination papers, out of which three withdraw their candidature and there remained the petitioner and respondent No. 2 as the contesting candidates. The counting took place on February 6,1983 in the Government Boys Senior Secondary School, Rouse Avenue, New Delhi. The result of the counting of the votes was announced. There was an order of recount by the Returning Officer who on recount declared the result of the election. In the declaration made by the Returning Officer, the petitioner secured 7100 valid votes whereas Shri Jai Parkash Aggarwal, respondent No. 2 secured 7130 valid votes; 425 votes being invalid. The total votes polled were thus 14655. Respondent No. 2 was declared elected with a margin of 30 votes.
(3) The petitioner filed a petition under Section 15 of the Act Challenging the election of respondent No. 2. and seeking a declaration of election in his own favor. The notice of election petition was issued and served on the respondents. Respondent No. 2 who is the contesting respondent took three preliminary objections that the petition is not maintainable as it contained vague and indefinite allegations and the pleas made therein are vague not supported by material facts and in a nature of roving and fishing enquiry and hence the petition is liable to be dismissed; that the petition is not maintainable as it does not comply with the provisions of Section 15(4) (a), (b) and (c) of the Act as it does not contain a concise statement of material facts and sufficient particulars of the grounds on which the election is called in question by the petitioner; and that the petition is defective and the same has not been verified in accordance with law. Several other p1eas on merits were also taken. The learned Election Tribunal framed the issues on May 25, 1983. Issue No. I which was later treated as a preliminary issue is:
'WHETHER the petitioner has complied with the provisions of Section 15(4)(a), (b) and (c) of the Delhi Municipal Corporation Act? if not, to what effect? 0. P. P. (Objected to)'.
The Additional District Judge by the impugned order dated February 18, 1984 in a lengthy judgment after considering the facts and circumstances of the case held that the petitioner has not given material facts and necessary particulars in the petition and the petitioner has not complied with the provisions of Section 15(4)(a)& (b) and the compliance of these provisions are mandatory and the petition is liable to be dismissed. Issue No. 1 was decided accordingly in favor of respondent No. 2 and against the petitioner and the petition was dismissed leaving the parties to bear their own costs.
(4) Before adverting to the allegations contained in the election petition, I may notice the statutory provisions. An election petition calling in question any such election may be presented on one or more of the grounds specified in Section 17 of the Act. Section 15 requires that an election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall, with sufficient particulars, set forth the ground or grounds on which the election is called in question; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. The word 'material' shows that it is obligatory to state facts necessary to formulate a complete cause of action. The function of the particulars is to present a full picture of the cause of action with such further information in detail as to make the respondent understand the case he has to meet. Section 17 contains the grounds for declaring elections to be void. So far as it is material for my purpose, it says that if the Court of District Judge is of the opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper acceptance or refusal of any vote or reception of any vote which is void or by the matter non-compliance with the provisions of the Act or any rules or orders made there under, the Court shall declare the election of the returned candidate void.
(5) The expression 'cause of action' means every fact which it would be necessary for a petitioner to establish if traversed, in order to support his right to judgment. It does not comprise of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. For the purpose of considering the maintainability of the election petition the Court is required to assume all those allegations of facts as facts proved and then to determine whether the election petition discloses a cause of action or not. Cause of action means the whole bundle of material facts which it is necessary to prove in order to be entitled to succeed. Cause of action has no relation lo the defense set up. It refers entirely to the grounds set forth in the election petition asking the Court to arrive at a conclusion in his favor. As election petition must state only facts and not law. The reason is that it is for the Court itself to find out and examine all pleas raised by the parties of law. In my view, an election petitioner is required to give a concise statement of material facts on which be relies. In other words, all primary facts to establish the existence of a cause of action must be given. He is further required to set forth the ground or grounds on which the election is called in question and this he must do with sufficient particulars. I will now go into the various allegations of fact made in the election petition.
(6) One of the grounds Section 17(1)(d)(iv) for setting aside the election is the non-compliance with the provisions of the Act or any Rules or orders made there under. The petitioner alleges in the election petition that after the result of the election was once declared, the Returning Officer was functus officio and that he had no pass or jurisdiction of any kind whatsoever to change the declaration or to make any other declaration or to make an order of recount or to reconsider the result of election. Under Rule 68 the Returning Officer was functus officio and that he had no power or jurisdiction of any kind whatsoever to change the declaration or to make any other declaration or to make an order of recount or to reconsider the result of election. Under Rule 68 the Returning Officer has to count each ballot paper which is not rejected under Rule 67 as a valid vote. Under Rule 72 (1), after the completion of the counting, the Returning Officer his to record, in the result sheet in Form 17 the total number of votes polled by each candidate and announce the same. If an application is made at that stage to the Returning Officer for recount, he has power and can order count of the ballot papers again in accordance with his decision Rule 72(3) and (4). He has there after to announce the amendments so made by him Rule 72(5)(c). The declaration of result of election is under Rule 74 and the grant of certificate of election to the returned candidate is under Rule 75. The allegations made by the petitioner in para 8 of the election petition are these :
'THAT the counting commenced on 8-2-1983 at 8 A.M. under the supervision of Shri N.Divakar, Returning Officer in the Government Boys Senior Secondary School, Rouse Avenue, (Din Dayal Upadhyaya Marg), New Delhi. The counting concluded at 12.30. P.M. on the basis of the counting it was found that the petitioner had polled 49 valid votes more than the number of votes polled by respondent No. 1. Thus the petitioner succeeded by a margin of 49 votes. The Returning Officer acting in exercise of his power under Rule 74 of the Rules announced that the petitioner has succeeded by a margin of 49 votes. It was announced in the presence of the petitioner, his counting agents and the Press Reporters. The respondents with their agents were also present. In the issue of 7th February, 1983 of the Nav Bharat Times, this was duly reported that the petitioner had been declared elected as the councillor from Ward No. 68 of the Delhi Municipal Corporation in the election held on 5-2-1983. Similar news appeared in the Hindi Hindustan published from Delhi of the same date. This declaration was published in other papers also.'
Then in paras 11, 12 and 13 of the election petition, allegations are made that 'the petitioner asked the returning Officer to issue him necessary certificate that he had been elected from Maliwara Municipal Ward as a Counselor of the Municipal Corporation of Delhi and the Returning Officer told him that he would do so after he had concluded the counting in respect f other constituencies of which he was the Returning Officer.' Further allegations are made that subsequently the Congress (1) candidate made an application asking the Returning Officer to pass orders for the recounting and under pressure of named persons, the Returning Officer to the utter surprise of the petitioner told that the Returning Officer would hold recounting in respect of the constituency in dispute.
(7) The Election Tribunal does not advert specifically to these allegations. If these allegations made by the election petitioner are taken as facts established, then the petition clearly discloses material facts or a cause of action. I may recall the Rules. The recounting of the votes by the Returning Officer is provided in Rule 72, The Returning Officer has to record after the completion of the counting in the result sheet in Form 17 of the total number of votes polled by each candidate and announce the same. It is at that stage and not later that an application can be made to the Returning Officer for an order for recount of all or any of the ballot papers already counted stating the grounds on which he demands such recount. If the order of recount is not applied for or made and the declaration of result of election is made under Rule 74, then there is no jurisdiction to order recount. The petitioner has clearly alleged that the Returning Officer acting in exercise of his power under Rule 74 of the Rules announced that the petitioner had succeeded by a person of 49 votes. It is then alleged that the petitioner asked for a certificate of election to the Returning Officer. There is no power in the Returning Officer to order a recount if these facts alleged are proved. The petition is deserved to be set up for trial on merits and decided after evidence on these allegations.
(8) The second ground of the non-compliance with the provisions of Act is contained in para 17 of the election petition. According to the allegations made therein, 'The Returning Officer took out 1866 ballot papers out of the ballot papers which had already been considered in favor of the petitioner and respondent No. 1(2)' as 'these ballot papers were described in the first instance by the Congress (1) candidate doubtful and the Returning Officer considered the same accordingly'. In para 18 it is alleged that 'this picking of 1866 votes was absolutely wrong and thereafter the rejection of 140 votes out of the ballot papers cast in favor of the petitioner and rejection of only 50 votes out of the ballot papers cast in favor of respondent No. 1(2) was absolutely without any basis and contrary to all cannone of justice and rules governing the rejection of votes'.
(9) As I have already pointed out that after the announcement of the completion of the counting is made under Rule 72(1), a candidate can apply in writing to the Returning Officer for a recount of all or any of the ballot papers already counted slating the grounds on which he demands such recount. The decision of the Returning Officer has to be in writing and has to contain the reasons thereforee. It is the admitted case that the Returning Officer passed an order on February 6, 1183 deciding to recheck/recount the votes. A certified copy of the order of the Returning Officer dated February 6, 1983 is on the record of the case. It is mentioned therein that an opportunity was given to both the contesting candidates to present their views personally or through their agents and after hearing the parties at length and keeping in view a very narrow margin of votes and the views expressed by both the parties it was decided to recheck/recount the votes. Rule 72(5)(a) requires that a Returning Officer shall count the ballot papers again in accordance with his decision. If the allegations of the petitioner in the election petition of the picking of 1866 votes are considered as a fact, then the recount is not in accordance with the decision of the Returning Officer. The election petition thus discloses a ground with material facts or a cause of action to be tried on merits. The impugned .order is silent in this regard.
(10) The third ground raised in the election petition is that the, Returning Officer made three counts of the votes. It is alleged that according to the result made by the Returning Officer in the first counting of the votes, the petitioner secured 7199 votes as against 7150 votes secured by respondent No. 2 besides 361 votes being invalid ; thus there was a difference of 49 votes. It is further alleged that in the second counting the petitioner secured 7204 votes as against 7146 secured by respondent No 2 besides 360 being invalid ; thus there was a difference of 58 votes. It is also alleged that in the third counting the petitioner secured 7100 votes whereas respondent No. 2 secured 7130 votes besides 425 votes being invalid, thus there was a difference of 30 votes. Allegations are then made 'that in the first and second counting the number of total votes was 14710 while the total number of votes was 14655 in the third counting, and it is not known where the 55 votes have gone.'
(11) It will be seen that according to the first counting, the petitioner led by a margin of 49 votes and in the second counting the petitioner led by a margin of 58 votes whereas in the third counting, respondent No. 2 led with a margin of 30 votes. If 55 ballot papers are missing as a fact, then the recounting of the votes under Rule 72 and the declaration of the result is vitiated. The result of the election may be materially affected as there is a margin of 30 votes only. Rule 50 provides for an account of ballot papers. The Presiding Officer of each polling station at the close of the poll is required to prepare a ballot paper account in Form 12 and enclose it in a separate cover with the words 'Ballot Paper Account' superscribed thereon. Form No. 12 is in two parts. The second part is required to be filled in by the Counting Supervisor and counter-signed by the Returning Officer regarding the result of counting. It would be seen that the result of counting is statutorily required to be entered in Part Ii of Form 12. There are no allegations in the election petition in relation to the completion of result of counting in Form 12 and Shri Jain, the learned counsel for the contesting respondent vehemently opposes any reference to it. As I have already said the Rules require the completion and it is a question of law which need not be stated in the petition. Certified copies of the result of election as entered in Part Ii of Form 12 are on the record of the trial Court and I was taken through them. Rule 72(1) requires that after the completion of the counting, the Returning Officer shall record in the result sheet in Form 17 the total number of votes polled by each candidate and announce the same. After recounting, - the Returning Officer has to amend the result sheet in Form 17 to the extent necessary after such recount. The certified copy of the result sheet in Form 17 is on the record. Under Rule 72(5)(b) the Returning Officer is required to amend the result sheet in Form 17 to the extent necessary after such recount but in this case Form 17 has been prepared which records the total number of votes as 14655. The total number of votes as entered by Form 12 are 14689 (or may be 14693). There is thus clearly a difference of 34 votes as against the margin of 30 votes in the final result. The discrepancy is obvious and had to be investigated by the Election Tribunal. It may be a valid material necessitating recount or reconsideration of the ballot papers. These allegations made in the election petition surely disclose a cause of action for being considered at the trial.
(12) The fourth ground in the election petition which has been the subject matter of lengthy arguments in this Court in contained in paras 17 and 18 of the election petition though there are over-lapping allegations in other paras. They read as under :
'17.That on the asking of the respondent No. 1 and his supporters the Returning Officer took out 1866 ballot papers out of the ballot papers which had already been considered in favor of the petitioner and the respondent No. 1. These ballot papers were described in the first instance by the Congress (1) candidate doubtful and the Returning Officer considered the same accordingly. This exercise made by the Returning Officer was absolutely erroneous without power and jurisdiction. The Returning Officer took out 1051 ballot papers out of these ballot papers which had already been cast in favor of the petitioner and considered by the Returning Officer as such. The Returning Officer look out 815 ballot papers out of ballot papers which had already been considered as cast in favor of the Congress (1) candidate. Thus the total was 1866 of the so called doubtful ballot papers. The Returning Officer scrutinized these bailor papers and rejected 140 ballot papers which were duly marked in favor of the petitioners and rejected only 50 ballot papers which had been marked in favor of the respondent. The Returning Officer subtracted 140 ballot papers from the total of ballot papers cast in favor of the petitioner and subtracted only 50 ballot papers from the ballot papers cast in favor of the respondent No. 1. This made a difference of 90 votes in favor of the respondent No. 1. On the basis of this unfounded consideration the Returning Officer declared the respondent No. I successful by a margin of 32 votes. This was done by the Returning Officer under pressure of the Congress (1) candidate and his supporters like Arun Nehru, M.P. and J.K. Jain, M.P. etc. 18. As a matter of fact there was no case for picking out any ballot papers out of the ballot papers which had already been considered in favor of both the candidates. This picking of 1866 votes was absolutely wrong and thereafter, the rejection of 110 votes out of the ballot papers cast in favor of the petitioner and rejection of only 50 votes out of the ballot papers cast in favor of the respondent No. I was absolutely without any basis and contrary to all cannone of justice and rules governing the rejection of votes. If these very 190 votes are taken out and considered by this Hon'ble Court in accordance with the rules governing the rejection of votes it will be found that the petitioner has polled a majority of valid votes. He is entitled to be declared as elected in place of respondent No. 1. The 140 ballot papers cast in favor of the petitioner have been rejected on the flimsy grounds such as that the impression of the arrow mark put by the instrument meant for marking the ballot paper is not clear. On all these ballot papers the choice registered by the voter is clear and the grounds taken up by the Returning Officer in rejecting such ballot papers are wrong and contrary to the relevant provisions of the rules and the guidelines led by the Director of Municipal Election and the judgments of the various courts. On the grounds on which 140 ballot papers cist in favor of the petitioner have been rejected more than 200 ballot papers included in the result in favor of the respondent No. 1 are liable to be rejected. The scale applied by the Returning Officer rejecting the ballot papers was discriminatory and not uniform on a wrong consideration and applying the same scale in rejecting or accepting the votes it will be seen that the petitioner has polled a majority of valid votes. These facts were explained the Returning Officer but under pressure of the Congress (1) candidate and his supporters no heed was paid to the same. If these 190 ballot papers are taken out which are supposed to bs in the custody of the Returning Officer or Director of Municipal Elections and had inspected, examined, scrutinized it will be found the petitioner has polled a majority of valid votes.'
The question is whether the petitioner has made allegations containing a concise statement of the material facts on which the petitioner relies for the declaration of the result to be void. If the Court is of the opinion that the result of the election, in so far as it concerns the returned candidate, has been materially affected by the improper acceptance or refusal of any vote or reception of any vote which is void, the Court can declare the election of the returned candidate to be void. The Addl. District Judge has proceeded by treating the election petition as an application for inspection and scrutiny of ballot papers or for an order of recount. He has discussed the allegations in the petition and law laid by the Supreme Court. I was also taken through various decided cases discussing the nature of averments in the election petition necessary to entitle an election petitioner to ask either for an inspection of the ballot .papers or for recount. The two Supreme Court 'cases relied upon by the Election Tribunal are 'Ram Sewak Yadav v. Hussain Kamil Kidwai', : 6SCR238 and 'Jitendra Bahadur Singh v. Krishna Behari', : 1SCR852 . They have again been pressed into service by the learned counsel for respondent No. 2. Mr. R. P. Bansal, the learned counsel for the petitioner relied upon 'Bhabi v. Shea Govind and others', : AIR1975SC2117 which has considered the various authorities of the Supreme Court from time to time and laid down the conditions which are imperative before a Court can grant inspection or for that matter sample inspection of the ballot papers or an order of recount. The allegations made against the elected candidate have to be clear and specific and have to be supported by adequate statements of material facts. The court has also to be prima facie satisfied on the material produced regarding the truth of the allegations made for a recount. The court has also to come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties. The Courts have repeatedly laid down that no hard and fast rule can be laid laying down what allegations should be made in any particular case for seeking a decision on wrong declaration of result of election made by the Returning Officer.
(13) I find myself in great difficulty in expressing my considered opinion. Any expression of opinion might prejudice either of the parties as I am inclined to set aside the impugned order and remand the case back to the Election Tribunal for determination on merits after affording an opportunity to the parties to substantiate the allegations made in the election petition and/or for its decision. I will only note an illustrative averment in the election petition alleging that the Returning Officer scrutinised the ballot papers and rejected 140 ballot papers which were duly marked in favor of the petitioner and rejected only 50 ballot papers which had been marked in favor of respondent No. 2. This made a difference of 90 votes in favor of respondent No. 2. The Returning Officer declared respondent No. 2 successful by a margin of 30 votes. Second proviso to Rule 67(2) says that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is in-distinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. These are allegations in the election petition that the result of the election has been materially affected by the improper acceptance or refusal of any votes. If these 140 ballot papers which had been rejected by the Returning Officer are in fact duly marked in favor of the petitioner and there are indications on the ballot papers itself from the way the paper is marked that the intention of the voter was clearly in favor of the petitioner, then the election petitioner may succeed. Allegations are that in the first counting the petitioner had secured 7199 votes as against 7150 secured by respondent No. 2. and only 361 votes being invalid. From the return in Form 12 it is clear that the petitioner had secured 7199 votes as against 7148 secured by respondent No. 2 and only 342 votes were invalid. It cannot be said at this stage that an order for inspection or recount was being sought as a matter of routine. Whether special or sufficient circumstances had been made or the petitioner had disclosed sufficient material facts on which a prayer for recount could be allowed, is a question which the Election Tribunal shall decide on merits during the trial of the election petition.
(14) Ram Dev Yadav's case (supra) lays down that an order for inspection of ballot papers or recount cannot be granted on vague pleas made in the petition not supported by material fads or to fish out evidence to support such pleas. In that case there were mere allegations that the election petitioner suspected or believed that there had been an improper reception, refusal or rejection of votes and that was considered as not sufficient to support an order for inspection. In the case before me, the petitioner had made out some special circumstances, whether it justified an order of inspection or recount is a question which the Election Tribunal will decide during the trial. In Jitendra Bahadur Singh's case (supra), the election petitioner was neither the candidate nor his election agent nor even the counting agent and, thereforee, the allegations that certain votes were improperly rejected ignoring the protest of Shri Malhotra, another election agent were not considered as sufficient. In that case even the affidavit of Mr. Malhotra had not been filed. The scrutiny of ballot papers sought on the basis of assertion were neither accompanied by statement of material facts nor supported by any evidence. Even then the Supreme Court did not dismiss the election petition as not maintainable but remanded the case back to the Election Tribunal for determination of the question on merits. Another case relied upon by the counsel for respondent No. 2 is 'Rathindra Kumar Ghosh v. T.P. Bhattacharjee & Ors.', 49E.L.R.24 It proceeds on the facts peculiar to that case. In that case, allegations were made in the election petition to (i) disturbances created by transistors ; (ii) Joyous or triumphant shouts on the victory of a Congress candidate ; (iii) unseemly wordily duels between officers and counting assistants over remuneration ; (iv) invisibility of counting due to upright pigeonholes; (v) shortage of sitting accommodation to permit proper,checking ;(vi) inherent hostility of the counting staff to the CPI(M) candidate ; (vii) tempering of ballot boxes of the Burtolla constituency ; and (viii) protests against irregularities written or oral. The election petition was disposed of on merits and the election petitioner was not believed in regard to those allegations. I am not concerned in this case with any similar allegations. There is only one allegation in the case which was in Sub-paragraph (xvi). It was alleged there that a large number of votes 'amounting to 11.812 were rejected and those included a large number cast in favor of respondent No. 4 which were improperly rejected without any valid reason, There are no further particulars or further allegations and it is in these circumstances that the learned Judge of Calcutta High Court expressed that there cannot be an order for recount inasmuch as these are but vague allegations without any details of the ballot papers of respondent No. 4 actually rejected or those in favor of respondent No. 2 improperly accepted. In the case before me, there are clear allegations in regard to 140 ballot papers which the petitioner alleges were duly marked in favor of the petitioner. The petitioner avers that in case these are taken out and considered by the Court in accordance with the rules governing the rejection of votes, it would be found that the petitioner polled a majority of valid votes. Thus there are sufficient particulars to identify the disputed votes. I wish to express no more as it might prejudice either of the parties or curtail the judicial discretion of the Election Tribunal when a prayer/application is made either for inspection of the ballot papers or for a recount. Any expression of opinion by me in that regard would not bind the Election Tribunal.
(15) For the above reasons, C.M.(M) is allowed. The impugned order dated February 18, 1984 is hereby quashed. The case is sent back to the District Judge, Delhi would entrust this election petition to a competent Election Tribunal On the facts and circumstances of the case, I make no order, as to costs.