Bombay High Court
Ashok S/O Mahadeorao Mankar vs Rajendra Bhausaheb Mulak on 2 August, 2010
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
ELECTION PETITION NO. 1 OF 2010
AND
ELECTION PETITION NO. 2 OF 2010
ELECTION PETITION NO. 1 OF 2010
Ashok s/o Mahadeorao Mankar,
aged 52 years, r/o 196 "Krithartha",
Untkhana Raod, Medical College
Square, Nagpur 440 009. ... PETITIONER
Versus
Rajendra Bhausaheb Mulak,
aged about 43 years,
occupation - Business,
r/o 148, Pandey Layout,
Khamla, Nagpur 440 025. ... RESPONDENT
Shri A.M. Gordey, Senior Advocate with Shri Atul Chandurkar
and Mrs. R.D. Raskar, Advocate for the petitioner.
Shri S.V. Manohar with Shri A.A. Naik, Advocate for the
respondent.
.....
ELECTION PETITION NO. 2 OF 2010
Anil s/o Madhukarrao Sole,
::: Downloaded on - 09/06/2013 16:13:41 :::
2
aged 50 years, occupation - Service,
r/o Plot No. 4, GF-3, Gangotri
Apartments, Buti Layout, Laxmi
Nagar, Nagpur. ... PETITIONER
Versus
1. Rajendra Bhausaheb Mulak,
aged about 43 years,
occupation - Business,
r/o 148, Pandey Layout,
Khamla, Nagpur 440 025.
2. Ashok s/o Mahadeorao Mankar,
aged 52 years, occupation -
Business, r/o 196 "Krutartha",
Medical College Square,
Untkhana Road, Nagpur 440 009. ... RESPONDENTS
Shri A.S. Kilor, Advocate for the petitioner.
Shri U.R. Patil, Advocate for respondent No.1.
Shri A.M. Gordey, Senior Advocate with Shri Atul Chandurkar
and Mrs. R.D. Raskar, Advocate for respondent No.2.
.....
CORAM : B.P. DHARMADHIKARI, J.
DATE OF RESERVING THE JUDGMENT :JULY 13, 2010.
DATE OF PRONOUNCING THE JUDGMENT : AUG. 02, 2010.
JUDGMENT & ORDER - o n Civil Application 415/2010 at Exh. 7 in Election Petition No. 1/2010, on Civil Application 456/2010 at Exh. 7 in Election Petition No. 2/2010. on Civil Application 679/2010 at Exh. 9 in Election Petition No. 1/2010.
::: Downloaded on - 09/06/2013 16:13:41 ::: 31------------Challenge in both these Election Petitions is to election of one Shri Rajendra Mulak who is Respondent in Election Petition No. 1 and Election Petition No. 2 of 2010. Election Petitions are under Section 80 of Representation of People Act, 1951 and election is to Maharashtra Legislative Council from Nagpur Local Authorities Constituency. Result of this Election has been declared on 21/1/2010. There were only 2 contestants and Petitioner Shri Ashok Mankar in Election Petition 1/2010 secured 198 votes while Respondent Rajendra got 202 votes.
Written Statement has been filed by parties and Respondent returned candidate filed separate applications under Order 7 Rule 11 of CPC seeking rejection of both Petitions on the ground that the mandatory requirements to sustain it as required by Representation of People Act, 1951 (hereinafter referred to as 1951 Act) are not satisfied. Civil Application 415/2010 at Exh. 7 is that application in Election Petition No. 1/2010 while Civil Application 456/2010 at Exh. 7 is in Election Petition No. 2/2010. Petitioner Ashok Mankar in 1/2000 is the only other ::: Downloaded on - 09/06/2013 16:13:41 ::: 4 candidate in said election who lost it by margin of four votes while other Petitioner Shri Anil Sole is a voter in the constituency. By way of abundant precaution Ashok has filed another application seeking leave to amend verification with a view to get over the alleged lacunae. It is Civil Application 679/2010 at Exh. 9 in Election Petition No. 1/2010. Ashok is Respondent 2 in E.P. 2/2010. The challenges raised in both the election petitions are identical insofar as present controversy is concerned.
2------------I have heard Advocate Sunil Manohar for Respondent (Rajendra) in first matter and Advocate Patil for Respondent 2 (Shri Rajendra only) in second matter in support of their respective applications under Order 7 Rule 11 CPC. Senior Advocate Shri Gorde with Adv. Chandurkar for Petitioner Ashok and Adv. Kilor for Petitioner Shri Anil have opposed the prayers.
3------------Briefly stated following are the grounds of attack by Respondent 1: -- (A) Material facts are not pleaded and there is ::: Downloaded on - 09/06/2013 16:13:41 ::: 5 no cause of action. (B) Election Petitions are incomplete as CD at Annexure 11 is not an original CD i.e. Compact Disc. (C) Annexures along with Election Petitions are not verified as required by Section 83 of 1951 Act. (D) Copy supplied to Respondent is not a "true copy" as material certificates and endorsements available on original are missing in it. (E) The affidavit and verification is not as per legal requirements, and (F) Exhibit 9 i.e. Civil Application 679/2010, moved in Election Petition 1/2010 to cure some of these defects admits existence thereof and these defects cannot be allowed to be cured after expiry of period of limitation for filing an Election Petition.
4-------------- Advocate Manohar, taking up Civil Application 415/2010 at exhibit 7, has invited attention to memo of Election Petition 1/2010 to point out para wise assertions as contained therein to show that there is no link pleaded between Respondent and the persons involved in the alleged episodes of either taking photograph of ballot paper or of entry into voting compartment by voter and another person together or of ::: Downloaded on - 09/06/2013 16:13:41 ::: 6 displaying the votes cast to everybody. It has nowhere been pleaded that these episodes were because of influence of Respondent or then the voters mentioned therein cast their vote in his favour. Names of others present in polling booth to whom the ballot was allegedly displayed are also not disclosed and in the absence of these details, "material facts" are absent in both Election Petitions. The assertion about use of some other article either for voting or for any other purpose by alleged 9 voters at Kamptee are lacking. The stories as pleaded also are not sufficient to hold that election of Respondent is "materially affected". He further points out that the CD in fact forms integral part of Election Petition 1/2010 because of use of words like "after viewing the CD" or "perusal of CD". Alleged act of carrying a prohibited article like spy-pen by itself is not sufficient to vitiate the election as there are no allegations of use of such material by any voter and Respondent is not shown to be associated with that act. Merely contending that form 16 does not reveal any infirm voter or alleged non folding of ballot paper or alleged act of photographing it without any further effort to ::: Downloaded on - 09/06/2013 16:13:41 ::: 7 plead how it adversely affects the election is not sufficient in the eyes of law to exclude any vote from counting. Pleadings in paragraph 18 for exclusion of five votes or then in paragraph 17 about exclusion of 14 votes are grossly insufficient. Paragraph 21 alleging that documents are duly verified and prayer clause indicate that challenge in Election Petition is under Section 100 (1) (d) (iii) and (iv) of 1951 Act. Verification and affidavit at the end of Election Petition 1/2010 is pointed out by Advocate Manohar to show that it does not support paragraph 6 to 8 in Election Petition. Copy of Election Petition served upon Respondent by Petitioner filed along with Pursis on record here is also pressed into service to urge that words "sd" indicating that sign has been done,ought to have been certified not by Petitioner but by Notary Public. Annexure 11 (CD) filed as document is again certified as true copy by Petitioner only. Said CD is not complete but a doctored & truncated copy not deserving any value. Learned counsel states that none of the documents are verified as required in law. The contention is copy of Election Petition served upon Respondent does not indicate that it was ::: Downloaded on - 09/06/2013 16:13:41 ::: 8 actually sworn or date on which it was sworn and hence it is not a "true copy".
5----------------- In this background attention is invited to provisions of Section 80, 83, 86, 94 & 100 of 1951 Act to show how these provisions require material facts to be pleaded even to show that election of Respondent is materially affected. In the absence of these facts and proper verification as also affidavit in support of existing pleadings/documents, contention is the Election Petition as filed is incomplete and does not disclose any cause of action to enable this Court to take its cognizance.
Attention is also invited to its Section 123 to argue that there is no charge of any bribery or undue influence or any acquiescence by Respondent. Hence case as pleaded is of acts or omissions on part of Election Officer or Returning Officer resulting into the alleged situation for which elected candidate cannot be blamed in law. Procedure for voting as stipulated in Rule 39 of Conduct of Election Rules, 1961-- referred to as 1961 Rules hereafter, is pointed out with argument that under its clause (5) warning by ::: Downloaded on - 09/06/2013 16:13:41 ::: 9 Booth In charge is the essential to render vote invalid for violation of its earlier clauses. Clause (8) is also relied upon to show the circumstances in which ballot paper can be taken away from voter. In view of Rule 56, ballot once cast cannot be removed and needs to be counted. Rule 56 and Rule 70 do not prohibit carrying of any other article by a voter and in view of Rule 73(2)(a), and Election Petition must contain averment of actual use of such other article. Here as such plea is missing and it is not disclosed that those votes are cast in favour of Respondent , those votes cannot be deducted from his total tally of votes. As procedure under Rule 39 (5) of 1961 Rules is not even pleaded to be followed, alleged act of displaying the votes cast is not sufficient to discard it. On same ground, it is alleged that mere presence of another person with voter in voting compartment is not fatal. Section 100(1)(d) of 1951 Act is not attracted as alleged disputed votes are not even pleaded to be cast in favour of Respondent. Alleged need of exclusion of votes does not tantamount to assertion of election being materially affected and till purpose behind such exclusion is pleaded, that ::: Downloaded on - 09/06/2013 16:13:41 ::: 10 provision cannot be invoked. Learned counsel contends that there cannot be any fishing inquiry for said purpose. Even inference that those votes are cast in favour of Respondent cannot be drawn in such matters.
6----------------- Advocate Manohar has relied upon judgment reported at A.I.R. 1975 S.C. 2182--"Ram Autar Singh Bhadauria v. Ram Gopal Singh", to show legal scope of inquiry in such matters, A.I.R. 1954 SC 513--"Vashist Narain Sharma v. Dev Chandra" to point out requisite standard of proof, A.I.R. 1988 SC 637--"Shiv Charan Singh v. Chandra Bhan Singh" , to point out the heavy burden of proof and nature of evidence expected to discharge it, (2009) 9 SCC 310--"Anil Wasudeo Salgaonkar vs. Naresh Kushali Shigaonkar" to show what constitutes material or fundamental facts, (1999) 8 SCC 692-- AIR 2000 S.C. 153 -- "T. H. Musthaffa v. M. P. Varghese", for same purpose. (2009) 10 SCC 541--Ramsukh vs. Dinesh Aggarwal, is pressed in service to point out how the Court has to apply the mind to facts before it in such challenge. Reliance is also placed on (2010) 4 SCC 81--
::: Downloaded on - 09/06/2013 16:13:41 ::: 11Laxmi Kant Bajpayi vs. Haji Yaqoob, for very same purpose. To drive home the contention that after expiry of period of limitation to file Election Petition material facts cannot be introduced by amendment, support is taken from (1999) 1 SCC 666 -- L.R. Shivramagowda vs. T.M. Chandrashekhar. For contention that law does not permit any thing to be inferred in such matters,he relies upon (2009) 14 SCC 318 -- M.J. Jacob vs. A. Narayanan.
7------------------ Annexure 11 is not an original CD and hence, because of its incorporation as its integral part, Election Petition itself is incomplete & without any cause of action. He contended that the said CD is not original certified copy issued by office of Collector but a copy allegedly prepared therefrom. The CD is alleged to be truncated or doctored and in absence of proper verification and affidavit to support it, the same cannot be looked into. Shri Manohar invites attention to reply Exh. 8 as filed by Petitioner to Civil Application 415/2010 to contend that said reply is on attestation only and not in compliance with ::: Downloaded on - 09/06/2013 16:13:41 ::: 12 provisions of section 83 (2) of 1951 Act or provisions of Order 6 Rule 15 CPC. It is urged that source of CD is not stated, place or date of certifying it to be "true copy" is also not disclosed and there is no affidavit as required by Order 6 Rule 15 (4). As CD is the basis for challenge and part of pleadings, absence of proper verification and affidavit in its support is fatal. This defect cannot be allowed to be cured as period of limitation for filing an Election Petition is already over and such amendment does not relate back to the date of its presentation. Unreported judgment dated 29/4/2010 in Election Petition 3/2009 is relied upon to show how such defects are already held to be fatal by this Court.
Judgments of Hon Apex Court reported at (1996) 5 SCC 181--
AIR 1996 SC 1691-- "Shipra, Dr. v. Shanti Lal Khoiwal" and (1999)4 SCC 274 -- AIR 1999 SC 1359 "T. M. Jacob v. C. Poulose"
are relied upon for this purpose with contention that latter judgment does not overrule the view in earlier judgment. Civil Application 679/2010 at Exhibit 9 filed by Petitioner is stated to be relevant only for removing curable defects in verification.
Learned counsel states that as laid down in (2000) 2 SCC 294 --::: Downloaded on - 09/06/2013 16:13:41 ::: 13
AIR 2000 S C 694 "V. Narayanaswamy v. C. P. Thirunavukkarasu" , the court need not invite Petitioner to remove such defects.
8------------------- In Election Petition 2 of 2010, Advocate Patil contends that it also suffers from similar vices like absence of material facts, defective verification and contradictory affidavit, not taking timely steps to remove curable defects and not supplying true copy to Respondent 1 Rajendra. He has adopted arguments advanced by advocate Manohar and in addition points out that spy pen seized at Narkhed was also not used. He relies upon judgment reported at (2004) 1 SCC 46 -- AIR 2004 SC 38 "Regu Mahesh Rao v. Rajendra Pratap Bhanj Dev" to urge that Petitioner Anil did not take any corrective steps from 4/4/2010 till date. To point out importance of endorsement and its communication to Respondent 1 while supplying him true copy he takes support from A.I.R. 1992 Bombay 227 --
"Purushottam vs. Returning Officer, Amravati & others". A.I.R. 1993 SC 1178 -- "M. Budda Prasad v. Simhadri Satyanarayana ::: Downloaded on - 09/06/2013 16:13:41 ::: 14 Rao" is pressed into service by him to urge that roving inquiry by court is not permitted. He also relies upon an order dated 10/8/2006 passed by me in Election Petition 4 of 2004 to support the arguments.
9--------------- Senior Advocate Shri Gorde states that cause of action as contemplated under Order 7 Rule 11 CPC is nothing but bundle of facts giving rise to actionable claim and relief claimed must be grounded on such facts. He argues that Section 81 of 1951 Act refers to Section 100 (1) (d) thereof and present matter is under Section 83 (1) (a) and therefore its proviso is not attracted. According to him therefore affidavit filed by Petitioner in support is superfluous and no legal consequences as urged flow from it. Material particulars or full particulars are required to be disclosed only when election is challenged on account of any corrupt practice. Otherwise in Election Petition like present one, concise statement of material facts is the only requirement.
Support is also drawn from express language of Order 6 Rule 2 CPC to state that no evidence is required to be pleaded. To ::: Downloaded on - 09/06/2013 16:13:41 ::: 15 explain meaning of phrase "facts constituting cause of action"
used in Order 7 Rule 11 (d) CPC, he relies on (2001) 2 SCC 294
--AIR 2001 S.C. 416-- "Rajasthan High Court Advocates Association v. Union of India" and (2000) 7 SCC 640 - AIR 2000 S.C. 2966-- "Navinchandra N. Majithia v. State of Maharashtra".
According to him at this stage sufficiency of pleadings or correctness of story cannot be looked into. Only scrutiny has to be whether a triable issue arises on the basis of pleadings & whether facts relevant to support it are pleaded. (1994) 2 SCC 392 -- "Mohan Rawale v. Damodar Tatyaba" is relied upon for this purpose. Provisions of Section 123 (2) of 1951 Act are pointed out with contention that when undue influence is given as corrupt practice, full particulars are warranted. In matters of present nature only framework needs to be explained/pleaded in election Petition as laid down by Hon Apex Court in A.I.R. 1999 SC 2044--"V. S. Achuthanandan v. P. J. Francis" . According to him entire case law cited by Respondent considers the cases where corrupt practice was sought to be proved and hence, discussion therein is not relevant. He has placed reliance upon ::: Downloaded on - 09/06/2013 16:13:41 ::: 16 (1999) 3 SCC 267--AIR 1999 S.C. 1128- "D. Ramachandran v.
R.V. Janakiraman", (1998) 1 SCC 416--AIR 1998 SC 337--
"Ashwani Kumar Sharma v. Yaduvansh Singh" . To state that Annexures with election Petition can be looked into at this stage, he cites (1996) 7 SCC 679-- Mohan vs. Bhairon Singh Shekhawat . According to him various violations of their duties committed by polling officers are pleaded by Petitioner to point out how void votes have been taken into account. (2009) 10 SCC 541--
Ramsukh vs. Dinesh Aggrawal is also relied upon by him to urge that directions issued by Election Commission are statutory nature. As Petitioner is not pleading any connection between these omissions and Respondent , there is no corrupt practice.
Section 83(1) read with Section 100 (1) (d) (iii) dealing with improper reception of any vote or void votes is the case sought to be made out by Petitioner. He has taken the Court through various paragraphs to urge that report prepared by office of Collector about use of spy pen at Narkhed supports the pleadings of Petitioner. CD at Annexure 11 is prepared by office of Collector only because of previous request made by Petitioner ::: Downloaded on - 09/06/2013 16:13:41 ::: 17 and apprehensions expressed by him. Original of that CD is with the office of Collector. Still shots taken from that CD and filed as Annexures are also pointed out to urge that voters named in paragraphs 11 to 14 of Election Petition can be seen therein operating in blatant violation of mandatory procedure prescribed by Election Commission.
10---------------- Provisions of Rule 39, 70 and directive no. 36 of directives issued by Election Commission are relied upon to support above contentions. Though Polling Officer was duty bound to cancel the votes, he failed to discharge that obligation and hence 13 votes cast at Kamptee and 1 vote cast at Narkhed could not have been looked into. According to learned Senior Advocate, the secrecy of ballot cannot be destroyed and hence it is not necessary to indicate the beneficiary of such votes or to plead and to prove it. Identity of voters involved is already disclosed with necessary particulars and hence as per above legal provisions, the 14 votes needed to be excluded. There was straight contest between Petitioner Ashok and Respondent and ::: Downloaded on - 09/06/2013 16:13:41 ::: 18 margin by which Respondent has been elected is only of "4 votes". Section 100(1) (d) (iii) and (iv) of 1951 Act are therefore squarely attracted and those provisions do not necessitate disclosure of name of Respondent as person receiving these 14 votes. A triable issue is already made out and hence Election Petition must proceed on merits.
11------------------ Advocate Gorde states that Order 6 Rule 15 (2) CPC does not require disclosure of source of information and verification as required by Section 83 (1)(c) of 1951 Act does not require any affidavit. Affidavit filed by Petitioner therefore should be ignored and form 25 prescribed under Rule 94A of 1961 Rules also does not warrant disclosure of source of information. 1972 Mah. L.J. 973 -- Manohar Narayan Joshi vs Ramu Mhatang Patel is cited before the Court to urge that in any case such defects are curable and by way of abundant precaution Petitioner has filed application at exhibit 9. He further states that documents supplied to Respondent in his copy of Election Petition are specifically certified as "true copy" and hence meets ::: Downloaded on - 09/06/2013 16:13:41 ::: 19 the requirements of law. (1991) 3 SCC 375 - "F.A. Sapa v.
Singora" and (2005) 2 SCC 188 - Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar are relied upon by him for this. He however states that there is inadvertent omission to mention numbers of paragraphs "6 to 8" in verification and seeks leave to rectify that error. He also points out how Petitioner got CD and invites attention to paragraphs 3, 3A and 3C of exhibit 7 to show how objection raised by Respondent is misconceived. Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar is sought to be distinguished by urging that there no photographs were filed. Upon instructions, on next day learned Senior Advocate also clarified that Petitioner Ashok prepared a copy from CD supplied by office of Collector and that copy is filed as Annexure 11.
12----------------- Advocate Kilor for other Petitioner Shri Anil mostly adopts arguments of Advocate Gorde and states that copy of CD placed on record cannot be the ground for filing an application under Order 7 Rule 11 CPC. He has invited attention ::: Downloaded on - 09/06/2013 16:13:41 ::: 20 to correspondence in this respect to urge that authenticity of copy on record is well established and other details pertain to domain of evidence. Grievance, as per him, in Election Petition 2/2010 is only in relation to 5 votes. Paragraph 20 of that Election Petition at page 12 and 13 clearly indicate the other persons present in polling station including Respondent 1 himself. His argument is those 5 votes were displayed to Respondent 1 present in Booth and necessary details are already pleaded. Learned counsel states that documents filed by Respondent 2 (Ashok - Petitioner in 1/2010) support the case and cause of Petitioner Anil. In view of straight contest between Ashok and Rajendra, he also embarks upon arithmetical calculations. Total 400 votes were polled and hence quota worked out to 201. After 5 votes are canceled, total votes left are 395 only and hence, quota in that eventuality works out to
198. Ashok secured 198 votes and therefore ought to have been declared elected. Identity of these 5 votes is established on record and in any case (if warranted) by tracing out counterfoils, these ballot papers can be located & excluded and thereafter a ::: Downloaded on - 09/06/2013 16:13:41 ::: 21 recount can be ordered. All this according to him clearly establishes that in paragraph 27 and 25 read with paragraphs 8 to 10 of Election Petition 2/2010, facts necessary to demonstrate how election is materially affected already exist. He points out that every page and document is signed by Petitioner Anil as true copy & there is no defect in this respect. According to him source of information is also disclosed & there is no defect in verification. But by way of abundant precaution and in the alternative he seeks orally leave to rectify the defects, if any.
According to him the original CD is required to be produced only when contents thereof are not pleaded. He therefore prays for dismissal of objections as raised and for taking up the trial on merits.
13------------------ In reply, Advocate Manohar states that Section 87 (1) of 1951 Act requires adherence to procedure of CPC "as nearly as may be" and the requirement is subject to provisions of 1951 Act. Due to Section 83, Order 6 CPC is irrelevant and Petitioners have relied upon authorities (precedents) under said ::: Downloaded on - 09/06/2013 16:13:41 ::: 22 Order. There is no verification about contents of CD and now due to expiry of period of limitation that verification cannot be supplied. Attention is invited to document No 24 -- complaint by Petitioner Ashok to Election Commission to urge that it specifically refers to corrupt practices under Section 123 (1) and (2) of 1951 Act. The provisions of Rule 94 A with form 25 as specified therein therefore ought to have been followed and non-
compliance is fatal.
14------------------- I find it appropriate to first find out what the law on the point of pleading on material facts or particulars is.
Petitioners state that they are not seeking any relief on grounds falling under Section 100(1)(b) of 1951 Act. They rely only upon Section 100(1)(d)(iii)&(iv) thereof. They are not even invoking Section 100(1)(d)(ii) dealing with commission of corrupt practice in the interest of returned candidate by an agent other than his election agent. Proviso to Section 83 (1) mandates that when Petitioner alleges any corrupt practice, the Petition must be accompanied by an affidavit in prescribed form in support of ::: Downloaded on - 09/06/2013 16:13:41 ::: 23 allegations and particulars thereof. Learned Senior Advocate Shri Gorde as also Advocate Kilor expressly mentioned that they are not banking their respective Petitions on any proof of corrupt practice. Except for pointing out a representation at document No. 24 with Election Petition 1/2010 which mentions corrupt practices under Section 123 (1) and (2) of 1951 Act, respective counsel appearing for Shri Rajendra could not point out any other material in pleadings to show that this stand was incorrect and Petitioners were intending to allege and prove any corrupt practice. It is admitted position that there is no direct reference either to any influence exercised by said Respondent to secure any advantage or then of actual advantage to him because of alleged irregularities or illegalities committed by voters either at Narkhed or Kamptee. Wrongful reception of void votes or then non-compliance with provisions of 1951 Act or 1961 Rules is the only ground in both matters. In Election Petition 1/2010, dispute is about 14 votes while in 2/2010, it is about 5 votes.
Thus, proviso to Section 83 (1) is not applicable in present matter. Section 83 (1)(b) contemplates setting forth of full ::: Downloaded on - 09/06/2013 16:13:41 ::: 24 particulars of corrupt practice including as full a statement as possible of the names of the parties alleged to have committed it with the date, place of its commission. This requirement is therefore not relevant in present matter. The provisions of Section 83 (1)(a) contemplate a concise statement of material facts on which Petitioner relies. Its clause (c) requires such an Election Petition to be signed by Petitioner and verified in manner laid down in CPC for verification of pleadings. In view of the prayers made in both matters, it is obvious that this court is not required to consider the case of any corrupt practice. Use of those words in document No 24 by Petitioner Shri Ashok does not make the Petition as filed one under Section 100(1)(b) or
(d)(ii) of 1951 Act.
15---------------In AIR 1975 S.C. 2182 "Ram Autar Singh Bhadauria v. Ram Gopal Singh" relied upon by Advocate Manohar, challenge was to order dated 9/4/1975 allowing prayer for recount. High Court considered additional pleas put up in written statement as relevant for adjudication of challenge under ::: Downloaded on - 09/06/2013 16:13:41 ::: 25 section 100(1)(d)(iii). Those additional pleas are reproduced in paragraph 12 of the judgment and in paragraph 13 Hon Apex Court has noted that same were in the nature of the recriminatory pleas which could not be investigated in that Election Petition. Whether any votes are improperly cast in favour of returned candidate or any votes have been improperly refused or rejected in regard to any other candidate are the only two matters found relevant by Hon Apex Court to decide whether election of returned candidate has been materially affected or not. The High Court there had by order dated 9-4- l975, directed scrutiny and recount of ballot papers on the ground that: (a) The appellant "was declared to have won by a very small margin of only 22 votes". Said order was set aside & matter was remanded back to High Court. There the Hon'ble Apex Court observed :--
"-17. Further the High Court did not properly apply its mind to the question, whether on the facts alleged in Para 11 (a) and (b) of the petition - assuming the same to be correct - a prima facie case for improper ::: Downloaded on - 09/06/2013 16:13:41 ::: 26 rejection of the 50 ballot papers referred to therein, had been made out. In other words, if the defects in these 50 ballot papers were attributable to the mistakes or negligence of the Presiding Officer or his staff, would it take those ballot papers out of the mischief of clauses (a) and (b) of Rule 56 (2) of the Conduct of Election Rules, 1961? -" Little later it also observed :--"- It will be sufficient to reiterate that the provisions of Rules 38 and 56 (2) (a) and
(b) with which we are concerned in this case are mandatory and strict compliance therewith is essential. Once it is established that the fault specified in clause (a) or (b) of Rule 56 (2) has bean committed, there is no option left with the Returning Officer but to reject the faulty ballot paper. We would further make it clear that even if any such defect as is mentioned in cl. (a) or (b) of Rule 56 is caused by any mistake or failure on the part of the Returning Officer or Polling Officer, the Returning Officer would be bound to reject the ballot paper on the ground of such defect. That such is the imperative of Rule 56 (2) is clear from the fact that the said clauses (a) and (b) have advisedly been excluded from the first Proviso to Rule 56 (2) which gives a limited discretion in the matter of rejection to the Returning ::: Downloaded on - 09/06/2013 16:13:41 ::: 27 Officer only where the defect is of a kind mentioned in clauses (g) and (h) of this sub-rule. -"
The Hon. Apex Court therefore found that evidence was essential to find out who supplied the marking instrument to the voters.
16----------------------In AIR 1954 S.C. 513 "Vashist Narain Sharma v. Dev Chandra" in para 8, Hon Apex Court notes earlier view that the question should always be decided on the basis of the material on the record and not on mere probabilities. There is difference between an improper rejection and an improper acceptance of nomination observing that while in the former case there is a presumption that the election had been materially affected, in the latter case the petitioner must prove by affirmative evidence though it is difficult, that the result had been materially affected. Little latter Hon Court stated that it was not prepared to hold that the mere fact of wasted votes being greater than the margin of votes between the returned ::: Downloaded on - 09/06/2013 16:13:41 ::: 28 candidate and the candidate securing the next highest number of votes must lead to the inference that the result of the election has been materially affected. That is a matter to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. In paragraph 11 it is observed "---We are of opinion that the language of Section 100 (1) (c) is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected. The number of wasted votes was 111. It is impossible to accept the 'ipse dixit' of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly ::: Downloaded on - 09/06/2013 16:13:41 ::: 29 upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the tribunal nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter entirely for the legislature to consider.
The English Act ---". This view is followed in "Shiv Charan Singh v. Chandra Bhan Singh" (supra) where the Hon Apex Court holds that the result of the election can be affected only on the proof that votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes. The burden to prove this material effect is noted to be difficult and many times, almost impossible for absence of the requisite proof. But the difficulty in proving this fact does not alter the position of law. The legislative intent is clear that unless the burden, however difficult it may be, is discharged, the election cannot be declared void. It is not permissible in law to avoid the election of the ::: Downloaded on - 09/06/2013 16:13:41 ::: 30 returned candidate on speculation or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates. Reliance upon "Anil Wasudeo Salgaonkar vs. Naresh Kushali Shigaonkar"
by Respondent Rajendra appears to be not very relevant as it deals with corrupt practice and therefore with requirement of pleading material facts and full particulars. Its perusal shows that whether a particular fact is material or not depends upon nature of charges leveled and circumstances of the case. All facts essential to clothe the Petitioner with complete cause of action must be pleaded and failure to plead even a single material fact is violation of mandate of Section 83(1)(a) of 1951 Act. In paragraph 57 of the judgment Hon Apex Court states that all material facts must be pleaded within the period of limitation.
In paragraph 58, it considers the meaning of expression "material facts" and in paragraph 60, Hon'ble Apex Court finds that absence of averment that bore wells were dug with consent and/or active knowledge of appellant before it was fatal. In "T. H. Musthaffa v. M. P. Varghese" (supra) when pleadings in ::: Downloaded on - 09/06/2013 16:13:42 ::: 31 petition were not referring either to R. 39 or R. 56 & only allegation made in pleading was about wrong acceptance of invalid votes without details as to how many votes were liable to be rejected for using wrong instrument, Hon Apex Court found pleadings insufficient to order recount of ballot papers. Mere fact that certain ballot papers were marked with wrong instrument by itself is found not to lead to conclusion that such ballot should be rejected. As Polling Officer supplied wrong instrument i.e. other than the one which was prescribed for marking the ballot papers, it was held that the election petitioner cannot take advantage of mistake on part of Polling Officer and demand rejection of such ballot papers & that Instrument in such case was deemed to have been "supplied by Polling Officer" within meaning of Rs. 39 and 56(2)(b) of Conduct of Election Rules.
17------------------(2009) 10 SCC 541--Ramsukh vs. Dinesh Aggarwal, is relied upon by both sides. Election Petition their was filed under Section 80 read with Section 100(1)(b)and(d) of 1951 Act. Application under Order 7 Rule 11 of CPC read with ::: Downloaded on - 09/06/2013 16:13:42 ::: 32 Section 86 raising preliminary objection came to be filed and High Court came to conclusion that allegations of corrupt practice were superfluous in nature, concise statement of material facts was lacking and there was no affidavit supporting the allegations of corrupt practice. The order of High Court was then assailed before Hon Apex Court. The Hon Apex Court has found that material facts must be pleaded and failure to plead even a single material fact leads to an incomplete cause of action. Quoting of words of Section is not sufficient for this purpose. In paragraph 16 distinction between "material facts"
and "particulars" has been noticed. The facts by means of which facta probanda (material facts) are proved are found to be in the nature of particulars or evidence i.e. facta probantia and it is noted that the same need not be set out in pleadings. They are not the facts in issue, but only relevant facts required to be proved at trial in order to establish the fact in issue. However, in paragraph 21 Hon Apex Court noticed that case of election petitioner was confined to alleged violation of Section 100(1)(d)
(iv) of 1951 Act. It is observed that: -- "it is plain that in order to ::: Downloaded on - 09/06/2013 16:13:42 ::: 33 get an election declared as void under the said provision, the election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the Act, the result of the election, insofar as it concerned the returned candidate, was materially affected. "In paragraph 22 of the judgment, the relevant pleadings are reproduced and in paragraph 23 it is noticed that instructions contained in handbook for returning officers issued by Election Commission are binding on returning officers. Then, Hon Apex Court notes that question before it was whether alleged omission on part of Returning Officer ipso facto "materially affected" the election result. The pleadings as summarized show the plea that by the time specimen signature of polling agent was circulated, 80% of polling was over and because of inability of the polling agent to function till 3 PM. They & almost all other poling agents of the petitioner working at other polling stations got confused.
Supporters of the petitioner either returned back or then voted in favour of first respondent. It was alleged that there was inaction on part of the Returning Officer. Hon Apex Court found the ::: Downloaded on - 09/06/2013 16:13:42 ::: 34 same to be vague and not pointing out how election results were materially affected because of these two factors. These facts are found falling short of being "material facts" for the purposes of Section 83(1)(a) to constitute the complete cause of action in relation to the allegation under Section 100(1)(d)(iv) of 1951 Act. Petitioner ought to have averred in what manner the result of election insofar as it concerned the first respondent was materially affected due to said omission on the part of Returning Officer. Rejection of election petition by High Court at threshold was therefore held justified. In (2010) 4 SCC 81-- Laxmi Kant Bajpayi vs. Haji Yaqoob, election petition was under Section 83 read with Section 100(1)(d)(iii) & (iv) of 1951 Act. The grounds placed before High Court are mentioned in paragraph 4 of the judgment and discussion about material facts and cause of action can be found from paragraph 37 onwards. Election Petitioner has to disclose all material facts on which he relies to establish the existence of a cause of action. Otherwise the petition is liable to be dismissed as it would be covered by Section 83(1)(a) of 1951 Act. Various earlier judgments are ::: Downloaded on - 09/06/2013 16:13:42 ::: 35 looked into and I find it convenient to refer to settled legal position as illustrated in paragraph 45 the judgment. The pleadings of election Petitioner must reveal a clear and complete picture of the circumstances and should disclose a definite cause of action. In the absence of such pleading election petition can be summarily dismissed. (1999) 1 SCC 666 -- L.R. Shivramagowda vs. T.M. Chandrashekhar , in paragraph 11 states that failure to plead material facts is fatal to election petition and/or amendment of pleading can not be allowed to introduce such material facts after the time limit prescribed for filing the election petition. But the absence of material particulars can be cured at a latter stage by appropriate amendment. No doubt this matter before Hon Apex Court was about corrupt practice but then in paragraph 10, the Hon Apex Court has looked into Section 100(1)(d)(iv) only. Discussion by Hon Apex Court in (2009) 9 SCC 310--"Anil Wasudeo Salgaonkar vs. Naresh Kushali Shigaonkar" again reveals the same law. Hon Apex Court has stated that failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1) ::: Downloaded on - 09/06/2013 16:13:42 ::: 36
(a). Consideration in paragraph 55, 56 also shows that in absence of pleading the party cannot be allowed to lead evidence, serious proceedings like election petition cannot be treated lightly and cannot be allowed to be abused. The allegations of corrupt practice were limited to digging of bore wells only and there was no averment that same were dug with the consent &/or active knowledge of returned candidate. Hon Apex Court held that such averment was absolutely imperative and its absence was fatal.
18--------------- According to Senior Advocate Gorde & Adv. Kilor, the above law mandates pleading of "material facts" in election petitions where corrupt practice was alleged and those standards are not essential in present Election Petitions. (2001) 2 SCC 294 --AIR 2001 S.C. 416-- "Rajasthan High Court Advocates Association v. Union of India" & (2000) 7 SCC 640 - AIR 2000 S.C. 2966-- "Navinchandra N. Majithia v. State of Maharashtra"
relied upon by him only explain what constitutes a cause of action. Consideration in latter judgment from paragraph 34 ::: Downloaded on - 09/06/2013 16:13:42 ::: 37 onwards shows that in legal parlance the expression 'cause of action' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in Court from another person. (Black's Law Dictionary). In Stroud's Judicial Dictionary a 'cause of action' is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment.
In 'Words and Phrases' (fourth edition) the meaning attributed to the phrase 'cause of action' in common legal parlance is existence of those facts which give a party a right to judicial interference on his behalf. Order 7 Rule 11 (a) of CPC contemplates rejection of plaint when it does not disclose a cause of action. Order 6 Rule 2 states that pleadings have to state material facts and its language shows that it is statement in concise form of material facts on which party relies for his claim and not the evidence by which those facts are to be proved. Section 83 of 1951 Act in its ::: Downloaded on - 09/06/2013 16:13:42 ::: 38 clause (a) contemplates this statement and its clause (b) requires full particulars of corrupt practice. Thus material facts need to be disclosed under both clauses. There is no distinction between "material fact" for the purposes of these two clauses and it cannot be argued that some more facts are required to be disclosed as part of "material facts" under its clause (b). All facts having bearing upon result of election and required to be proved to show that election of returned candidate has been materially affected, are material facts. Here the Petitioner has to demonstrate that there was improper reception of any vote or then reception of any vote which is void and this reception has helped returned candidate to win. Similarly he has to demonstrate that there was non-compliance with provisions of 1951 Act or Rules or Orders made under the Act and that such non-compliance has helped Respondent to win in election. All facts necessary to sustain such conclusion are material facts & are required to be pleaded. It is correct that truth of such facts is not relevant at this stage. In this respect, reference can be made to judgment of Hon Apex Court reported at (1994) 2 SCC 392 -::: Downloaded on - 09/06/2013 16:13:42 ::: 39
"Mohan Rawale v. Damodar Tatyaba" which shows that a reasonable cause of action is said to mean a cause of action with some chance of success when only the allegations in the pleading are considered. It also lays down that so long as the claim discloses some cause of action or raises some question fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are quite often more known than clearly understood. It does introduce another special demurer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. The distinctions among the ideas of the "grounds" in See. 81(1), of "material facts" in Section 83(1)(a) and of "full particulars" in S. 83(1)(b) are held obvious. The provisions of S. 83(1)(a) and (b) are in the familiar pattern of Order VI, Rules 2 and 4 and Order 7, Rule 1(e), Code of Civil Procedure. There is a distinction amongst the 'grounds' in Section 81(1); the 'material facts' in Section 83(1)(a) and 'full ::: Downloaded on - 09/06/2013 16:13:42 ::: 40 particulars' in Section 83(1)(b). Further, the distinction between "material facts" and "full particulars" is one of degree. The lines of distinction are not sharp. "Material facts" are those which a party relies upon and which, if he does not prove, he fails. It explains that the distinction between 'Material facts' and 'particulars' which together constitute the facts to be proved or the 'facta probanda' on the one hand and the evidence by which those facts are to be proved i.e. facta probantia on the other, must be kept clearly distinguished.
19----------------------In AIR 1999 S.C.2044 "V. S. Achuthanandan v.
P. J. Francis" relied on by Advocate Gorde, Hon. Apex Court found that the election petition was rejected mainly on the ground that it did not disclose the cause of action as according to the learned trial Judge the allegations regarding corrupt practice were vague and did not disclose "material facts and full particulars" of the corrupt practice alleged. The learned trial Judge did not distinguish between the 'material facts' and 'material particulars' of allegations regarding corrupt practices as ::: Downloaded on - 09/06/2013 16:13:42 ::: 41 defined under Section 123 of the Act. It also noted that he lost sight of allegations of the petitioner made in paragraph 9 of the election petition wherein it was stated :-"The result of election, in so far as it concerns the returned candidate, the 1st respondent in this case, has been materially affected by (i) corrupt practice committed in the interest of the returned candidate by his agents, election agent and the returned candidate (ii) by the improper reception of votes which is void and (iii) by the non-
compliance with the provisions of the Constitution and the provisions of the Representation of the People Act, 1951 as also rules and orders made under the Act." Hon. Apex Court concluded that it was, therefore, wrongly, found that in the absence of specific pleadings and full particulars of corrupt practices, the election petition deserved rejection as it allegedly did not disclose any cause of action. The trial Judge was found to have equated the cause of action with proof and thus committed an illegality of law requiring interference by Apex Court. Thus view taken by Hon Apex Court is because of ignorance of paragraph 9 of election petition by trial court. Same Bench of ::: Downloaded on - 09/06/2013 16:13:42 ::: 42 Hon Apex Court in AIR 1999 SC 1128 - (1999) 3 SCC 267 -- "D. Ramachandran v. R.V. Janakiraman" pointed out difference between "Full particulars" and "material facts". The distinction between two should be made while sustaining preliminary objection as to tenability of petition. It is stated that Court cannot dissect pleadings into several part and strike out portion which does not disclose cause of action. When Petition disclosed cause of action which if un-rebutted could void the election, its rejection at threshold under O.7, R. 11(a) without trial was held not justified. Hon Apex Court also held that at that stage Court cannot probe into facts on the basis of controversy raised in the counter. Perusal of (1998) 1 SCC 416--AIR 1998 SC 337--
"Ashwani Kumar Sharma v. Yaduvansh Singh" reveals that there contents of election petition are considered in paragraph 5 which gave particulars of some of the irregularities committed by returning officer while counting on table No 11 and 12. He also gave number of votes which could have been counted in his favour and referred to contemporaneous written complaints lodged by him. Number of votes alleged to have been counted ::: Downloaded on - 09/06/2013 16:13:42 ::: 43 defectively was also given in tabular form pointing out that ballot papers of two different colours were seen. His complaint in this respect was not attended to and his counting agents were not given a reasonable opportunity of inspecting ballot papers before rejection. The consideration in paragraph 7 by Hon Apex Court shows that these pleadings were sufficient to constitute material facts and merely because names of counting agents and election agents were not disclosed in verification affidavit, High Court could not have labeled these pleadings as vague. It is also observed that evidence in support of such material facts was not required to be set out. Mohan vs. Bhairon Singh Shekhawat --
(1996) 7 SCC 679, shows that contents of annexure to election petition incorporated by reference in it are required to be read together and can give rise to triable issue on corrupt practice, and hence preliminary rejection thereof is unwarranted.
21----------------- To understand impact of above precedents on present Election Petitions it is necessary to note the pleadings in both petitions separately. However it is admitted position that ::: Downloaded on - 09/06/2013 16:13:42 ::: 44 the copy of CD filed with both stands incorporated in pleadings.
There is also preliminary objection about verification and affirmation in the matter. Hence before touching the facts as pleaded, it will be appropriate to consider said challenges. The pleadings or facts, if found to be acceptable after the said objection is considered, can then be looked into to find out whether case of election being "materially affected" is made out or not.
22---------------- Absence of proper verification and affidavit is also the ground of attack in both matters. Respective Counsel for Respondent Rajendra in both matters however, fairly stated that the error in verification to certain extent is curable. Advocates for both Petitioners have by way of abundant precaution sought leave to carry out amendment in said verification/affidavit to bring it in conformity with law. Respondent No 1 has stated that it is not necessary for this Court to invite Petitioners to correct the error. They urge that source of CD and information is not disclosed. As CD forms part of pleading, grant of leave to ::: Downloaded on - 09/06/2013 16:13:42 ::: 45 disclose such source or to support it by verification after expiry of period of limitation is not permissible. Both sides have cited some judgments in this respect. But then it is not in dispute that this Court need not invite Petitioners to make amends and a "material fact" cannot be allowed to be added after expiry of period of limitation. In view of this position, it is not necessary to refer to that case law in present matter. However Petitioner in Election Petition 1/2010 has already filed application at Exhibit 9 seeking leave to carry out amendment. Adv. Kilor for other Petitioner has made similar request orally. I find it appropriate to consider application at Exhibit 9 first. Said application registered as Civil Application 679/2010 in EP 1/2010 states that Petitioner is not alleging commission of any corrupt practice and he desires to file additional affidavit to disclose the source of information with regard to contents of paragraphs 6, 7 and 8 in Election Petition which was left out inadvertently in verification and affidavit. Respondent has not filed any reply to this application because of objection raised in Civil Application 415/2010 at exhibit 7. Contents of these three paragraphs ::: Downloaded on - 09/06/2013 16:13:42 ::: 46 contained in Election Petition 1/2010 may be briefly noted . The contents of para 6 disclose taking of photograph of vote cast by her by one Nirmala at Narkhed, raising of written objection by polling agent Shri Chavan, seizure of spy pen from her, drawing of panchanama, written complaint about all this to Collector. In paragraph 7 shows making of report by head of polling booth to Collector. These documents are filed as document No 2, 3 and 4.
Its paragraph 8 then speaks of declaration of result on 21/12/2009 and number of total votes cast, valid votes as secured by Petitioner and Respondent 1 with number of invalid votes. It also states that quota was fixed at 201 and Petitioner lost by only 3 votes. Copies of return of election supplied by office of Collector & Returning Officer are filed as document No 5 and 6. These contents show that facts pleaded are based upon documents mostly. Verification filed by Petitioner Shri Ashok shows that contents of paragraphs 1 to 5, 19 and 24 & 25 are based on his personal knowledge. He has also added that he believes it to be true. It is further stated that contents of para's 9 to 18 are based upon information received from office of ::: Downloaded on - 09/06/2013 16:13:42 ::: 47 Collector and returning officer which he believes to be true.
Contents of paragraphs 20 to 23 and 26 are stated to be based on legal advice received from his Counsel and believed to be true and correct by him. In this background, by allowing application at Exhibit 9, no material fact gets added either to verification or to affidavit. Exhibit 9 does not contain a whisper about CD.
Additional affidavit in support of election Petition filed by Shri Ashok is on same lines and its contents are same as that of verification. Hence by amending said affidavit also, no prejudice is caused to Respondent. Verification by Petitioner Shri Anil in Election Petition 2/2010 discloses that contents of paragraphs 1,2, 29 and 30 thereof are true to his own knowledge. He has further added that contents of paragraphs 2 to 28 are based upon information received by him and believed by him to be true. Contents of paragraphs 31 to 36 are stated to be partly based on his personal knowledge and partly on information received and believed to be true by him. His affidavit in support of Petition states that he has read the entire Petition, fully understood contents of its paragraphs 1 to 36 and those contents ::: Downloaded on - 09/06/2013 16:13:42 ::: 48 are true and correct to the best of his knowledge, belief and record. Advocate Patil has argued that there is inconsistency between verification and affirmation. In view of the oral leave sought by Advocate Kilor, as there are no allegations of any corrupt practice, I find that opportunity to correct the error needs to be extended even to this Petitioner.
Section 83 (1) (c) of 1951 Act requires an Election Petition to be signed by Petitioner and verified in the manner laid down in Code of Civil Procedure. Its proviso shows necessity of affidavit in prescribed form only when corrupt practice is alleged. As no corrupt practice is alleged by any of the Petitioners here, reference to Rule 94A of 1961 Rules or Form 25 therewith is uncalled for. Order 6 Rule 15 stipulates that verification has to be by the person proved to the satisfaction of the Court to be acquainted with the facts of the case. Such person has to specify with reference to numbered paragraphs of pleadings, the paragraphs which he verifies of his own knowledge and which he verifies upon information received and believed to be true. The verification needs to be signed by the ::: Downloaded on - 09/06/2013 16:13:42 ::: 49 person making it and it has to state the date on which and the place at which it was signed. With effect from 1/7/2002, by amendment Act 1999 sub rule (4) has been added to this Rule 15 and it requires the person verifying to also furnish an affidavit in support of his pleadings. That affidavit has been furnished by both the Petitioners. It is not in dispute that these formalities are satisfied in present matters. The provision in CPC does not require source of information or reason for belief to be disclosed.
Even in case of corrupt practice, form 25 does not require source of information to be disclosed. In this view of matter, non-
disclosure of source by itself cannot prejudice Petitioners. The Petitioners in both matters are mostly relying on records with Collector and Returning Officer which is public record.
23------------------- Objection of not supplying "true copy" to Respondent in both matters or the objection about absence of verification on documents supplied along with Election Petition to him (Rajendra) can also be simultaneous reconsidered. For this purpose, more stress is given on Annexure 11 i.e. copy of ::: Downloaded on - 09/06/2013 16:13:42 ::: 50 CD. It is apparent that original record of video shooting is with Returning Officer. Both Petitioners have stated that they have been given copy of that shooting contained in CD. They have produced a copy of that CD as document. That CD is placed in an envelope and paper on which that envelope is pasted carries endorsement of true copy. All other documents also bear same endorsement and signatures of Petitioners. Seal of their name is also placed below each signature. Existence of such signatures is not in dispute. Section 83 (2) of 1951 Act mandates that any Annexure to such Election Petition shall also be signed and verified in same manner as the Election Petition itself. Again in view of Section 86 (1), Election Petition need not be dismissed for such defect. Both Petitioners have prayed for an opportunity to make amends and the same can be extended to them. Their intention behind putting endorsement on each page of document or each document as "true copy" with their signatures in original below it is definitely to certify it as such and to accept responsibility for such certification. Respondent has attempted to point out defects in reply filed by Petitioners to his ::: Downloaded on - 09/06/2013 16:13:42 ::: 51 applications under Order 7 Rule 11 CPC, but in present circumstances, reference in more details to it is unnecessary.
24-------------------- In (2001) 7 SCC 98 -- AIR 2001 S.C. 2565 -
"Mulayam Singh Yadav v. Dharampal Yadav" relied on by Advocate Manohar, election petition contained allegation of booth capturing, arson and violence & video cassette mentioned and verified in schedule to petition giving particulars thereof.
However the video cassette itself constituting integral part of election petition was not filed. Hon Apex Court held that election petition as filed, was, therefore, not complete and deserved to be dismissed. Following observations are important: --
"12. Ordinarily, what is shown upon the video cassette that is mentioned and verified in Schedule 14 would have been set out in the election petition and then that video cassette could have been said to be evidence of the allegations made in the election petition. As this election petition is drafted, there is no description of what is shown on this video cassette except to say that it shows booth capturing, violence and arson. As to booth capturing, there are ::: Downloaded on - 09/06/2013 16:13:42 ::: 52 particulars contained in the other Schedules but even in that regard the later paragraphs of the election petition make reference to Schedule 14 so that even in regard to booth capturing the particulars shown in the video cassette mentioned and verified in Schedule 14 are relied upon. So far as the allegations of violence, and arson are concerned, there are no particulars in the election petition absent (about?) the video cassette mentioned and verified in Schedule
14.
13. We are, therefore, satisfied that the video cassette mentioned and verified in Schedule 14 is an integral part of the election petition and that it should have been filed in Court along with copies thereof for service upon the respondents to the election petition.
Whereas 15 copies thereof were filed for service upon the respondents, the video cassette itself was not filed. The election petition as filed was, therefore., not complete.
14. Section 81 contemplates the presentation of an election petition that is complete and satisfies the requirements of Section 83. An election petition that is not complete must, having due regard to the imperative mandate of Section 86, be dismissed. The present election petition must, therefore, be ::: Downloaded on - 09/06/2013 16:13:42 ::: 53 dismissed."
Here, the Election Petitions incorporate the details of what is contained in CD with reference to it and also still shots borrowed from it are filed as Annexures in support of the description of its contents. It is therefore obvious that this judgment cannot assist Respondent Rajendra.
(1991) 3 SCC 375- AIR 1991 S.C. 1557 "F.A. Sapa v.
Singora" relied upon by Adv. Gorde shows that the power of amendment granted by Section 86(5) is relatable to clause (b) of S.83(1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the election petition. The power is not relatable to clause (a) of Section 83(1) as the plain language of Section 86(5) confines itself to the amendments of 'particulars' of any corrupt practice alleged in the petition and does not extend to 'material facts'. However, once the amendment sought falls within the purview of Section 86(5), the High Court should be liberal in allowing the same unless, in the facts and ::: Downloaded on - 09/06/2013 16:13:42 ::: 54 circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience. It also shows that mere defect in the verification of the election petition is not fatal to the maintainability of the petition and the petition cannot be thrown out solely on that ground. Since Section 83 is not one of three provisions mentioned in Section 86(1), ordinarily it cannot be construed as mandatory unless verification is shown to be an integral part of the petition under Section 81. About the corrupt practice allegation, Hon. Apex Court states that High Court should ensure compliance with requirements of S.83 before parties go to trial. It also states that delay in complying with the requirements of Section 83 read with the provisions of the C.P.C.
or the omission to disclose the grounds or sources of information, though not fatal would weaken the probative value of the evidence ultimately lead at the actual trial. Therefore, an election petitioner can afford to overlook the requirements of Section 83 on pain of weakening the evidence that he may ::: Downloaded on - 09/06/2013 16:13:42 ::: 55 ultimately tender at the actual trial of the election petition. The charge of corrupt practice has to be proved beyond reasonable doubt and not merely by preponderance of probabilities. Hon. Court also states that the election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition and (ii) every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. So far as the second part is concerned all that the section requires is that the copy should be attested by the petitioner to be a true copy of the petition under his own signature. The requirement of this part of the provision is met by each copy having been signed at the foot thereof by the concerned petitioner. What is essential is that the petitioner must take the responsibility of the copy being a true copy of the original petition and sign in token thereof. No particular form of attestation is prescribed; all that the sub-section enjoins is that the petitioner must attest the copy under his own signature to be a true copy of the petition. By certifying the same as true copy and by putting his signature at the foot thereof, the petitioner ::: Downloaded on - 09/06/2013 16:13:42 ::: 56 was found to have clearly complied with the letter and spirit of Section 81(3). About the schedule or annexure, Hon. Apex Court observes that if it constitutes an integral part it must satisfy the requirements of Section 81(3) and failure in that behalf would be fatal. But if it does not constitute an integral part of the election petition, a copy thereof need not be served along with the petition to the opposite party. These observations are therefore enough to reject the objections of returned candidate to verification or affirmation here in present matters.
25------------------- Next objection is not supplying "true copy" to Returned Candidate in both matters. Judgment of Hon Apex Court reported at (1996) 5 SCC 181-- AIR 1996 SC 1691--
"Shipra, Dr. v. Shanti Lal Khoiwal" examines the meaning of furnishing of "true copy" in election petition complaining of corrupt practice to the respondent. Because of requirement of proviso of Section 83 (1) of 1951 Act and of Rule 94A of 1961 Rules and mandatory use of Form 25, it has been held that it forms integral part of petition and omission to mention those ::: Downloaded on - 09/06/2013 16:13:42 ::: 57 details on copy supplied to respondent is fatal. This judgment shows that where apart from corrupt practice other issues are also raised independently in such election petition, only those portions containing allegations of corrupt practice need to be struck off, living other issues to be decided on merit. (1999)4 SCC 274 -- AIR 1999 SC 1359 "T. M. Jacob v. C. Poulose" is the judgment of Constitution Bench of Hon Apex Court which has considered the above judgment and noted that it was a case of complete absence of notarial endorsement of verification as well as absence of an affirmation or oath by election petitioner. Hon. Constitution Bench found that in facts before it the copy of affidavit supplied to other side contained the endorsement that affidavit was duly affirmed, signed and verified by Petitioner before the notary. The words "Sd/-- notary" were also written and only name and address of notary with his stamp and seal were missing. This was found to be materially different than defect in Shipra's case. The Hon Constitution Bench confined the "wide observations" in that case to "facts situation" in that case.
In AIR 1999 SC 732 --"Anil R. Deshmukh v. Onkar N. Wagh", ::: Downloaded on - 09/06/2013 16:13:42 ::: 58 Shipra's case and Constitution Bench judgment are both noticed and though doubt was expressed about correctness of view in Shipra, Hon Larger Bench found it unnecessary and concluded :--
" We have already referred to the fact that even before arguments were heard on the preliminary objection by the High Court in this case the true copies of the affidavits had been served on the first respondent and his counsel. In the facts and circumstances of this case, we have no doubt that there was sufficient compliance of the provisions of Section 81 (3) read with Section 83 (1) (c) of the Act even if it could be said that the copies served in the first instance on the first respondent were not in conformity with the provisions of the Act. Unfortunately, this aspect of the matter has been completely ignored by the High Court. Hence the order of the High Court dismissing the election petition in limine is unsustainable." In AIR 2003 S.C. 51-- "Ram Prasad Sarma v. Mani Kumar Subba", there was no dispute that the original election petition bore the signatures of the Oath Commissioner before whom the affidavit was sworn by the petitioner. But in the copies supplied to respondent No. 1 though attested to be true copy, it did not ::: Downloaded on - 09/06/2013 16:13:42 ::: 59 indicate about the endorsement of the Oath Commissioner on the affidavit. Therefore, the contention was that it was not the true copy of the affidavit accompanying with the election petition. Hon. Apex Court observes in paragraph 16 that :--"
From the various decisions noted above, it clearly emerges out that the correctness of the decision Dr. Shipra's case (supra) was doubted and it has been held by the Constitution Bench in the T. M. Jacob's case (supra) that it was confined to the facts of that case.
Therefore it cannot be said that Dr. Shipra's case lays down any proposition of law of binding nature. The two decisions of the Constitution Benches, namely Radhey Shyam Murarka and T. M. Jacob (supra) hold the field as well as the decision in the case of Sri T. Phungzathang (supra). The law as laid down in the above noted decisions would be the guiding precedents in deciding a question relating to a true copy of an affidavit. " Its findings contained in paragraph 21 apply in present matter also and the same are: -- "
21. The only grievance is that the stamp and the name of the Oath Commissioner is not indicated in the true copy of the affidavit. We feel that if it was there it would have been better but absence of ::: Downloaded on - 09/06/2013 16:13:42 ::: 60 stamp and the name of Oath Commissioner will not be a vital or material deviation from the original nor it may in any manner mislead the returned candidate. Prima facie on perusal of the heading of the affidavit and detailed verification of the contents of the paragraphs, as indicated above, would normally lead one to believe that the averments have been made on affidavit. In paragraph one of the affidavit there is a specific mention that the petitioner was acquainted with the facts of the case for the purpose of swearing of the affidavit in support of contention of corrupt practices taken recourse to by respondent No. 1 and respondent No.
7. In the end the petitioner signs as `deponent' and he is identified by Advocate's Clerk. That being the position, mere omission of indicating the name of the Oath Commissioner or an endorsement in the true copy that the affidavit was attested by an Oath Commissioner bearing his stamp and seal etc. would not be material. Once an averment is there that affidavit was being sworn in support of allegations of corrupt practices and that the petitioner had put his signature, thereon, prima facie fulfillment of such a legal requirement is adequately reflected even in absence of name ::: Downloaded on - 09/06/2013 16:13:43 ::: 61 and seal etc. of Oath Commissioner in the true copy. " This precedent clearly saves the situation for both the Election Petitioners before this Court.
26--------------------------- Certain judgments cited by respective Counsel need to be considered in this perspective. Advocate Gorde has relied upon 1972 Mh. L.J. 973 -- Manohar Narayan Joshi vs Ramu Mhatang Patel wherein the learned Single Judge of this court has found that nondisclosure of source of information and grounds of belief in affidavit filed in support of election petition is not a fatal defect. Said election petition was complaining of a corrupt practice. Purushottam, v. Returning Officer, Amravati and others --AIR 1992 Bom. 227, absence of endorsement of Notary on copy of affidavit accompanying election petition is held fatal. The learned Single Judge has found that absence of endorsement of the Notary, "affirmed and signed before me", his designation and the stamped endorsement regarding the affirmation, cannot be regarded as inconsequential. It is an omission of a vital nature which is likely ::: Downloaded on - 09/06/2013 16:13:43 ::: 62 to prejudice the returned candidate. It is no part of the duty of the returned candidate to wade through the entire record in order to find out whether the copy supplied to him was a correct one or not. In that case, in the absence of the endorsement of the notary on the copy supplied to the returned candidate, it was not possible for him to know whether the affidavit was really sworn and if so, before whom it was sworn and on what date. Absence of endorsement of the Notary on the copy of the affidavit accompanying the election petition was then held not only a clerical or typographical mistake. Judgment of Hon Apex Court in "Ram Prasad Sarma v. Mani Kumar Subba" (supra), considered above does not necessitate any further consideration of this view and such omission cannot be accepted as fatal thereafter. While passing orders on similar application registered as Civil Application 4325/2005 in Election Petition 4 of 1994 (Vasantrao son of Balajipant Itkelwar vs. Rajendra Bhausaheb Mulak and Returning Officer) on 10/8/2006, I have considered similar challenge but then it was a matter of corrupt practice. There the judgment of Hon Apex Court in case of (2005) 2 SCC 188 --::: Downloaded on - 09/06/2013 16:13:43 ::: 63
Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar holding rejection at thresh hold for want of source of information not correct is relied upon. This judgment has been relied upon by Petitioner here also. Hon Apex Court there states that Section 81(3) postulates that every copy of the election petition shall be attested by the election petitioner under his own signature to be a true copy of the petition. From a bare perusal of the defects which have been referred to there, Hon. Court concluded that such defects cannot be said to be of vital nature.
According to Respondent No.1 before Apex Court, (1) there was no signature of the election petitioners at page 10 of the petitions after the prayer clause and verifications (2) the stamp in respect of the swearing of the affidavit was also absent on the copy of the election petitions and, (3) the affidavit accompanying the petition also did not bear the signature of the election petitioners. These defects are held not sufficient to warrant dismissal at thresh hold. This view also appears recently in AIR 2008 S.C. 1577 "Umesh Challiyil v. K. P. Rajendran", where it is stated that the election petition has to be seriously ::: Downloaded on - 09/06/2013 16:13:43 ::: 64 construed. But that apart the election petition should not be summarily dismissed on small breaches of procedure. Hon. Apex Court points out that Section 83 itself says that the election petition should contain material facts. Section 86 says that the High Court shall dismiss the election petition which does not comply with the provisions of S. 81 or S. 82 or S. 117. But not on defects of minor or cosmetic nature such as defect in verification or affidavit in support of allegations of corrupt practices. These are not the grounds mentioned in S. 86 for dismissal of election petition. But nonetheless even if it is to entail serious consequence of dismissal of the election petition for not being properly constituted, then too at least the petitioner should have been given an opportunity to cure these defects and put the election petition in proper format. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/ cure the defects, it could result into dismissal ::: Downloaded on - 09/06/2013 16:13:43 ::: 65 on account of O. 6, R. 17 or O.7, R. 11, CPC. Advocate Manohar has relied upon judgment dated 29/4/2010 in Election Petition 3 of 2009 -- Shishupal Nathuji Patle vs. Praful Patel. In fact it is order on Civil Application 837 of 2009. The election petition contained complaint about corrupt practice of exceeding the limit of election expenses as also of Annexures not being verified.
This court has found that copy served on respondent was merely signed on all pages without putting the endorsement "true copy".
Hence it was held that it was not a true copy & as the failure to attest was found in totality, this court held that defect cannot be purged or rectified and it was fatal due to Section 81(3).
Intention to attest & accept responsibility could not be gathered there by this Court. Similarly failure to furnish verification on each Annexure was also held fatal. Failure to furnish material facts, defect in verification or failure to produce the video cassettes are however held to be not fatal. Consideration of present Election Petitions will show that this ruling has no Application in present matters. Respondent has filed copy supplied to him as "true copy" in Election Petition 1/2010 along ::: Downloaded on - 09/06/2013 16:13:43 ::: 66 with Pursis dated 13/4/2010. There is no dispute between parties about identity of this document. All its pages show photocopy of words "true copy " with signature of Petitioner and his full name/surname below it. But then by the side of this photocopy of impression, there is also an original endorsement with same signature, name and seal. Thus intention to attest each page to be true copy is apparent. Insofar as CD i.e. document 11 is concerned, only the photograph of impression is not there. Pleadings disclose & has accepted this CD to be true copy of CD supplied by office of Collector Election Petitioner.
Again the purpose of putting this endorsement is to certify the document or copy to be true copy. It therefore cannot be said that Respondent has not received "true copy". Similarly on verification as also on additional affidavit the date of swearing affidavit or verifying pleadings is mentioned and it also carries photocopy of impression of Petitioner/Deponent with photocopy of signature of his advocate. Though the true copy does not carry the seal of authority administering the oath, in view of the precedents it is apparent that it is not fatal. Respondent 1 has ::: Downloaded on - 09/06/2013 16:13:43 ::: 67 not placed on record copy of election petition served as true copy upon him in Election Petition 2/2010. Hence, there a grievance only in relation to copy of CD has been looked into.
27----------------------- In the light of above discussion, it will be appropriate to find out the position of pleadings, verification etc. in both Election Petitions together with the copy of video cassettes. As pleadings are being looked into, it will also be convenient to attempt to find out whether case of election of Shri Rajendra being "materially affected" is being made out or not.
(A) Election Petition 1/2010.
I----- Election Petition 1/2010 filed by defeated candidate can be taken first. Ashok has disclosed that he is an ex-member of Maharashtra Legislative Council representing Nagpur Local Authorities constituency for the term 2004 -- 2009. In paragraph 2 he has given details of election programme. He was official candidate for political party Bhartiya Janta Party (BJP) while Respondent is official candidate for Indian National Congress ::: Downloaded on - 09/06/2013 16:13:43 ::: 68 (I). He points out that it was straight contest and there were total 415 electors and 11 polling stations. He has also given location of those polling stations. Because of straight contest and 415 voters, Petitioners states that he apprehended various types of pressures on electors to breach the secrecy of voting.
Hence on 15/12/2009 he along with another contestant for said election (from a different constituency) given letter to Collector/District Election Officer requesting to instruct staff to be vigilant and also to arrange for video recording at each polling station. Copy of said communication is also produced with contention that it was duly received by Collector. Then he has pointed out what happened at Narkhed polling station 2 where one Ukesh Shobharamsingh Chauhan was his pulling agent. His case is one voter Smt. Nirmala Rahul Gajbe took photograph of her ballot paper after casting vote with spy pen.
His agent immediately lodged complaint in writing and that pen fitted with camera was then seized. Its panchanama & japtinama was then prepared and the written complaint was made to Collector cum District Election Officer. Copy of objection raised ::: Downloaded on - 09/06/2013 16:13:43 ::: 69 by polling agent and copy of written complaint are also filed along with election petition. Head of polling booth then prepared a report on 18/12/2009 and forwarded it to Collector which referred to sealing of seized article under signature of objector polling agent. The spy pen was thus stated to be used.
Copy of that report is also filed as document. He has further stated that total 414 votes were cast and one vote was canceled for violation of Rule 39 of 1961 Rules. 13 votes were rejected as invalid and hence quota for victory was determined at 201.
Petitioner secured 198 votes while Respondent 1 secured 202 votes. Relevant records of the office of Collector are annexed as document No 5 and 6. Loss took him by surprise and use of spy pen raised doubt in his mind about similar nefarious activities at other polling stations. Hence on 21/12/2009 he gave letter to Collector demanding copy of Compact Disk (CD) showing video clippings of each polling station. He made similar request on same day under Right to Information Act, 2005. He has produced the copy of said letters as documents 7 and 8. On 6/1/2010 Information Officer and Deputy District Election ::: Downloaded on - 09/06/2013 16:13:43 ::: 70 Officer, Nagpur directed him to deposit an amount of Rs 500/--
per CD and he deposited total amount of Rs 5500/-- on 8/1/2010. On 24/12/2009 CD showing video recording at Narkhed was made available and on 8/1/2010 CD regarding Kamptee polling station was supplied. The copy of CD supplied to him from office of Collector is filed with Petition as document
11. On 13/1/2010 he sought certified CDs of recording at each polling center and copy of that Application is document No 12.
He deposited amount of Rs 5500/-- on 13/1/2010 vide receipt at document 13. On same day he got 11 certified CDs and that forwarding letter is filed by him as document 14. On 6/1/2010 he had sought information about seized spy pen and other instructions given to various polling officers. He has produced copy of that application as document 15 and reply dated 25/1/2010 as document 16.
(II)--- In paragraph 11 and 12 of Election Petition 1/2010, he discloses the knowledge which he got from said CD relating to Kamptee polling station. He has mentioned two lady voters ::: Downloaded on - 09/06/2013 16:13:43 ::: 71 Begum Shehnaz & Ms. Rashida Khatoon who went to polling compartment along with another person viz. Abdul Shakoor and Niraj Yadav respectively. Thus, according to him in polling compartment simultaneously there were two persons. In para 17 he points out that these Lady voters were neither illiterate nor physically infirm in any way. He has also pointed out report submitted by Returning Officer under paragraph 3 of Chapter XV for this purpose. He has pointed out that these lady voters actually did not cast their vote but mark was put on their ballot paper by the persons who accompanied them. This he has stated is in total breach of election procedure as contained in handbook of Returning Officers. Thus ballot paper issued to lady voter was marked/used by 3rd person. He has also pointed out relevant rules in this respect. He contends that said ballot papers were displayed by this 3rd person viz. Abdul Shakoor or Niraj Yadav , to those present in the room where ballot box was kept and then it was inserted in ballot box by him & not by woman voter. The vote therefore needed to be rejected or canceled and by not doing so Returning Officer failed in his duty. Still ::: Downloaded on - 09/06/2013 16:13:43 ::: 72 photographs to support this story taken from CD are annexed as document No 17 and 18 in relation to both these Lady voters. In paragraph 13 and 14 he has pointed out how these two persons Abdul Shakoor and Niraj Yadav who accompanied lady voters as above after casting their (personal) vote, came out with ballot and displayed that marked ballot paper to Presiding officer and others present. According to him both these votes therefore also needed to be canceled or rejected and Returning Officer failed to discharge his legal obligation. Copies of still photographs taken from above-mentioned CD are filed by him as document No 19 and 20 to support this. In paragraph 15 he has given instance of another voter Mushtaque Ahmed who came out with marked but unfolded ballot paper and displayed it to Presiding Officer and others present in the room. That vote was also not canceled and he has relied upon the still photographs taken from CD as document No 21. In these paragraphs he alleges that Rule 39 (2) (c), 39 (4) to (8) are violated.
(III)------- In paragraph 16, he further pleads that perusal of ::: Downloaded on - 09/06/2013 16:13:43 ::: 73 CD also disclosed that at Kamptee polling station various voters carried spy pen with inbuilt camera and they can be identified.
He has given nine such names and has contended that this is in violation of Rule 39 (2) (b) read with Rule 70 of 1961 Rules.
This also violated Rule 73 (2) (e). He has also relied upon still photographs borrowed from said CD for this purpose. As Rule 39(2)(b) has been violated, Rule 39 (5) to (8) are violated and hence these 9 votes at Kamptee and 1 vote of Nirmala Gajbe at Narkhed ought to have been rejected. Similarly, the 5 votes cast by Begum Shehnaz, Ms. Rashida Khatoon, Abdul Shakoor, Niraj Yadav & Mushtaque Ahmed also need to be excluded and cannot be treated as valid votes. Thus total 14 votes need exclusion and if this is done, result of election is materially affected. Provisions of section 100(1)(d)(iii) and (iv) are then pointed out to urge that election of returned candidate is required to be declared void there under and it is necessary to declare Petitioner Ashok as validly elected candidate in his place under section 100(a) of 1951 Act. The copy of handbook meant for Returning Officer is also placed as document No 23. In paragraph 18, it is further ::: Downloaded on - 09/06/2013 16:13:43 ::: 74 contended that in spite of request made by Petitioner only a farce of conducting video shooting was made at other polling stations. Grievance is proper video shooting should have been undertaken at other polling stations and it would have also disclosed breaches of secrecy of voting by displaying marked ballot papers by other number of voters. In this paragraph, he has stated that he secured 198 valid votes while Respondent got 202 valid votes. Elimination of these five votes according to him therefore shows that Election Petitioner is elected. In paragraph 19 he points out representation made on these lines on 29/12/2009 to Election Commission of India and production of its copy on record as document No 24. To show alleged apparent difference between ordinary pen and spy pen, sample spy pen is produced as an article. Other paragraphs are formal and s no grievance has been made in relation to them.
(B) Election Petition 2/2010.
I------ Challenge in this Election Petition is on same grounds and only difference is, it is restricted to votes cast by 5 voters at ::: Downloaded on - 09/06/2013 16:13:43 ::: 75 Kamptee viz. Begum Shehnaz, Ms. Rashida Khatoon, Abdul Shakoor, Niraj Yadav & Mushtaque Ahmed. In paragraph 2 Petitioner Shri Anil Madhukarrao Sole has stated that he is corporator of Nagpur Municipal Corporation and voter in impugned Election. Up to paragraph 7 he has given only history about which there is no dispute. In paragraph 8 he has given percentage of voting, valid votes i.e. statistics. Paragraph 9 is about declaration of result of election. In paragraph 10, he has stated that he received knowledge of illegalities committed at Kamptee polling station from polling agents of Respondent 2 Shri Ashok Mankar i.e. defeated candidate who has filed Election Petition 1/2010. From said information he learnt about clear violation of secrecy of voting and various legal provisions which revealed that votes which could not have been received and were liable to be canceled were taken into account. In paragraph 12 he has pointed out handbook meant for Returning Officer and then mentioned the 5 names alleging that though they clearly violated secrecy, necessary procedure prescribed for cancellation of their votes was not followed. In paragraph 13, 14, 15, 16 and ::: Downloaded on - 09/06/2013 16:13:43 ::: 76 17 he has given details of how these 5 voters breached secrecy and violated rules. In paragraph 18, he has mentioned same nine names as voters who entered voting compartment with spy pen and alleged that secrecy of voting was violated by its use to record the photo of marked ballot paper to show it to others. In paragraph 19 he has pointed out provisions of relevant rules which according to him were violated. In paragraph 20 he has alleged that Presiding officer at Kamptee permitted many persons to stand at the entrance inside the polling booth in violation of 1961 Rules. It is his contention that other than Respondent 1 i.e. Rajendra several other persons were permitted and they were neither Election agents nor polling agents or authorized officers or public servants on duty. They were also not accompanying any illiterate or infirm voter.
II------- In paragraph 21 of his Election Petition, he has stated that all illegalities and irregularities and breach of official duties by Presiding Officer and Polling Officer are apparent from video compact disc supplied to him by Election Officer on his request.
In paragraph 22 he has pointed out incident of seizure of spy pen ::: Downloaded on - 09/06/2013 16:13:43 ::: 77 at Narkhed with contention that spy pen of identical size, colour and design were used at Kamptee also. He has contended that vote of Smt. Nirmala Gajbe at Narkhed is also liable to be canceled. Regarding other Polling Stations his case is same as that of defeated candidate and he states that it creates doubt about functioning of election officer or free and fair conduct of election. In paragraph 24 he mentions an incorrect report submitted by returning Officer vide Annexure XLVI to Election Commission of India. In paragraph 25 he has stated that all illegalities and irregularities at Kamptee took place in presence of Polling Officer and they did not object to it and did not report it to Returning Officer or Election Commission. These illegalities and irregularities and breach of official duties by Presiding Officer and Polling Officer has materially affected the election of Respondent 1 attracting Section 100(1)(d)(iii) and (iv) of 1951 Act. In paragraph 27 he has again referred to 5 voters at Kamptee alleging that those votes have been wrongly accepted and not canceled. According to him election of Respondent 1 is therefore void and a fresh recount of votes is necessary. If ::: Downloaded on - 09/06/2013 16:13:43 ::: 78 Respondent 2 gets majority of valid votes in that recount, he should be declared elected. In paragraph 29 he has then pointed out that on 13/1/2010 he applied to Government Information Officer with Collector and Chief Election Officer, Nagpur for supply of CD of all polling stations. He further states that voters list dated 23/11/2009 used for said Election, complaint made by Dr. Kirit Somayya to Election Commission on 11/1/2010, result declared on 21/12/2009, Election programme, information submitted by Returning Officer to Election Commission on 19/12/2009 and handbook for Returning Officer were supplied to him by Respondent 2 on his request. In paragraph 30 he states that CD about Kamptee was supplied to him by Election Officer and photographs filed with his Election Petition are taken from it. He has also filed a spy pen to identify the same used in said Election. Each document and its each page bears a seal "true copy" with signature of Petitioner Anil below it and his complete name below the signature. After still photographs, there is a CD and below it words "TC" appear in handwriting and below it is signature of Petitioner with his name Anil Sole ::: Downloaded on - 09/06/2013 16:13:43 ::: 79 mentioned in bracket in handwriting below it. Though on body of this document (at page 441), words "document X" do not appear anywhere, in list of documents and index CD is mentioned as document X. Description of said document in index or list of documents filed with Election Petition is "compact disc of video shooting of polling station, Kamptee which was supplied by Information Officer". This index or list bears his sign at its end.
III-------- Petitioner Shri Anil has not described the documents as Annexures with reference to their identification number in body of Election Petition. In paragraph 21 he has mentioned that all illegalities and irregularities and breaches are evident from CD supplied to him by Election Officer. In paragraph 29 he has mentioned that some documents are supplied to him by Respondent 2 in his Petition. In paragraph 30 he has mentioned that still photographs filed with his Election Petition are from CD.
28-------------------- Above narration of pleadings clearly shows ::: Downloaded on - 09/06/2013 16:13:43 ::: 80 that in none of the Election Petitions there is any effort to plead and prove any corrupt practice against Returned Candidate either directly or indirectly. Hence concise statement of material facts is the only requirement. Sufficiency of those facts to support the case of said election being materially affected is an independent aspect. In Election Petition 1/2010, all documents including still photographs and CD are commented upon and contents thereof, therefore, form its part. The election Petition is supported by verification and an additional affirmation thereby accepting responsibility for statements made in it. Each document is distinctly mentioned in pleadings by its identification number which appears on said document also.
Each document is also certified to be true copy. Documents are all records of Collector and Returning Officer for said Election.
Only complaint made by polling agent of Ashok Mankar Shri Ukesh and representation to election commission dated 29/12/2009 are private documents. Other private document are applications made by said Petitioner for CDs. Copy of CD is annexed vide document No 11 and whether it is doctored or ::: Downloaded on - 09/06/2013 16:13:43 ::: 81 truncated is question which pertains to domain of evidence. Still photographs allegedly taken from it with date and time prima facie support the events narrated in Election Petition. Document No 24-a complaint by Petitioner Ashok to Election Commission, is nothing but compilation of some facts emerging from material/documents on record in relation to Narkhed. Ashok has given up the plea of corrupt practice taken in this representation.
It is also apparent that on 29/12/2009, Petitioner Shri Ashok had not seen any CDs. More over, any question of inconsistency or impact of said representation on case sought to be proved needs to be looked into in the light of evidence which would come on record. In pleadings itself, authenticity of all these documents is prima-facie sufficiently established. Essential facts to prove breaches of Rules with relevant legal provisions are sufficiently brought on record by him. Absence of verification in relation to each document therefore cannot be held to be fatal and that defect can be allowed to be cured by making appropriate amendments in accordance with law. "Mulayam Singh Yadav v.
Dharampal Yadav" relied on by Advocate Manohar show that so ::: Downloaded on - 09/06/2013 16:13:43 ::: 82 far as the allegations of violence, and arson are concerned, there were no particulars in the election petition about the contents of video cassette mentioned and verified in Schedule 14. Hon Apex Court was therefore satisfied that the video cassette mentioned and verified in Schedule 14 was an integral part of the election petition and that it should have been filed in Court along with copies thereof for service upon the respondents to the election petition. As the video cassette itself was not filed, the election petition as filed was found not complete. Before me, the facts are otherwise. Material contents of CD are commented on in pleadings and still photographs of highlights revealing breaches are also pleaded & filed. Not only this the true copy of the entire CD received from Collector's office is also filed. Hence, the contention that proposed amendment cannot be allowed after expiry of period of limitation is misconceived in present facts. In other matter i.e. E.P.2/2010, Petitioner Anil has not stated that he has relied upon CD or its perusal expressly. However contents in paragraph 30 and 29 show the same state of affairs. Concise facts to urge violation of relevant Rules are brought on record by ::: Downloaded on - 09/06/2013 16:13:43 ::: 83 him also. He has also relied upon information allegedly gathered from polling agents of Respondent 2 at Kamptee. But he has not disclosed their names anywhere. The breaches sought to be pleaded by him are also supported by CD and still photographs.
Hence he also needs to be given an opportunity to correct the error and to bring his pleadings, verification & affirmation in accordance with law.
29-------------------Sufficiency of those facts to support the case of election of returned candidate being materially affected is the issue now left to be considered. The issue is required to be looked into only on the strength of contents of both the Election Petitions & presuming its contents to be true. The Petitioners have yet not led any evidence & have not been subjected to any cross examination by the Respondent Shri Rajendra. In "T. H. Musthaffa v. M. P. Varghese" (supra) when pleadings in petition were not referring either to R. 39 or R. 56 & only allegation made in pleading was about wrong acceptance of invalid votes without details as to how many votes were liable to be rejected ::: Downloaded on - 09/06/2013 16:13:43 ::: 84 for using wrong instrument, Hon Apex Court found pleadings insufficient to order recount of ballot papers. The judgment is already considered above and it is also apparent that here there is very specific challenge about 14 votes in Election Petition 1/2010 and about five votes in Election Petition 2/2010.
Ramsukh vs. Dinesh Aggarwal, already considered in detail above, is relied upon by both sides. There, the question was whether alleged omission on part of Returning Officer ipso facto "materially affected" the election result. The pleadings as summarized by Hon Apex Court show the plea that by the time specimen signature of polling agent was circulated, 80% of polling was over and because of absence of the polling agent the voters got confused and voted in favour of first Respondent. Hon Apex Court found the same to be vague and not pointing out how election results were materially affected because of these two factors. These facts are found falling short of being "material facts" for the purposes of Section 83 (1) (a) to constitute the complete cause of action in relation to the allegation under Section 100 (1) (d) (iv) of 1951 Act. It is held ::: Downloaded on - 09/06/2013 16:13:43 ::: 85 that Election Petitioner ought to have declared in what manner the result of election insofar as it concerned the first Respondent was materially affected due to said omission on the part of Returning Officer. Here, in both Petitions case of wrongful receipt of invalid or void votes sufficient in number to change the result is already pleaded. As held in Laxmi Kant Bajpayi vs. Haji Yaqoob, supra, where election petition was under Section 83 read with Section 100 (1) (d)(iii) & (iv) of 1951 Act, & the pleadings in election Petitioner reveal a clear complete picture of the circumstances and disclose a definite cause of action, the election petition can not be summarily dismissed. M.J. Jacob vs. A. Narayanan(supra) is a judgment on Corrupt Practice. Hon Apex Court has refused to draw inference that T.M. Jacob harboured the accused by innuendo from mention only that said accused, personal staff of said Jacob, was absconding and observed that extrinsic facts to spell out the same must be pleaded. In paragraph 40 it is observed that election result cannot be lightly set aside and will of electorate needs to be respected. In present matter, Petitioner Anil has in body of ::: Downloaded on - 09/06/2013 16:13:44 ::: 86 petition prayed for recount while Petitioner Ashok has excluded 14 votes from total tally and also sought declaration that he is elected. Their actual prayer clauses in both the Election Petitions are similar & contain no prayer for recount. Both rely upon material in same CD. Advocate Manohar in fact himself contended that said CD is incorporated in Election Petition 1/2010. He has also objected to it as truncated and doctored.
Hence what CD reveals and its authenticity or impact cannot be in the domain of inference. Still photographs clearly support the facts pleaded in both Election Petitions. In "T. H. Musthaffa v. M. P. Varghese" (supra) , in paragraph 10 Hon Apex Court observes that number of votes liable to be rejected for using wrong instrument by voters was not disclosed and hence relief of recount could not have been granted. In paragraph 17 it is noticed that mere smallness of margin of votes by which election is decided is irrelevant. Facts there show that there were 20 candidates in fray and respondent 1 before Hon Apex Court had secured 50034 votes while appellant before it secured 49974 votes and lost by margin of 60 votes. Only material brought on ::: Downloaded on - 09/06/2013 16:13:44 ::: 87 record was supply of wrong instrument for casting vote by polling Officer. When looked at number of candidates contesting the election, such fact by itself cannot affect the election adversely. "Vashist Narain Sharma v. Dev Chandra" (supra) is already noted in detail above. Hon. Court has stated that it was not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. Total 8 candidates had filed nomination papers and after withdrawal contest was between 5. The number of wasted votes was 111. It found it impossible to accept the 'ipse dixit' of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground.
This view is followed in "Shiv Charan Singh v. Chandra Bhan Singh" (supra).
30--------------------------In "Shiv Charan Singh v. Chandra Bhan ::: Downloaded on - 09/06/2013 16:13:44 ::: 88 Singh" (supra) election to the Rajasthan Legislative Assembly constituency No. (80 Karauli) held in 1985 was contested by the appellant before Hon Apex Court and 10 other candidates. The margin of votes between appellant and next candidate was of 4497 only and improperly nominated candidate had secured 4 times the votes when compared with this margin. In this background, the Hon Apex Court holds that the result of the election can be affected only on the proof that votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes. It therefore distinguished A.I.R. 1984 SC 146 --
Chhedi Ram vs. Jhilmit Ram, in paragraph 12 as under: --"12.
The High Court placed reliance on the decision of this Court in Chedi Rami's case (AIR 1984 SC 146) in holding that the result of the election was materially affected margin of difference between the appellant and Roshan Lal and the votes secured by Kanaiya Lal.
The decision in Chedi Ram's case does not overrule earlier decisions ::: Downloaded on - 09/06/2013 16:13:44 ::: 89 of this Court in Vashist Narain Sharma (AIR 1954 SC 513) and Paokai Haokip's case (AIR 1969 SC 663) and it does not lay down any different law. Instead the decision of the case turned upon the facts of that case. In Chedi Ram's case there were four contesting candidates. Jhilmit Ram the returned candidate had polled 17822 votes while Chedi Ram had polled the next highest number of votes being 17449 votes. Thus the difference between the successful candidate and the candidate who had secured the next highest number of votes was 373 votes only. While Moti Ram whose nomination paper was found to have been improperly accepted had polled 6710 votes. The High Court had dismissed the election petition on the finding that the result of the election had not been materially affected as a result of the improper acceptance of the nomination paper of Moti Ram. This Court allowed the appeal and set aside the election of the returned candidate on the finding that if the number of votes secured by the candidate whose nomination was improperly accepted was not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next ::: Downloaded on - 09/06/2013 16:13:44 ::: 90 highest number of votes, and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, there was a reasonable probability that the result of the election had been materially affected and one may venture to hold that fact as proved. After making these observations the Court noted that in that case the candidate whose nomination was improperly accepted had obtained 6710 votes i.e. almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, in that situation the result of the election was held to have been materially affected. The decision in Chedi Ram's case (AIR 1984 SC
146) rests on its own facts. Applying the principle laid down in Chedi Ram's case to the facts of the instant case it is not possible to hold that the result of the election of the appellant was materially affected. As already noted the appellant had polled 21443 votes while Roshan Lal had polled the next highest number of votes 16946 and the difference between the two was only 4497 votes while the votes polled by the. improperly nominated candidate ::: Downloaded on - 09/06/2013 16:13:44 ::: 91 Kanaiya Lal was 17841 thus the proportion of difference was only four times, while the difference in Chedi Ram's case was 20 times.
Further in Chedi Ram's case there were only 4 contesting candidates while in the instant case there were 11 contesting candidates and in the absence of Kanaiya Lal other remaining 10 would have shared the wasted votes. On these facts even on the basis of Chedi Ram's case it is not possible to draw any inference or act on probability and to record a finding that the majority of wasted votes would have gone to Roshan Lal in such a way as to affect the result of the appellant's election. In the circumstances, the findings recorded by the High Court that the result of the election of the appellant was materially affected is not sustainable in law."
Of course, the refusal here to draw an inference is on merits but then it shows how facts suggesting a remote possibility without any definite assertions need to be approached.
31------------------- In AIR 2001 S.C. 905 "Tek Chand v. Dile Ram", mere allegation of wrong acceptance of nomination is held not sufficient by Hon Apex Court and it is to be further established ::: Downloaded on - 09/06/2013 16:13:44 ::: 92 that such wrong acceptance has materially affected result of election of returned candidate. In that matter there was no evidence to show the trend of voting or distribution of votes between contesting candidates belonging to different political parties during previous elections. No witness spoke about distribution of wasted votes. Hence it was not possible to hold that votes secured by one of contesting independent candidate were disproportionately more or that had this nomination paper been rejected votes polled in his favour would have been secured by appellant Tek Chand. Moreover, there were two other candidates in filed & hence Hon. Apex Court found that the result of election of returned candidate cannot be said to have been materially affected. The view is expressed after noticing precedents in Uma Ballav Rath (Smt.) v. Maheshwar Mohanty (Smt.),: AIR 1999 SC 1322,J. Chandrasekhara Rao v. V. Jagapathi Rao, 1993 AIR SCW 1155, Shiv Charan Singh v. Chandra Bhan Singh, AIR 1988 SC 637, Chhedi Ram v. Jhilmit Ram, AIR 1984 SC 146, Paokai Haokip v. Rishang, AIR 1969 SC 663, Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201, ::: Downloaded on - 09/06/2013 16:13:44 ::: 93 Inayatullah v. Diwanchand Mahajan, AIR 1959 Madh Pra 58, and Vashist Narain Sharma v. Dev Chandra, AIR 1954 SC 513.
32------------- "Ram Autar Singh Bhadauria v. Ram Gopal Singh" is already considered by me above. In that case the margin was of 22 votes. The counting of a ballot paper is regulated by Rule 56 and only those ballot falling under its sub-rule 2 can be rejected.
Petitioners here are not making out any such case. Not only this, it is not their contention that at Kamptee, polling agent of Shri Ashok Mankar raised any objection after alleged breaches of secrecy and insisted for cancellation of those votes either 14 (in Election Petition No. 1/2010) or 5 (in Election Petition No. 2/2010). Thus all votes at Kamptee were allowed to be inserted in ballot box & loose their identity. Even in representation dated 29/12/2009 i.e. doct. 24 sent to Election Commission by Ashok, there is no grievance about Kamptee. Consideration of various judgments like "Vashist Narain Sharma v. Dev Chandra" where Hon Apex Court notes earlier view that the question should always be decided on the basis of the material on the record and ::: Downloaded on - 09/06/2013 16:13:44 ::: 94 not on mere probabilities and the language of Section 100 (1)
(c) is held too clear for any speculation about possibilities, the question to be one of fact and to be proved by positive evidence, in "Shiv Charan Singh v. Chandra Bhan Singh" (supra), in "T. H. Musthaffa v. M. P. Varghese" (supra) all show that very specific plea in this respect is sine qua non. It is also laid down that if the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Court can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the tribunal nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter held by Hon. Apex Court to be entirely for the legislature to consider. Chhedi Ram vs. Jhilmit Ram (supra) has been confined to facts and situation prevailing in that case.
Vashist Narain Sharma v. Dev Chandra (supra) is held to be left intact by it. The Election Petitioners here only point out a ::: Downloaded on - 09/06/2013 16:13:44 ::: 95 possibility of result of election being different if 14 or 5 votes can be excluded. It is not their case that said votes when displayed revealed that they were in favour of Rajendra or not in favour of Ashok. The Polling Agent of Petitioner at Kamptee is not being quoted or relied upon by Shri Ashok Mankar. Here, there are only two contestants and difference between them is of 4 votes only. The objection is about receipt of 14 or 5 votes. Several questions having bearing on result of said election being materially affected in so far as returned candidate is concerned, arise. The Petitioners have not pointed out the beneficiary of those 14 or 5 votes. It is not their plea that all those voters cast their vote in favour of Returned Candidate or did not vote in favour of defeated candidate. There is no plea about their political affinities either to associate or dis-associate them with BJP or National Congress(I) political parties. The said votes now can not be traced out & segregated. Hence when "displayed' what was seen & the vote was cast in whose favour ought to have been pleaded. Section 94 of 1951 Act does not prohibit such assertion. M.J. Jacob vs. A. Narayanan(supra) though a ::: Downloaded on - 09/06/2013 16:13:44 ::: 96 judgment on Corrupt Practice , it shows that no inference about the existence of material fact was held possible. Hon Apex Court has refused to draw an inference that T.M. Jacob harboured the accused by innuendo from mention only that said accused, personal staff of said Jacob, was absconding and observed that extrinsic facts to spell out the same must be pleaded. It is stated that election result cannot be lightly set aside and will of electorate needs to be respected "M. Budda Prasad v. Simhadri Satyanarayana Rao" (supra) concerns the irregularities allegedly committed during the counting of the votes. The High Court there came to the conclusion that neither the contesting candidates nor any of their counting agents made any complaint before the Returning Officer during the course of the counting or thereafter. No objection of any kind was raised by any candidate regarding the counting. In the election petition various allegations were made with the sole object of making a fishing enquiry. The High Court, believing the testimony of the Returning Officer and other official witnesses came to the conclusion that no illegality or irregularity was committed in the ::: Downloaded on - 09/06/2013 16:13:44 ::: 97 counting of the votes. Hon. Apex Court has upheld it. This judgment is no doubt on merits but it shows that there can not be any fishing attempt in such matters. Election Petitioners can not seek rejection of 14 votes or 5 votes which according to them can be identified and ask for recount without even asserting that those votes or any number out of it has gone to Returned Candidate. These votes may have been excluded only if they were canceled before they were inserted in ballot box as per Rule 39 of 1961 Rules. Otherwise, those votes can then be subjected only to Rule 56. If any violations or breaches of their duties by staff at Polling Station at Kamptee is to be alleged, it is apparent that adequate pleadings are must for said purpose. Timely protest by agent of Ashok would have been one such fact. If any thing was displayed and it was adverse to Ashok"s interest, why objection was not lodged then & there is again an important factor. It is the result of election in so far as it concerns the returned candidate which is required to be proved as materially affected. Only possibility of election getting affected is not sufficient to un-sit the elected candidate. Anil Sole has made a ::: Downloaded on - 09/06/2013 16:13:44 ::: 98 request for recount but not in prayer clause but in body of his Petition. Learned Counsel for him also during arguments deducted 5 votes from the total 400 valid votes to urge that it leaves only 295 valid votes and hence, quota for win worked out to 198 only. As Shri Ashok Mankar got 198 votes, he stood elected. He therefore deducted 5 votes from total votes secured by Returned Candidate only. Election Petitioner Ashok is again attempting to reduce 14 votes from votes secured by Returned Candidate only. "Mohan Rawale v. Damodar Tatyaba" (supra) states that a reasonable cause of action is one with some chance of success when only the allegations in the petition are considered. It is thus bound to be a complete cause leaving nothing to imagination. "V. S. Achuthanandan v. P. J. Francis"
(supra) relied on by Advocate Gorde, is a case where material facts were disclosed and full particulars of the corrupt practice alleged were missing. It points out that equating the cause of action with proof is not legal.
33-----------------Hence, facts demonstrating how alleged 14 votes ::: Downloaded on - 09/06/2013 16:13:44 ::: 99 or 5 votes received improperly or then void one, helped Respondent Rajendra to succeed ought to have been pleaded.
Link between the votes so cast & his victory needed to be pleaded. Section 100(1)(d)(iii) & (iv) requires pleading of illegalities as also irregularities and also of facts indicating material effect thereof on the election of the returned candidate.
Only after these pleadings, evidence in relation thereto can come on record & not otherwise. Opinion of High Court contemplated by S.100(1) is possible only after due opportunity to returned candidate. Hence pleading of this material fact of link between the victory & lacunae/omissions is pre-requisite to formation of this opinion. A "triable issue" cannot be said to arise till then as no cause of action surfaces. Election Petitions can not in its absence demonstrate how the result of election in so far as it concerns returned candidate is materially affected. Respondent's success with slender margin, in the absence of specific plea of any connection between it & alleged irregularities or illegalities and facts showing that connection, by itself cannot be the material fact. Pleading such link or connection can not be ::: Downloaded on - 09/06/2013 16:13:44 ::: 100 pleading a material particular. The Election Petitions can not be said to be "complete" without any whisper of such connection. In any case, though in both matters amendments are sought, there is no prayer or effort to supply such missing link. There is no allegation of any corrupt practice here in any Election Petition.
Both Petitioners are thus embarking upon a roving inquiry without any concrete material with them and, mere possibility, howsoever good it may appear, is not sufficient to permit them to undertake that exercise. The possibility is not indicating only one outcome and hence, not legally sufficient to proceed further with trial of Election Petitions. As held by the Hon. Apex Court, Election Petition is a serious exercise and must be resorted to with all sincerity. Both Election Petitioners have avoided to plead vital link between the alleged breaches and the success of Returned Candidate. This omission can not be allowed to be cured by amendment as limitation for filing Election Petition has long expired and "material facts" can not be now permitted to be added.
::: Downloaded on - 09/06/2013 16:13:44 ::: 10134---------------------With the result, though the Civil Application 679 of 2010 filed by Petitioner Ashok and oral leave to move for amendment sought by Petitioner Anil deserves to be granted as "material facts" as required by Section 100(1)(d)(iii) & (iv) of the 1951 Act are not pleaded, Civil Applications under O.7 R.11 in both matters need to be allowed. Hence, in effect grant of leave to amend is an exercise in futility. Accordingly, the Civil Application 415/2010 at Exh. 7 in Election Petition No. 1/2010 while Civil Application 456/2010 at Exh. 7 in Election Petition No. 2/2010 are allowed. Civil Application 679/2010 at Exh. 9 in Election Petition No. 1/2010 is also allowed. Petitioner Anil in Election Petition 2/2010 could have also been permitted to move similar application. In view of this the E.P. 1/2010 & 2/2010 are rejected and dismissed accordingly by upholding preliminary objection with costs. Separate orders are accordingly passed on Ex. 1 i.e. Election Petitions.
JUDGE ******* *dragon/GS.
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