R. Raghunandan Rao, J.
1. As part of the General Elections, 2019, elections were conducted for No. 13 Guntur Parliamentary Constituency. It may also be noted that there were simultaneous elections to the Legislative Assembly for the State of Andhra Pradesh also. Guntur Parliamentary Constituency contained seven (7) Assembly Constituency segments namely, No. 86 Tadikonda, No. 87 Mangalagiri, No. 86 Ponnur, No. 91 Tenali, No. 93 Prattipadu, No. 94 Guntur West and No. 95 Guntur East. Polling was conducted on 11.04.2019 and the votes were counted on 23.05.2019. The petitioner along with respondents 1 to 18 had contested this election. After the votes had been counted, the 1st respondent was declared elected with a majority of 4,205 votes over the petitioner herein.
2. The petitioner herein, being aggrieved by the said result, has filed the present Election Petition under Section 100(1)(d)(iii) and (iv) of the Representation of the Peoples Act, 1951 (hereinafter referred to as 'The Act'). The said provision reads as follows:
"100. Grounds for declaring election to be void. (1) Subject to the provisions of sub-section (2) if (the High Court) is of opinion-
(a) .....
(b) .....
(c) ....
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected__
(i) ......
(ii) .....
(iii).....
(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."
3. The relief sought in the Election Petition is as follows:
A) Declare the election of respondent No. 1 as Member of parliament from No. 13 Guntur Parliament Constituency, as null and void;
B) Pass an order for summoning all 9,782 postal ballot papers including ETPBS in No. 13 Guntur Parliamentary Constituency and to declare the result after counting them;
C) Pass an order for recounting of the votes in No. 13 Guntur Parliament Constituency and to declare the result after counting them;
D) Award costs of the Election Petition;
E) Pass such other order or direction which the Hon'ble Court may deem fit and proper in the facts of the case.
4. The grounds on which the election petitioner relies upon, in support of the reliefs sought by him are as follows:
1) 16,977 postal ballots had been issued and 15,084 postal ballots were polled and counted. Out of these ballots, 9,782 postal ballots were rejected and only 5,317 votes were counted as valid votes. The rejection of the aforesaid 9,782 postal ballots is not in accordance with Act or the conduct of Election Rules, 1961 (herein after referred to as 'the Rules'). In view of the improper rejection of these ballots, there should be a direction to validate these ballots and to count them;
2) About 4,252 employees of private educational institutions were originally drafted for election duty and had been issued postal ballots as they would not be able to exercise their franchise on the day of polling. These persons were removed from election duty by proceedings dated 02.04.2019. However, the postal ballots issued to these employees were not taken back nor proper steps taken to ensure that these persons do not vote again in the polling held on 11.04.2019. Since these persons were able to exercise their vote twice, the election process has become vitiated.
3) After removing the aforesaid 4,252 private employees from election duty, 1,763 government employees were drafted for election duty on 09.04.2019 and due to the paucity of time between 09.04.2019 and 11.04.2019, these persons were not given the option of exercising their franchise by postal ballots and as such, they could not vote and the denial of such voting rights materially affects the election which requires to be set aside;
4) The Act and the Rules provide for certain procedures to be followed to ensure that all the votes polled are accounted for and counted on the counting day and to ensure that there are no discrepancies between the actual votes polled and the votes counted. For this purpose, the Act and Rules have provided for forms known as Form-17A to Form-17C. The Form 17C consists of two parts. In the first part, the Polling Officer incharge of every polling station has to record the number of votes polled in his polling station and certify the same. Copies of part-I of Form 17C has to be given to all the polling agents of the candidates who are present in the polling station irrespective of the fact whether they have asked for such copy or not. Subsequently, at the time of counting, the person incharge of such counting has to verify the number of votes counted in relation to each of the polling stations and record the number of votes counted against each polling station. These statistics are to be recorded in part-II of Form-17C. The Returning Officer, on the basis of part-II of the Form-17C forms prepares the round wise statements in the proper proforma known as Form 20. The statistics in part-I of form-I have to be in total accord with the statistics in part-II of Form 17C as well as the round wise counting figures in Form 20. Any variation or any discrepancy either in the recording of the number of votes polled or counted or any discrepancy between part-I and part-II of Form 17C or Form 20 would result in invalidation of the election process. In the present case, there have been various discrepancies including, fabrication of Form-17C part-I, incorrect filling up of part-I of Form-17C, absence of signatures of polling officers etc., apart from variation in the figures between part-I and part-II of Form 17C. On account of these lacunae, the election would have to be declared invalid.
5. The 1st respondent filed his counter affidavit denying all these allegations. The 1st respondent contended that the rejection of 9,782 postal ballots is strictly in accordance with the provisions of the Act and the Rules and that the remaining grounds raised by the petitioner are not tenable for various reasons and that the 1st respondent had no control over any of the grounds raised by the petitioner due to which the 1st respondent cannot be held responsible for such alleged lacunae in the election process.
6. This Court, after considering the pleadings in the Election Petition and the counter affidavit of the 1st respondent and after hearing both sides, by an order dated 27.04.2023, framed the following issues.
1) Whether the rejection of postal ballots by the Returning Officer, on the ground of non-compliance of Rule 54 of the Conduct of Election Rules, 1961, is invalid and liable to be set aside
2) Whether the issue of alleged non-exercise of franchise of 1763 government employees who had been drafted for election duty could be gone into, without any relief in this regard, being sought in the election petition
3) Whether the issue relating to alleged dual exercise of franchise of 4252 private employees, who had been initially drafted for election duty, and issued postal ballots, after which they had been removed from election duty, can be adjudicated without any relief being sought in this regard
4) Whether the question of discrepancy in Form 17 and Form 20 would vitiate the election of the 1st respondent, could be gone into without any such relief being sought in the election petition
5) Whether the discrepancy in Form 17 and Form 20 would vitiate the election of the 1st respondent as pleaded by the election petitioner, in the event of the earlier issue being decided in favour of the petitioner
6) If the issues in 3 and 5 are held in the affirmative, whether the petitioner is entitled for the relief for setting aside the election of the 1st respondent without seeking such a consequential relief
7) Whether the election petitioner was entitled for relief of recounting of votes on the grounds pleaded by him in the election petition.
7. The petitioner herein, examined himself as P.W.1 and marked Exs.P.1 to P.17. The marking of Exhibits P.6 and P8 to P17 were objected on the ground that Ex.P6 is a photo copy and cannot be marked as primary evidence, Exs.P.8 to P.17 are unattested photo copies and cannot be marked as primary evidence without a proper endorsement that they are true copies. The same were marked subject to objection. No other witnesses were examined by the petitioner. After cross examination of P.W.1 and closure of the evidence of the petitioner, the 1st respondent reported that he was not examining any witnesses. None of the other parties to the Election Petition have participated in the trial nor sought any opportunity of cross examination of P.W.1 nor sought to examine themselves or any other witnesses.
8. Sri V.R.N. Prasanth, learned counsel for the petitioner, at the outset of his arguments, had submitted that the petitioner was not pressing ground Nos. 2 and 3. In view of this submission, issues 2 and 3 do not arise for consideration.
ISSUE NO.1: "Whether the rejection of postal ballots by the Returning Officer, on the ground of non-compliance of Rule 54 of the Conduct of Election Rules, 1961, is invalid and liable to be set aside"
9. Sri V.R.N. Prasanth, contends that postal ballots are given along with three covers which are being referred to as Form-13A, Form-13B and Form-13C. A declaration is also given, in Form 13 A, along with the postal ballots. The voter exercising his franchise through a postal ballot, is expected to make the necessary marking on the postal ballot and keep the same in the cover marked as Form-13B. The voter is also required to make a declaration, in form 13 A, which is to be attested/certified by an appropriate authority. This declaration is to be kept in the cover marked as Form-13A. These two covers are to be kept in a cover marked as Form-13C. The manner in which these postal ballots are to be validated and counted are set out in the Rules as well as the instructions/guidelines given to the Returning Officer in the hand book for Returning Officer, issued in February, 2019. The Rules as well as the guidelines state that Form- 13C will be opened first and the two covers namely, Form-13A and Form-13B are to be taken out at the time of counting of all the votes polled in the election. Thereafter, the declaration in Form-13A is to be taken out and checked if it is in accordance with the Rules including the signature by the elector as well as due attestation by an officer competent to do so. If the declaration is not found to be in order, the cover-B, in Form-13B will not be opened and the postal ballot will stand rejected. If the declaration is found to be in order, the serial number of the ballot paper in the declaration in Form-13A is compared with the serial number endorsed on the cover in which form 13B has been placed. If there is no discrepancy between the said numbers on Form-13A and Form-13B, the Form-13B cover would be opened for taking the postal ballot into account and for further verification of the validity of the postal ballot. However, in the event of a discrepancy between the serial number of the ballot paper inscribed on the cover in which form-13B is enclosed and the serial number of the ballot paper appearing as declaration in Form 13B, the cover containing Form-13B postal ballot will not be opened and the postal ballot will stand rejected.
10. Sri V.R.N. Prasanth would contend that the aforesaid 9,782 postal ballots were rejected on the ground that the cover in which the postal ballot paper in Form-13B was placed did not have any serial number inscribed on the cover. He would contend that such rejection is invalid in as much as the circular issued by the Election Commission of India dated 04.10.2016 required the staff of the Returning Officer to fill up the ballot paper numbers before sending the postal ballot papers to the elector. He would submit that in such circumstances, the non filling of the serial number of the ballot paper on the cover containing Form-13B is the fault of the staff of the Returning Officer and as such, the covers should have been opened and the ballots should have been counted.
11. Sri B. Adinarayana Rao, learned Senior Counsel appearing for Sri M. Balaji, learned counsel for respondent No. 1 would submit that the Rules are very clear in this regard and require rejection of the postal ballots as the absence of any serial number of the paper ballot, contained in Form-13B cover would automatically mean there is a discrepancy between whatever number was available on the Form-13A declaration. He would further submit that a closer look at the circular relied upon by the petitioner, would show that even the circular specifically stipulates that any discrepancy between the serial number of the ballot paper on Form-13B cover and the serial number of the ballot in Form-13A declaration would result in invalidation of the postal ballot.
Consideration of the Court:
12. The Rules relating to the manner in which postal ballots are to be issued and counted are contained in Rules 23, 24, 27E and Rule 54-A of the Rules. Apart from this, certain instructions issued to the Returning Officer, as contained in the hand book for Returning Officer, issued in February 2019 would be relevant. Instruction 11.12 and instruction 15.15 are relevant for the purpose of this case. Rule 23 states that a postal ballot paper is given to the elector together with a declaration in Form-13A, a cover in Form-13B, a large cover addressed to the Returning Officer in Form-13C and instructions to the elector in Form-13D. The elector, who chooses to exercise his franchise, after receipt of these forms and covers shall record his vote on the ballot paper, in accordance with the directions contained in Form-13D and enclose it in a cover marked as Form-13B. The elector shall also sign a declaration in Form 13A, in the presence of the appropriate authority set out in Rule 24(2) and the same would be attested by the said authority. Rule 27 E and Rule 27 F prescribed the same procedure for notified electoral personnel.
13. Rule 54-A sets out the procedure to be followed for counting of votes received by post. Rule 54-A (4), which is extracted below, is relevant for our purposes.
Rule 54A:
"(4) If the said declaration is not found, or has not been duly signed and attested, or is otherwise substantially defective, or if the serial number of the ballot paper as entered in it differs from the serial number endorsed on the cover in Form 13B, that cover shall not be opened, and after making an appropriate endorsement thereon, the returning officer shall reject the ballot paper therein contained.
Instructions 15.15.4.14 reiterates Rule 54-A (4)."
14. Ex.P3 is the representation of the petitioner, on 23.05.2019 protesting the rejection of the postal ballots. This protest was rejected by the Returning Officer by an endorsement on Ex.P3. This endorsement has been marked separately as Ex.P4. The endorsement records that the postal ballots could not be accepted as they did not have any serial number of the postal ballot on the Form-13B cover.
15. In view of Rules 23, 24, 27E and Rule 54-A of the Rules and the instructions contained in the hand book of Returning Officer, the rejection of the postal ballots is in accord with the aforesaid Rules.
16. It is the contention of the petitioner that the Circular No. 52/ECI/LET/FUNC/JUD/SDR/2016 issued by the Election Commission of India dated 04.10.2016 casts the duty of filling up of ballot paper number on the staff of the Returning Officer and as such, the postal ballots could not have been rejected. Paragraph Nos. 3 & 4 of the circular, which are extracted below are instructed.
"3. On the aforesaid smaller envelope (Form 13 B), there is a column to write the serial number of the ballot paper. There are cases where this column is not filled up and as a result, the ballot contained in such envelop gets rejected at the time of counting of votes.
4. In order to ensure that the ballot papers do not get rejected on this ground, the Commission has directed that the aforesaid column, for writing the serial number of ballot paper in Form 13B, shall be filled up by the returning Officer's staff itself before sending the postal ballot paper to the elector. The staff entrusted with this duty should be instructed to be very careful while filling up the serial number so that the serial number is entered correctly. In the case of polling staff voting in facilitation centre, they should be asked to make sure that the serial number of ballot paper is duly entered (on Form 13 B), so that rejection of ballot paper on this ground is avoided."
17. Paragraph No. 3 of the circular further elucidates that non mentioning of the serial number of the ballot paper on the Form-13B cover would amount to creation of a discrepancy between the serial number of the ballot paper given in the declaration in Form 13A and the ballot paper number that should have been recorded on the Form 13B cover. Paragraph No. 4 also states that such discrepancy would result in rejection of the ballot papers. The said circular only strengthens the contention of the 1st respondent and does not assist the petitioner in any manner.
18. Accordingly, this issue is answered against the petitioner and in favour of the 1st respondent.
ISSUES 4 to 7:
19. These issues are dependent on the question of whether the said discrepancies in the statistics set out in part-I of Form 17C and part-II of Form 17C have been demonstrated by the petitioner and such discrepancies require the setting aside of the election of the 1st respondent.
20. Sri V.R.N. Prasanth, learned counsel for the petitioner would contend that the petitioner, had pleaded the details of fabrication and discrepancies in part-I of Form 17C and part-II of Form 17 C, in paras 24 to 26 of the Election Petition and had further detailed and explained the discrepancies along with elaborate tables in paragraph No. 25 of the affidavit filed in lieu of chief examination of P.W.1. He has taken this Court through various forms which have been marked as Exs.P.11 to P.17 in both part-I and part-II of the Form 17C as well as in Form 20 to contend that the variation in these records show a variation of 10,959 votes which are more than the difference of 4,205 votes with which the 1st respondent had been declared as a returned candidate.
21. Sri V.R.N. Prasanth, after taking this Court through the record, relied upon the Judgments of K M. Shradha Devi vs. Krishna Chandra Pant and Ors, (1982) 3 SCC 389 (2) A.C. Jose vs. Sivan Pillai and Ors., (1984) 2 SCC 652 M. Chandregouda vs. J. Shantha 2012 SCC Online Kar 8572 and Ashwani Kumar Sharma vs. Yaduvansh Singh and Ors., (1998) 1 SCC 416 to contend that once an error is shown in the conduct of election, and especially in terms of counting of votes, there has to be a recount of votes and further elaborate proof of all errors is not needed.
22. Sri B. Adinarayana Rao, the learned Senior Counsel appearing for Sri M. Balaji, learned counsel for respondent No. 1 would submit that the pleadings in the election petition had pointed out discrepancies only in relation to two polling stations in detail. He would submit that there are no specific allegations in relation to any of the alleged discrepancies in Form 27C part-I and part-II. He would submit that a bald allegation that there are discrepancies and dumping of all Forms-27C certificates without any further elaboration would not amount to necessary pleadings and statement of material particulars required under Section 83 of the Representation of the Peoples Act. He relies upon the Judgments in Samant N. Balakrishna and another vs George Fernandez and others 1969 3 SCC Page 238 (para 29), Kalyan Singh Chouhan vs C.P. Joshi (2011) 11 SCC 786 and Arikala Narasa Reddy vs. Venkata Ram Reddy Reddygari and Another (2014) 5 SCC 312.
23. Sri B. Adinarayana Rao, the learned Senior Counsel submits that the 17 C forms produced by the petitioner are not certified copies, as required under Section 65 of the Evidence Act read with Section 74 and 77 of the Evidence Act. He would further submit that the contention of the petitioner that these are documents obtained under the R.T.I. Act would not assist the petitioner in getting the said documents marked as proper exhibits. In such circumstances, these cannot be looked into and would have to be eschewed. He would rely upon Section 2(f) of the R.T.I Act and Rule 93 of the Election Rules, to contend that Form 17C produced by the petitioners are not certified copies which can be marked as exhibits. He also relies upon the judgment of Chief Information Commissioner vs. High Court of Gujarat and Another (2020) 4 SCC 702.
24. Sri B. Adinarayana Rao, the learned Senior Counsel would submit that the documents referred to in paragraph 25 of the Election Petition relate to alleged fabrication of records for polling stations No. 102 and 103 situated in the Zilla Parishad High School, Etukuru. The discrepancies pointed out in relation to these polling station is that the part-I of Form 17C register recorded for polling station No. 102 and part-I of Form-17C register recorded for polling station No. 103 are one and the same with no difference except that the number of the polling station has been corrected from 102 to 103 in the 2nd form. However, no polling officer or agent has been examined as to the circumstances in which the same presiding officer is said to have signed both forms in relation to these polling stations. He would submit that there can be various circumstances due to which one presiding officer may have been allotted to both the polling stations especially as they were both situated in the same premises. He would submit that in the absence of any further elucidation in relation to these two polling stations nothing further can be made out on account of this issue.
25. Prior to the reply given by Sri V.R.N. Prasanth, Sri Balaji Medamalli, appearing for the 1st respondent, had also drawn the attention of this court to the Form 20 prepared by the Returning Officer which showed that the petitioner had got 242 votes in polling station No. 102 while the 1st respondent had only got 155 votes and that in polling station No. 103 the petitioner had polled 76 votes, while the 1st respondent had polled 87 votes. He would submit that the voting in these two polling stations was in favour of the petitioner and no advantage accrued to the 1st respondent on account of any alleged fabrication of Form 17C, in either of these polling stations.
26. Sri V.R.N. Prasanth, in reply to the aforesaid contentions submits that all the Form 17, marked by P.W.1 had been filed along with the Election Petition and specific pleadings in relation to these Form 17C had been set out in para No. 24 of the Election Petition. He would submit that such mention in para No. 24 fulfils all the requirement of necessary pleadings under Section 83 of the Act. He would further submit that the 1st respondent was fully aware of all the documents relied upon by the petitioner and was not taken by surprise to contend that such documents cannot be taken into account or that they cannot be marked. He would further contend that the 1st respondent had not disputed the genuineness of these forms and cannot now seek to challenge the consequences of these documents by contending that they are not admissible in evidence. He would also rely upon the Judgments in Dahiben vs Arvindbhai Kalyanji Bhanusali (2020) 7 SCC 366 (para 23.8) and Shri Balwan Singh vs. Lakshmi Narain(1982) 3 SCC 389 (2) to contend that all documents filed with the plaint would have to be treated to be the part of the plaint and as such would amount to pleadings by themselves. He would also contend that relying upon R.M. Seshadri vs. G. Vasantha Pai (1969) 1 SCC 27 that the 1st respondent was aware of the forms and the question of the authenticity of documents would not arise.
Consideration of the Court:
27. The question whether the petitioner has been able to demonstrate various discrepancies between the different forms would be dependant upon whether such documents are held to be admissible and proved. Sri B. Adinarayana Rao raises two objections on this. He contends that the documents are inadmissible as necessary pleadings have not been set out and secondly, the documents cannot be admitted as they are not primary or secondary evidence under the provisions of the Evidence Act,
28. It is settled law, that there can be no evidence without pleading. This requires a decision as to whether necessary facts, for the purposes of marking and considering the 17C forms, have been pleaded.
29. The pleadings, in the election petition, in this regard, are contained in paras 24 to 27. Paragraph 25 and 26 contain specific pleadings relating to discrepancies in polling station 06, in Tadikonda assembly constituency and polling stations 102 and 103 in Prathipadu Constituency. The remaining paragraphs 24 and 27 read as follows:
"24. I submit that in addition to above, on the basis Form 17C duly completed by counting supervisor, Returning Officer will get prepared a round wise statement in the following proforma. A copy of the detailed polling station-wise breakup of the votes as shown in the said proforma will be kept by the Observer in his folder. In addition, on the computer installed in the Counting Hall here parallel tabulation work will be done in an Excel Sheet to counter check any human error. This date entry will also be done polling station wise and Round wise. Even though computer tabulation will not substitute the manual tabulation being done for obtaining final result of the counting of votes, the Computer based parallel tabulation/totalling will be helpful as a double check on the accuracy of manual tabulation. The said date shall be entered in the excel sheet in the computer and a print out of the same shall be taken out and compared by the observer and also be signed by the officer. Both Returning Officer and the Observer should be satisfied after due checking that the number of votes posted against the name of leach candidate in respect of every counting table tally with the figures as shown in Part-II of Form 17C (result of counting) pertaining to that counting table. Then it should be signed by Returning Officer and Observer. Thereafter Returning Officer should announce the result of that round loudly or using loudspeaker for every body's information. The total etc. Done manually may be tallied by entering all the counting date in an Excel sheet and computing the total.
27. It is respectfully submitted that in respect of Mandadam Village of Tadikonda Constituency, which falls under Guntur Parliament Constituency, at Polling Station No. 06, the Presiding Officer, in Form 17 C, justifies the difference between Column No. 1, 2 and 6 by stating that mistake 5 voters have left without voting. This is not possible for the reason that once the slip is given for voting, the EVM opens up for casting the vote and only when the vote is cast, the EVM would be ready for the next voter. As such, 5 voters leaving by mistake does not arise."
30. Section 83 of the Act, which is relevant, reads as follows:
"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 alleges 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."
31. The present petition is not on the basis of any corrupt practices, alleged against the 1st respondent. Therefore, the pleadings in the petition would have to meet the requirement of section 83 (1) (a) of the Act. The Hon'ble Supreme Court, while dealing with the scope of this section, in Samant N. Balakrishna and another vs George Fernandez and others 1969 3 SCC Page 238 (para 29), had held as follows:
"29. Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of Peoples Act. Here we have to consider Sections 81, 83 and 84 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101. That as we have shown above creates the substantive right. Section 83 then provides that the 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 petitioner alleges 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. The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and particulars The word "material" shows that the facts necessary to formulate a complete 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 picture 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. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficiency of the words "material facts" will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be co-related to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture. This distinction is brought out by the provisions of Section 86 although the penalty of dismissal is taken away. Sub-section (5) of that section provides:
"(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."
The power of amendment is given in respect of particulars but there is a prohibition against an amendment "which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition." One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice. The argument that the latter part of the fifth sub-section is directory only cannot stand in view of the contract in the language of the two parts. The first part is enabling and the second part creates a positive bar. Therefore, if a corrupt practice is not alleged, the particulars cannot be supplied. There is, however, a difference of approach between the several corrupt practices. If for example the charge is bribery of voters and the particulars give a few instances, other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified. But if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa. In the scheme of election law there are separate corrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause of action, publication of false statements by the candidate is quite a different cause of action. Such a cause of action must be alleged in the material facts before particulars may be given. One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action.
32. This principle was further elaborated in Kalyan Singh Chouhan v. C.P. Joshi, (2011) 11 SCC 786 : (2011) 4 SCC (Civil) 656 at page which held as follows:
"17. During the trial of an election petition, it is not permissible for the court to permit a party to seek a roving enquiry. The party must plead the material fact and adduce evidence to substantiate the same so that the court may proceed to adjudicate upon that issue. Before the court permits the recounting, the following conditions must be satisfied:
(i) The court must be satisfied that a prima facie case is established;
(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;
(iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes;
(iv) An opportunity should be given to file objection; and
(v) Secrecy of the ballot requires to be guarded.
[Vide Jagjit Singh (Dr.) vs. Giani Kartar Singh AIR 1966 SC 773, Suresh Prasad Yadav vs. Jai Prakash Mishra (1975) 4 SCC 822: AIR 1975 SC 376, M.Chinnasamy vs. K.C.Palanisamy (2004) 6 SCC 341 : AIR 2004 SC 541, Chandrika Prasad Yadav vs. State of Bihar (2004) 6 SCC 331 : AIR 2004 SC 2036, Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan (2006) 2 SCC 300 : AIR 2006 SC 1218, Gursewak Singh vs. Avtar Singh (2006) 4 SCC 542 : AIR 2006 SC 1791 and Baldev Singh vs. Shinder Pal Singh (2007) 1 SCC 341]
18. In Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, (1995) 5 SCC 347: AIR 1995 SC 2284 this Court held that the court cannot consider any fact which is beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality the result of the election has been materially affected.
19. Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide Sri Mahant Govind Rao v. Sita Ram Kesho [(1897-98) 25 IA 195], Trojan & Co. v. Nagappa Chettiar AIR 1953 SC 235, Raruha Singh v. Achal Singh AIR 1961 SC 1097, Om Prakash Gupta v. Ranbir B. Goyal (2002) 2 SCC 256 : AIR 2002 SC 665, Ishwar Dutt v. Collector (L.A.)(2005) 7 SCC 190 : AIR 2005 SC 3165 and State of Maharashtra v. Hindustan Construction Co. Ltd. (2010) 4 SCC 518 : (2010) 2 SCC (Civ) 207)
20. This Court in Ram Sarup Gupta v. Bishun Narain Inter College (1987) 2 SCC 555 : AIR 1987 SC 1242 held as under: (SCC pp. 562-63, para 6)
"6. ... It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. ... In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question."
33. These judgments are to the effect that, the details of how the 17C forms produced by the petitioner reveal discrepancies, which would affect the outcome of the election have to be pleaded. Except in the case of about 3 17C forms, no details of the discrepancies in the other forms have been given. In the absence of these details, omnibus allegations of improper form 17C would not answer the requirement of furnishing material particulars, under section 83 of the Act. Even if the contention of the petitioner that the documents filed along with the plaint or petition, have to be treated as part of pleadings, the same would still not answer the requirement of setting out material particulars, detailing how the 17C forms are not in proper order or how such discrepancies, available in the forms would vitiate the election.
34. In view of the above, the 17C forms marked as exhibits P.11 to P.17 would have to be eschewed. In the circumstances, there would not be any further need to go into the question of whether these documents are to be treated as certified copies which are admissible as evidence as opposed to true copies which, the learned senior counsel contends, cannot be admitted in evidence, as secondary evidence.
35. This would only leave the forms relating to polling stations 6, 102 and 103. The discrepancies pointed out in these forms have not resulted in any damage to the interests of the petitioner. In fact, the petitioner had obtained more votes in these polling stations. Further, none of the appropriate persons who can speak about these documents had been examined and the evidentiary value of these documents is highly doubtful. In any event, it would not be possible to extrapolate these discrepancies, claimed by the petitioner, to the entire counting process, so as to vitiate the entire election.
36. For all the aforesaid reasons, this Election Petition must fail and is accordingly dismissed without costs.
37. As a sequel, pending miscellaneous petitions, if any, shall stand closed.
