MAHENDRA SINGH Vs. SECOND ADDITIONAL DISTRICT JUDGE JHANSI

JUDGEMENT

(1.) MAHENDRA Singh appellant has preferred this appeal against the judgment and order dated December 17, 1974, passed by a learned Single Judge of this Court in Civil Miscellaneous Writ No. 5080 of 1974 dismissed the writ petition of the petitioner-appellant. The writ petition was filed against the order of the Election Tribunal trying an election petition under Section 7 of the Kshetra Samiti and Zila Parishads Act against the election of a Block Pramukh. The appellant and the respondent were contesting candi dates in that election. Babu Lal Dubey lost the election while the appellant Mahendra Singh was declared elected. Respondent Babu Lal Dubey filed election petition before the Tribunal against the ap pellant and others who were candidates to the election. It was sug gested on behalf of the respondent in the election petition that the ballot papers used at the election were not in Form VII as laid down in Rule 18. According to the respondent the form of ballot papers provided under Rules did not contain compartments or columns for the candidates contesting the election but the ballot papers used and supplied at the election had separate columns or compartments pro vided for each candidate. The name of respondent Babu Lal was placed at serial No. 1 and at the top the compartment or the column was not closed by any line. According to the respondent, therefore, the result was that some of the electors who were not much literate recorded first preference vote by putting figure 1 anywhere beyond the column of candidates at serial No. 2. According to the respon dent two such ballot papers which had clear first preference votes for him were improperly rejected by the Asstt. Returning Officer who was inclined first to accept them as valid first preference votes for the respondent but later on rejected them. It was specifically mention ed in paragraph 10 of the election petition that the number of those ballot papers which were rejected could only be incorporated in the petition after inspection of the ballot papers.

(2.) THE respondent as serted that the said two ballot papers were valid first preference votes for the respondent. Details of the two ballot papers were furnished in paragraph 19 of the election petition and it was stated that the in valid votes being six in number as stated in paragraph 19 of the elec tion petition included the said two ballot papers which according to the respondent related to his votes. On the basis of these averments made in the election petition the respondent Babu Lal filed an appli cation dated July 5, 1974, praying that the election record along with the used ballot papers be summoned from the District Magistrate, Jhansi, and the respondent along with his counsel be allowed to in spect the rejected ballot papers or in the alternative the District Ma gistrate, Jhansi, be directed to allow such an inspection to the respon dent. This prayer was opposed on behalf of the appellant. It was stated on behalf of the appellant that the respondent remained pre sent throughout at the time of the counting of the ballot papers and the ballot boxes were opened and ballot papers counted in his pre sence. The ballot papers were scrutinised by the parties in their presence and the ballot papers were counted for more than once at the instance of the respondent and he had the full opportunity to see the ballot papers and to know their number and details. According to the appellant Babu Lal respondent could not legally inspect the ballot papers because inspection, according to the appellant, was to fish out the details of the ballot papers and thereafter to substitute allegations subsequently in the election petition. It was also assert ed in objection that the application to inspect the ballot papers was not legally maintainable. Besides other objections these two main objections were taken by the appellant. The Election Tribunal by its order dated August 22, 1974, allowed the application of the respon dent and directed that the rejected ballot papers in regard to the election of Block Pramukh, Kshetra Samiti, Madawara, District Lalitpur, held on March 2, 1973, be requisitioned to be produced in sealed cover in the court by or before September 8, 1974, from the District Magistrate, Jhansi, under Rule 30(2) of the U.P. Kshetriya Samities (Election of Pramukhs and Up Pramukhs and Settlement of Election Disputes) Rules, 1962. It was further directed that the respondent would be entitled to inspect those rejected ballot papers in his court after they were produced by the District Magistrate. The appellant preferred writ petition against the aforesaid order passed by the Elec tion Tribunal and seriously disputed the entitlement of the respon dent as held by the Election Tribunal, to inspect the said rejected bal lot papers in the court. The learned Single Judge held that the election tribunal did not commit any error of jurisdiction nor there was any manifest error of law in permitting the inspection of the six ballot papers and dismissed the writ petition. Against this order the appellant has preferred this appeal.

(3.) THE next case relied upon by the learned counsel for the respon dent was S. IV. Balakrishna v. George Fernandez and others A.I.R, 1969 S.C. 1201. This case was also under the Representation of the People Act, 1951. In this case the Supreme Court has pointed out the distinction between the material facts and particulars. They have indicated that the word 'material' shows that the facts necessary to formulate a com plete 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 function of particulars is to present as full a pic ture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. Thus according to the Supreme Court there may be some overlapping between material facts and particulars but the two are quite distinct. While dealing with Section 83 of that Act the Supreme Court observ ed that an election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that the peti tioner alleges including as full a statement as possible. Again we respectfully follow the law laid down by the Supreme Court, but in the instant case as we have stated the particulars are not only criptic but they are vague in the election petition and the respondent is res ponsible for the same. Reliance was also placed on Shashi Bhushan v. Balraj Madhok A.I.R, 1972 S.C. 1251, in which various cases were referred to by the Supreme Court under the Representation of the People Act. That was a case where inspection of ballot papers was sought on the ground that they were rigged by process of chemical treatment. The allegations were there that the ballot papers were chemically treated and they were sought to be proved not by any direct evidence but by inspection of the ballot papers and in those circumstances the Supreme Court held that the petition seeking inspection of ballot papers was rightly allowed. Here in the instant case it cannot be said that all the rejected ballot papers contained the votes said to have been cast in favour of the respondent nor any such allegation has been made so as to warrant that all the ballot papers said to have been used for casting vote in this election have been tampered with in the manner as in the case before the Supreme Court. In this case as well the Supreme Court laid down as a caution that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must not be vague or indefinite; they must be supported by material facts and prayer made must be a bona fide one, and if these conditions are satisfied the court will be justified in permitting inspection of ballot papers. In the case before the Supreme Court the allegations made raised issues of public im portance where they thought that greater care and circumspection was necessary as the allegations made were quite serious and could not have been summarily dismissed and, therefore, the petition for inspection of ballot papers was held to have been rightly allowed. In the instant case no such circumstance or contingency arise. There is yet another case on which reliance has been placed by both the parties. It is Chanda Singh v. Ch. Shiv Ram Varma and others A.I.R. 1975 S.C. 403. This was also a case under the Representation of the People Act, 1951, where Rule 63 of the Conduct of Election Rules, 1961 for the re count of the ballot papers was considered by the Supreme Court. The Supreme Court has held that on all hands it is now agreed that the importance of the secrecy of the ballot must not be lost sight of, ma terial facts to back the prayer for inspection must be bona fide, clear and cogent and must be supported by good evidence. The Supreme Court has also observed that much depends on the facts of each case and the primary aim of the courts is to render complete justice be tween the parties. Subject to that overriding consideration, courts have laid down the circumstances that should weigh in granting or refusing inspection. In the instant case as we have pointed out the allegations on close scrutiny and examination do not warrant that the respondent has made out a case for inspection of the ballot papers.