M.C. Jain, J.
1. The petitioner and the respondents Nos. 1 to 4 contested the election of Sardar Shahar Assembly Constituency No. 19 of the Rajasthan Legislative Assembly. The polling took place on 28-5-1980 and the result was declared on 1-6-1980 in which respondent No. 1 Mohanlal was declared elected. The petitioner secured 21,428 votes and the respondent No. 1 secured 21,662 votes. Respondents Nos. 2, 3 and 4 secured 18,951, 888 and 1,180 votes, respectively. The petitioner has challenged the election of respondent No, 1 on number of grounds and prayed for scrutiny and recount of the entire ballot papers on the grounds stated in the election petition and further prayed for declaring the election of respondent No. 1 as void and for declaring himself as elected.
2. Reply to the election petition has been submitted by respondents Nos. 1, 3 and 4.
3. On the pleadings of the parties issues were framed. Issues Nos. 18 and 20 were heard as preliminary issues, which are as under :--
'(18) Whether the recount of votes was illegal and without jurisdiction for the reasons stated in sub-paras (iii) and (vi) of para 7 of the Election Petition, if so to what effect?
(20) Whether the allegations mentioned in sub-para (x) of para 4 are vague and tack in material facts and particulars in so far as the purpose for which the leaders of Naik Community are said to have collected and the purpose for which the alleged promise and payment have been made, if so to what effect?' My findings thereon are as under:--ISSUE NO. 18: In sub-paras (iii) and (vi) of the election petition, the petitioner has averred that when the counting was completed, the petitioner made an application for recount, on which the Returning Officer passed an order for recount on the ground that there were illegalities and irregularities. A big protest was made as a result of which the Returning Officer was forced to order recount. The Returning Officer ordered recount only of votes cast at 10% of the total booths and he arbitrarily selected the booths and made that recounting a farce. As a result of the recounting six votes in favour of respondent No. 1 were increased. Recounting of votes cast at 10% of total booths was wholly illegal and without jurisdiction and the Returning Officer could not choose the booths arbitrarily of his choice. He ought to have ordered a recount of votes cast at all the booths. In sub-para (vi) of para 7 the petitioner averred that the postal ballot papers were not counted at the time of recounting, so on this aspect also the recount was wholly illegal.
4. The averments made in sub-paras (iii) and (vi) were completely denied by respondent No. 1 and it was stated that the petitioner first submitted an application for recount only on apprehension regarding possibility or error in counting and without disclosing any reasonable grounds for ordering recount before the result-sheet was placed before the Returning Officer. As the final result-sheet was not placed, so the Returning Officer could not pass any order on the application of the petitioner for recount, This application Annexure R. 1/2 was moved at 4.35 p.m. The counting was of course over by 4.30 p.m. The petitioner submitted another application at 6.15 p.m., after the authentic result-sheet was placed before the Returning Officer at 6.12 p.m. reiterating the grounds stated by him in his earlier application. The second application is Annexure R.1/3. In the first application it was stated that the difference in votes is much low. The petitioner's counting agents could not properly see the ballot papers on account of lack of space and intermittently and frequently the electricity also went off. As such there is every possibility of over-sight and mistake in counting. In the second application presented, the same grounds were reiterated and a prayer was made that all the ballot papers may be recounted, as the difference is only of 227 votes. The prayer for recount was strongly opposed by the respondent No. 1 and his election agent Shri Pratap Singh and they submitted that no ground had been disclosed for allowing recount. The Returning Officer after examining the grounds urged by the petitioner observed that no complaint regarding the counting was voiced by the petitioner or his agents throughout the period of counting and, therefore, the Returning Officer held that there was not much substance in the demand for recount. He, however, ordered a partial recount involving 10% of the total polling stations to be chosen at random at the request of the petitioner. After the pronouncement of the above order, the Returning Officer at the request of, the petitioner selected the polling stations Nos. 4, 52, 100, 132, 22, 54, 86. 118, 134, 25, 57, 89 and 121 at random from amongst the polling stations counted at tables Nos. 4, 6 & 9 and the parties who conducted the counting at these tables were excluded from recounting at the request of the petitioner. As regards the averments made in sub-para (vi) of Para 7 it was stated that the petitioner never asked for the recounting of the postal ballot papers and, therefore, the question of counting them at the time of recounting could not arise.
5. At the commencement of the arguments Shri Mohta, learned counsel for respondent No. 1, submitted that issue No. 18 is not a preliminary issue, as according to him a preliminary issue could be an issue, which has been raised as such by the contesting respondent and on which the petition could be disposed of. Issue No. 18 may be a legal issue, but not a preliminary issue, but Shri Mehta subsequently gave up this submission in view of the fact that arguments were heard on issue No. 18.
6. Before dealing with the contentions advanced by the learned counsel for the parties I may first refer to the relevant observations made by the Returning Officer in the order of recount. After carefully examining the grounds for recount given by the petitioner, the Returning Officer observed that no complaint re-Carding counting was voiced by the petitioner or his agents throughout the period of counting. Light went out for very brief interval for a few seconds only. Hence, there is not much substance in the demand for recount. However, as the margin of 227 votes is very narrow, he ordered partial recount involving ten per cent of the polling stations to be chosen at random, as the same will be in the interest of justice. The selection of polling stations was made at random. He noted the difference of votes as a result of partial recount and then observed that there was no material difference between Moharsingh and Mohan Lal Sharma's score when compared to original count Then he observed that as a result of partial recount he did not find any justification for ordering detailed recount.
7. It may be stated that the grounds urged for recounting were frequent extinguishing of light and non-examination of ballot papers by the counting agents of the petitioner on account of lack of space and that the difference of votes is less. In connection with the first two grounds the Returning Officer observed that no such voice was raised during the course of counting and so far as the light is concerned, it only went off for a few seconds. On that basis the Returning Officer observed that there was not much substance in the demand for recount, still in the interest of justice, as the margin of votes is narrow, he ordered partial recount of votes involving tea per cent of the polling stations. It is disputed by the contesting respondents that though the selection of polling stations for recounting was made at random, but the polling stations were selected at the request of the petitioner, which it appears to be a question of fact and further the selection having been made by the Returning Officer has been denied by the respondents and it has also been denied by the respondents that the order of recount of votes was made on the ground that there were illegalities and irregularities in counting.
8. Shri H. M. Parekh, learned counsel for the petitioner, vehemently and strenuously urged that the petitioner made a demand for total recount, including the recount of postal ballot papers. The Returning Officer committed an illegality in ordering partial recount of only ten per cent of polling stations, which was not contemplated by Rule 63 of the Conduct of Elections Rules, 1951 (hereinafter referred to as 'the Rules') He submitted that under Sub-rule (2) o Rule 63 an application could be moved in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which he demands such recount and under Sub-rule (3) the Returning Officer is required to decide the matter and may allow the application in whole or in part or ha may reject it in toto, if it appears to him to be frivolous or unreasonable, Mr. Parekh, learned counsel for the petitioner, submitted that Sub-rules (2) and (3) should be read together and on such reading, it would be evident that if there is a prayer for total recount, then total recount has to be ordered or if there is a prayer for partial recount, then partial recount has to be ordered and when the ground appears to the returning officer to be frivolous or unreasonable, then the returning officer may reject the prayer in its entirety. Shri Parekh urged that it was wholly illegal and without jurisdiction on the part of the returning officer to have ordered partial recount when there was a prayer for total recount. It was submitted by Mr. Parekh that the recounting is to be done in accordance with the provisions contained in Sub-rule (5) of Rule 83, that is, recounting is to be done according to Rules 54A, 56 and 56A. Rule 54A deals with counting of votes received by post. The petitioner's request was for a total recount which includes even recounting of postal ballot papers, which was not done by the returning officer.
9. Shri Mehta, learned counsel for respondent No. 1, on the other hand urged that Sub-rules (2) and (3) of Rule 63 even if read together, do not in any way admit the construction and interpretation sought to be placed by Shri Parekh. He urged that as a matter of fact no ground for recount was made out, still the returning officer in the interest of justice ordered for partial recount. According to Shri Mehta, it was entirely within the discretion of the Returning Officer to have allowed the application in whole or in part or to reject the application in toto. Shri Mehta also vehemently urged that the election cannot be set aside and declared void on the ground that the Returning Officer could not have ordered partial recount by selecting ten per cent of the polling stations. He referred to the provisions contained in Sections 80, 98, 100 and 101 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act'). He also submitted that the election of the returned candidate can be declared void on the ground mentioned in Sub-clause (iii) of Clause (d) of Sub-section (1) of Section 100, but that can only be done after recording evidence of the parties and coming to the conclusion that by improper reception, refusal or rejection of any vote or the reception of any vote which is void, the result of the election has been materially affected. Besides that he also urged that while keeping the election petition pending, this Court cannot direct the Returning Officer for recount, as the function of the Returning Officer under the election law after the declaration of the result is over and no such power can be conferred on the Returning Officer for recount, unless this court itself passes an order for recount, which can only be done when a case for recount is made out after recording of evidence in the light of the law expounded by the Supreme Court
10. I have carefully considered the submissions advanced by both the sides. For facility of reference I may extract Sub-rules (2) and (3) of Rule 63 of the Rules :--
'63. Recount of votes. -- (2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to re-count the votes either wholly or in part stating the grounds on which he demands such re-count.
(3) On such an application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable.'
It would appear that after announcement of total number of votes polled by each candidate as recorded in the result sheet in Form 20, Sub-rule (2) gives a right to the candidate or his election agent or any of his counting agents to move an application in writing to the returning officer to recount the votes either wholly or in part and the application is required to state the grounds on which recount is demanded. I have already stated the grounds on which total recount was demanded in the present case. Under Sub-rule (3) it is within the competence of the Returning Officer to allow the application in whole or in part or he may reject the application in toto if he finds the application to be frivolous or unreasonable. In my opinion Sub-rule (3) confers powers on the RE turning Officer of allowing the application in whole or in part or to reject it in toto. Even if the two sub-rules are read together, in my opinion, they do not admit of the construction, which is sought to be placed by Mr. Parekh. The contention, to my mind, is absolutely untenable. If such a construction, as is sought to be placed by Mr, Parekh, is put, it would mean that the Returning Officer has no discretion in the matter, while allowing the application. That is, if the prayer is for total recount, he has to allow the application for total recount or if the application is for partial recount, he has to allow the application for partial recount. The word 'may' occurring in Sub-rule (3) confers discretion on the returning officer. He may allow total recount or he may allow partial recount or he may even reject the prayer of recount as made. As would appear from the order of the returning officer that despite there was no substance in the application, he proceeded to have a partial recount in the interest of justice. Thus, it is implicit in the order of the returning officer that the prayer for total recount had been rejected. It is true that the postal ballots were not recounted, but that is of no consequence in view of the fact that only a partial recount was undertaken of ten per cent polling stations. I have not been referred to any authority or decision by the learned counsel for the parties in support of their respective contentions relating to the interpretation of Sub-rules (2) and (3) of the Rules. In view of the above interpretation of Sub-rules (2) and (3), it cannot be said that the recounting done by the returning officer was illegal and without jurisdiction.
11. Besides that I may also examine the other submissions made by Shri Mehta, learned counsel, for respondent No. 1, as to whether the election can be declared void and can be set aside on the ground of alleged illegality in recounting. An election of a returned candidate can be called in question only by an election petition presented in accordance with the provisions of Part VI of the Act. Under Section 98 of the Act the High Court is required to make an order (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void: or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Sub-section (1) (a) (iii) of Section 100 of the Act provides that subject to the provisions of Sub-section (2) if the High Court 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 reception, refusal or rejection of any vote or the reception of any vote which is void, the High Court shall declare the election of the returned candidate to be void. Thus recount can be ordered by the court under this provision. Mr, Parekh sought to place reliance on Sub-clause (iv) of clause (d) of Sub-section (1) of Section 100 and submitted that the election of the returned candidate can be declared void when there has been non-compliance with the provisions of the Act or the Rules or orders made thereunder, if the election has thereby been materially affected. He submitted that the Returning Officer did not comply with Sub-rules (2) and (3) of Rule 63, whereby the result of the election has been materially affected. Reliance was placed by Shri Parekh on a decision of the Supreme Court in S. Baldev Singh v. Teja Singh Swatantra (AIR 1975 SC 693), wherein it has been observed that the Court frowns upon frivolous and unreasonable refusals of recount by Returning Officer who forget the mandate of Rule 63 that allowance of recount is not an exception and refusal is restricted to cases where the demand itself is 'frivolous' or 'unreasonable'. Where the margin of difference is minimal, the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. In this connection it may be stated that the grounds for recount, as has been stated in the election petition, will require consideration after recording of evidence and on proof of the grounds, the above observations can be pressed into service. But the above observations, in my opinion, cannot be pressed into service, as I have already held that the interpretation placed by Shri Parekh on Sub-rules (2) and (3) is untenable. At the trial and hearing of the election petition, if this Court considers necessary, it may allow inspection and recount. In Ram Sewak Yadav v. Hussain Kamil Kidwai (AIR 1964 SC 1249), it has been observed that (at p. 1249):--
'An Election Tribunal has undoubtedly the power to direct discovery and inspection of documents within the narrow limits of Order 11, Code of Civil Procedure. Inspection of documents under Order 11, Code of Civil Procedure may be ordered under Rule 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under Rule 18 (2) of other documents in the possession or power of the other party. The returning officer is not a party to an election petition and an order for production of the ballot papers cannot be made under Order 11, Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the returning officer to produce the ballot papers and may permit Inspection by the parties before it of the ballot papers: that, power is clearly implicit in Sections 100(1)(d)(iii), 101, 102 and Rule 98 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from Order 11, Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by Sections 94 and 128(1).'
(The underlining is mine). Thus, firstly it may be stated in the present case, as already held above, that the recounting done by the returning officer is legal and valid, so ground (iv) in clause (d) of Sub-section (1) of Section 100 does not arise; secondly for ground (d) at this stage, it cannot be found that there has been any improper reception, refusal or rejection of any vote which is void and which has materially affected the result of the election without the recount made in pursuance of the order of the court. I need not consider the other contention of Shri Mehta as to whether the court can give direction at this stage to the Returning Officer, as such a prayer has not been made by Mr. Parekh, learned counsel for the petitioner. Thus, in the light of the above discussion and findings I decide issue No. 18 against the petitioner and in favour of the respondents. ISSUE NO. 20;
11-A. Sub-para (10) of para 4 of the election petition is as under:--
'4. That the petitioner submits that the election of Respondent No. 1 is void and liable to be declared void on the following grounds:-- XX XX XX
(10) That respondent No. 1 visited Kalyanpur-Prohitan on 24th May, 1980, He collected the leaders of the Naik community of that village in the house of Purohit Shri Mangalji and promised to pay Rs. 10,000/- for the construction of the community house for the Naik's. After that he gathered all the Naiks living there and laid down the foundation-stone of the community hall in Mohalla Naikan. He paid a sum of Rs. 2,000/- in cash and asked the leaders of the Naik community to start the work.' This sub-para does not contain that for what purpose and object in view a sum of Rs. 10,000/- was promised by the respondent No. 1 and for what purpose and object a sum of Rs. 2,000/- was paid in cash. If sub-para (10) is perused it will not make out a charge of corrupt practice, Shri Parekh, learned counsel for the petitioner, submitted that if the relevant sub-paras of para 4 are read, then it would be clear that the respondent No. 1 promised to pay Rs. 10,000/-for the purpose of securing votes and in that connection paid a sum of Rupees 2,000/-. If this sub-para is read along with other relevant sub-paras, then the purpose and object of the agreed amount is explicit. Sub-para (10) of para 4 of the election petition is another illustration of corrupt practice when the petitioner has alleged various corrupt practices on the part of respondent No. 1 in other sub-paras of para 4 of the election petition. Sub-para (10) is only an added illustration. Reliance was placed by Shri Parekh on Balwan Singh v. Lakshmi Narain (AIR 1960 SC 770) Raj Narain v. Smt. Indira Nehru Gandhi (AIR 1972 SC 1302), Virendra Singh v. Vimal Kumar (AIR 1976 SC 2169) and K. M. Mani v. V. P. J. Antony (AIR 1979 SC 234).
12. Shri Mehta, learned counsel for respondent No. 1, on the other hand, urged that the necessary ingredients constituting corrupt practice is missing in the averments made in sub-para (10). No charge of corrupt practice is made out from the contents of sub-para (10). Thus, there has been an omission of material fact and the same having not been pleaded in sub-para (10), the petitioner cannot be allowed to add any new material fact, which is prohibited under Section 86(5). Under Section 86(5) the particulars of any corrupt practice alleged in the petition can be allowed to he amended or amplified, but the particulars of a corrupt practice not previously alleged in the petition, cannot be allowed to be introduced. With regard to the meaning of the material facts and material particulars reference was made by Shri Mehta to Samant N. Balakrishna v. George Fernandez (AIR 1969 SC 1201) and Deep Chand v. Jaynarayan (1977 WLN 529) (Raj).
13. Having heard the learned counsel for the parties I am clearly and firmly of the opinion that sub-para (10) of para 4 is lacking in material facts. The essential ingredients constituting corrupt practice is missing in this para. Each act of corrupt practice furnishes an independent cause of action. The other illustrations or narrations of corrupt practice mentioned in para 4 cannot mean that sub-para (10) as well should be construed in a manner so as to spell out corrupt practice. It may be in the mind of the petitioner that whatever has been alleged in sub-para (10) also relates to a charge of corrupt practice, but that ground of the petitioner does not find expression in actual words to constitute corrupt practice. Reference may be made to Section 123, where under para (1) 'bribery' has been defined as (A) any gift, offer or promise by a candidate of any gratification, to any person with the object, directly or indirectly of inducing an elector to vote or refrain from voting at an election, (B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting. If the averments of sub-para (10) are considered in the light of connotation of 'bribery' under Section 123, it would be clear that charge of birbery is not made or alleged in sub-para (10) and the necessary ingredients constituting the charge of bribery are missing. I need not deal with the case law cited by both the sides, for it is well settled that a material fact is one, which is necessary to formulate the complete cause of action and an omission of a single material fact leads to an incomplete cause of action. Where such material fact is missing, then that ground ceases to be a ground of challenge.
14. Thus, I hold that the allegations made in sub-para (10) of para 4 of the election petition, are vague and lack in material facts and particulars inasmuch the object and purpose for which the alleged promise and payment have been made, as alleged in this sub-para, are lacking and consequence thereof is that this ground of challenge is and will not be available to the petitioner.
15. Issue No. 20 is, therefore, decided accordingly.