M.P. Keshava Murthy Vs. A. Narayanaswamy and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/378251
SubjectElection
CourtKarnataka High Court
Decided OnOct-13-2000
Case NumberElection Petition No. 8 of 1999
JudgeMohamed Anwar, J.
Reported inAIR2001Kant77; ILR2001KAR2742; 2001(3)KarLJ266
Acts Representation of the People Act, 1951 - Sections 12, 21, 22, 23, 40, 47, 49, 64, 81, 83(1), 86, 87, 93, 100(1) and 128; Code of Civil Procedure (CPC), 1908 - Order 6, Rule 16 - Order 7, Rule 11; Conduct of Election Rules, 1961 - Rules 38, 39, 45, 53(1), 55-B, (56-B(2), 57-B, 59-A, 64, 93(2) and 94-A
AppellantM.P. Keshava Murthy
RespondentA. Narayanaswamy and Others
Appellant AdvocateSri. M.P. Eshwarappa, Senior Counsel, ;Sri P.A. Krishna Reddy and ;Sri K.G. Nayak, Advs.
Respondent AdvocateSmt. Pramila Nesargi, ;Sri C.M. Nagabushana, ;Sri P.V. Chandrashekhar and ;Sri B.H. Sathish, Advs.
Excerpt:
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order1. heard both sides.2. this application under section 87 of the representation of the people act, 1951 ('the act' for short), read with order 6, rule 16; order 7, rule 11(a) and section 151 of the code of civil procedure ('cpc' in short) is filed for respondent 1 ('r-1' for short) praying that for the reasons sworn to in his accompanying affidavit, the pleadings in paragraphs 6 to 21 of the election petition be struck out as being 'unnecessary, scandalous, frivolous, vexatious and tending to prejudice and embarrass and consequently reject the petition as not disclosing the cause of action in the interest of justice and equity'. it may be mentioned here that 'paragraphs 6 to 21 of the election petition' stated in the application has to be, admittedly, read as paragraphs 6 to 11 of the.....
Judgment:
ORDER

1. Heard both sides.

2. This application under Section 87 of the Representation of the People Act, 1951 ('the Act' for short), read with Order 6, Rule 16; Order 7, Rule 11(a) and Section 151 of the Code of Civil Procedure ('CPC' in short) is filed for respondent 1 ('R-1' for short) praying that for the reasons sworn to in his accompanying affidavit, the pleadings in paragraphs 6 to 21 of the election petition be struck out as being 'unnecessary, scandalous, frivolous, vexatious and tending to prejudice and embarrass and consequently reject the petition as not disclosing the cause of action in the interest of justice and equity'. It may be mentioned here that 'paragraphs 6 to 21 of the election petition' stated in the application has to be, admittedly, read as paragraphs 6 to 11 of the election petition as there are only 11 paragraphs in the petition.

3. As counter to this application, petitioner has filed his affidavit stating that the petition does disclose the cause of action, and that the application is liable to be rejected.

Admitted Facts:

4. At the General Election, the election to the Karnataka Legislative Assembly from 'the 100 Anekal Constituency (SC)' ('the Anekal Constituency' in short) was held on 5-9-1999, simultaneously with Parliamentary election in the State of Karnataka. Respondent 5 was the Returning Officer (R.O.) duly appointed for this Anekal Constituency election process. Election petitioner M.P. Keshava Murthy contested the said election from Anekal Constituency as an Indian National Congress candidate ('the Congress candidate' for short) and R-1 A. Narayana Swamy contested this election as a candidate of Bharathiya Janatha Party ('BJP' for short). Respondent 2 to 4 were the other candidates for the said Assembly election. The counting of polled votes was done on 6-10-1999 and on the same day, election result was also announced by the R.O. declaring R-1 successfully elected to the said Assembly Constituency by a margin of 1,561 votes as against the petitioner, in whose favour the next highest number of votes cast. Other candidates respondents 2 to 4, lost the race by a very wide margin of votes.

5. The election petition was filed by the petitioner on 17-11-1999 challenging the election of R-1 from 'the 100 Anekal Assembly Constituency' to the Karnataka Legislative Assembly, under sub-clauses (iii) and (iv) of Section 100(1)(d) of the Act on the allegations of various illegalities and irregularities as committed by respondent 5-the Returning Officer ('the R.O.' for short) and his staff in the process of counting of polled votes and further contending that it was he (petitioner) who was entitled under Section 100(1)(d) of the Act to be declared as duly elected. Therefore, the main reliefs prayed in paragraph 11 of the petition are:

'(a) xxx xxx xxx;

(b) declare the election of the first respondent to fill the seat from 100 Anekal (SC) Assembly Constituency in Karnataka Legislative Assembly elections as void;

(c) to declare the petitioner as duly elected to fill the seat of Karnataka Legislative Assembly from 100 Anekal (S.C.) Assembly Constituency; and

(d) xxx xxx'.

6. The petition paragraphs 1, 5 and 7 are like preamble portion of the petitioner's case which mostly state the introductory facts relating to the election and the method of counting of votes which are not in dispute. The allegations of illegalities and irregularities alleged to have been committed by the R.O. and his men on election duty are averred in paragraphs 6, 8, 9 and 10 of the petition. Paragraph 11 of the petition is merely the relief paragraph. The allegations in general terms made in paragraph 6 of the petition are that, a large number of votes cast in favour of petitioner have been improperly rejected and a large number of votes not cast in favour of R-1 have been improperly received and counted in favour of R-1 and a large number of votes have been wrongly treated as rejected while a large number of void votes have been received and counted in favour of R-1. It is only in paragraph 8 of the petition which we find the allegations of certain illegalities and irregularities stated to have been committed by respondent 5 and his men in a little more specific manner. Briefly stated at this juncture, the allegations made at sub-paragraphs (a), (e), (g), (h), (k) and (m) of paragraph 8 are to the effect that total number of votes polled was 1,46,558. As declared by the R.O. (R-5), as per the counting statement, votes polled were 1,48,041, but the votes counted were 1,47,073. Thus, the votes counted are in excess of the number of votes polled. The different tables of statement issued by R.O. (R-5) regarding counting process disclose discrepancy, inconsistency and difference in figures without proper tally; that votes cast in favour of various candidates counted in round Nos. 5 and 6 were altered and added to R-1; that 5,579 votes had been rejected under Rule 56-B(2) of the Conduct of Election Rules, 1961 ('the Rules' for short), by the subordinate officer of the R.O., who was not authorised to decide on the validity or otherwise of the votes; and that as per the announcement in Form No. 21-E, Return of Election, petitioner secured 62,152 votes and R-1 secured 63,713 votes, the difference being of 1,561 votes. The further allegation is that more than 2,000 votes had been wrongly counted ih favour of R-1 (vide paragraph 8(m)). It is stated at paragraph 10 of the petition that as a result of the aforestated alleged illegalities and irregularities, the counting of votes done at the election process is vitiated by non-compliance of Rule 56-B of the Rules, and that the result of the election has been thereby materially affected (vide paragraph 9). The contents of the petition are verified by the petitioner in the 'verification' appended to the petition, which is reproduced below:

'VERIFICATION

I, M.P. Keshava Murthy, S/o Palappa, aged about 60 years, the above petitioner, do hereby state and verify that the statements made above in paragraphs 1 to 7 are true to the best of my knowledge and further statements made in paragraphs 8a, b, c, d, e, f, g, h, i, j, k, l, m, n, o and 9, 10 and 11 are based on information which I believe them to be true'.

(emphasis supplied)

7. Respondents 3 and 4 ('R-3 and R-4') have remained absent though served, respondent 5 (R.O.) has filed the written statement specifically denying all the petition allegations of improper rejection, refusal or acceptance of votes polled, and has detailed therein the manner in which the counting of all the polled votes was done in the presence and to the knowledge of each of the candidates, their election agents and their counting agents. However, it is the winning candidate R-1 alone who has filed the present application i.e., I.A. No. II, praying to strike out the pleadings in paragraphs 6 to 11 of the petition.

8. Therefore, in view of I.A. No. 2, the material points which I am called upon to determine are:

1. Whether the petition averments would, prima facie, make out a full and complete cause of action for the election petition?

2. Whether the verification appended to the election petition suffers from such vital defect as vitiating its maintainability?

Since decision on these points involved consideration of common material on record, both these points are taken up together for determination.

9. As indicated, the petition grounds on which R-1's election is challenged are those provided under sub-clauses (iii) and (iv) of Section 100(1)(d) of the Act (vide paragraph 10 of the petition). These provisions are extracted below:

'100. Grounds for declaring election to be void.-

(1) XXX XXX XXX.

(a) to (d) xxx xxx.

(i) and (ii) xxx xxx.

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,

the High Court shall declare the election of the returned candidate to be void'.

10. Adverting to the relevant provisions of the Act and of CPC, it is desirable to reproduce them for effective disposal of the application. Section 83 of the Act deals with the 'the contents of petition'. It states :

'83. Contents of petition.--(1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleged including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any Schedule or Annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition'.

Relevant portion of Section 87 lays down:

'87. Procedure before the High Court.--(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:

Provided. ..........

(2) ........'

Rule 16 of Order 6, CPC states:

'16. Striking out pleadings.--The Court may at any stage of the proceedings order to he struck out or amended any matter in any pleading,

(a) which may be unnecessary, scandalous, frivolous or vexatious; or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or

(c) which is otherwise an abuse of the process of the Court'.

Order 7, Rule 11(a) of the CPC speaks:

'11. Rejection of plaint.--The plaint shall be rejected in the following cases:

(a) where it does not disclose a cause of action;

(b) to (d) xxx'.

11. In the instant case, as it transpires from the contents of the petition, and also as categorically submitted by Mr. M.P. Eshwarappa, learned Senior Counsel appearing for petitioner, that R-1's election tothe Legislative Assembly from the said constituency is not challenged by the petitioner on the ground of any 'corrupt practice'. Therefore, sub-clause (b) of Section 83(1) of the Act is not a relevant provision for our purpose and the requirement of pleading in the petition of full 'material particulars' of the alleged corrupt practice, even if any, would not arise.

12. A combined reading of the aforequoted relevant provisions makes it clear that they cast an obligation on the Election Tribunal to determine at the threshold stage of the proceeding itself -- more so, when objection to the maintainability of the election petition is raised by the opponent party: Whether the contents of the election petition fulfill the imperative legal requirements of sub-clauses (a) and (c) of Section 83(1) of the Act when election petition is based on the ground/grounds other than the ground of 'corrupt practice'; and if the petition is based on the charge of 'corrupt practice' then whether its contents meet all the mandatory requirements of clauses (a) to (c) of Section 83(1); and that if the petition is found wanting in any material aspects of these requirements whether it then attracts the wrath of Order 7, Rule 11(a) and/or of any of the clauses (a) to (c) of Order 6, Rule 16 of the CPC. In other words, the ultimate object of this judicial scrutiny of the petition pleadings would be to find if the petition averments constitute the full and complete cause of action for the petitioner to maintain his petition or not.

13. Smt. Pramila Nesargi for R-1, reiterating the objections raised in the application, vehemently argued that the petition allegations are totally baseless, frivolous and vexatious; that they lack material facts, and that the petition does not disclose any cause of action at all. She maintained that the trial of such petition would cause unnecessary embarrassment in fair trial of the suit besides causing prejudice and harassment to R-1 who is a duly elected candidate at the said election. She, therefore, contended that petition has to be dismissed. Reliance was placed by her on the authorities of the Supreme Court in Jitendra Bahadur Singh v Krishna Behari and Others; Azhar Hussain v Rajiv Gandhi ; M.R. Gopalakrishnan v Thachady Prabhakaran; L.R. Shivaramagowda v T.M. Chandrashekar ; and Charandas v Surinder Ku-mar. It was also contended by Smt. Pramila Nesargi that verification of election petition suffers from vital infirmity, in that, it does not disclose the source of information as regards the petitioner's knowledge of contents in most important paragraphs 8, 9 and 10 of the petition. Relying on a recent decision of the Supreme Court in V. Narayanaswamy v C.P. Thirunauukkarasu, it was submitted that on this ground also, the petition is liable to be dismissed.

14. Per contra, Mr. M.P. Eshwarappa, learned Senior Counsel for petitioner, argued in support of the election petition maintaining that all the required material facts are pleaded therein and that they sufficiently make out a complete cause of action giving a right to the petitioner to sue for the reliefs prayed therein. It was further submitted that any defect in the petition verification would not be a vital defect and it could be a mere irregularity and a curable defect which will not be fatal to the petition. Reliance for this proposition was placed on a decision of the Supreme Court in the case of Makendra Pal v Ram Dass Malanger and Others1. Placing reliance on the same decision, he further argued that, to ascertain if the petition averments disclose a cause of action or not, the contents of the whole petition will have to be considered at a stretch and the averments therein be presumed to be true. In this regard, another decision of Supreme Court in D. Ramachandran v R.V. Janakiraman, was also relied on by him. Elaborating his argument, it was submitted that following this proposition, this Court had taken a decision in another election petition i.e., E.P. No. 2 of 1999 (Dr. Kanthi Rajashekher Kidiyappa v P.H. Poojar and Others), by order dated 31-3-2000 holding the petition averments therein did disclose sufficient cause of action and, therefore, that petition was maintainable; and that the S.L.P. filed against that order in S.L.P. (Civil) No. 7664 of 2000 has been dismissed by the Supreme Court. Another decision of Supreme Court in the case of Ashwani Kumar Sharma v Yaduvansh Singh and Others, was cited by him to buttress his argument.

15. As indicated, the reliefs prayed in the petition by the petitioner herein is dependent on the inspection and recounting of all the votes polled at the said Anekal Constituency Assembly election. For proper appreciation of the nature of the petition allegations and to reach the just decision on the material points under consideration, it is necessary to keep in view all the relevant provisions providing procedure for counting of the polled votes as there is no allegation in the petition whatever of the breach of any provisions of the Act, rule or order of the Election Commission, relating to the polling stage of the votes in the election process.

16. Section 21 of the Act provides for designation or nomination of a Returning Officer for the particular constituency for conduct of election, who shall, per Section 24 of the Act, discharge the general duty as such at any election to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by the Act and the rules or orders made thereunder. Section 22 empowers the Election Commission to appoint one or more Assistant Returning Officers to assist any Returning Officer in performance of his functions. Sub-section (2) of Section 22, in turn, empowers such Assistant Returning Officer, subject to the control of the Returning Officer, to perform all or any of the functions of the Returning Officer. Section 23 declares that references in the Act to the Returning Officer shall, unless the context otherwise requires, be deemed to include an Assistant Returning Officer performing any function he is authorised to perform under sub-section (2) of Section 22. Section 40 read with Election Rule 12 provide for appointment of an Election Agent by a candidate in the prescribed Form . 9 at an election. Section 47 read with Election Rule 52 provide for appointment of Counting Agents by a contesting candidate in Form 18 or his Election Agent. Section 49 deals with functions of Polling Agents and Counting Agents. Sub-section (2) thereof states that a Counting Agent may perform functions in connection with the counting of votes as could be authorised by or under this Act to be performed by a Counting Agent. Section 64 occurring in this Chapter states that 'At every election where a poll is taken, votes shall be counted by or under the supervision and direction of, the Returning Officer, and each contesting candidates, his election agent and his counting agents, shall have a right to be present at the time of counting'. Similarly, Rule 53(1)(d) entitles the candidates, their election agents and counting agents personally to be present at the counting place at the time of counting of polled votes. Section 66 states that soon after the counting of votes has been completed, the result of the election in the prescribed manner be forthwith declared by the Returning Officer. Sections 93 and 128 and Rule 39 enjoins maintenance of secrecy on the part of the concerned throughout the election process. Rule 45 provides for preparation of the 'Account of Ballot Papers' in the prescribed Form 16 at the close of the poll by the Presiding Officer of the polling station to be denoted as 'Ballot Paper Account'. Sub-rule (2) of Rule 45 further enjoins:

'45. Account of ballot papers.-

(1) XXX XXX.

(2) The Presiding Officer shall furnish to every polling agent present at the close of the poll a true copy of the entries made in the ballot paper account after obtaining a receipt from the said polling agent therefor and shall also attest it as a true copy'.

Rule 46 provides for making of separate packets of various election papers and the sealing thereof. Relevant sub-rule (e) of this Rule directs that separate packet for 'the list of challenged votes' to be prepared and sealed for the purpose of custody along with the custody of the sealed packets of other election papers. Rule 64 enjoins upon the Returning Officer to declare in Form 21-C or Form 21-D, the candidate to whom the large number of valid votes have been given, to be elected, and then to complete and certify the return of election in Form 21-E and to forward the copies thereof to the Election Commission and the Chief Electoral Officer. Once the largest number of valid votes so polled by a candidate to the election is so declared, Rule 66 directs the Returning Officer to grant a certificate of election in Form 22 to such candidate under his written acknowledgment.

17. In the instant case, admittedly, the procedure adopted for counting of all the polled votes is the 'method of mixing of votes' as contemplated by Rule 59-A, This rule makes Rules 55-B, 56-B and 57-B applicable to the procedure of counting by the method of 'mixing of votes' in lieu of Rules 55, 56, 57 and 59. Rule 55-B relates to the scrutiny and opening of ballot boxes. Relevant sub-rule (1) of Rule 55-B reads:

'55-B. Scrutiny and opening of ballot boxes.--(1) TheReturning Officer shall open, or cause to be opened, simultaneously the ballot box or boxes used at more than one polling station and shall have the total number of ballot papers found in such box or boxes counted and recorded in Part II of Form 16:

Provided that discrepancy, if any, between the total number of such ballot papers recorded as aforesaid and the total number of ballot papers shown against Item 5 of Part I shall also be recorded in Part II of Form 16'.

(emphasis supplied)

Then, Rule 56-B, the breach of which is complained of by the petitioner and urged as a ground under sub-clause (iv) of Section 100(1)(d), provides for counting of votes as also the rejection of a ballot paper. Sub-rules (1) to (4) and (7) of this Rule 56-B are relevant for our purpose and, therefore, they are reproduced below:

-B. Counting of votes.--(1) Subject to such general or special directions, if any, as may be given by the Election Commission in this behalf, the ballot papers taken out of all boxes used at more than one polling station in a constituency shall be mixed together and then arranged in convenient bundles and scrutinised.

The Returning Officer shall reject a ballot paper-

if it bears any mark or writing by which the elector can be identified, or

if it bears no mark at all or, to indicate the vote, it bear a mark elsewhere than or near the symbol of one of the candidates on the face of the ballot paper or, it bears a mark made otherwise than with the instrument supplied for the purpose, or

if votes are given on it in favour of more than one candidate, or

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, or

(e) if it is a spurious ballot paper, or

(f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or

(g) if it bears a serial number, or is of a design, different from the serial numbers, or as the case may be, design, of the ballot paper authorised for use at the particular polling station, or

(h) if it does not bear both the mark and the signature which it should have borne under the provisions of sub-rule (1) of Rule 38:

Provided that where the Returning Officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a Presiding Officer or Polling Officer, the ballot paper shall be rejected merely on the ground of such defect:

Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than one, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.

(3) Before rejecting any ballot paper under Sub-rule (2), 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.

(4) The Returning Officer shall endorse on every ballot paper which he rejects the word 'Rejected' and the grounds of rejection in abbreviated form either in his own hand or by means of a rubber stamp and shall initial such endorsement.

(5) All ballot papers rejected under this rule shall be bundled together.

(6) Every ballot paper which is not rejected under this rule shall be counted as one valid vote:

Provided that no cover containing tendered ballot shall be opened and no such paper shall be counted.

(7) After the counting of all ballot papers contained in all the ballot boxes used in a constituency has been completed, the Returning Officer shall make the entries in a result sheet in Form ' 20 and announce the particulars'.

(emphasis supplied)

Rule 57-B states the manner in which the valid ballot papers of each candidate. It also states that the rejected ballot papers shall be bundled and separate sealed box thereof be prepared by giving an opportunity to the counting agents of each candidate to affix their seals also on the said boxes.

18. The Supreme Court has, in Azhar Hussain's case, supra, while dealing with the aforequoted relevant provisions of the Act and the CPG, said:

'8. ..... Now it is not disputed that the Code of CivilProcedure (CPC) applies to the trial of an election petition by virtue of Section 87 of the Act. Since CPC is applicable, the Courttrying the election petition can act in exercise of the powers of the Code including Order 6, Rule 16 and Order 7, Rule 11(a).....'.

Referring to its earlier decision in Hardwari Lal v Kanwal Singh, the Supreme Court further proceeded to reiterate the law at paragraph 11 of its judgment thus:

'11. In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with.....'.

(emphasis supplied)

19. Respecting the grant of relief in any election petition depending on inspection and recounting of polled ballot papers, the Supreme Court in the ease of Charandas. supra, while upholding the order of the High Court dismissing an election petition for want of material facts, followed the following proposition enunciated by its Constitution Bench in an earlier case in Ram Sewak Yadav v Hussain Kamil Kidwai and Others:

'We do not think that Bhim Sen v Gopali, lays down any general principle that a party is entitled without making allegations of material facts in support of his plea to set aside an election to claim an order for inspection of the ballot papers and seek to supply the lacuna in his petition by showing that if all the votes are scrutinised again by the Tribunal it may appear that there had been improper reception, refusal or rejection of votes at the time of counting. To support his claim for setting aside the election the petitioner has to make precise allegations of material facts which having regard to the elaborate rules are or must be deemed to be within his knowledge. The nature of the allegations must of course depend upon the facts of each case. But if material facts are not stated, he cannot be permitted to make out a case by fishing out the evidence from an inspection of the ballot papers'.

(emphasis supplied)

20. The Supreme Court, at paragraph 23 of its judgment in its recent decision in V. Narayanaswamy's case, supra, referring to various propositions enunciated in its earlier decisions in D. Ramachandran's case, supra; Ch. Subbarao v Member, Election Tribunal, Hyderabad', Murarka Radhey Shyam Ram Kumar v ROOP Singh Rathore; Daulat RamChauhan v Anand Sharma ; F.A, Sapa v Singora ; K.M. Mani v P.J. Antony; Gajanan Krishnaji Bapat v Dattaji Raghobaji Meghe; Dr. (Smt.) Shipra v Shanti Lal Khoiwal; R.P. Moidutty v P.T. Kunju Mohammed; L.R. Shivaramagowda's case, supra; H.D. Revanna v G. Puttaswamy Gowda and Dharamvir v Amar Singh, has restated the la concerning the nature of the pleadings required in the election petition ; and about the difference between 'material facts' and 'material particulars' thus:

'23. It will be thus seen that an election petition is based on the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable is am as much. Sections 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read if the Court finds non-compliance it has to uphold the preliminary objection and hae no option except to dismiss the petition. ......'.

Further, the Supreme Court proceeded to state:

'23. ..... There is difference between 'material facts' and'material particulars'. While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. 'Material facts' mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e. clause (a) of sub-section (1) of Section 83. Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice.....'.

(emphasis supplied)

The same principle is restated in the case of V. Narayanaswamy, supra (vide paragraph 23 of the judgment), observing that 'to ascertain if the cause of action is disclosed in the election petition, the petition has to be considered as a whole', for which proposition the case of D. Ramachandra, supra, w.as also cited by Mr. M.P. Eshwarappa.

21. In Jagjit Singh v Giani Kartar Singh, the Supreme Court dealing with the important aspects of Sections 83 and 92 of the Act, said:

'31. .... .The Tribunal has to bear in mind certain importantconsiderations. Section 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. 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. ...... 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. We do not propose to lay down any hard and fast rule in this matter; indeed, to attempt to lay down such a rule would be inexpedient and unreasonable'.

(emphasis supplied)

22. Keeping in view the aforementioned relevant provisions of the law and the aforequoted well-settled legal propositions, let me now proceed to examine the allegations in the petition and to find out whether the petition contains a concise statement of 'the material facts' as required by Section 83(1)(a) of the Act and that whether they disclose full cause of action for the petitioner to challenge the election of R-1 from the said constituency. In the context of the relevant provisions of the law and the said legal propositions, it becomes manifest that when no corrupt practice is pleaded as a ground in the election petition, the 'petition averments' in order to gain the credibility to the degree of the 'assumption of truth' for the purpose of maintainability or otherwise of the election petition, must be meant 'the material facts' in support of the relief prayed therein, and if the election of a returned candidate is challenged on the ground of corrupt practice, then in addition to material facts, they also mean 'full particulars' of such corrupt practice, and that at any rate they do not mean the mere bald and evasive allegations or assertions urged challenging the election of the successful candidate. In other words, such allegations must be supported by 'material facts' coming within the purview of Section 83(1)(a), as also the 'material particulars' as well to meet the requirement of Section 83(1)(b) in respect of the alleged corrupt practice. As a logical corollary it, therefore, necessarily follows that in the absence of material facts in the electionpetition supporting the allegations made therein in support of the grounds on which petition is filed -- other than the ground of corrupt practice, the petition will have to be dismissed as not maintainable either for want of cause of action or for want of triable issues in case of striking out of the pleadings for one or the other reasons envisaged in Order 6, Rule 16, CPC. Besides, the material facts or, for that matter, material particulars, pleaded in the election petition in support of the grounds therefor should be consistent and apparently credible. They must not be mutually inconsistent and conflicting and/or that they should not get contradicted by the materials on record produced by the petitioner to support his case, since such serious discrepancies would undoubtedly badly damage or destroy the veracity and credibility of the petition averments, which will inevitably entail dismissal of the petition. These are the basic legal aspects in the light of which the petition averments will have to be examined in this case.

23.1. In fact, the precise material allegations in the petition have been already adumbrated at paragraph 6 hereinabove. At this juncture adverting to the order dated 31-3-2000 made in the said E.P. No. 2 of 1999 holding that the material facts averred in the petition therein do furnish the full cause to maintain the petition, on which reliance had been placed in support of the petition herein, it has to be stated at once that it has least relevance for the present case. The fact position in E.P. No. 2 of 1999 makes it poles apart from the fact position obtainable in this case. It is indicated in the said order in E.P. No. 2 of 1999 that the petition averments that:

(1) after opening all the ballot boxes booth wise, the number of ballot papers were recorded in Form 20 instead of Form 16 in breach of Rule 55-B;

(2) the margin of votes between the petitioner and R-1 (returned candidate) is only 138;

(3) the total number of ballot papers counted in Hall No. 1 was 45,477, but the actual votes counted was 45,459, resulting in missing of 18 votes without any explanation; and similarly in counting of Hall No. 2, the total number of votes cast were bound to be 42,935, but the actual votes counted were 42,894, resulting in missing of 49 votes thereby in all 59 votes were found missing without any explanation;

(4) that number of ballot papers polled in favour of the petitioner were rejected by the Returning Officer without providing any opportunity of inspection of the said ballot papers to the counting agents of the petitioner;

were found by the Court, inter alia, as sufficient material facts disclosing a valid cause of action for the petitioner to file the petition against the respondent-returned candidate therein (i.e., E.P. No. 2 of 1999).

23.2. In the case in hand, the margin of votes by which petitioner has lost the election is more than 1,500, whereas in said E.P. No. 2 of 1999,it was by a narrow margin of only 138 votes; in this case there is no allegation of breach of Rule 55-B in the manner as alleged in E.P. No. 2 of 1999; the number of missing votes averred in the petition herein is contradictory and uncertain and also there is no allegation that the counting agents of the petitioner herein were denied, by the Returning Officer or the counting staff, the opportunity of inspecting any of the ballot paper during the counting process. Therefore, the order dated 31-3-2000 of this Court in E.P. No. 2 of 1999 does not help the present petitioner's case in any manner.

24. It is an undisputed case of the parties herein that the counting of all the polled votes at the said election was arranged on 6-10-1999 in the ground floor and first floor of the Women's Home Science College premises at Palace Road, Bangalore. The counting of votes by the method of mixing of ballot papers was done at 29 counting tables arranged at the instructions of respondent 5 (R.O.) in that premises. The polled ballot papers were all duly mixed up and the bundles thereof, each containing 25 ballot papers, were made the last of such bundles containing less than 25 ballot papers. 40 such bundles in ail containing 1,000 ballot papers were distributed to the counting staff of each of the said 29 tables for counting purpose. The counting was done in six rounds. At the time of whole of this counting process, all the contesting candidates, including the petitioner, and their election agents were present throughout at the counting tables supervising the counting process. Admittedly, the counting agents of each of the candidate were also present at each of the counting tables and the counting of votes was done by the counting staff in their presence. At paragraph 8 of the petition it is stated:

'8...... The petitioner was taking rounds in all the tables andit was he who has to make note of the complaints of his counting agents on each tables and lodge complaints to the Returning Officer.....'.

25. As already stated, the allegations in support of petition grounds are to be found only in paragraphs 8 and 10. The other petition paragraphs viz., paras 6, 7, 9 and a major portion of paragraph 10, do not contain any 'material facts' but they merely contain omnibus allegations of commission of illegalities and irregularities in counting of votes without furnishing any particulars thereof, whatever. It is in paragraph 8 which the alleged irregularities and illegalities in the process of counting are separately stated under sub-paragraphs (a) to (o). To make the matter more explicit and clear, and for their proper appreciation, these so-called irregularities and illegalities stated at paragraph 8(a) to (o) are reproduced below:

'(a) The total number of votes polled is 1,46,558 as declared by respondent 5-Returning Officer, at the conclusion of the polling on 5-9-1999 and before the commencement of counting on 6-10-1999. As per counting statement, votes polled 1,48,041 and votes counted 1,47,073. As against this total number of 1,47,073 votes have been counted. The votes counted are in excess of the numberof votes polled. Thus prima facie this illegality and irregularity vitiates the entire process of election.

(b) As the number of ballot papers distributed to the counting tables, in all the 6 rounds, it is noticed that number of votes counted is actually more than the number of ballot papers distributed. This can be demonstrated with reference to their check memo for counting provided in form Annexure-21. The petitioner keeps liberty of summoning the documents at relevant point of time.

(c) The number of votes counted is less than the number of ballots distributed for counting in some rounds.

(d) The difference, prima facie, indicates the illegality and irregularity in the process of counting of votes.

(e) The number of votes counted is higher than the number of ballots distributed for counting. But, the number of votes counted in all cannot be more than the total ballots distributed at any stretch of imagination. At the most, it can be less than the ballots issued, though not exactly balanced.

(f) looking to the different tables of statement issued by Returning Officer regarding counting process, i.e., votes polled, votes given for counting, votes counted, invalid vote etc., there are discrepancies, inconsistencies and difference in figures without proper tally. This clearly indicates that the process of counting is, not in accordance with law. It is vitiated on account of irregular process in counting or account of votes.

(g) In Round No. 6 at Table No. 12 total number of ballot papers issued for counting is conveniently altered at different times.

(h) Votes caste in favour of various candidates counted in Round Nos. 5th and 6th have been altered and added to R-1. The election process is vitiated since the counting process i.e., entry in check memo, the votes counting table, etc., were taken for granted without even taking the signatures of the competent persons and the discrepancies and manipulations have been made later to suit the benefit of R-1, at the instance of his supporters and the counting staff.

(i) 5,519 votes have been rejected under Rule 56(B)(2) of the Conduct of Election Rules, 1961. The power and jurisdiction to decide as to which ballot paper be rejected is exclusively conferred on the Returning Officer. However, in the instant case, the Returning Officer abdicated his power and authority vested in him. He did not decide the validity of votes, muchless, did he make any-endorsement on invalid votes. It was his subordinate, who decided about the invalidity or otherwise of all the votes and made the endorsement. Thus, a decision to reject the ballot papers is a nullity in law, which has directly affected the legality and correctness of the counting of votes. Since the persons decidingsuch votes being close associates and relatives of R-1, invalid votes and defective votes have been illegally counted in favour of R-1. On the contrary valid votes in favour of petitioner have been rejected as invalid. The request by the counting agents and petitioner to refer the doubtful votes to be decided by Returning Officer was not conceded but close associates of R-1, themselves have decided these votes only to help the R-1.

(j) The illiterate voters, who could not sign, put their LTM impression on the counterfoil of the ballot paper in the presence of Polling Officer in the Polling Booth. When such voters, while using the official rubber stamp to exercise their vote, did hold the ballot paper with their left-hand. Thus, the left-hand thumb impression mark is carried on the ballot paper, though they have rightly used the official rubber stamp to exercise their right, Such valid votes have been erroneously rejected by the Assistant Returning Officer, or otherwise all such votes would have gone in favour of the petitioner.

(k) During the process of counting, large number of ballot papers were found without the signature of the Presiding Officer of the polling booth. This is a clear case of rigging of votes by officials supporting R-1 and such illegal votes have been counted in favour of R-1, thus culminating in the declaration of R-1 as elected. This illegal act can be only checked or verified by ordering recounting of votes. By ordering recounting of votes, neither any candidate nor the machinery of election will be adversely affected.

(l) Total number of votes rejected is 5,519. These votes were illegally rejected without placing them before Returning Officer or getting his decision. Even these votes do not bear the signature of Returning Officer. Large number of votes to be counted in favour of petitioner were counted in favour of 1st respondent. At Room No. 5 one Mahendrakumar, the Chief Officer of T.M.C., Anekal was Assistant Returning Officer. On the influence of T.M.C. President Shri Sattendra kumar (Brother-in-law of R-1), Shri Mahendrakumar. in a high-handed arbitrary manner in order to render undue favour and help actually accounted bundles of votes of petitioner in favour of R-1, resulting in his declaration as elected. This is a case of glaring illegality.

(m) As per the announcement in Form 21-E, Return of Election, the petitioner secured 62,152 and R-1 secured 63,713. The difference of votes is 1,561. The invalid votes were 5,519 more than 2,000 votes have been wrongly accounted in favour of R-1 when they were bundled and kept in the tray. The petitioner's agent actually caught an official in 5th round at one stage and the said official pleaded his guilt as mistake. The counting agents of the petitioner were witnesses to this when the petitioner was watching other tables this miscounting of bundles happened. Sri Gopala Reddy failed in preventing this on account of high-handedbehaviour of the official, It is a clear case of mischief causing great damage to the prospects of petitioner's success.

(n) Large number of votes without signature of concerned officials were found while counting and these votes were marked in favour of R-1. This is case of adding unauthorised votes by illegal means.

(o) The R-1 managed to create an atmosphere of commotion in 5th and 6th rounds with his supporters having felt his decline and officials on duty were passive spectators. The other candidates pointed out the uncontrolled situation, the response was only pacification but no steps were taken. The machinery of Returning Officer did not have police force inside the Hall. During 5th and 6th rounds persons appointed for counting of Parliamentary Constituency counting process appointed by BJP Parliamentary candidates entered the Assembly Constituency Hall Nos. 1, 2 and 3 and managed to create confusion, disorder and succeeded in bundles being wrongly counted in favour of R-1. It is at this stage the petitioner was compelled to lodge an application for recounting. The Returning Officer took three hours in a suspicious manner even to look to the application. He was discussing with other persons regarding the application for recount and also had lengthy conversation over telephone in that behalf. Even press people were not allowed at this juncture, thinking they may let the cat out of bag. The Returning Officer left the hall for more than one hour'.

26. At once, it could be seen that the allegations made in sub- paragraphs (c), (d), (e), (f), (g), (h), (j), (k), (n) and (o) are totally vague and evasive since material facts essential to support them are singularly lacking. That they are so stand fully exposed by the complaint letter of the petitioner given to the Returning Officer [vide petition paragraph 8(0)], the true copy whereof is produced along with the petition as document No. 3. That letter reads:

'To From

The Returning Officer Sri M.P. Keshava Murthy,

No. 100, Assembly Congress Candidate,

Constituency (Anekal), 100,Anekal Constituency.

Bangalore District.

Sir,

I request you to kindly arrange for recounting of the votes of the above constituency of the polled votes as I am having doubt about counting of votes particularly after the 4th round. Upto 4th round counting I was leading about 1,000 votes. At the time of 5th and 6th rounds people assembled in the rooms and caused confusion of counting of votes and also without due consideration of my agents' request they have disallowed so many hundreds of valid votes as invalid.

I therefore request you in the interest of natural justice and law to allow recounting of ray constituency votes (100, Anekal).

Thanking you,

Yours faithfully,

Sd/-

(M.P. KESHAVA MURTHY)

Sd/-

Election Officer,

100, Anekal Assembly

Constituency'.

This letter shows that till close of 4th round of counting he was in the lead by 1,000 votes and that he absolutely had no grievance against anybody whomsoever about the conduct of counting process. It simply contains a bald and vague allegation that at the 5th and 6th rounds of counting, so many hundreds of valid votes were disallowed as invalid votes at the instance of 'the people assembled in the rooms and caused confusion of counting of votes, despite the request of his agents'. According to the R.O. (R-5), this letter was received by him at 8.20 p.m. on 6-10-1999 as per his endorsement seal put thereon. On enquiry, he found the petitioner's grievance made in his letter was wholly unfounded. Therefore, the endorsement dated 6-10-1999 rejecting his request was given by him to the petitioner which is also produced as document No. 5 along with the petition.

27. The petitioner's said letter given to the R.O. serves as a basic documentary material to test the character and weight of the allegations made in other sub-paragraphs (a), (b), (i), (1) and (m) of petition para 8. The said letter reveals that these allegations are an afterthought as invented simply for the purpose of filing the election petition, since none of such grievance finds place in that letter. This apart, the allegation in paragraph 8(a) that 'total number of votes polled were 1,46,558 as declared by R-5, Returning Officer. ...... .As per counting statement, votes polled were 1,48,041 and the votes counted 1,47,073' is not based on any material fact pleaded in the petition or on any material produced with petition. On the other hand, the relevant figures of the polled votes given in the 'Return of Election in Form 21-E' containing declaration of result by the R.O., the authenticated copy whereof is produced as document No. 2 along with petition, clearly contradicts the figures alleged in paragraph 8(a) of the petition. According to this Form 21-E, the total number of votes polled was 1,41,554 and not 1,46,558 or 1,48,041, and the total number of votes counted per Form 21 was 1,47,111 and not 1,47,073 as alleged. There is no whisper in the petition, nor is it the case of the petitioner at the time of argument of his learned Counsel that various figures relating to the votes polled candidate wise and other figures of the votes given therein i.e., Form 21-E, are not correct and that they are disputed by him. On the other hand, this document which forms part of 'election papers', is produced to support the petitioner's case at the trial, Therefore, I find that the petition allegations made in paragraph 8(a) is entirely vague and vexatious and would be highlyembarrassing for total of the petition on such allegations. So also the nature of allegation in paragraph 8(b) of the petition is no different than that of the one made in paragraph 8(a). It is totally a bald allegation. The Check Memo referred to therein showing it as produced at An-nexure-21 is in fact admittedly not produced either with the petition or till this date. It is a misleading statement. The Check Memo was part of the election papers. Its production on record was essential to substantiate the petition allegations. The petitioner was entitled to the authenticated copy thereof from the District Election Officer by virtue of sub-rule (d) of Rule 93(2) of the Election Rules. For the reasons best known to him, he has withheld production thereof. Be that, as it may.

28.1. Admittedly, by letter No. 470/95/J.S. II, dated 25-1-1996 issued by the Office of the Election Commission to all the Returning Officers, detailed instructions were given to them setting out the elaborate manner to be followed in counting of votes by 'the method of mixing of ballot papers' in accordance with the aforestated rules. It is not in dispute that the counting of votes in the instant case has been done by the counting staff following the procedure detailed in the said letter conforming the provisions of the relevant rules.

28.2. As indicated at paragraph 1.2 of this letter of instructions of the Election Commission, the actual counting process of the polled ballot papers would take place in two stages. In the first stage, all the ballot papers contained in the ballot box or boxes used at a polling station are taken out and the total number of ballot papers in ihe box or boxes pertaining to that particular polling station is ascertained. This is called the initial counting. This polling station wise total number of the polled ballot papers is required to be entered in Part II Result of Initial Counting, of Form 16. Discrepancy if any between the total numbers as shown in Part I and Item I of Part II of this form is required to be entered in Item 2 of this part. This procedure of initial counting will have to be repeated in respect of the polled ballot papers of every other polling station of the constituency. And this could be done simultaneously at different counting tables arranged for the purpose. After the initial counting is done following this procedure only for the purpose of 'ballot paper account', then the bundles of votes so counted are made -- each bundle containing 25 ballot papers except the last of such bundles which may contain less than 25 ballot papers; and all these bundles are placed in a single drum/receptacle and the bundles are mixed up.

28.3. Thereafter, the second stage of counting for detailed scrutiny of the ballot papers for their validity or otherwise would begin and it should be completed in the manner provided in that letter. The result of such counting of the votes done in each round at each of the counting tables will have to be entered in Part II of the Check Memo and the same will be signed by the Counting Supervisor. This procedure would be repeated in each of the subsequent rounds. Thereafter, the total number of ballot papers found in the initial counting is recorded in Part II of the Check Memo for counting will be entered in the result sheet in Form 20. Thus, it could be seen that Form 16, Form 20 and the Check Memo arethe other important and material documents comprising the election papers which the petitioner had to produce to substantiate the petition allegations. He has not done so, though he could have readily obtained the authenticated copies thereof from the District Election Officer/Returning Officer (respondent 5) under clause (b) of Rule 93(2) of the Election Rules. Even otherwise, the true copy of 'ballot paper account' given to petitioner under Rule 45(2) was with him, which he has not produced. Necessarily non-production thereof would lead to adverse inference against the petition allegations.

29. In fact, on going through all the averments and allegations made in paragraph 8 of the petition as a whole, I find that the material facts supporting them such as the exact number of polled ballot papers alleged to be improperly received, refused or rejected; or the exact number of alleged void votes received as valid votes at the said counting process; the actual number of counting table at which particular number of such votes were either received, refused or rejected; the serial number of each of such ballot papers; the name of the particular Counting Agent who was present at such counting table witnessing and noting down the particulars of such ballot paper/papers; the name/names of concerned Counting Supervisor/Supervisors who misconducted himself/them selves; the name/names of the member/members of the counting staff who unauthorisedly dealt with any polled ballot papers while counting them; the number of the round of counting at which such particular ballot paper/papers were so counted; the details of objections if any made to the counting staff by the candidate/election agent/counting agent at the particular counting table, and the details of notes if any made and kept by the particular counting agent of the petitioner in respect of such ballot paper/papers are not at all pleaded in the petition. All these particulars are the essential particulars which constitute the 'material facts' to support the petition allegations and none of such facts is pleaded therein by the petitioner. What further aggravates the matter is the fact, as pointed out earlier, that none of the allegations made in the petition are specifically stated by the petitioner in his said complaint letter at document No. 2 which was given by him to respondent 5 at the earliest opportunity, probably when the counting process was nearing conclusion.

30. In the case of M.R. Gopalakrishnan, supra, while dealing with an election petition containing similar allegations, the Apex Court said:

'16. .... The election petitioner, in order to seek an order of re-count, has to place material and make out a prima facie case on the threshold and before an order of re-count is actually made. The demand of a defeated candidate for re-count of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable characterthat there existed a prima facie case for the re-count, no Tribunal or Court would be justified in directing the recount'.

For the above proposition, reliance was placed by the Supreme Court on certain guidelines and conditions which were laid down in its earlier decision in Bhabhi v Sheo Govind , for directing inspection and re-count of the polled ballot papers at the instance of a defeated candidate. They are quoted at paragraph 17 of its judgment, and three of those guidelines shown at Nos. (1), (2) and (5) are very relevant for the purpose of this case. Therefore, they are extracted below (para 15):

'(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;

(2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;

(3) and (4) xxx xxx;

(5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void;

(6) xxx xxx'.

In this connection, the pertinent observations of the Apex Court in Jitendra Bahadur Singh's case, supra, may also be usefully adverted to. At paragraph 8 of the judgment, the Supreme Court laid down the law that:

'8. .... The material facts required to be stated are those facts which can be considered as material supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. . . ',

At paragraph 10, the Supreme Court proceeded to consider the petition allegation therein relating to illegal rejection of the votes polled in favour of the returned candidate and has observed:

'10. Now coming to the rejection of the votes polled in favour of the Congress nominee, under the rules before a vote is rejected the agents of the candidates must be permitted to examine the concerned ballot papers. Therefore, it was quite easy for them to note down the serial number of the concerned ballot papers. The election petition is silent as to the inspection of the ballot papers or whether the counting agents had noted down the serial number of those ballot papers or whether those agents raised any objection relating to the validity of those ballot papers; if so who those agents are and what are the serial numbers of the ballot papers to which each one of them advanced their objections. These again are the material facts required to be stated'.

31. The most telling documentary material produced by petitioner himself along with the petition is document No. 4 which fully exposes falsity of petitioner's case as a whole and it by itself totally demolishes his case at the threshold itself. Though Mr. M.P. Eshwarappa, learned Senior Counsel for petitioner, was repeatedly called upon by the Court while he was addressing his argument to dwell upon the contents of this document to justify the petition allegations. But, curiously that was conveniently and possibly deliberately avoided by him on the pretext that that document was simply produced with a view to prove the same at the trial. This document No. 2 consists of 9 sheets which on each of its front page bears the office seal of the R.O. (respondent 5). Its last page No. 9 is affixed with the Court fee stamp of Rs. 6/- and the seal of R.O.'s office is put thereon. This document also contains the designation seal and signature of respondent 5 (R.O.) at the bottom of page No. 9 with the remarks that 'Arithmetical mistakes in statistics and ballot paper account rectified'. In paragraph 11 of the petition, it is stated that this document is the certified copy of the 'Statement of Ballot Papers booth-wise', shown as produced along with other document Nos. 1, 3 and 5. It also carries at its last page the requisite verification of petitioner per Section 83(2) of the Act. It contains the column wise detailed particulars of the 'Polling Station Number' (P.S. No.); 'number of ballot papers actually issued to the voters booth wise'; 'number of votes polled booth-wise (as per voting statistics and Ballot Paper Account)'; and 'Actual votes turned out' (as per actual initial counting Form 20)', in column Nos. (2), (3), (4) and (5), respectively, thereof. The contents of this document together with the petition averment in paragraph 11 with respect thereto make it abundantly clear that this was one of the material election paper whose authenticated copy was obtained by the petitioner from respondent 5 in accordance with sub-clause (b) of Rule 93(2) of the Election Rules. Therefore, it is a document of fundamental importance and the undisputed entries therein are fully entitled to reliance. Column No. (1) provides for noting the serial numbers for the corresponding entries made in column Nos. (2), (3), (4) and (5) of the document against each of these serial numbers. Its column No. (2) discloses that the polling for the said election was held at as many as 216 polling stations. The total number of votes polled in each of these stations are separately indicated in column No. (4) while the total number of ballot papers issued to the electors at each of these polling stations are mentioned in column No. (3). Its column No. (5) gives us the total number of votes polled booth wise as found on the initial counting of the ballot papers. The grand total of the figures in column Nos. (4) and (5) of document No. 4 conies to 1,47,325 and 1,47,167, respectively, thereby giving the number of missing polled ballot papers at 172. As per this document, the actual number of ballots polled is 1,47,153. But, the total of the relevant figures of valid votes polled, rejected votes and of tendered votes given in document No. 2 i.e., Form 21-E, would be 1,47,111 which falls short by 42 ballots of the number 1,47,153 shown in document No. 4. Of course, this difference of 42 ballots is an apparent discrepancy. At present, wedo not find any explanation on record for the said missing ballots numbering 172 and the said differential number 42. However, aggregate of 172 and 42 gives us the resultant position at the present stage that in all 214 votes polled at the said election are not accounted for at the said election. But then, this number i.e., 214, of the missing votes does not matter much and is of immaterial consequence for the petitioner's case, since even if all these 214 votes were counted as valid votes cast in his favour, then also he would remain far behind R-1 who has scored the largest number with the margin of 1,561 votes as against petitioner.

32. Such is the clear resultant picture of the entire polling process at the said election which emerges from the scrutiny of material on record. It manifestly discloses that the petition is groundless.

33. Another salient basic infirmity in the petitioner's case which cannot escape the notice of the Court is that, as stated, in the verification appended to the petition the whole of the petition averments contained in paragraphs 8(a) to (o) and 9 to 11 are verified by the petitioner as based on his information and not on his personal knowledge. Admittedly, nowhere in the petition, the source of this information is pleaded by him. So, all the statements made in paragraphs 8 to 11 in the petition are based on hearsay. Strangely, even it is not his case in the petition that any part of the information pleaded in whole of the petition was given to him by any of his counting agents or polling agents or by his election agent or for that matter by any responsible person. Viewed from this angle also, we find the allegations in the petition obviously baseless, frivolous and vexatious, although the defective verification of the petition may not be fatal as held in H.D. Revanna's case, supra.

34. The petition allegations, therefore, when considered as a whole and subjected to judicial scrutiny, they make it manifestly clear that they are not supported by adequate statements of material facts and are vague, frivolous and vexatious allegations which attract the banishment of clauses (a) to (c) of Order 6, Rule 16 of the CPC justifying their striking out from the petition, apart from these averments not making out any valid cause of action for the election petition thereby warranting its rejection under Order 7, Rule 11(a) of the CPC. As a result, no ground under sub-clause (iii) of Section 100(1)(d) of the Act exists for the petitioner to maintain his petition, and, as such, it automatically follows that the ground under sub-clause (iv) of Section 100(1)(d) will also be not available to him.

35. Therefore, for all the reasons stated and discussed above, my decision on both material point Nos. 1 and 2 under consideration is in the negative.

36. Hence, for the reasons aforesaid, I.A. No. 2 is allowed and the petition is dismissed.

37. Parties to bear their own costs.