C.D.Parekh, J. - (1.) MAHENDRA Singh appellant has preferred this appeal against the judgment and order dated December 17, 1974, passed by a learned Single Judge of this Court in Civil Miscellaneous Writ No. 5080 of 1974 dismissed the writ petition of the petitioner-appellant. The writ petition was filed against the order of the Election Tribunal trying an election petition under Section 7 of the Kshetra Samiti and Zila Parishads Act against the election of a Block Pramukh. The appellant and the respondent were contesting candi dates in that election. Babu Lal Dubey lost the election while the appellant Mahendra Singh was declared elected. Respondent Babu Lal Dubey filed election petition before the Tribunal against the ap pellant and others who were candidates to the election. It was sug gested on behalf of the respondent in the election petition that the ballot papers used at the election were not in Form VII as laid down in Rule 18. According to the respondent the form of ballot papers provided under Rules did not contain compartments or columns for the candidates contesting the election but the ballot papers used and supplied at the election had separate columns or compartments pro vided for each candidate. The name of respondent Babu Lal was placed at serial No. 1 and at the top the compartment or the column was not closed by any line. According to the respondent, therefore, the result was that some of the electors who were not much literate recorded first preference vote by putting figure 1 anywhere beyond the column of candidates at serial No. 2. According to the respon dent two such ballot papers which had clear first preference votes for him were improperly rejected by the Asstt. Returning Officer who was inclined first to accept them as valid first preference votes for the respondent but later on rejected them. It was specifically mention ed in paragraph 10 of the election petition that the number of those ballot papers which were rejected could only be incorporated in the petition after inspection of the ballot papers.
(2.) THE respondent as serted that the said two ballot papers were valid first preference votes for the respondent. Details of the two ballot papers were furnished in paragraph 19 of the election petition and it was stated that the in valid votes being six in number as stated in paragraph 19 of the elec tion petition included the said two ballot papers which according to the respondent related to his votes. On the basis of these averments made in the election petition the respondent Babu Lal filed an appli cation dated July 5, 1974, praying that the election record along with the used ballot papers be summoned from the District Magistrate, Jhansi, and the respondent along with his counsel be allowed to in spect the rejected ballot papers or in the alternative the District Ma gistrate, Jhansi, be directed to allow such an inspection to the respon dent. This prayer was opposed on behalf of the appellant. It was stated on behalf of the appellant that the respondent remained pre sent throughout at the time of the counting of the ballot papers and the ballot boxes were opened and ballot papers counted in his pre sence. The ballot papers were scrutinised by the parties in their presence and the ballot papers were counted for more than once at the instance of the respondent and he had the full opportunity to see the ballot papers and to know their number and details. According to the appellant Babu Lal respondent could not legally inspect the ballot papers because inspection, according to the appellant, was to fish out the details of the ballot papers and thereafter to substitute allegations subsequently in the election petition. It was also assert ed in objection that the application to inspect the ballot papers was not legally maintainable. Besides other objections these two main objections were taken by the appellant. The Election Tribunal by its order dated August 22, 1974, allowed the application of the respon dent and directed that the rejected ballot papers in regard to the election of Block Pramukh, Kshetra Samiti, Madawara, District Lalitpur, held on March 2, 1973, be requisitioned to be produced in sealed cover in the court by or before September 8, 1974, from the District Magistrate, Jhansi, under Rule 30(2) of the U.P. Kshetriya Samities (Election of Pramukhs and Up Pramukhs and Settlement of Election Disputes) Rules, 1962. It was further directed that the respondent would be entitled to inspect those rejected ballot papers in his court after they were produced by the District Magistrate. The appellant preferred writ petition against the aforesaid order passed by the Elec tion Tribunal and seriously disputed the entitlement of the respon dent as held by the Election Tribunal, to inspect the said rejected bal lot papers in the court. The learned Single Judge held that the election tribunal did not commit any error of jurisdiction nor there was any manifest error of law in permitting the inspection of the six ballot papers and dismissed the writ petition. Against this order the appellant has preferred this appeal. The learned counsel for the appellant has urged before us that the election in the instant case was held on the basis single transfer able vote and the voters were to cast their votes in order of prefer ence which was the discretion of the voters to adopt for the purposes of election. According to the learned counsel for the appellant under Rule 25 of the Election Rules applicable to the instant case as soon as the poll was closed the Returning Officer, in the presence of the con testing candidates and the members who were present proceeded to count the votes He opened the ballot box and counted the number of the ballot papers taken out from the ballot box, scrutinised the bal lot papers and separated those which in his opinion were valid from those which were invalid and endorsed on the invalid ballot papers the word "'rejected' and recorded his reasons for such rejection. All this was done according to the appellant in the presence of the respon dent (election petitioner). On the facts, therefore, it was submitted that having all these things done in his presence it is not possible now at this stage to allow inspection on vague allegations contained in the writ petition thus to facilitate roving inquiry and fishing out evidence to substantiate and substitute the same. Reliance has been placed by the learned counsel for the appellant on a case Smt. Sumitra Devi v. Sheo Shanker Prasad Yadav and others A.I.R. 1973 S.C. 215. This was a case under the Representation of People Act, 1951 and the allegations in the election petition were vague and the petition did not contain adequate statement of material facts and the evidence adduced by the petitioner was found unreliable and no definite particulars were also given in the application as to the illegalities alleged to have been com mitted in the counting of the ballot papers. The application for ins pection of ballot papers was, therefore, not allowed. It has been held in that case that a recount would not be granted as a matter of right but only on the basis of evi dence of good grounds for believing that there had been a mistake in the counting. According to the Supreme Court it was required to be decided in each case whether a prima facie ground had been made out for ordering an inspection. The learned counsel invited our attention to paragraph 10 of this case and on the basis of the facts involved in the present appeal he urged that the election petition did not contain adequate statement of material facts. He brought to our notice paragraph 10 of the election petition and also paragraph 22 and stated that the rejected ballot paper said to have been noted in favour of the respondent was only one while the accepted ballot papers said to have been accepted in favour of the ap pellant were only two and the particulars of those papers have been given in paragraph 22 of the election petition. The inspection sought for related to this rejected ballot paper and it has not been pointed out which one of the rejected ballot papers the respondent wanted to inspect, and without giving the particulars of the ballot paper ballot papers it is not possible either for the respondent or for the tribunal itself to find out those rejected ballot papers which according to the respondent were wrongly rejected either in his favour or against him. In the circumstances the submission was that it was roving inquiry which was directed to fish out the facts after inspection. Our atten tion was also drawn to the admission made in paragraph 10 of the election petition where it has been admitted by the respondent that the particulars of the rejected ballot papers which were liable to be counted in his favour would be furnished after inspection of those ballot papers. In the circumstances of the case we are satisfied in the instant case that the particulars furnished in the election petition are inadequate and vague. It is another matter that in a case where the allegations may be clear and precise that the ballot papers have wrongly been rejected inspection may be allowed. Learned counsel for the respondent cited Ram Sewak Yadav v. Hussain Kamil Kidwai and others A.I.R. 1964 S.C. 1249. This was a case under the Representation of the Peo ple Act. The Supreme Court has laid down certain guide lines for the inspection that may be allowed in case of ballot papers. In para graph 7 of this case it has been laid down that an order for inspection may not be granted as a matter of course: having regard to the in sistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled: (1) that the petition for setting aside an election con tains an adequate statement of the material facts on which the peti tioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary But an order for inspection of ballot papers cannot be granted to sup port vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the peti tioner must be set out with precision supported by averments of ma terial facts. To establish a case so pleaded an order for inspection may undoubtedly if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. We respectfully follow the observations made by the Supreme Court, but as we have held earlier that to support the prayer for inspection of the ballot papers precise and clear allegations in the election petition have not been made in the instant case. In our opinion the plea taken is not only vague but is confused. We have already quoted the relevant portion of the pleadings as contained in paragraph 10 of the election petition. It only contains a bare allegation that the election petitioner believed that there have been improper rejection or reception of votes. In our opinion that is not sufficient.
(3.) THE next case relied upon by the learned counsel for the respon dent was S. IV. Balakrishna v. George Fernandez and others A.I.R, 1969 S.C. 1201. This case was also under the Representation of the People Act, 1951. In this case the Supreme Court has pointed out the distinction between the material facts and particulars. They have indicated that the word 'material' shows that the facts necessary to formulate a com plete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a pic ture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. Thus according to the Supreme Court there may be some overlapping between material facts and particulars but the two are quite distinct. While dealing with Section 83 of that Act the Supreme Court observ ed that an election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also set forth full particulars of any corrupt practice that the peti tioner alleges including as full a statement as possible. Again we respectfully follow the law laid down by the Supreme Court, but in the instant case as we have stated the particulars are not only criptic but they are vague in the election petition and the respondent is res ponsible for the same. Reliance was also placed on Shashi Bhushan v. Balraj Madhok A.I.R, 1972 S.C. 1251, in which various cases were referred to by the Supreme Court under the Representation of the People Act. That was a case where inspection of ballot papers was sought on the ground that they were rigged by process of chemical treatment. The allegations were there that the ballot papers were chemically treated and they were sought to be proved not by any direct evidence but by inspection of the ballot papers and in those circumstances the Supreme Court held that the petition seeking inspection of ballot papers was rightly allowed. Here in the instant case it cannot be said that all the rejected ballot papers contained the votes said to have been cast in favour of the respondent nor any such allegation has been made so as to warrant that all the ballot papers said to have been used for casting vote in this election have been tampered with in the manner as in the case before the Supreme Court. In this case as well the Supreme Court laid down as a caution that a judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of a prayer for inspection must not be vague or indefinite; they must be supported by material facts and prayer made must be a bona fide one, and if these conditions are satisfied the court will be justified in permitting inspection of ballot papers. In the case before the Supreme Court the allegations made raised issues of public im portance where they thought that greater care and circumspection was necessary as the allegations made were quite serious and could not have been summarily dismissed and, therefore, the petition for inspection of ballot papers was held to have been rightly allowed. In the instant case no such circumstance or contingency arise. There is yet another case on which reliance has been placed by both the parties. It is Chanda Singh v. Ch. Shiv Ram Varma and others A.I.R. 1975 S.C. 403. This was also a case under the Representation of the People Act, 1951, where Rule 63 of the Conduct of Election Rules, 1961 for the re count of the ballot papers was considered by the Supreme Court. The Supreme Court has held that on all hands it is now agreed that the importance of the secrecy of the ballot must not be lost sight of, ma terial facts to back the prayer for inspection must be bona fide, clear and cogent and must be supported by good evidence. The Supreme Court has also observed that much depends on the facts of each case and the primary aim of the courts is to render complete justice be tween the parties. Subject to that overriding consideration, courts have laid down the circumstances that should weigh in granting or refusing inspection. In the instant case as we have pointed out the allegations on close scrutiny and examination do not warrant that the respondent has made out a case for inspection of the ballot papers.;