Gauhati High Court
Kishor Nath vs Misbahul Islam Laskar & 7 Ors on 2 March, 2017
Equivalent citations: AIR 2017 GAUHATI 91, (2017) 173 ALLINDCAS 17 (GAU), (2017) 2 GAU LT 527, (2018) 2 GAU LR 642
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
I.A. (CIVIL) NO.1499 of 2016
In El. Petition No.1 of 2016
Shri Kishor Nath,
S/o Late Promesh Chandra Nath,
Resident of Dudhpatil, Pt.-V,
P.O. Dudhpatil - 788003,
P.S. Silchar, District-Cachar,
Assam.
.........Applicant/
Respondent No. 1
- Versus -
1. Misbahul Islam Laskar, S/o Late Kamrul Islam Laskar, Resident of GMC Road, P.O. & P.S. Silchar - 788001, District-Cachar, Assam.
.......Opposite party No. 1/ Election Petitioner
2. Chunilal Bhattacharjee, S/o Late Satish Chandra Bhattacharjee, R/o Satsang Asram Road, P.O. Tarapur, P.S. Silchar, District-Cachar, Assam.
3. Jaharul Islam Barbhuiya, S/o Late Samsur Uddin Barbhuiya, R/o Chesri, P.O. - Borkhola - 788110, District Cachar, Assam.
4. Dr. Rumi Nath, D/o Shri Trailakshya Bhusan Nath, El. Petition No.1/2016 Page 1 of 24 R/o Mashughat Pt.
P.O. Mashughat, P.S. Silchar, District-Cachar, Assam.
5. Anam Uddin Mazumdar, S/o Late Mahmood Ali Mazumdar, R/o Niz Joynagar, P.O. Niz Joynagar -788825, P.S. Arunachal, District-Cachar, Assam.
6. Nazmul Haque Laskar, S/o Nimar Ali Laskar, R/o Buribali, P.S. Borkhola, District-Cachar, Assam - 788025.
7. Badrul Islam Mazumdar, S/o Late Anfor Ali Mazumdar, R/o Durgapur, P.O. Borjatrapur-788110, P.S. Borkhola, District-Cachar, Assam.
8. Shri A.K. Bhattacharyya, Returning Officer Cum Addl. Deputy Commissioner, Cachar, Assam.
........Respondents For the Applicant/Respondent No. 1 : Mr. B.D. Das, Sr. Advocate, Mr. H.K. Sarma, Mrs. R. Deka, Mr. D. Nath, Advocates.
For the Election Petitioner/Opposite : Mr. A. Choudhury,
Party No. 1 Mr. E. Ahmed,
Mr. N.H. Laskar,
Mr. R.A. Choudhury,
Advocates.
For the Opposite Party No. 8 : Mr. B.N. Sarma,
Advocate.
El. Petition No.1/2016 Page 2 of 24
BEFORE
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI
Date of hearing : 10.11.2016, 13.12.2016, 5.1.2017 and
19.1.2017.
Date of Judgment & Order : 02.03.2017
JUDGMENT & ORDER
By this Interlocutory Application under Order 6 Rule 16 read with Order 7 Rule 11 of the Code of Civil Procedure, for short, the Code, the applicant, who is arrayed as respondent No. 1 in the election petition and who was elected from No. 14 Borkhola Legislative Assembly Constituency as a candidate of the Bharatiya Janata Party (BJP) in the election held in the year 2016, has prayed for striking out paragraph Nos. 3, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the Election Petition and for rejection of the petition for want of cause of action.
2. The election petitioner, who contested the election as an independent candidate, by filing the Election Petition under Section 80 and 81 of the Representation of People Act, 1951, for short, the R.P. Act, had called into question the election of the applicant, herein after referred to as the returned candidate, result of which was declared on 19.5.2016.
3. The returned candidate polled 36482 votes while the election petitioner polled 36440 votes and thus, the margin of defeat was 42 votes.
4. I have heard Mr. B.D. Das, learned senior counsel for the returned candidate, Mr. A. Choudhury, learned counsel as well as Mr. E. Ahmed, learned counsel for the election petitioner as well as Mr. B.N. Sarma, learned counsel appearing for respondent No. 8 in the election petition i.e. the Returning Officer. In view of their submissions, as recorded in the order dated 10.11.2016, notice to opposite party Nos. 2 to 7 was not issued.
5. Mr. B.D. Das, learned senior counsel has submitted that allegations made in the election petition, taken as a whole, are vague and without any material facts and particulars necessary to constitute a cause of action for filing the election petition. According to him, bed-rock of allegations in respect of corrupt practice is spelt out in El. Petition No.1/2016 Page 3 of 24 paragraph Nos. 10 and 11. It is argued by him that the election petitioner has not reproduced the speech specifically highlighting which portion thereof amounted to exercising undue influence with the free exercise of any electoral right or an appeal to vote or refrain from voting for any person on the ground of his religion and only bald statements are given with the sole objective of fishing for a roving enquiry. There being no pleading that election petitioner was present in the meeting held on 31.3.2016, swearing of the affidavit, Annexure-3, to the effect that averments are true to the best of his knowledge, even otherwise, cannot be relied upon. With regard to the anomalies in counting, it is submitted by Mr. Das that there is no pleading that defective EVMs were used for recording of votes and even if all the allegations made in connection with irregular counting are taken at the face value to be true, the same would not materially affect the result of the election in as much as alleged discrepancies were in respect of only 7 votes whereas the returned candidate was declared elected by a margin of 42 votes. He submits that, in fact, there is no pleading that because of the alleged anomalies in the counting, result of the election was materially affected. He has submitted that the election petitioner did not file any complaint before declaration of the result of the election and the complaint dated 20.5.2016, which is cryptic and without any material particulars, is the result of an after-thought. The learned senior counsel submits that the paragraphs in question are liable to be struck out being frivolous, vexatious and abuse of the process of the Court and consequentially, for lack of cause of action, the election petition is liable to be rejected under Order 7 Rule 11 CPC. The learned senior counsel has placed reliance on the following judgments:(i) Azhar Hussain vs. Rajiv Gandhi, reported in 1986 (Suppl) SCC 315; (ii) Satya Narain Dudhani vs. U.K. Singh and ors, reported in 1993 (Suppl) (2) SCC 82;(iii) M.R. Gopalakrisknan vs. Tachady Prabhakaran and ors., reported in 1995 (Suppl) (2) SCC 101; (iv) Anil Vasudev Salgaonkar vs. Naresh Kushali Srigaonkar, reported in (2009) 9 SCC 310; (v) Charan Dass vs. Surinder Kumar and ors., reported in 1995 (Suppl) (3) SCC 318; (vi) Md. Usuf and anr. vs. Bhairon Singh Shekhawat, reported in AIR 1995 (Raj) 239.
6. Mr. A. Choudhury as well as Mr. E. Ahmed, learned counsel have submitted that material facts and particulars have been duly pleaded in the election petition and there is no lack of primary facts necessary to constitute a complete cause of action. They also submit that submission advanced on the basis of the interlocutory application that paragraph Nos. 3, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the election El. Petition No.1/2016 Page 4 of 24 petition are liable to be struck out being vague and devoid of material facts, has no merit. It is assiduously argued that whereas core allegations relating to corrupt practice have been clearly set out in paragraphs 10 and 11, those relating to counting process are narrated in paragraphs 14 and 15. It is submitted that in the facts and circumstances of the case, the returning officer ought to have taken steps for recounting considering the difference in the margin of votes. According to them, a case is made out to go for trial and the interlocutory application is liable to be dismissed. Mr. Choudhury has submitted that pleadings in none of the paragraphs in respect of which this Interlocutory Application has been filed for striking out are unnecessary, scandalous, frivolous, and vexatious or tend to prejudice, embarrass or delay the fair trial of the election petition or otherwise is an abuse of the process of the Court. Apart from placing reliance in the case of Azhar Hussain (supra), they have also relied upon in the case of D. Ramachandran vs. R.V. Janakiraman and ors., reported in (1993) 3 SCC 267.
7. Mr. B.N. Sarma, learned counsel appearing for respondent No. 8 has submitted that in view of the cryptic nature of the complaint dated 20.5.2016 no case was made out for recounting of votes. He has also submitted that at no point of time during the process of counting of votes, the election petitioner lodged any complaint and furthermore, Rule 63 of the Conduct of Election Rules, 1961, for short, the 1961 Rules does not provide for recounting of votes after declaration of result.
8. I have considered the submission of the learned counsel for the parties and have perused the pleadings in the election petition as well as the interlocutory application and the objection filed thereto.
9. Section 80 under Chapter II of Part VI of the R.P. Act lays down that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. The election referred to under Section 80, in view of Section 2(d) of the R.P. Act, means the election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State other than the State of Jammu and Kashmir.
10. Section 83 of the R.P.Act deals with the contents of the election petition and while Section 83(1)(a) provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies, Section 83(1)(b) provides that an election petition shall set forth full particulars of any corrupt practice that the petitioner El. Petition No.1/2016 Page 5 of 24 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 of such corrupt practice. Section 83(1)(c) provides that an election petition shall be signed by the petitioner and verified in the manner as laid down in the Code for verification of pleadings. The proviso to Section 83(1) provides 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 allegations of such corrupt practice and the particulars thereof. Section 83(2) states that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
11. Chapter III of Part VI of the R.P. Act is on the subject of trial of election petitions. Section 86(1) of the R.P. Act mandates that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act. While Section 81 of the R.P. Act deals with presentation of petitions, Section 82 of the R.P. Act deals with parties to the petition. Section 117 of the R.P. Act, which is under Chapter V, is in respect of deposit of security for cost.
12. Section 87(1) of the R.P. Act provides that an election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code to the trial of suits, subject to the provisions of R.P. Act or any rules made there under. In view of the provisions contained in Section 87, the provisions of the Code in respect of trial of a suit are applicable to the trial of an election petition. As a result, the provisions contained under Order 6 Rule 16 and Order 7 Rule 11 of the Code are also applicable to an election petition.
13 Thus, even though Section 86 of the R.P. Act provides for dismissal of the election petition for non-compliance of the provisions contained in Section 81 or Section 82 or Section 117 of the R.P. Act, the election petition can be rejected where it does not disclose a cause of action.
14. Under Order 6 Rule 16 of the Code, the Court is empowered to strike out a pleading - (a) which may be unnecessary, scandalous, frivolous or vexatious; or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit or (c) which is otherwise an abuse of the process of the Court.
15. Order 7 Rule 11 of the Code enjoins a Court to reject the plaint, amongst others, where it does not disclose a cause of action.
El. Petition No.1/2016 Page 6 of 2416. Before proceeding further, at this stage, it will be appropriate to take note of Paragraph Nos.3, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the election petition, which are sought to be struck out by the returned candidate and therefore, the same are reproduced herein below:
"3. That the instant Election Petition is being filed challenging the legality as well validity of the result of election to the Assam Legislative Assembly from No. 14, Borkhola Assembly Constituency and also praying for a declaration that the election of the Respondent No. 1 as also the certificate of election dated 19.5.2016 are illegal and void. Hence the same should be struck down with further declaration by this Hon'ble Court declaring that election petitioner to have been duly elected from No. 14, Borkhola Assembly Constituency to the Legislative Assembly of Assam having secured the highest number of valid votes. There are two grounds on which the petitioner is questioning the validity of election of Respondent No. 1.
(1) The Respondent No. 1 has indulged in corrupt practice of undue influence and appeal on the ground of religion.
(2) The counting procedure is vitiated by wrong counting of votes.
9. The election of the Respondent No. 1 to the Assam Legislative Assembly from No. 14, Borkhola Legislative Assembly Constituency is being challenged on the ground of the same being vitiated by commission of corrupt practice by Respondent No. 1 himself, his election agent as well as his other agents workers and supporters with the knowledge, consent and support of the returned candidate and/or his election agent. Required material facts and particulars are being given in the paragraphs following.
The other ground on which the election has been challenged is on account of anomaly in counting and in the recordings of votes. The material facts and particulars of the same are also given in the paragraphs following.
10. That three days before the poll which was held on 4.4.2016 the election agent of the Respondent No. 1 committed the corrupt practice in the following manner:-
On 2.4.2016 at about 8-00 PM the election agent Sri Abhijit Chakraborty of Respondent No. 1, Sri Abhijit Chakraborty being accompanied by about 15 workers held a meeting at Laburbond (Haticherra G.P.) which was attended by about 200 people mostly belonging to the Hindu community. He addressed the meeting telling the people that they must cast their votes in favour of Respondent No. 1 to save the ideology of Hindutwa and regional culture of the Hindus which is threatened by Islamic cultures.El. Petition No.1/2016 Page 7 of 24
After the lecture delivered by the election agent of Sri Kishor Nath the other workers accompanying him told the people to cast their votes in favour of Respondent No. 1 to save the ideology of Hindutwa which is in danger in the neighbouring country of Bangladesh. This incident was witnessed by the following witnesses who were present in the meeting.
i) Sumol Dhar, S/O Nipendra Dhar, Resident of Chhoto Dudhpatil, Cachar, Assam,
ii) Ranjit Kumar Sarkar, S/O Late Gunomoni Sarlar, Resident of Chhoto Dudhpatil, Cachar, Assam.
11. Similarly on 31.3.2016 Sri Amith Shah, leader of the Bharatiya Janata Party came and held a meeting at Leburbond, Hatichera G.P. at 2.00 P.M. In the said meeting also the Respondent No. 1 as also the central Bharatiya Janata Party leader Sri Amith Shah addressed the meeting appealing to the people to cast their votes to save the Hindutwa ideology which being threatened by people belonging to other religion particularly the Muslims. This meeting was witnesses by - Sri Dipak Kumar Das, S/o Late Dasarat Das, Resident of Chhoto Dudhpatil, Cachar.
12. That from the statements given above it is clear that the election of the Respondent No. 1 is vitiated by corrupt practice of undue influence and appeal on the ground of religion and on this ground the election of the Respondent No. 1 should be set aside.
13. That as stated above the election of the Respondent No. 1 is vitiated by corrupt practice committed by him as also by his election agents and as such the election of Respondent No. 1 should be set aside on that score.
14. That the counting was held on 19.5.2016 at NETRIP, Udharbond, Cachar. Following anomalies are committed:
In polling Station No. 30 (350 No. Chandpur Maktab) total voter turnout was shown 888 as will appear from the list of polling station wise voter turnout dated 05.04.2016 which is enclosed as Annexure-4. But in the result sheet dated 19.5.2016 in Round No. 3 the total number of votes cast in Polling Station No. 30, Chandpur Maktab the figure is shown as 894 there being difference of 6 votes which is obvious an error in counting. Again in Polling Station No. 62 (181 Kumarpara Nimno Prathamik Vidyalaya) Room No. 2, in the list of Polling Station-wise voters turnout total votes casted in the above polling station was shown as 690 but however in the tabulating trends/result total votes counted against the said Polling Station is 689. There is an apparent difference of El. Petition No.1/2016 Page 8 of 24 1 (one) vote. Further error is also apparent in the total votes casted and the vote counted, as per Annexure-4 total number of total votes was shown as 104482 but in the result sheet the total number of votes was shown as 104487. Again it will appears from the report dated 7.4.2016 made by the Assistant Returning Officer, 14 Borkhola L.A.C. addressed to A.K. Bhattacharjee Addl. Deputy Commissioner cum Returning Officer of 14 Borkhola L.A.C. that total number of five EVMs were found to be out of order and were reportedly replaced but from a report dated 6.4.2016 it will appear that only three of the EVMs were replaced though there is no official authentic report about replacement of the remaining two EVMs. Again it will appear that as regards Postal Ballot Papers, the number of votes polled was shown as 47 with a total breakup or tally of all the candidates which is as follows:Respondent No. 1 - 17
Respondent No. 2 - Nil Respondent No. 3 - 7 Respondent No. 4 - Nil Respondent No. 5 - 1 Respondent No. 6 - Nil Respondent No. 7 - Nil Election Petitioner - 22
It may be mentioned here that the total number of Postal Ballots were 74 of which 27 were found to be invalid. As a result only 47 votes were valid. It will appear from the format of recording tally of votes by postal ballot papers. It appears that there was a recounting of postal ballot which was done in presence of only two candidates.
The other candidates nor their agents were informed and it was done to enable the Respondent No. 1 to win the election by a small margin of 42 votes.
15. That the election petitioner found to his dismay that there were a lot of irregularities in the entire counting process. In view of this it was the duty of the Returning Officer to give a reasonable opportunity to the election petitioner and his election agent to exercise the right conferred by Sub-Rule 2 of Rule 63 of the Conduct of Election Rules, 1961 is quoted hereunder:
"63. Recounting of votes:- (not reproduced in the judgment as the same is a reproduction of the Rule).
Sub-rules (1) and (2) of Rule 63 clearly lay down that after completion of the counting the Returning Officer shall record in the result sheet in Form 20 the total El. Petition No.1/2016 Page 9 of 24 number votes polled by each candidate and announce the same. After such announcement had been made a candidate or his election agent or any of his counting agents may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which the recount was demanded. But the Returning Officer on completion of the counting did not afford any opportunity to the election petitioner to exercise the right conferred by Sub-Rule 2 but instead straight away completed and signed the result sheet in Form 20 before any application could be filed by the election petitioner.
16. That the election petitioner humbly states that because of the mental shock and his deteriorating health condition he could not submit any application for recounting of votes at that stage but he was advised that the anomalies and irregularities were so apparent that the same should be brought to the notice of the Returning Officer. Accordingly, the petitioner submitted an application to the Returning Officer cum Deputy Commissioner, Cachar praying for recounting of votes of LA-14 Borkhola Constituency on 20.5.2016. In this application the petitioner pointed out the different anomalies found in the process of counting. The said application was received by the deputy Commissioner/Returning on 20.5.2016.
17. That election petitioner humbly states that on account of the corrupt practice committed by the Respondent No. 1 namely, appealing the voters and influencing them by appeal to religion as also the gross anomalies in the counting process the election of the Respondent No. 1 is liable to be declared void and the election petitioner is liable to be declared duly elected from No. 14, Borkhola L.A. Constituency having received the majority of valid votes amongst all the candidates.
18. That on ground of the gross anomalies in the counting process as also the corrupt practice committed by Respondent No. 1 the election of the Respondent No. 1 is liable to be set aside. Further on account of the illegalities and anomalies in the counting procedure the petitioner is entitled to an order of recount.
19. That the election petitioner humbly states that there were lots of irregularities in the counting process as has been described above and as such it is a fit case where to uphold the mandates of law and Constitution and also the purity of election, it is necessary to order recounting of the votes. The election petitioner humbly submits that it is a fit case where this Hon'ble Court entrusted by the Constitution to maintain the dignity and purity of the election process as also in view of the fact that the difference in El. Petition No.1/2016 Page 10 of 24 the votes between the winning candidate and the humble petitioner being only 42, this court may be pleased to order recounting.
20. That the election petitioner humbly submits that the election of the Respondent No. 1 should be declared void and the election petitioner should be declared duly elected. The election petitioner further submits that in view of the gross anomalies in the counting procedure this Hon'ble Court should be pleased to order a recount of the votes in respect of No. 14, Borkhola Legislative Assembly Constituency."
17. Section 100 of the R.P. Act enumerates the grounds for declaring an election to be void. Having regard to the allegations made in the election petition, it will be appropriate to reproduce relevant portion of Section 100 of the R.P. Act for better understanding:
"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) xxxxxx xxxxxx xxxxxx xxxxxx; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) xxxxxx xxxxxx xxxxxx xxxxxx; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected--
(i) xxxxxx xxxxxx xxxxxx xxxxxx; or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied--
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;El. Petition No.1/2016 Page 11 of 24
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void."
It is to be noted that Section 100 (2)(b) was deleted with effect from 30.12.1958.
18. A perusal of above shows that if the result of the election, in so far as it concerns a returned candidate, has been materially affected by any corrupt practice committed in the interest of the returned candidate by an agent other than his election agent or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, the election can be declared to be void. However, if any corrupt practice has been committed by the returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent, it is not necessary to plead and prove that because of such corrupt practice the result of the election has been materially affected.
19. Chapter I of Part VII of the R.P. Act relates to corrupt practices and electoral offences. What shall be deemed to be corrupt practice for the purpose of R.P. Act is laid down under Section 123 of the R.P. Act. Bearing in mind the allegations of corrupt practices, it will be appropriate to extract relevant portion of Section 123 of the R.P. Act, which is as follows:
"123. Corrupt practices.--The following shall be deemed to be corrupt practices for the purposes of this Act:--
(1) xxxxx xxxxx xxxxx xxxxx (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that--
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-
communication or expulsion from any caste or community; or El. Petition No.1/2016 Page 12 of 24
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
(3A) xxxxx xxxxx xxxxx xxxxx
(3B) xxxxx xxxxx xxxxx xxxxx
(4) xxxxx xxxxx xxxxx xxxxx
(5) xxxxx xxxxx xxxxx xxxxx
(6) xxxxx xxxxx xxxxx xxxxx
(7) xxxxx xxxxx xxxxx xxxxx
(8) xxxxx xxxxx xxxxx xxxxx
Explanation.--(1) In this section, the expression "agent" includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2) xxxxx xxxxx xxxxx xxxxx
(3) xxxxx xxxxx xxxxx xxxxx
(4) xxxxx xxxxx xxxxx xxxxx."
20. In Ramachandran (supra) the Supreme Court had reiterated that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for can be granted to the petitioner if the averments made in the petition are proved to be true. For the purpose of considering the preliminary objection the averments made in the election El. Petition No.1/2016 Page 13 of 24 petition should be assumed to be true and the court has to find out whether those averments disclose the cause of action or a triable issue as such.
21. In Azhar Hussain (supra) the Supreme Court had laid down that there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of powers under the Code. The Supreme Court had also negated the arguments that powers to reject an election petition summarily should not be exercised at the threshold and that the Court must proceed with the trial, record evidence and only after trial of the election petition is concluded the powers under the Code should be exercised, by holding that the whole purpose of conferment of such powers is to ensure that the litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the returned candidate.
22. The expression "material facts" has neither been defined under the R.P. Act nor under the Code. According to the dictionary meaning "material" means "fundamental", "vital", "basic", "cardinal", central", "crucial", "decisive", "pivotal", "indispensible", elementary" or "primary", (Burton's Legal Thesaurus, Indian Edition Page 349). The requirement of stating "material facts" in the pleadings is with the object and purpose to enable the opposite party to know the case he is to meet with and therefore, in absence of pleadings, a party cannot be allowed to lead evidence. The phrase "material facts"
may be said to be those facts upon which a party relies for his claim or defence. In other words, "material facts" are facts upon which the plaintiff's cause of action and the defendant's defence depends. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are "material facts".
In the context of a charge or corrupt practice "material facts" would mean all the basic facts constituting the ingredients of a particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. All those facts which are essential to clothe the petitioner with a complete cause of action are "material facts" which must be pleaded and failure to plead even a single material fact amounts to non-compliance of the mandate of Section 83(1)(a) of the R.P. Act and will entail dismissal of the election petition. Since a single corrupt practice committed by the candidate, by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election the case must be specifically pleaded and strictly proved. Section 83 (1)(b) of the R.P. Act requires an election petitioner to also El. Petition No.1/2016 Page 14 of 24 set forth full particulars of any corrupt practice alleged against the returned candidate.
"Particulars" are the details of the case set up by a party. "Material particulars" within the meaning of Section 83(1)(b) of the R.P. Act are the details which are necessary to amplify, refine and embellish the "material facts" already pleaded in the election petition in compliance with the requirement of Section 83(1)(a). Particulars serve the purpose of giving finishing touch to the basic contours of the pictures already drawn in a more detailed and more informative way. These "particulars" are, therefore, different from the "material facts" on which the election petition is founded and are intended to afford the returned candidate to evidently meet with such allegation. The underlying idea in requiring the election petitioner to set out in a concise manner all "material facts" as well as "full particulars" where commission of corrupt practice is complained of is to delineate the scope, ambit and limit of the enquiry at the trial of the election petition. Since pleadings play an important role in an election petition the legislature has provided that the allegations of corrupt practice must be properly alleged and both "material facts" and "particulars" should be provided in the election petition so as to disclose a complete cause of action. [Udhav Singh vs. Madhav Rao Scindia, reported in (1977) 1 SCC 511, Anil Vasudev Salgaonkar (supra),Gajanan Krishnaji Bapat & anr. vs. Dattaji Raghobaji Meghe & ors, reported in (1995) 5 SCC 347, Harkirat Singh vs. Amirinder Singh, reported in (2005) 13 SCC 51.]
23. 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. Whether a particular fact is material or not and as such required to be pleaded is dependant on the nature of the charge levelled. [(Samant N. Balakrishnan vs. George Fernandes, reported in (1969) 3 SCC 238, Anil Vasudev Salgaonkar (supra)].
24. It is now to be examined what are the material facts in the facts and circumstances of the case.
25. In Azhar Hussain (supra), in paragraph 16, alleged corrupt practice as incorporated in ground No. 1 was reproduced. The same being relevant for the purpose of this case is extracted herein below:
"16. Alleged corrupt practice as incorporated in Ground I reads thus:-El. Petition No.1/2016 Page 15 of 24
The election of the respondent is liable to be set declared void because the respondent was guilty of the following corrupt practice as defined under Section 123(7) of the Representation of People Act, 1951, read with Section 100(1)(b) and 100(D)(ii) of the said Act, the said corrupt practice was committed with the consent of the respondent returned candidate and of other workers of his with his consent. In any event, it was committed by the respondent's agents in the interests of the returned candidate and the said corrupt practice has materially affected the result of the election in so far as it concerns the returned candidate. One M.H. Beg who at one time was the Chief Justice of the Supreme Court of India and is a close friend of the Nehru family and is personally known to and friendly with the respondent, appeared on the government controlled news media and made a speech praising the respondent and comparing his entry into politics as the birth of new Arjuna, the insinuation being that the opposition were the kauravas. His appearance on the television was relayed day after day on the government controlled media. Television sets had been installed in practically every election office of the respondent in Amethi constituency and throughout the election campaign thousands and thousands of voters were exposed to the television appearance and speech of the said Mr. Beg. Mr. Beg is a gazetted officer, being the Chairman of the Minorities Commission. His services were procured and obtained by the respondent, his agents and other persons with the consent of the respondent with a view to assist the furtherance of the prospects of the respondent's election. Mr. Beg was seen and heard on the television as later as 21st December, 1984. Propaganda about Mr. Beg's was done particularly amongst the members of the Muslim community. Apart from being gross misuse of the office of Chairman of the Minorities Commission, the same constitutes a gross corrupt practice under the election law."
26. The High Court had taken the view that material facts and particulars are absent and did not disclose a cause of action. The Hon'ble Supreme Court held that the High Court was perfectly justified in reaching the aforesaid conclusion. In the aforesaid context the Hon'ble Supreme Court also noted that the petition did not disclose the exact words used in the speech. It was also observed that unless the relevant or offending passage from the speech is quoted, it cannot be said what exactly Shri Beg had said, and in what context, and whether it was calculated to promote the election prospects of the returned candidate.
El. Petition No.1/2016 Page 16 of 2427. Statements made in paragraph 3 of the election petition spells out that the validity of the election of the respondent No.1 is questioned on the ground that he had indulged in corrupt practices of undue influence and appeal on the ground of religion and that the counting procedure is vitiated by wrong counting of votes. It is categorically averred in paragraph 9 of the election petition that material facts and particulars of corrupt practice and anomaly in counting and in recording of votes are set out in the subsequent paragraphs.
28. Statements made in paragraph 12 of the election petition point out that the statements given above, meaning thereby the statements made in paragraphs 10 and 11, indicate that election of the respondent No.1 was vitiated by corrupt practice of undue influence and appeal on the ground of religion. In paragraph 13, it is stated that corrupt practice was committed by the returned candidate as well as by his election agents.
29. Therefore, it will be appropriate to consider the averments made in paragraphs 10 and 11 of the election petition in order to find out whether material facts and particulars with reference to allegation of corrupt practices are set out.
30. In paragraph 10, it is stated that election agent of the respondent No.1 committed corrupt practice. It is pleaded that on 02.04.2016 at about 8:00 PM, the election agent, being accompanied by about 15 workers held a meeting at Laburbond (Haticherra G.P.), which was attended by about 200 people, mostly belonging to the Hindu community. As per the averments made, he addressed the meeting telling the people that they must cast their votes in favour of respondent No.1 to save the ideology of "Hindutwa" and regional culture of the Hindus which is threatened by Islamic culture. After the delivery of lecture of the election agent of the returned candidate, the other workers accompanying him told the people to cast their votes in favour of respondent No.1 to save the ideology of "Hindutwa", which is in danger in the neighbouring country of Bangladesh. In paragraph 11, it is stated that on 31.03.2016, "Shri Amith Shah"
leader of Bharatiya Janata Party came and held a meeting at Laburbond at 2:00 PM in which the returned candidate was present and such meeting was attended by more than one thousand people. Both of them addressed the meeting appealing to the people to save the "Hindutwa" ideology which was threatened by people belonging to other religion, particularly by the Muslims.El. Petition No.1/2016 Page 17 of 24
31. In Dr. Ramesh Yeshwant Prabhoo vs. Prabhakar Kashinath Kunte & Ors., reported in (1996) 1 SCC 130, the Supreme Court had held that the words Hinduism or "Hindutva" are not necessarily to be understood and construed narrowly, confined only to the strict Hindu religious practices unrelated to the culture and ethos of people of India, depicting the way of life of the Indian people. Unless the context of a speech indicates a contrary meaning or use, in the abstract, these terms are indicative more of a way of life of the Indian people and are not confined merely to describe persons practicing the Hindu religion as a faith. Mere use of the words Hinduism or "Hindutva" or mention of any other religion in an election speech does not bring it within the net of Section 123(3) of R.P. Act unless the further elements indicated are present in the speech.
32. An allegation regarding the commission of a corrupt practice at an election is a very serious matter not only for the candidate but for the public at large as the same relates to the very sanctity and purity of the electoral process. It is most significant to note that the relevant or the offending part from the speech is not reproduced. It does not disclose the exact words used in the speech. In the context of setting up of a plea of corrupt practice in terms of Section 123(3) of R.P. Act, the most material fact is the appeal made in the speech. The part of the speech wherein such appeal is made constitutes the most material fact. What was spoken and how the appeal was made are of crucial importance and the same cannot be substituted by way of conclusions drawn by the election petitioner that the returned candidate was indulging in corrupt practice in terms of Section 123(2) and 123(3) of the R.P. Act. There is also no pleading that the appeal was made for furtherance of the prospects of the election of the returned candidate or for prejudicially affecting the election of the election petitioner. There is no averment as to how there was any direct or indirect interference or attempt to interfere on the part of the candidate or his election agent or any other person, with the free exercise of any electoral right. Mere use of the word "undue influence" in paragraph 12 does not amount to furnishing of material fact for the purpose of constituting a cause of action of corrupt practice on the ground of undue influence.
33. In Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi, reported in 1987 (Supp) SCC 93, it was observed that a pleading if vague and general is embarrassing and if the allegation contained in the election petition, even assuming to be true and correct, do not make out any case of corrupt practice or any ground under Section 100 of the Act, El. Petition No.1/2016 Page 18 of 24 the pleading would be unnecessary, frivolous and vexatious and, therefore, it is always open to striking out the same. If after striking out defective pleadings, the Court finds that no cause of action remains to be tried, it would be duty bound to reject the petition under Order 7 Rule 11 of the Code.
34. On analysis of the averments made in paragraphs 10 and 11 of the election petition, I find that the election petitioner had not pleaded material facts relating to allegation of corrupt practice and had only pleaded vague and general statements and, therefore, such pleading being embarrassing, frivolous and vexatious, paragraphs 10 and 11 are struck out. Paragraphs 12 and 13 are off-shoots of paragraphs 10 and 11, where plea of corrupt practice is reiterated on the strength of averments made in the said paragraphs and, therefore, the same are also struck out.
35. Allegations regarding anomaly in counting and in recording of votes are made at paragraph 14 of the election petition. In paragraph 15, it is pleaded that there were lot of irregularities in the entire counting process and, therefore, it was the duty of the Returning Officer to have given reasonable opportunity to the election petitioner and his election agent to exercise the right conferred under Rule 63(2) of the Conduct of Election Rules, 1961. In paragraph 16, it is pleaded that because of mental shock and deteriorating health condition, he could not submit any application for recounting of votes "at that stage" but being advised that he should bring the same to the notice of the Returning Officer because the anomalies and irregularities were so apparent, he submitted an application, pointing out different anomalies found in the process of counting and praying for recounting of votes on 20.05.2016.
36. In paragraph 17, averments are made that in view of corrupt practice committed by respondent No.1 by appealing the voters and influencing them by appeal to the religion as also the gross anomalies in the counting process, the election of the respondent No.1 is liable to be declared void and the election petitioner is liable to be declared duly elected from 14 Borkhola L.A. Constituency having received the majority of valid votes amongst all the candidates. In paragraph 18, it is reiterated that on account of gross anomalies in the counting process as also the corrupt practice committed by the respondent No.1, the election of the respondent No.1 is liable to be set aside and on account of illegalities and anomalies in the counting procedure, the election petitioner is entitled to an order of recount. In paragraph 19, pleadings are offered to order recounting to maintain dignity and purity of the election process as there were lot of El. Petition No.1/2016 Page 19 of 24 irregularities in the counting process and as the difference of votes is only 42. In paragraph 20, it is pleaded that election of respondent No.1 should be declared void and the election petitioner should be declared duly elected and that in view of the gross anomalies in the counting process, an order of recount should be given.
37. In M.R. Gopalakrishnan (supra), in paragraph 16 and 17, the Hon'ble Supreme Court stated as follows:
"16. After a cursory glance of the relevant provisions discussed above it is thus evidently clear that the rules provide adequate opportunity to a candidate, his election agent and counting agent to have a watch over the counting process before the result is declared and if they raise any objection as to the validity or otherwise of any ballot paper and if the said objection is improperly rejected, the candidate his counting and election agent are well informed of the nature of the objection that was raised with regard to the ballot papers and make a concise statement of material facts in the election petition in relation thereto. It is for these reasons that this Court has repeatedly held that the secrecy of the vote has to be maintained and a demand of re-count should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected. The election petitioner, in order to seek an order of recount, has to place material and make out a prima facie case on the threshold and before an order of recount is actually made. The demand of a defeated candidate for recount of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for the recount, no Tribunal or Court would be justified in directing the recount.
17. This Court in Bhabhi v. Sheo Govind and others [ 1976 (1) SCC 687 ] while dealing with the question of direction for inspection and re-count, on a close and careful consideration of various authorities of this Court laid down certain guidelines and conditions which are imperative before a court can grant inspection of the ballot papers. The said conditions and guidelines are set out below :-El. Petition No.1/2016 Page 20 of 24
'1. That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;
2. That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
3. The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount;
4. That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties;
5. That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and
6. That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.' In a recent decision in Satyanarayan Dudham v. Uday Kumar Singh [ 1993 Supple (2) SCC 82 ] this Court again reiterated the similar view by observing that the secrecy of the ballot papers cannot be permitted to be tinkered lightly and an order of re-count cannot be granted as a matter of course. It is only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that re-count can be ordered. When there is no contemporaneous evidence to show any irregularity or illegality in the counting, ordinarily it would not be proper to order recount on the basis of bare allegations in the election petition."
38. From the above, it is manifest that it is of utmost importance that prayer of the defeated candidate for re-count of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct and sacred and, therefore, it is imperative that he pleads and discloses material facts in clear and specific terms.
39. It is clear that sheet anchor of the allegation in respect of anomalies in counting is to be found only in paragraph 14. In rest of the paragraphs only omnibus statements are made that there are lot of irregularities without anything more.
El. Petition No.1/2016 Page 21 of 2440. In paragraph 14, it is pleaded that in Polling Station No.30 (350 No. Chandpur Maktab), total voter turnout was shown as 888 but in the result-sheet dated 19.05.2016, the figure was shown as 894 and, therefore, there is a difference of 6(six) votes, which is a result of error in counting. Further allegation made is that in Polling Station No.62 (181 Kumarpara Nimno Prathamik Vidyalaya), Room No.2, total voter turnout who cast vote in the above Polling Station was shown as 690 but in the result-sheet, total votes counted in respect of the said Polling Station was shown as 689. It is also pleaded that as per Annexure-4, total number of votes polled was shown as 1,04,482 whereas in Exhibit-5 (Annexure for Tabulating Trends/Result), total was shown as 1,04,487. There is another allegation that total number of 5(five) EVMs were found to be out of order and were reportedly replaced but from a report dated 06.04.2016, it appears that only 3(three) of the EVMs were replaced. It is also alleged that total number of postal ballots were 74, out of which the number of votes polled was 47 and 27 were found to be invalid. It is alleged that recounting of postal ballots was done only in presence of two candidates without informing others and the same was done to enable the respondent No.1 to win the election.
41. Annexure-6 annexed to the election petition is the recording of tally of votes polled by postal ballot paper and the same shows that the election petitioner received 22 votes. The returned candidate, Dr. Rumi Nath and Nazmul Hoque Laskar polled 17, 7 and 1 votes, respectively. There was no change in votes polled in the recounting of postal ballot except to the extent that it was mentioned that 27 votes were found rejected.
42. Rule 63(1) of the Conduct of Election Rules, 1961 provides that after completion of the counting, the Returning Officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same and Rule 63(2) provides that after such announcement is made, a candidate or in his absence, his election agent or any of his counting agent may apply in writing to the Returning Officer to re-count the votes either wholly or in part stating the grounds on which he demands such re-count. Admittedly, no such objection was raised before declaration of result but it is pleaded that opportunity to raise objection was not granted by the Returning Officer and therefore, an application was filed before the Returning Officer on 20.05.2016. In the said application discrepancies in respect of 5 votes as pleaded in paragraph 14 was pointed out. No issue was raised with regard to the EVMs and request was made to keep El. Petition No.1/2016 Page 22 of 24 the EVM machines in safe custody. It was also stated that in the event of re-counting of vote was allowed, more discrepancies would definitely come out.
43. From the averments made in paragraph 14, what crystallizes is that there was a difference of total 5 votes in respect of votes shown to have been polled in two Polling Stations and what was recorded in Annexure for Tabulating Trends/Results. There is also a difference of 5 votes between what was shown to have been polled in Annexure-4 and the cumulative total as shown in Annexure for Tabulating Trends/Results. There is no allegation that postal ballots were not correctly counted and the only issue sought to be raised is with recounting, which also showed the same number of votes polled by the respective candidates. It is also not the case presented that the 27 votes shown to have been rejected as reflected in the recounting sheet were cast in favour of the election petitioner and were wrongly rejected. The allegations with regard to the EVMs read along with the letter dated 07.04.2016 (Annexure-7) do not constitute material facts. It is not pleaded that 2(two) EVMs, which were found to be out of order, had been used in the polling process and the same had resulted in improper reception, refusal or rejection of votes. It was absolutely necessary for the election petitioner to have pleaded that the result of the election in so far as it concerned the returned candidate had been materially affected by the alleged irregularities in the counting or by any non-compliance with the provisions of the Constitution or the R.P. Act or any Rules or Orders made there under in order to enable the High Court to declare an election to be void in terms of Section 100(d)(iii) and (iv) of the R.P. Act. But there is not even a whisper, either in the aforesaid paragraph or elsewhere in the election petition, to that effect. Thus, pleading with regard to material fact, necessary in the context of Section 100(d) that result of the election in so far as it concerns a returned candidate has been materially affected, is absent and, therefore, no complete cause of action is disclosed. Even if widest berth is given to the petitioner, then also the combined irregularities as pleaded by the petitioner, do not materially affect the result of the election, as the same fall far short of the victory margin of the returned candidate.
44. In Charan Dass (supra), while upholding the judgement of the High Court, in paragraph 3, the Supreme Court had observed as follows:
"3. Before proceeding further, a glaring omission in the petition may be noticed here, namely, that it has not been alleged that the result of the election has been materially affected by all or any of the alleged irregularities during counting. Seen in this El. Petition No.1/2016 Page 23 of 24 context, the averments with regard to polling booth 43-A even if taken to be correct do not warrant setting aside of the election of the successful candidate. After hearing the learned counsel, the learned Judge rejected the election petition observing that:
'Lack of material facts and particulars to justify an order for recount thus stands writ large and this being so, there can be no escape that the petition discloses no cause of action.' "
45. On perusal of the election petition and more particularly, paragraphs 14, 15, 16, 17, 18, 19, 20, I find that the aforesaid paragraphs, independently, and also when read together as a whole, do not disclose material facts with regard to the allegation of the election petitioner that there were gross illegalities and anomalies in the counting process so as to attract Section 100(d)(iii) and (iv) of the R.P. Act. In view of the above, the aforesaid paragraphs are struck out.
46. Paragraphs 10, 11, 12 and 13 had already been struck out. In paragraph 3 and 9, the election petitioner basically mentioned the grounds on which the election petition is filed and in paragraph 9, it is further stated that material facts and particulars are given in subsequent paragraphs. Therefore, I do not think any case is made out for striking out the said paragraphs.
47. With the striking out of paragraphs 10 to 20, there remains no cause of action for maintaining the election petition under Section 81 of the R.P. Act.
48. For the reasons assigned, the interlocutory application is allowed and consequently, election petition is rejected for want of cause of action.
JUDGE Mcd/M. Sharma El. Petition No.1/2016 Page 24 of 24