ORDER
B.D. Singh, J.
1. This application under Articles 226 and 227 of the Constitution of India by the sole petitioner. Ram Narayan Yadav, is directed against the order dated the 31st March, 1971, passed by the Election Tribunal (respondent No. 3) (Annexure ‘2’) setting aside the petitioner’s election as Mukhiya of Nanaura Gram Panchayat and declaring Garib Yadava, respondent No. 1, as duly elected Mukhiya of the said Panchayat in place of the petitioner.
2. The petitioner along with respondent No, 1, and three persons had filed their nomination papers on the 2nd June, 1969, for election of the Mukhiya of the said Panchayat. Subsequently, the other three candidates withdrew their nomination. Therefore, the petitioner and respondent No. 1 alone were left in the field for contest for the post of Mukhiya. According to the programme the polling for the election was held on the 30th October, 1969. The petitioner secured 838 votes while respondent No. 1 secured 781 votes. Therefore, the petitioner was declared elected as mukhiya by a margin of 57 votes on the same date. On the 29th November, 1969, respondent No. 1 under Rule 72 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as ‘the Rules’) filed an election petition (Annexure ‘1’) before respondent No. 3 against the election of the petitioner within thirty days from the date of result of the election. Since the affidavit of the said petition was not in proper form respondent No. 1 swore another affidavit and filed the same on the 3rd March, 1970.
The main grounds for setting aside the election of the petitioner are alleged in paragraph 4 of the election petition. Respondent No. 1 alleged that at booth Nos. 49 and 50 votes were cast on false impersonation in the names of dead and absentee voters. Further voters were brought at the booth on
hired bullock-carts by the petitioner. Location of booth No. 51 was changed just before the date of election due to which large number of voters of respondent No. 1 could not cast their votes in confusion. Respondent No. 1 further stated therein that inspection and scrutiny of ballot papers of booth Nos. 49 and 50 would reveal that votes of dead and absentee voters had been cast on those two booths in favour of the petitioner. On the 12th September, 1970, respondent No. 1 filed an application before respondent No. 3 for an order for inspection and scrutiny of the ballot papers — vide Annexure D to the counter affidavit filed on behalf of respondent No, 1.
This application was objected by the petitioner in his petition dated the 16th September, 1970, Annexure E of the aforesaid counter-affidavit. However, by order dated 26th March, 1971, and 27th March, 1971, respondent No. 3 inspected the ballot papers, scrutinised and recounted them. On recounting he found that respondent No. 1 had secured 780 votes whereas the petitioner had secured only 773 votes. Thus, respondent No. 1 had in fact secured 7 votes more than the petitioner and thereafter he passed the impugned order. As mentioned above, the petitioner, aggrieved by the said order, has come up to this Court impleading Garib Yadav, Election Officer (B.D. O.) Keoti Ranway, Election Tribunal, District Magistrate, and Director, Gram Panchayat, as respondents 1 to 5 respectively, and obtained the rule. By order dated the 10th May. 1971, the operation of the order dated the 31st March, 1971, passed by respondent No. 3, was stayed till the decision of this case.
3. On receipt of notice, respondent No. 1 appeared and filed counter affidavit dated the 28th June, 1971.
4. Mr. K. P. Verma, learned Counsel appearing on behalf of the petitioner, has challenged the impugned order chiefly on two grounds, namely, (i) respondent No. 3 erred in not dismissing the election petition of respondent No. 1 summarily under Rule 77, since the election petition was not duly verified and was contrary to the mandatory provisions contained in Rule 75 of the Rules; and (ii) he further erred in allowing inspection and recounting of the ballot papers without any material on the record justifying his order, wherein he ignored the well-established principle regarding the importance of the secrecy of the ballot papers.
5. I will consider these two points In the order in which they have been urged. The relevant provisions
regarding the verification and the contents of the election petition is to be found under Rule 75 of the rules which reads as:–
“(1) An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall, where necessary, be divided into paragraphs numbered consecutively. It shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings.
(2) (a) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full statement as possible as to the names of the parties alleged to have committed any corrupt or illegal practice and the date and place of the commission of each such practice.
(b) The election. Tribunal may, upon such terms as to costs and otherwise as it may direct, at any time, allow the particulars included in the said list to be amended or order such further and better particulars in regard to any matter referred to therein to be furnished as may, in its opinion, be necessary for the purpose of ensuring a fair and effectual trial of the petition:
Provided that the Election Tribunal shall not by means of any such amendment allow particulars to be furnished of any corrupt or illegal practice other than a corrupt or illegal practice set forth in the list furnished by the petitioner under Clause (a).”
The provisions for verification of pleadings in the Code of Civil Procedure (hereinafter referred to as ‘the Code’) is to be found in Order VI, Rule 15 of the Code, after substituting clause (1) of Rule 15 according to the amendment made by this Court. It reads as:–
“(1) Save as otherwise provided by any law for the time being in force, the facts stated in every pleading shall be verified by solemn affirmation or on oath of the party or of any of the parties pleading or of some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, before any officer empowered to administer oath under Section 139 of the Code.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.”
6. Rule 77 lays down amongst other that if there is any failure to comply with the provisions of Sub-rule (1) and Clause (a) of Sub-rule (2) of Rule 75, the Election Tribunal shall summarily dismiss the election petition.
7. It is firmly established by a series of decisions of this Court that the provisions under Rules 75 and 77 are mandatory. If there is failure to comply with the provisions of Sub-rule (1) and Clause (a) of Sub-rule (2) of Rule 75, the Tribunal is bound to dismiss the election petition summarily after giving an opportunity to the petitioner to be heard as laid down under proviso to Rule 77. In this connection learned Counsel for the petitioner relied on the case of Satyanand Singh v. Bujhlal Singh, 1967 BLJR 439 where Narasimham C. J. and A. B. N. Sinha, J. (as they then were) while construing Rules 75 and 77 of the Rules, held that no discretion seems to have been left with the Election Tribunal where there is non-compliance with the provision of Rule 75 (1) and (2) (a). The Election Tribunal ought to dismiss the election petition summarily under Rule 77 of the Rules for non-verification of the petition and the list as required by law. He also referred to unreported judgment disposed of by U. N. Sinha, J. (now Chief Justice of this Court) on 19-12-1966 in the case of Upendra Jha v. Kinu Khan (C. W. J. C. 28 of 1965 (Pat)) where his Lordship held in paragraph 4 of the judgment that although the elected Mukhia had not taken any preliminary objection, challenging the verification of the election petition, nevertheless, on the election petition, as it stood, the election petition ought to have been summarily dismissed. It was the duty of the Election Tribunal to summarily dismiss the election petition for non-compliance of the requirements of Rule 75 (1).
8. Reliance was also placed on unreported judgment delivered by G. N. Prasad, J., on 7-2-1967 in the case of Kusum Lal Yadav v. Sihip Lal Yadav (C. W. J. C. No. 549 of 1966 (Pat)) who after reviewing the various decisions including those referred to above, came to the same conclusion. He further observed in paragraph 10 of the judgment : “So far as the Representation of the People Act is concerned, it is now well settled that the provision as to verification of the election petition is directory and not mandatory. Therefore, it must follow as a necessary corollary that the Election Tribunal has power to allow appropriate amendment in the verification. The same principle cannot be engrafted upon Rules 75 and 77 of the present Rules, because the
view which has consistently been held in this Court is that Rule 77 is mandatory, and not merely directory, and the failure to comply with the provisions of Rule 75 must necessarily have the consequence of summary dismissal of the election case.”
9. In the case of Phani Bhusan Singh v. The Election Tribunal, Dhanbad (C. W. J. C. 98 of 1971 (Pat)) delivered on 28-6-1971, I had also an opportunity of construing the provisions contained under Rules 75 and 77 of the Rules, and relying on the decisions referred to above, I also came to the same conclusion in my judgment. In Phani Bhusan Singh’s case I had further observed that reading Rules 75 and 77 together, the intention of the rule-making authority was clear that if the election petition was not verified in accordance with the provisions contained under Rule 75 read with Order VI, Rule 15 of the Code, no discretion is left with the Tribunal, he is duty bound to dismiss the election petition summarily. On this point the provisions contained under the Representation of the People Act are not pari materia with the provisions contained under Rules 75 and 77 of the Rules. No question of substantial compliance of verification in the election petition arises under these rules. In Phani Bhusan Singh’s case I further observed that it may prima facie appear as harsh to dismiss an election petition on the ground of mere technicality, but in reality it is not so, since it is grounded on certain principle of law. In the case of Jagan Nath v. Jaswant Singh, AIR 1954 SC 210. Mahajan, C. J. who delivered the judgment for the Court, observed at page 212: “The general rule is well settled that the statutory requirements of election law must be strictly observed, and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the, common law and that the court possesses no common law power. It is also well settled it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference, must strictly conform to the requirements of the law … … …”
10. Mr. Balbhadra Prasad Singh, learned Counsel appearing on behalf of the respondent No. 1 has not challenged the correctness of the various decisions referred to above, but he vehemently contended that the application of the petitioner under Articles 226 and 227 of the Constitution of India should be summarily dismissed on the simple ground that the petitioner had not annexed the true copy of the election petition which was filed by respondent No. 1 under Annexure ‘1’. He urged that in Annexure ‘1’ the petitioner had omitted several portions of the petition which was filed by respondent No. 1, and has substituted some portions which are not to be found in the original. He referred to paragraph 3 of the petition wherein it is stated that the true copy of the election petition was enclosed as Annexure ‘1’. In paragraph 4 the petitioner stated that the election petition was neither on solemn affirmation nor on affidavit and it was not stated as to where the verification was made and it was also not stated as to which paragraphs were true to knowledge and which were based on informations believed to be true. In paragraph 5 he further stated that the election petition was fit to be dismissed, because there was no verification at all as regards the list of particulars of the corrupt practices.
11. Mr. Singh pointed out that In Annexure ‘1’ after the relief portion contained under paragraph 6, the petitioner deliberately left out the verification which reads as:–
“I, Garib Yadava, son of Ranglal Yadava resident of village Nanaura do hereby affirm that the statements made in the petition are true to the best of my knowledge.”
Similarly, he left out the affidavit portion which reads as noted below and which is dated 29-11-1969:–
“I, Garib Yadava son of Ranglal Yadava resident of village Nanaura, Police station Keoti Ranway, district Darbhanga aged about 42 years do hereby solemnly affirm as follows:
1. That I am petitioner and am acquainted with the facts of the case.
2. That the statements made in paragraphs 1. 2, 3 and 5 are true to the best of my knowledge and those in paragraph (?) are true to the best of my belief.”
In the original application at the end of the list of dead and absentee voters there is following affidavit which has also been omitted in Annexure ‘1’:–
“I, Garib Yadava son of Ranglal Yadava of village Nanaura, police station Keoti Ranway district Darbhanga aged about 42 years do hereby solemnly affirm as follows :–
1. That I am petitioner and I know the facts of the case.
2. That the particulars given in this list are true to the best of my information.”
In the original application after the description of the corrupt practices contained under Schedule 2, there is another affidavit dated 29-11-1969 which reads as:–
“I Garib Yadava son of Ranglal Yadava resident of village Nanaura, police station Keoti Ranway district Darbhanga aged about 42 years do hereby solemnly affirm and say as follows:–
1. That I am petitioner in this case.
2. That the particulars given in this list are true to my knowledge." This also is omitted in Annexure T and instead verification is substituted which is to the following effect:-- "I do hereby verify that the contents of the above petition are true to the best of my knowledge and belief." 12. Mr. Singh also pointed out the affidavit which was filed before the Tribunal by respondent No. 1 on the 3rd March, 1970, and a true copy of which respondent No. 1 has marked as Annexure 'C' to the counter affidavit. It reads as :-- "I Garib Yadava son of Ranglal Yadava resident of village Nanaura. P. S. Keoti, district Darbhanga aged about 42 years do hereby solemnly affirm and declare as follows: 1. That I have filed the election petition No. 15 of 69 against Ram Nara-yan Yadava and others before the Election Tribunal, Darbhanga (Gram Panchayat) and I am acquainted with the facts of the case. 2. That the statements made in paragraphs 1, 2, 3, 4 (a), 4 (b), and 5 of the said petition are true to the best of my knowledge and those in 4 (c), 4 (e) and 4 (h) are true to the best of my information and those in paragraphs 4 (d), 4 (f) and 4 (g) are true to the best of my belief."
Mr. Singh urged that this affidavit also the petitioner had suppressed in his petition. He then referred to paragraph 4 of the counter affidavit wherein it was stated by respondent No. 1 that the statement made by the petitioner in paragraph 4 of the writ petition was false. In Annexure ‘1’ the petitioner had suppressed the facts relating to the verification and affidavit of the election petition by not annexing certain pages of it. Mr, Singh urged that although it was specifically pointed out to the petitioner that Annexure ‘1’ was not the true copy of the original petition, the petitioner did not take any step in the matter to undo the wrong committed by him which necessitated the respondent No. 1 for moving this Court for calling for the original records from the office of the Election Tribunal. After the same was received by this Court, the above supression of the material facts in Annexure ‘1’ was revealed. In the circumstances, he urged that the petitioner had deliberately suppressed
those material facts. Therefore, on that ground alone, the petitioner’s application deserves to be thrown out. In order to find support to his contention, he referred to the case of King v. General Commrs. for the purposes of the Income-tax Acts for the District of Kensington, (1917) 1 KBD 486, wherein Viscount Reading, C. J. observed at pages 495 and 496: “Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant’s affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.” Learned Counsel submitted that the above principle was also applied in the case of Ram Saran Sharma v. State of Bihar, 1958 BLJR 591 = (AIR 1958 Pat 181) in an application under Article 226 of the Constitution of India where Ramaswaml, C. J., and Raj Kishore Prasad, J. (as (they then were) held at page 592 in paragraph 4:–
“We do not, however, wish to go into the merits of this argument because we consider that the application must fail upon the ground that there Is suppression of material facts by the petitioner and the petitioner is not entitled to the grant of a writ. To put it differently, there is want of uberrima fides on the part of the petitioner, and the grant of a writ being in the nature of a discretionary relief cannot be given In this case. It was contended by the learned Government Advocate that there was a deception practised by the petitioner. It was pointed out that the licence was taken out by the petitioner on the 13th of August, 1956, though 13 days before the Commissioner had revoked his sanction. It was also pointed out that the licence was not actually signed by the District Magistrate but by the Second Officer, and it was stated by the learned Counsel for the opposite party that no order of the District Magistrate was issued granting licence to the petitioner. It was argued, therefore, that material facts have not been disclosed in the application and that the circumstances suggested that there was deception practised by the petitioner in obtaining the licence on the 13th of August, 1956, from the office of the District Magistrate. In our opinion, therefore, the conduct of the petitioner is not above board, and there has been suppression of material facts and such conduct disentitles the petitioner from obtaining relief by way of a writ under Article 226 of the Constitution. The matter has been put very clearly by the English Court of Appeal in 1917-1 KBD 486…………”
13. On the other hand, Mr. Verma appearing on behalf of the petitioner, submitted that the petitioner had annexed the copy of which the petitioner had received from respondent No. 1 after he had filed it before respondent No. 3. However, he conceded that the petitioner ought to have been careful and ought to have compared the same with the original petition. He regretted the mistake committed by him. As regards non-enclosure of affidavit dated the 3rd March. 1970, he urged that since it was filed beyond the period of limitation it was not at all material for the purpose of the consideration of this application before this Court. He further submitted that it was not deliberate on the part of the petitioner and he never practised deception on the Court. He also submitted that in the decisions referred to above, it is held that it is not necessary for the petitioner to raise objection regarding the verification. The Election Tribunal is bound to dismiss the application suo motu if he finds that the verification is not in accordance with law. Therefore, he urged that it is not a fit case for throwing out the application of the petitioner summarily merely on the grounds of those omissions of verification and affidavit in Annexure ‘1’ as pointed out by Mr. Singh.
14. In my view, the submission of Mr. Verma appears to be sound. In (1917) 1 KBD 486 (Supra) the relevant portion of which I have quoted earlier, clearly mentions that the rule of the Court requiring uberrima fides on the part of an applicant for an ex parte, should only be used in a case which bring conviction in the mind of the Court that it has been deceived. Before coining to the conclusion a careful examination of the facts is required. In the instant case it may further be noticed that the application is also under Article 227 of the Constitution of India, under which this Court is conferred power of superintendence over all Courts and Tribunals. If certain illegalities are brought to the notice of this Court under the impugned order (Annexure ‘2’) of the Election Tribunal respondent No. 3, this Court would not ignore it, and would not allow the illegalities to be perpetuated. It may further be observed that in 1958 BLJR 591 = (AIR 1958 Pat 181} (Supra) their Lordships were dealing with an application under Article 226 of the Constitution of India. The application before them, was also not under Article 227 of the Constitution of India. In that view, the observation of their Lordships in that case is not applicable to the instant case. It will suffice to give a warning to the petitioner to be careful in future while giving a true copy of the original while swearing an affidavit. With the above observation now I proceed to examine the submissions of the parties on merit.
15. Henceforward I will refer to the original election petition. The verification and the affidavit on the election petition affirmed on solemn affirmation by respondent No. 1 on the 29th November, 1969 which I have quoted earlier, are obviously not in accordance with provisions contained under Rule 75 of the Rules read with Order VI, Rule 15 of the Code. The relevant portion of the said affidavit read as:–
“That the statement made in paragraphs 1, 2, 3 and 5 are true to the best of my knowledge and those in paragraphs ……… are true to the best of my belief.”
Order VI, Rule 15 (2) of the Code requires that the person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. It may also be noticed that in the affidavit quoted above, it is not specified by reference to those numbered paragraphs which are true to the best of his belief. It is simply mentioned in the affidavit “and those in paragraphs are true to the best of my belief.” Which are those paragraphs, are not specified at all. In the affidavit there is further infirmity that therein it is not mentioned the place at which it was signed which is required under Order VI, Rule 15 (3) of the Code.
16. Mr. Singh, however, referred to the supplementary affidavit which was filed by respondent No. 1 on the 3rd March, 1970. No doubt, paragraph 2 of the said affidavit which I have quoted earlier a copy of which also has bees marked as Annexure ‘C’ to the counter affidavit, is in accordance with the requirements contemplated under Order VI, Rule 15 (2) of the Code. But it may be noticed that the same was filed beyond the limitation prescribed under Rule 72 of the Rules, which provides that an election petition against a returned candidate shall be presented to the Election Tribunal, within thirty days from the date of declaration of the result of the election. If the Tribunal had taken it into account, he has erred in doing so. Virtually it amounts to allowing amendment of the election petition, which was filed by respondent No. 1. On 29-11-1969. G. N. Prasad, J. in his Judgment in C. W. J. C. 549 of 1966 (Pat) which I have referred to earlier, has specifically laid down that the principle of appropriate amendment of verification which is permissible under the Representation of the People Act cannot be engrafted upon Rules 75 and 77 of the Rules. In that view, in my opinion, the Tribunal has committed an error in taking into consideration the affidavit which was filed on the 3rd of March, 1970. Even in this affidavit the place at which it was signed, is not mentioned which is required under Order VI, Rule 15 (3) of the Code. In that circumstance, in my opinion, the Election Tribunal ought to have dismissed the election petition summarily under Rule 77 of the Rules.
17. Now I advert to the consideration, as to whether it was a fit case in which the Tribunal would have allowed inspection and re-counting of the ballot papers. In the past a Division Bench of this Court constituted by Untwalia and S. N. P. Singh. JJ. in the case of Maksudan Ram v. Kamla Prasad, AIR 1967 Pat 305 had held that the Election Tribunal had no power to order inspection or re-counting of the ballot papers in the Gram Panchayat election under Rules 82, 86 and 87 of the Rules. The judgment of their Lordships was, however, overruled by a Full Bench of this Court in the case of Rasik Lal Yadav v. Bhola Prasad Mandal, AIR 1971 Pat 10 (FB) wherein it was held that “it is true that the rules do not specifically provide for a scrutiny and a re-count of the ballot papers at the stage of an election petition but on that ground alone, it would not be legitimate to hold that the Election Tribunal has absolutely no power to scrutinise or re-count the ballot
papers relating to the election which is under challenge before it Rule 87 appears to me to be sufficient to invest the Tribunal with the necessary powers relating to the scrutiny and re-count of the ballot papers.” In that view, now it cannot be challenged that a Tribunal has no power to order inspection and re-counting of ballot papers in an appropriate case. Mr. Singh submitted that in the instant case respondent No. 1 had made out a clear case for the order of inspection and re-counting of ballot papers, and the Tribunal had correctly allowed inspection and recounting of the ballot papers. He referred to sub-paragraph G of paragraph 4 of the election petition, wherein it is stated that on inspection and scrutiny of the ballots of booth Nos. 49 and 50, it would be clear that the votes of the dead and absentee voters had been cast at booth Nos. 49 and 50 in favour of petitioner (who was respondent No. 1, before the Tribunal). He then drew my attention to the petition dated the 12th September, 1970 (Annexure ‘D’ to the counter Affidavit) which respondent No. 1 had filed before the Tribunal for an order of inspection and scrutiny of ballot papers. In the petition inter alia it is stated that the petitioner had obtained votes of dead and absentee persons by corrupt practices and present respondent No. 1 would have secured majority of votes. The petition further mentions that in the election petition the prayer was already made for inspection and scrutiny of the ballot papers and that a large number of bogus votes in respect of dead persons were polled at the booths and the list of the dead persons in respect of whom bogus votes were cast, have been given in the election petition. Therefore, it was submitted that it was just and proper that the ballot papers, which the petitioner had received as well as the rejected ballot papers be inspected and scrutinised.
18. This petition was objected to by the petitioner by his petition dated the 16th September, 1970 (Annexure ‘E’ to the counter affidavit) wherein it is stated that respondent No. 1 was not entitled to inspection, unless some evidence was adduced. It was further mentioned therein that the other grounds were mentioned in the election petition, and unless they were waived inspection could be allowed (sic). This petition was replied by respondent No. 1 by petition dated the 28th January, 1971 (Annexure ‘F’ to the counter affidavit) wherein inter alia it was stated that respondent No. 1 had waived other grounds regarding corrupt and illegal practices, and also did not want to lead evidence
on those points, and further reiterated his prayer for inspection, scrutiny and re-counting of the ballot papers for booth Nos. 49 and 50. In the circumstance, it is urged that the petitioner himself had conceded that the inspection may be allowed if respondent No. 1 had waived other grounds. In my opinion, that does not mean that the petitioner had conceded to the inspection of ballot papers. On the other hand from paragraph 3 of the petition dated the 16th September, 1970, it is clear that his view was that the inspection was not permissible at all as laid down in 1967 BLJR 439 (Supra). Simply by that petition the petitioner meant that only after respondent No. 1 had waived other grounds the application of respondent No. 1 regarding inspection of ballot papers, if at all was maintainable. Learned Counsel for respondent No. 1, however, referred to order sheet of the Election Tribunal dated the 15th December, 1970. In my opinion, that also does not help the contention advanced on behalf of the respondents as therein also it is mentioned that a rejoinder was filed objecting to the re-counting of the ballot papers. Reference was also made to ordersheet dated the 13th February, 1971 wherein it is mentioned that respondent No. 1 is present. A petition for time was filed on behalf of the petitioner on the ground of illness. No medical certificate was filed in support of his illness. In the ordersheet it is also mentioned that it appeared that the petitioner was evading appearance to delay the disposal of the case. Put up on 11-3-1971 for inspection and scrutiny of the ballot papers. The rejoinder petition filed by the petitioner had no merit and hence it was rejected. It further appears from ordersheet dated the 20th March, 1971 that the petitioner again prayed for time on the ground of illness from small-pox without any medical certificate. He had taken a number of dates on the plea of illness. It appeared that he was evading to appear before the court at the time of scrutiny and counting of ballot papers. The Tribunal further ordered that in that circumstance, the scrutiny, counting and re-counting of the ballot papers would be done ex parte in case he did not appear on the 26th March, 1971. On that date both parties were present and, therefore, their lawyers were also present. In their presence the ballot papers of the said two booths were scrutinised. Similarly on the 27th March, 1971 the scrutiny and re-counting of the remaining booths were done in presence of the parties, and finally the impugned order was passed.
19. Mr. Singh referred to the impugned order the relevant portion of which reads as :
“Finding convincing evidence of the petitioner (respondent No. 1 in this Court) on the point of counting the ballot packets were called for from Block Development Officer Keoti Block and the ballots of four packets were scrutinised and counted in the presence of parties and their lawyers ………”
He also pointed out that from the order sheet, referred to above, it was clear that the petitioner, who was respondent before the Tribunal, was evading appearance in order to delay the disposal of the case. In that circumstance he urged that the Election Tribunal was satisfied that complete justice could not be done between the parties unless recount was held. On the other hand, Mr. Verma submitted that an order for inspection of ballot papers could not be justified unless two conditions are satisfied, namely, (i) the election petition contains an adequate statement of material facts upon which the petitioner relies in support of his case and (ii) the Court is prima facie statisfied that in order to decide the dispute and to do complete justice between the parties it is necessary to hold inspection of the ballot papers. In order to find support to his contention he relied on Ram Sevak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249 and Dr. Jagjit Singh v. Giani Kartar Singh. AIR 1966 SC 773. He drew my attention to paragraph 31 of the latter case wherein it was observed that in a proper case the Tribunal can order the inspection of the ballot boxes and may proceed to examine the obiections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Section 83 (1) (a) of the Representation of the People 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. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice.
the ballot boxes should be inspected on not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving on fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate’s election is void. He also drew my attention to paragraph 35 of the said decision wherein it was observed that the order passed by the Tribunal clearly showed that the Tribunal did not apply its mind to the question as to whether sufficient particulars had been mentioned by the appellant in his application for inspection. Learned counsel submitted that the provision contained in Section 83 of the Representation of the People Act, 1951, regarding election petition containing a concise statement of the material facts on which the petitioner relies, is similar to that contained in Rule 75 of the Rules.
20. In my opinion, the above observations of their Lordships are not applicable to the instant case. In paragraph 31 of the said decision their Lordships also observed “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.” Further reference may be made to paragraph 13 of the Full Bench decision of this Court in AIR 1971 Pat 10 (FB) wherein similar argument was advanced. G. N. Prasad, J., who delivered the judgment for the Court, held :
“……… But I do not think that the legal position is similar so far as an election petition under the Bihar Panchayat Election Rules is concerned while it is true that an inspection of ballot papers cannot be ordered as a matter of course and every effort must be made to maintain the secrecy of the ballot papers, all that is necessary to justify a scrutiny and recounting of the ballot papers is that the Election Tribunal must, in the circumstances of the case before it, feel satisfied that complete justice cannot be done between the parties unless a recount is held. Such satisfaction may be obtained by the Tribunal not merely from the evidence adduced before it, but also on the basis of the conduct of the parties. In the instant case, the Election Tribunal took note of the attitude and conduct of the petitioner in keeping away on the 15th May, 1967, and coming out at a late stage on the 5th June, 1967, with a petition that the ballot papers should not be inspected, and yet remaining absent from the Tribunal on the following day. From the attitude of the petitioner the Tribunal was amply justified in holding that the whole game of the petitioner was to let the case linger on as long as possible so that he could continue in office as long as the final results of the election petition are not known. If the petitioner thought that he had been rightly declared as the successful candidate in the election, then it would not have been necessary for him to adopt such a delaying tactics before the Tribunal …..”
21. In the present case, as mentioned earlier, in the impugned order the Tribunal has held that he found the evidence convincing on the point of recounting. Besides, from the order-sheet, referred to above, it is also clear that he had taken into account the conduct of the petitioner also, who was evading appearance to delay the disposal of the case. It is well established that this Court in writ jurisdiction would not examine as to whether there was adequate evidence or not before the Tribunal to come to the conclusion. In that view of the matter, in my opinion, the Tribunal was justified in ordering inspection and recounting of the ballot papers. This contention of the petitioner fails.
22. The contention of the petitioner, however, on point No. 1 has been accepted. As discussed earlier, the election petition of respondent No. 1 was not according to the provisions contained in Rule 75 of the Rules and, therefore, I have held that the Election Tribunal ought to have dismissed the election petition summarily under Rule 77 of the Rules. On that ground alone I am constrained to hold that the impugned order cannot be sustained.
23. In the result, this application Is allowed and the impugned order dated the 31st March, 1971, is quashed and election petition filed by respondent No. 1 stands dismissed. In circumstances of the case, however, there will be no order as to costs.
