Singh Vs. Dharam Pal Singh & Ors  INSC 560 (7 November 1994)
S.C. (J) Sen, S.C. (J) Agrawal,
S.C. (J) Paripoornan, K.S.(J) Sen, J.:
1995 SCC Supl. (1) 422 JT 1995 (1) 120 1994 SCALE (5)130
appellant, Jagjit Singh, has challenged the result of the election to the Haryana
Legislative Assembly at Charkhi Dadri Constituency. The polling took place on 20th May, 1991. The results were declared on 17th June, 1991. Dharam Pal Singh was declared
elected having secured 20918 votes as against 20838 votes polled for Jagjit
Singh, the appellant herein. Having lost by a narrow margin of 80 votes, Jagjit
Singh presented an Election Petition in the High Court of Punjab & Haryana
at Chandigarh, challenging results declared and
demanding a recount of votes cast. The controversy before the Trial Court has
been summarised by the Trial Judge in the 122 following manner "The case,
as set out by the petitioner is that the counting arrangements were so made
that no effective vigilance of the process of counting was possible, resulting
in grave irregularities to his detriment like large scale rejection of valid
votes cast in his favour, many of his votes being rendered missing, besides
virtual booth capturing of polling both 15 -A.
the other respondent, namely Gobind Ram Garg filed a return seeking to endorse
the stand of the petitioner.
returned Candidate, on his part, besides controverting the petitioner's
averments, on merits and asserting that counting of votes had been fair and in
accordance with the procedure prescribed, also took the preliminary objection
that the petition disclosed no cause of action as there was non-compliance with
the provisions of Section 83 of the Representation of People's Act, 1951
(hereinafter referred to as 'the Act'), inasmuch as there was no concise
statement of material facts. Great stress was also laid upon the absence of a
plea to the effect that the result of the returned candidate had been
materially affected. A plea was also raised that after each round of counting
the petitioner and all other contesting candidates had affixed their signatures
on the prescribed proforma, to denote that the counting in that round had been
fair and ' valid and to the entire satisfaction of the candidates. It was thus
the respondents' case that the petitioner merely sought a fishing and roving
inquiry for collecting evidence, which was not permissible according to
law." The Trial Judge also noted that the following preliminary issues
were raised at the hearing:-
Whether the election petition discloses any cause of action, if not,,what is
its effect? OPR.
Whether the pleadings of the Election Petition are frivolous, vexatious and
unnecessary and as such deserves to be struck out as envisaged under Order 6
Rule 16, C.P.C.? OPR.
Whether the Election Petition contains a concise statement of material facts as
required under Section 83(1)(a) of the Act and if not, what is its effect? OPR.
Whether the Election Petition discloses any ground as envisaged under Section
100 of the Act for declaring the election of the returned candidate as void
and, if not, what is its effect? OPR.
Whether the petitioner. after admitting the counting to be fair and to his
satisfaction, is still competent to ask for recount? OPR.
Whether the petition contains material facts and particulars of the alleged
corrupt practice of booth capturing and, if not, what is its effect? OPR.
Whether the paragraphs 5, 6, 7, 8, 9, 1 O, 11, 12, 13 and 18 of the Election
Petition disclose any cause of action and, if not, what it its effect? OPR.
Whether the paragraphs 14, 15, 16, 17, 19, 20, 21, 22, 23, 25, 30 and . 35
contain material facts and particulars which disclose a cause of action and, if
not what is its effect? OPR.
Whether the paragraphs 26, 27 and 31 disclose material facts and particulars of
the alleged corrupt practice of booth capturing pertaining to 123 booth 15-A
and, if not, what is its effect? OPR.
the written statement is not properly verified, if so, its effect?"
arguments were advanced on issue No. 10 and consequently the issue was decided
in favour of the respondents and against the appellant.
Issues 6 and 9 pertain to corrupt practice of booth capturing. The Advocate
appearing on behalf of the appellant, specifically stated that those two issues
were not being pressed on the ground of booth capturing. But, it was stated
that had there been proper polling at Booth No.
the result of the election would have been different.
regards issue No.5 the trial Judge has observed that it deserves to be taken up
with the other issues on merit.
Nos. 1 to 4, 7 and 8 were taken up together and were decided against the
appellant and in favour of the returned candidate.
grievance of the appellant is that after framing of the issues, the Designated
Judge of the High Court ordered on 17.9.91 that a list of witnesses be
presented within a week and the evidence of the appellant was to be adduced on
and from 21.10.1991. The appellant, accordingly, prepared an application along
with the list of witnesses.
the Designated Judge without recording any evidence took up the case for
hearing on 21.10.1991. The judgment was reserved and after a period of three
months on 21.1.1992 this judgment under appeal was passed.
election petition filed by the appellant was dismissed mainly on the ground
that it did not contain a concise statement of material facts on which the
appellant relied. It was also held that vague and general allegations were made
about improper rejection of votes. It was further held that serial numbers of
the ballot papers, which were wrongly rejected, had not been specifically
stated in the petition. The Court ultimately held that material particUlars, as
required under Section 83(1)(a) of the Act, had not been given. It was held
that the appellant had really attempted to embark upon a roving and fishing
inquiry which was not permissible under the law. It was also held that as there
was no plea in the election petition that the result of the returned candidate
had been materially affected by the improper reception or rejection of votes,
the election petition was devoid of any cause of action.
our view, the election petition should not have been summarily dismissed. It is
true that the appellant had not given the serial numbers of the ballot papers
which, according to the appellant, were wrongly rejected. The case of the
appellant is that counting of votes took place behind an iron net. The counting
agents were made to sit 5-6 feet behind the net and as such could not take down
the numbers properly. But he had given full particulars of the valid votes
which, according to the appellant, were improperly rejected.
Rule 56 of the Conduct of Election Rules, 1961, enumerated the situations in
which the returning officer can reject the ballot paper. One of the grounds of
rejection is if the mark indicating the vote thereon is placed in such manner
as to make it doubtful to which candidate the vote has been given. Sub-rule (3)
of rule 56 provides that before rejecting any ballot paper, the returning officer
shall allow 124 each counting agent present, a reasonable opportunity to
inspect the ballot paper but shall not allow him to handle it or any other
is the case of the appellant that at no stage any ballot paper was shown to the
agents of the candidates or the candidates at the time of the counting.
has been specifically alleged in paragraph 14 of the election petition that
when ballot boxes of Booth No.l were opened at Table No. 1, the Returning Officer
rejected 94 votes. All these 94 rejected votes were polled in favour of the
appellant. The main defect in those votes was that even though the mark was
made at the proper place in front of the name of the appellant, yet the
internal cross within the circle did not come out properly in the stamp mark.
The stamping was done with an instrument provided by the Presiding Officer. The
voters had clearly indicated their intention to vote in favour of the
appellant. The internal cross within circle of the stamp may be either
defective or dim. This could not be made the basis for rejection of votes. Shri
Surinder Singh, Counting Agent of the appellant at Table No. 1, raised objection
from a distance from behind the iron barricade created by the Returning Officer
between counting agents and the counting officers, but nobody bothred to listen
to him. Like this, at least 94 valid votes of the appellant were declared
invalid on Table No. 1 the in first round. In fact, an allegation of animus has
been made against the Officer-in- Charge at Table No. 1.
Similar allegations about improper rejection of votes on the same ground are
contained in paragraph 15 regarding rejection of 44 votes relating to Booth
No.73 at Table No. 1, in paragraph 16 regarding rejection of 110 votes relating
to Booth No.49 at Table No. 1 and in paragraph 17 regarding rejection of 65
votes relating to Booth No. 100 at Table no.4. In paragraph 34 it is alleged
that 13 votes relating to Booth No.55 were improperly rejected at Table No.7 on
the ground that the seal of the Presiding Officer, which he has to affix to
make a vote valid, was so put that the impression was also visible on the front
side of the ballot paper and that this could hardly be a ground for rejecting
would thus appear that in the aforementioned paragraphs of the election
petition the appellant had set out the number of votes which were improperly
rejected, the particular booth to which they related, the particular table at
which the said votes were counted and the grounds on which the votes were
rejected. All that was lacking was the serial numbers of the rejected ballot
papers. Explanation for the same is offered in paragraph 12 of the election
petition wherein after referring to the requirement laid down in Rule 56(3) of
the Conduct of Election Rules, 1961 it is stated that in view of the seating
arrangement at no stage any ballot paper was shown to the agents of the
candidates or to the candidates at any stage during the counting. The truth or
falsity of this explanation will have to be decided on the basis of evidence
that is adduced at the trial. But at this stage the said explanation cannot be
pleadings in the instant case, are no different from the pleadings in Arun
Kumar Bose v. Mohd. Furkan Ansari & Ors., (1984) 1 SCR 118, wherein similar
averments were contained in paragraph 125 9(1) of the election petition. This
Court observed:- "So far as averment in paragraph 9( 1 ) of the election
petition is concerned, we find that the number of ballot papers alleged to have
been wrongly rejected has been furnished, the counting table number has been
given, the booth number has also been disclosed and th e ground for rejection
has even been pleaded.
'No. 1 pleaded that the particulars of the ballot papers could not be obtained
as during counting they were not shown. (pp. 126- 127) We agree with the High
Court that in the facts and circumstances of the case the pleading in paragraph
9( 1 ) set out the material facts in a proper way and no defect can be found
The trial Judge was, therefore, in error in holding that the averments in
paragraphs 14, 15, 16, 17 and 34 read with paragraph 12 of the election
petition do not contain material facts as required by Section 83( 1 )(a) of the
With regard to complaint about missing votes, we find that though in paragraph
22 a general allegation has been mad in respect of 49 votes stated to be
missing the necessary facts setting out the booth number, the number of votes
and table number are contained in paragraph 24. The mere fact that the total
number of votes in respect of which these facts are mentioned in paragraph 24
is less than 49, does not justify the conclusion that the averments in the said
paragraphs do not contain a concise statement of material facts.
There is also another serious grievance. It has been alleged that Booth No, 15A
for the purpose of polling was arranged in a tent in Harijan Basti of village Dohka
the voting had started, and hardly a score of people had cast votes, a storm
broke out. The Presiding Officerin- Charge of the Polling Booth realised that
the majority of the voters were casting vots in favour of the appellant. Due to
the storm, some papers inside the booth wre scattered as the tent was in the
open. Instead of collecting those papers and controlling the situation, he
declared the polling closed. All the people who had come to cast their votes
were sent home.
When the storm subsided, Shri Ram Phal, Polling Agent of Smt. Bimla, Respondent
No. 12, requested the Presiding Officer to rstart the polling, but he replied
that since the polling had been interrupted, it could not be restarted as the
intimation had already been sent to the higher authorities.
The polling agent of the appellant remained in the village till the evening,
but the polling was not started.
that very day, late in the evening, the said polling agent informed the
appellant that the polling in Booth No. 15A had been disrupted due to storm and
not more than 15/ 20 votes were polled.
Strangely enough at the time of the counting, total votes polled were shown as
167, whereas total voters on this booth were 181. Therefore, there was more
than 90 per cent polling at this booth, which was impossible. Out of 167 polled
votes, 152 were said to have been polled in favour of the returned candidate which,
according to the appellant, was more than 90 per cent of the polled votes and was
Reference was made to the 126 instructions issued by the Chief Election
Commissioner. The Deputy Commissioner-cum-District Election Officer, Bhiwani,
sent a wireless message dated 22nd April, 1991 to the Returning Officers-cum-Sub
Divisional Officer (C), Dadri, Lohari and Siwani, stating therein:- "No.546/Elections
Dated 22.4.91. Ceo Mr's W.M. No.Elec. 91/1ae2400 Dated 10.4.91 Reproduced
Below For Necessary Action At Appropriate Time. Quote. Election Commission Of India's W.M. N0.464/91 L & A Dated
13.4.91 Is Reproduced Below. Quote. Regarding Instructions On Booth Capturing
Contained At Item Xviii of The Consolidated Instructions, It Is Clarified That
Hereafter, If The Returning Officer At The Stage of Counting Of Votes Finds
That In A Particular Polling Station Ninety Percent Votes Have Been Cast And
Out Of Them Ninety Percent Have Gone In Favour Of One Candidate And The Votes
Cast In Favour Of The Other Candidate Are Very Negligible, He Should Keep Aside
The Ballot Papers Contained In The Ballot Boxes Used In That Particular Polling
Booth In A Sealed Cover In The' Presence Of Counting Agents Of Candidates
Without Taking Them Into Account In
The Result Sheet, If And Only If The Result Of The Election Is Not Affected
After Ignoring These Votes. Returning Officer May Declare The Result, If On The
Other Hand The Margin Between The First Two Candidates Is Less Than The Total
Votes Set Apart, The Returning Officer Is Prohibited From Declaring The Result
And He Should Seek Orders Of The Commission And Only After Receipt Of The
Orders Of The Commission Should Proceed Further. These Orders Are Not Relaxable
By Ros Under Any Circumstances. Unquote. You Are Requested To Kindly Ensure
That The Above Directions Of The Election Commission Are Complied With In The
Elections To Lok Sabha And Vidhan Sabha."
has been alleged that the Returning Officer ignored the directions of the
Election Commission and despite objections raised on behalf of the appellant
proceeded to count the votes and declared the result. It has been alleged that
the objection made by the appellant was torn off on the ground that this
objection did not fail within the jurisdiction of the Returning Officer.
behalf of the respondent, it has been pointed out that the allegations made in
the election petition are vague. The appellant had lost narrowly in the
election and wanted to make a roving and fishing inquiry to nullify the
declared result. It was contended that after each and every round of voting,
the appellant and the respondent No. 1 had affixed their signatures on the
prescribed proforma. This indicated that both sides were satisfied about the
counting of the votes. No explanation, however, was given on behalf of the
respondents as to why the instructions of the Chief Election Commissioner were
ignored in counting the votes cast at polling booth ' No. 15A.
are of the view that no satisfactory explanation has been given as to why the
instruction of the Chief Election Commissioner was not followed in the matter of
counting of votes polled in Booth No. 15A. These votes had a material bearing
on the outcome of the election.
The trial Judge has held that since, there is no averment in the petition that
the result of the election was materially affected by improper rejection or
acceptance of votes, it is devoid of cause 0 action. We arc unable to agree
that the absence of such an averment in the facts of this case is fatal. As
pointed out by this Court, there may be cases where the obvious conclusion to
be drawn from the circumstances is that the result of the election has been
materially affected and that Section 100( 1 Xd) of the Act is not intended to
provide a convenient technical plea in a case where there can be no dispute at
all about the result of the election being materially affected by the alleged
infirmity. [See:Durai Muthuswami v.N. Nachiappa, (1974) 1 SCR 40]. In the
present case, the appellant in the election petition has stated that he has
lost by a margin of 80 votes only. From the various averments in the election
petition it was evident that the number of valid votes of the appellant which
are alleged to have been improperly rejected is much more than 80. From the
averments contained in the election petition it is thus obvious if the
appellant succeeds in establishing his case as set out in the election petition
the result of this election, insofar as it concerns the returned candidate,
would be materially affected.
For the reasons aforementioned we are of the view that in the facts of this
case the election petition should not have been dismissed on the ground that it
does not contain a concise statement of material facts and is devoid of any
cause of action.
that view of the matter, we allow the appeal and remit this case back to the
trial court, to hear it afresh and decide finally the aforesaid contentions
raised on behalf of the appellant.
make it clear that we have not expressed any opinion on the merits of the case
or correctness of the allegations made by the appellant or the respondents. It
will be entirely open to the trial court to find out the facts and to decide
the case in accordance with law and as it thinks fit.