Madhya Pradesh High Court
Krishna Kumar Gupta vs Rajendra Shukla on 7 August, 2014
(1)
HIGH COURT OF MADHYA PRADESH : JABALPUR
Election Petition No. 21/2014
Krishna Kumar Gupta
Vs.
Rajendra Shukla and others
As Per : G.S.Solanki, J.
Shri S.P. Mishra, Adv. for the petitioner.
Shri Sanjay K. Agrawal, Adv. for respondent No. 1.
Shri V.K. Shukla, Adv. for respondent No. 2.
Order reserved on : 17.07.2014
Order passed on : 07.08.2014
ORDER
1. This order shall govern disposal of I.A. No. 39/2009, which is an application under Order 7 Rule 11 of the CPC for rejection of the election petition inter alia on the following grounds :-
(i) The petition is not accompanied by an affidavit as required under the proviso to sub-section (1) of Section 83 of the R.P. Act in support of allegation of corrupt practice and particulars thereof.
(ii) The petition is not only lacking compliance of mandatory provisions contained in Representation of People Act, 1951 (for short R.P.Act) but same also does not disclose any triable cause of action because the petition does not contain concise statement of the material facts and particulars on which the petitioner relies. If the averments made in the petition, are accepted to be true on the face value, they do not close any triable cause of action. The petitioner has alleged corrupt practice but necessary facts constituting such corrupt practice have not been disclosed in the petition.(2)
(iii) It has not been pleaded that how the election of respondent No. 1 has been materially affected on account of alleged improper reception, refusal or rejection of the votes.
It is further submitted that a bare perusal of Paragraphs 15(i) to (xix) clearly shows that the petitioner has not disclosed the particulars of the persons from whom he derived information required for filing the petition. It is also submitted that the petitioner has made defective pleadings in the relief clause, because the petitioner has firstly prayed for order direction reelection or repolling of votes in 74 Rewa Constituency and based on result of such re-polling has prayed for setting aside the election of respondent No.
1. On the basis of aforesaid submission, respondent No. 1 has prayed for dismissal of this election petition under Order 7 Rule 11 of the CPC read with Section 86 of the R.P. Act.
2. Learned counsel for respondent No. 1 has further submitted that the pleadings in regard to corrupt practice is vague and do not spell out as to how election results have been materially affected because of the facts stated in the petition. In this way the facts stated in the petition do not formulate complete cause of action. Counsel has placed reliance on a decision of the Apex Court in Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar - 2009(9) SCC 310 and Ram Sukh Vs. Dinesh Aggarwal - (2009) 10 SCC 541.
3. The petitioner has filed reply to the aforesaid application denying the grounds raised by respondent No. 1 for rejection of the petition. It is submitted that the petitioner has specifically pleaded the facts in regard to corruption and source of his information. It is further submitted that the petitioner has already filed an affidavit in compliance of Section 83(1) of the R.p. Act. Learned (3) counsel for the petitioner has further submitted that all the necessary facts have already been pleaded in the election petition and to find out the existence of cause of action, the Court can not devide the pleadings in several parts, rather the petition will have to be read as a whole. Counsel has placed reliance on a decision of Apex Court in Govind Singh Vs. Harchand Kaur - (2011) 2 SCC 621 and Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and others - (2012) 7 SCC 788.
4. I have heard the learned counsel for the parties at length and gone through the law laid down by the Apex Court in the aforesaid cases. It is true that if there are any contradictions or some averments are lacking in verification or affidavit filed in support of the pleadings, same can be amended after providing the opportunity by the Court as held by the Apex Court in Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and others (supra) and in such circumstances, the petition cannot be dismissed in limine on ground No. (I).
5. So far as aforesaid ground Nos. (ii) and (iii) are concerned, the petitioner has pleaded in Paragraphs 9 and 10 of the petition that respondent No. 1 has not disclosed exact number of pending criminal case before High Court. On perusal of Annexure filed along with the petition, it reveals that instead of writing 'M.Cr.C' respondent No. 1 has written 'Revision' but the number 11950/2009 is same. In Paragraph 12, there is vague pleading in regard to Electronic Voting Machine. Now, I consider the pleadings made in Paragraph 15 of the election petition. The pleadings made in Paragraph 15 are reproduced below for ready reference:-
15. That petitioner submits that the election was not contested by the respondent no. 1 in free and fair manner and voting as well as (4) counting was not done in accordance with rules and it has been done in large scales in whole constituency, hence petitioner was declared defeated otherwise he would have victorious candidate. The fact is that there is manipulation in voting, preparation of account and counting of votes etc. in following manner ":-
(i) EVM machines which were packed in brief case were opened while depositing in strong room after polling.
(ii) In Lohi Polling Booth (Booth No. 186) one woman was trying to cast vote in favour of B.S.P. But the Presiding Officer himself casted vote in favour of Bhartiya Janta Party. The said news was published in Video City Cable on 25.11.2013 and News Paper published the news on 26.11.2013.
(iii) The details submitted in nomination form- as pasted on the notice board reflects one criminal case against BJP candidate, whereas after election- they mentioned 3 numbers of criminal cases in the original nomination form.
(iv) City Cable, Rewa and Akashwani Rewa published news on 23rd, 24th and 25th of Nobember, 2013 that independent candidates have supported the B.J.P. Candidate.
(v) As per oral version of Abhishekh Tiwari (9669600045), a candidate of Rashtriya Kisan Vikas Party - received a mobile call from Akash Tiwari (94246066799) seeking information as to whether Abhisheikh supported the B.J.P.
(vi) Satya Narayan Gupta (9425874740) who was B.S.P. Additional Agent of the petitioner also received a telephone in Mobile No. 9826649619 on 24.11.2013 between 9-10 hrs. from Ram Raj Patel r/o Rathora that BJP candidates supporters are distributing liquor and blanket in area (Rani Talab) Nai Basti and Akola.
(vii) Polling Booth 42 (Boda Bag), Machine No. 52545, there was no green paper currency was fixed. Only strip seal number was mentioned which is C-00-9732642973266. As per Presiding (5) Officer C-00-973264, C-00-973265, C-00-9266. P.O. has informed that remaining two green strips were returned where as no such information in Form 17-Ga. mentioned.
(viii) Rule 49 (Dha) & 56 (Ga)(2)-Form No. 17- Ga. There is no signature - on form of returning Officer in respect of Polling Booth No. 42.
(ix) As per P.O. In Polling Booth No. 42-only 497 votes were cast but in counting it comes 499 in which B.J.P. Candidate received 272 votes and petitioner received 88 votes only, and it has been done in large scale.
(x) All the documents which has been supplied to the petitioner is shown as amended and it shows that there was manipulation done in the documents and while supplying the documents to the petitioner the returning officer had given amended document to the petitioner. The election agent submitted objection to collector (R.O.) and S.P. Closed his door and make correct/caste two votes in the EVM machine about such discrepancies. This incident was published in newspaper. Two votes have been put in NOTA and total votes have been mentioned as 499, though the same is 497. A copy of form No. 17 - Ga of polling Booth No. 42 is annexed herewith as Annexure P/8. And in this regard petitioner election agent submitted his objection to the returning officer but without deciding the objection of the petitioner agent the counting was regularly going on. A copy of objection is annexed herewith as Annexure P/8-A, P/8-B and P/8-C.
(xi) In polling booth No. 42 Green paper currency was not mentioned, But in the diary number of P.O. It is mentioned. But, green paper currency is not placed in its original place.
(xii) The returning officer and presiding officer, district election officer had taken mobile in counting room, whereas the election agent and candidates were stopped from carrying mobiles on the ground that the same affects the EVM machines. However, rule in this regard is to be brought and place it on record. As Annexure P/9.
(6)(xiii) In Samachar Patrika Good Morning dt. 26.11.2013 at Page No. 3 published a news with regard to irregularities in EVM machines.
(xiv) The news with regard to disturbance during counting and stopped the media. And thereby changed two votes after closing doors and stoppage media from coverage. The voice raised by candidates was subsided by police force such news was published in news papers on 09.12.2013.
(xv) The B.J.P. Candidates installed flex hoarding at Sirmour Chowk on Anupam Building that he has won thrice and the opposite party clean bold at 2.30 p.m. On 08.12.2013 whereas the elections result were declared on 7.30 p.m. On 8.12.13. This has also been published in newspapers.
(xvi) The Collector called meeting of election agents and counting agents of all 8 on 06.12.2013 in APS University Hall with regard to management in the counting rrom to be made on 08.12.2013 and the instructions with regard to procedure to be followed in respect of election agent. However, there was ill management which created chaos which facilitated the authorities to manipulate things. Even there were no cameras as per instructions. The Video person was also only one whereas there were two rooms in which counting. When ever any dispute or objection with regard to counting, the camera persons were asked to shift to another room so that no recording of disputes can be made. There was no proper arrangement for even standing. This averments is supported the news paper cuttings datd. 9.12.2013 published in "Star Samachar" daily under the caption/heading Rewa Ki Dedh Ghnate Ruki Rahi Matgadana. A copy of such news paper cutting page no. 4 dtd. 9.12.2013 is annexed herewith as Annexure P/10.
(xvii) The District President of Bahujan Samaj party, District Rewa has raised objection to the Chief Election Commissioner, Election Commission of India, New Delhi and requested for independent and fair counting of votes in 8 constituency elections areas in Rewa and (7) pointing out irregularities and undue influence of ruling party over the state authorities. The apprehension of irregularities in counting was already expressed prior of counting. There is direct fight in election between Minister Rajendra Shukla and B.S.P. Candidate making specific allegation that there is possibility that authorities would result in defeat of B.S.P. Candidate by committing irregularities in counting. Neither action was taken in this regard nor response has been received. A copy of the representation dtd. 30.11.2013 submitted by the BSP President in this regard is annexed herewith as Annexure P/11 and copy of the fax receipt is annex herewith as Annexure P/11-A. (xviii) The petitioner submitted an application 02.12.2013 seeking the certified copies of relevant documents but non cooperation has been shown b Returning Officer, District Election Officer and Collector in receiving such application. Therefore, the aforesaid application has been sent through registered post. A copy of the same with endorsement is annexed herewith as Annexure P/12. And copy of postal receipt dtd. 4.12.2013 is annexed hereiwth as Annexure P/12-A. (xix) That, before counting of the votes i.e. 8.12.2013 the District President BSP, Rewa submitted his apprehension to the Election Commission of India on 6.12.13 there is possibility of mismanagement, hence there is need of new observers which comes from Delhi. But no action has been taken in this regard. A copy of the letter written to the election commission of India with copy of the receipt of Fax is annexed herewith as Annexure P/13 and P/13-A respectively.
6. It reveals from a bare perusal from the aforesaid pleadings that the petitioner has raised various grounds on the basis of newspaper and information received by someone else. It is well established principle of law that to prove the allegation of corrupt practice, it should be specifically pleaded as to how and from whom the petitioner (8) has got the information but the petition is lacking of such specific pleading.
7. In Para 15(i) it is pleaded that EVM machines which were packed in brief case were opened while depositing in strong room after polling, but who has witnessed this incident, has not been specifically pleaded.
8. In Para 15(ii) it is pleaded that in Lohi Polling Booth (Booth No. 186) one woman was trying to cast vote in favour of B.S.P. But the Presiding Officer himself cast vote in favour of Bhartiya Janta Party. The said news was published in Video City Cable on 25.11.2013 and News Paper published the news on 26.11.2013. In this paragraph also nothing has been specifically pleaded that who was that woman and who has witnessed this incident. It appears that this pleading is based on news published in the newspaper and Video of City Cable, which are second had informations.
9. In Para 15(iii) it is pleaded that the details submitted in nomination form-as pasted on the notice board reflects one criminal case against BJP candidate, whereas after election- they mentioned 3 numbers of criminal cases in the original nomination form. This pleading itself is contradictory to Para 10 of the petition wherein it was pleaded that respondent No. 1 has not disclosed all criminal cases pending against him. In this paragraph it has not been specifically pleaded as to how the same has materially affected the election of the petitioner.
10. In Para 15(iv) it is pleaded that City Cable, Rewa and Akashwani Rewa published news on 23rd, 24th and 25th of Nobember, 2013 that independent candidates have supported the B.J.P. Candidate, however, firstly it has not been pleaded as to who was the independent candidate and (9) secondly how it has materially affected the election of the petitioner if someone has supported the BJP candidate.
11. The pleadings made in Paras 15 (v) and (vi) are based on the facts that one Abhishek Tiwari received a mobile call from Aakash Tiwari seeking information as to whether Abhishek supported the BJP and second one Satya Narayan Gupta, who was B.S.P. Additional agent of the petitioner also received a telephone in his mobile from Ramraj Patel that BJP candidates supporters are distributing liquor and blanket in area (Rani Talab) Nai Basti and Akola, but the name of supporters of BJP candidate has not been specifically pleaded who are alleged to have distributed the liquor and blankets. Further it has not been disclosed that the to whom the aforesaid articles have been distributed.
12. The pleadings made in Paras 15 (vii), (viii) and (ix) pertain to the procedure followed at the time of voting. Certainly the polling agents of the petitioner were present there at that time and the said proceedings took place in their presence but names of such polling agents have not been disclosed. Further there was dispute of two votes in counting. It has also not been specifically pleaded that if respondent No. 1 received 272 votes and the petitioner received 88 votes, how the difference of two votes has materially affected the election of the petitioner.
13. The pleadings made in Para 15(x) relates to manipulation in the documents and amended documents are stated to have been supplied to the election agent. This pleading is again based on a news published in the news paper, which shows that if any discrepancy was found during the counting, same was ratified before the agents of the petitioner and the counting was continued.
14. The pleading made in Paras 15 (xi) and (xii) are absolutely superfluous. The petitioner has not pleaded that (10) if the returning officer or presiding officer had taken mobile in the counting room, how the election of the petitioner has been materially affected and further it has not been pleaded as to who has witnessed the aforesaid fact.
15. The pleadings made in Paras 15 (xiii) and (xiv) are based on news published in Samachar Patrika 'Good Morning' and other news papers.
16. In Para 15(xv) it is pleaded that on the date of counting i.e. on 8.12.2013, the BJP candidates installed flex hoarding at Sirmour Chowk on Anupam Building that he has won thrice and the opposite party clean bold at 2.30 p.m. whereas the election results were declared on 7.30 p.m. Firstly, this pleading is also based on news published in the news paper and secondly it has not been pleaded specifically that if on the date of counting, someone has installed flex hoarding that he is going to win the election, how it has materially affected the election results, thus these pleadings do not constitute any ground to allege corrupt practice.
17. The pleadings made in Para (xvi) are with respect to mismanagement during counting. This pleading is also based on the news published in the news paper 'Star Samachar'.
18. In Paras 15 (xvii) and (xix), the pleadings have been made on the basis of the fact that the President of BSP has raised objection the Chief Election Commissioner, Election Commission of India, New Delhi in regard to independent and fair counting and this apprehension was expressed prior to counting but neither any action was taken in this regard nor any response has been received. Here also it has not been pleaded specifically that who was the District President of BSP and if such objection was raised by him, (11) how it has materially affected the election results it same was not responded by the Election Commission of India.
19. In Para 15(xviii), the petitioner has pleaded that he filed an application seeking certified copies of the documents but there was non-cooperation of the returning officer, therefore, he filed application by registered post, but nothing has been pleaded as to how it has materially affected the election results.
20. The non filing of the affidavit in Form 25 as prescribed under Rule 94-A of the Conduct of Election Rules, 1961 is a curable defect and on the basis of said defect, the petition cannot be rejected. So far as pleading in regard to corrupt practice is concerned, when the same is considered in its entirety, I find that the petition is absolutely lacking the material facts in regard to corrupt practice.
21. So far as objection raised in regard to irregularities in EVMs is concerned, all doubts and queries regarding EVMs have already been answered in FAQs on the website of Election Commission of India wherein it has been specifically shown that there is no possibility to vote more than once by pressing button again and again. Since the petitioner has raised doubts in regard to fairness or impartiality of the officials engaged in the counting process, he is under an obligation to demonstrate as to how the EVMs could be tampered with to get the desired result. However, no expert opinion has been placed on record regarding the chances of misalignment of EVMs. On the other hand, correctness of all the technical aspects of the matter, as reflected as FAQs and the Press Note issued and uploaded on its website by Election Commission of India, has already been verified on the judicial site in Michael B. Fernandes Vs. C.K. Jaffer Sharief, AIR 2004 Karnataka (12)
289. Thus, the EVMs are full proof device for counting, therefore, the allegation made in the petition in regard to mal-functioning and tampering of EVMs used in counting of votes are baseless.
22. In view of the above discussion, even if the averments made in the election petition are taken on their face value and accepted in the entirety, no triable cause of action arises in the absence of specific, precise and complete pleading in respect of alleged irregularities as well as corrupt practice alleged to have been adopted by respondent No. 1 or his agent during the election.
23. In these circumstances, I.A. No. 39/2014 filed by respondent No. 1 under Order 7 Rule 11 of the CPC is hereby allowed. As a consequence thereof, the election petition filed by the petition is hereby dismissed for want of any cause of action. Parties to bear their own costs as incurred of this petition.
A copy of this order be forwarded to the State Election Commission as well as to the Speaker, Legislative Assembly.
(G.S.Solanki) Judge PB