Allahabad High Court
In The Matter Of Mohd. Akhtar Chooriwala vs Smt. Puja Pal on 3 February, 2017
Equivalent citations: AIRONLINE 2017 ALL 14
Author: Pankaj Mithal
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD A F R [RESERVED] Case :- ELECTION PETITION No. - 3 of 2012 Petitioner :- In The Matter Of Mohd. Akhtar Chooriwala Respondent :- Smt. Puja Pal Counsel for Petitioner :- Bakhteyar Yusuf Counsel for Respondent :- Deeba Siddiqui,Prakash Chandra Shakya,R.K.Jain Hon'ble Pankaj Mithal,J.
The elections were notified to elect the representatives of the 16th Legislative Assembly U.P. According to election programme announced the nomination for the 261 Assembly Constituency, Allahabad West started on 21.1.2012 and ended on 28.1.2012. The polling was held on 15.2.2012 and the counting was done on 6.3.2012. The result was declared the same day and the respondent Smt. Puja Pal was declared elected from the said Constituency.
The petitioner Mohd. Akhtar Chooriwala alleging himself to be the National President of Urdu Development Organization and the State President of All India United Muslim Morcha and resident of Khuldabad, Allahabad as on electoral of the aforesaid Assembly Constituency, filed this petition challenging the election of the returned candidate on the sole ground that he was not supplied with the nomination paper in Urdu despite repeated demands in violation of the order dated 4.5.2001 of the Chief Election Commissioner, U.P., and various other similar orders and therefore the election stands vitiated for non compliance of the same.
On the presentation of the election petition notices were issued to the respondent. One Sri Prakash Chandra Shakya, Advocate filed his appearance on behalf of the respondent on 19.9.2012 but he repeatedly absented himself. Therefore, the Court on 18.10.2012 and again on 8.2.2013 directed to proceed ex-parte against the respondent.
Subsequently, on the application of the respondent the orders directing to proceed ex-parte were recalled and her written statement was accepted by the Court vide order dated 22.11.2013. On her behalf an application was filed for dismissing the election petition purported to be under Order 7 Rule 11 CPC. The said application was rejected on 16.4.2014 as no one ever turned up to press it.
On the basis of the pleadings exchanged, the Court on 15.5.2014 formulated the following issues for determination:-
"i) Whether the election dated 15.2.2012 of which result was declared on 6.3.2012 of the 261 Assembly Constituency, Allahabad West is void under Section 100 (i) (d) (iv) of the Representative of Peoples Act, 1951 (hereinafter referred to as the Act) for non compliance of the order of the Chief Election Officer dated 4th May 2001, inasmuch as, the petitioner was not provided with the Urdu version of the nomination paper even on demand; and
ii) to what relief the petitioner is entitle to in the petition."
Thereafter, on behalf of the respondent Ms. Deeba Siddiqui had put in appearance along with Sri Ravi Kiran Jain, Senior counsel but subsequently they also stopped appearing. The case again proceeded ex-parte against her.
The petitioner appeared in person before the Court on 18.5.2015 and stated that he has withdrawn the instructions from his counsel and that he would argue the matter himself. Accordingly, power of attorney of the counsel appearing on his behalf was discharged and he was permitted to appear in person.
The petitioner in order to prove his case filed several documents and those proved and admissible were marked as exhibit P-1 to P-5. He himself appeared as PW-1 and examined one Mohd. Moin as PW-2 in support of his case. The said two witnesses were not cross examined as none was appearing for the respondent.
As no counsel was appearing from either of the sides and the Court was unable to get any legal assistance, it was considered desirable to appoint an Amicus Curie. Sri Om Prakash, learned Advocate of this Court was appointed as Amicus Curie vide order dated 29.11.2016 to help the Court.
Before commencing final hearing on the submission of Amicus Curie and with the consensus of the petitioner an additional issue no. (i) (a) was framed as under:-
"Whether the election petition is not maintainable and is liable to be dismissed for want of necessary pleadings with regard to material facts and material particulars so as to challenge of the election of the returned candidate on the ground under Section 100 (1) (d) (iv) of the Act."
The Court heard the petitioner Mohd. Akhtar Churiwala in person and Sri Om Prakash, learned Amicus Curie at sufficient length.
The petitioner argued that under the relevant Rules and Orders as Urdu is the second language of the State of U.P., he was entitle to the nomination Form in Urdu which was not supplied to him despite demand and deposit of Rs. 10,000/-as was directed. Since the provisions of the Rules and Orders in this regard were not complied with, the election of the returned candidate is liable to be declared void under Section 100 (1) (d) (iv) of the Act.
Sri Om Prakash drew the attention of the Court to the pleadings contained in the election petition and submitted that the entire pleadings are confined with regard to non supply of the nomination Form in Urdu to the petitioner despite his repeated demands but the pleadings do not contain any fact much less "material facts and material particulars" regarding how the election of the returned candidate was materially affected on account of non issuance of the nomination From to the petitioner in Urdu. Secondly, he submits that the petitioner before the the elections had filed a writ petition in the High Court for providing him with a nomination Form in Urdu but the petition was disposed of with the direction that the representation of the petitioner in this regard may be considered which was ultimately rejected with the observation that only 46 Assembly Constituency in U.P., were held to have been notified as dominated by Urdu speaking people and the Assembly Constituency 261 Allahabad West was not one of them to necessitate preparation of voters list and nomination papers in Urdu which may entitle to nomination Form in Urdu. The order rejecting his representation has become final and conclusive as it was not challenged any further. Therefore, right of the petitioner to have nomination Form in Urdu had come to an end. Lastly, he submitted that petitioner knows Hindi and is well conversant with the same. He had been advancing his submissions in Hindi without any assistance and got his statement recorded in Hindi. Thus, he is not a person affected by the non supply of the nomination Form in Urdu. It is not his case that he was denied the nomination Form in the language in which it was being supplied to other candidates.
A challenge to the election of a returned candidate is not a right under the common law but a statutory right governed by the provisions of the Act and the Rules framed thereunder.
According to Section 80 of the Act an election can only be called in question by presenting a petition in accordance with the provisions of the Act before the High Court having jurisdiction to try the same.
Section 100 of the Act lays down the grounds on which an election of a returned candidate can be declared to be void.
In the instant case, the court is only concerned with one of the grounds mentioned therein namely non compliance with the provisions of the Constitution or the Act or any Rules or Orders framed under the Act.
The relevant part of Section 100 of the Act read as under:-
100. Grounds for declaring election to be void:
(1) Subject to the provisions of Sub-section (2) if the High Court is of the opinion-
(a) ..................
(b)......................
(c) ...................
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected.
(i)......................
(ii).......................
(iii)......................
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.
A plain and simple reading of the above provision reveals that where the High Court is of opinion that the result of the election, in so far as it concerns a returned candidate has been materially affected by non compliance of the provisions of the Constitution, Act, Rules or Orders made under the Act it shall declare the election of the returned candidate to be void. Thus, for getting the election of a returned candidate to be declared void, the petitioner has to plead and prove not only non compliance of the provisions of the Constitution, Act or any Rules or Orders made under the Act but also that the result of the election in so far as the returned candidate is concerned has been materially affected by such non compliance.
In view of the above provision two things have to be specifically pleaded and proved for succeeding in an election petition for getting the election of the returned candidate declared as void. The first is the non compliance with the provisions of the Constitution or of the Act or any Rules or Orders made under the Act and secondly that the result of the election of the returned candidate has been materially affected due to aforesaid non compliance.
Section 87of the Act provides that every election petition shall be tried as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure and the provisions of the Indian Evidence Act, 1872 shall be deemed to apply in all respects to the trial of an election petition.
In view of the above provision an election petition is more and less triable as a civil suit by following as nearly as may be the procedure prescribed under the Code and the Rules of the Evidence Act.
Rule 2 of Order VI of the Code provides that the pleadings shall contain a statement in concise form of material facts on which party relies for his claim or defence as the case may be.
Section 83 of the Act specifically provides that an election petition shall contain a concise statement of "material facts" on which the petitioner relies.
A combined reading of Section 83 of the Act and Rule 2 of Order VI CPC makes it mandatory to state consciously by way of pleadings in the election petition, the "material facts" on which the petitioner relies upon in assailing the election of the returned candidate.
A complete reading of the pleadings of the election petition would reveal that the emphasis of the petitioner all through had been to state that he had actively pursued the authorities to supply him with the nomination Form in Urdu; he had made an application to this effect to the Returning Officer on 20.1.2012 a day prior to the commencement of the nomination; he had deposited a sum of Rs. 10,000/- in the State Bank of India on 23.1.2012 and had again approached the Returning Officer and the District Election Officer for supply of the nomination paper in Urdu; and he had approached them on 28.1.2012 which was last date for filing the nomination paper but he was not supplied with the same in breach of Rule 4 read with Rule 2 (1) (g) of the Conduct of Election Rules, 1961 & the Order of the Chief Election Commissioner U.P, dated 4.5.2001 and some other similar Orders which is sufficient under Section 100 (1) (d) (iv) of the Act for challenging the election of the returned candidate. However, there appears to be no averment or pleading that the breach of any Rule or Order has materially affected the result of the election of the returned candidate.
In order to prove that there is violation of the provisions of the Act, Rules and Orders issued under the Act, the petitioner has brought on record exhibit P-2, a letter dated 20.1.2012 addressed to the District Election Officer stating that under the Order of the Chief Election Officer U.P., dated 4.5.2001 he is entitle to nomination Form in Urdu and that he would be coming and asking for it for contesting elections to the 261 Legislative Assembly Allahabad West. Exhibit P-3 is his letter dated 23.1.2012 addressed to the Returning Officer wherein he has stated that according to Rule 2 (1) (g) the word Form in respect of any election in a State includes a translation thereof in the languages used for official purposes of the State and he is entitle to the nomination Form in Urdu language. Exhibit P-4 is again a letter of the petitioner dated 24.1.2012 addressed to the District Election Officer informing that Urdu is the second official language of the State of U.P., and that the translation of the nomination Form in prescribed Form is supposed to be in Urdu language which is used for official purposes in the State. Since nomination Form is not available in Urdu, the date of submitting nomination be extended. The petitioner again submitted a representation to the same very effect to the Chief Election Officer U.P., and District Election Officer on 28.1.2012 which is Exhibit P-5.
The petitioner in his oral evidence stated that he wanted to contest the elections to the 261 Legislative Assembly, Allahabad West which were notified to be held in February 2012. He had in advance submitted a representation to the District Election Officer to be ready with the nomination Form in Urdu as he would be filing his nomination in Urdu. He had demanded nomination Form in Urdu on 21st January 2012. He was asked by the Returning Officer to deposit a sum of Rs. 10,000/- in the State Bank of India and for the purpose supplied him the necessary challan, so that his request for nomination Form in Urdu be considered. The petitioner could not deposit the aforesaid amount on 21.1.2012. He deposited the same on 23.1.2012 and with the receipt of deposit again demanded the nomination Form in Urdu. He was informed that his representation has been faxed to Lucknow and the nomination Form in Urdu will be issued to him after receiving the guidance from the higher authorities. He was not supplied with the nomination Form in Urdu even on 23.1.2012 and was asked to come on 24.1.2012. Likewise, till the close of nomination he was not supplied with the nomination Form in Urdu though he kept on demanding the same.
Mohd. Moin, PW-2 corroborated the statement of the petitioner and stated that he had accompanied the petitioner to the office of the Returning Officer on 21.1.2012. He had demanded the nomination Form in Urdu. He was asked to deposit a sum of Rs. 10,000/- in the State Bank of India. The amount could not be deposited on 21.1.2012. The next day was Sunday. Therefore, petitioner deposited the amount on 23.1.2012 in the State Bank of India and went to the Returning Officer with the receipt and demanded nomination Form in Urdu. He was asked to come on 24.1.2012 but he was never supplied with the nomination Form.
The aforesaid evidence in unequivocal terms prove that the petitioner beforehand had cautioned the election officer that he would be contesting elections from the said Constituency and would be requiring nomination Form in Urdu. He had demanded the nomination Form in Urdu, the day the nomination commenced. He even deposited the necessary amount of Rs. 10,000/- as directed with the State Bank of India and had produced its receipt and again demanded the nomination Form in Urdu. He kept on insisting for his demand throughout the period the nominations were open till the last date but was not given the nomination Form in Urdu.
Section 33 of the Act provides for the manner of presentation of nomination papers and the requirements of a valid nomination. Rule 4 of the Rules lays down that every nomination paper shall be completed in Form 2-A to Form 2-E appended to the Rules as may be appropriate.
Rule (1) 2(g) of the Rules defines 'Form' to mean a Form appended to the Rules and in respect to the election in a State includes a translation thereof in any of the language used for official purposes of the State. So all Forms appended to the Rules which includes the nomination Form in addition to the language in which they might have been prepared are supposed to have their translated copy in the appropriate official languages of the State.
In short, a combined reading of Rule 4 and 2(1)(g) of the Rules contemplates that all Forms appended to the Rules which includes nomination Forms in addition to the language in which they are prepared will also be in any of the languages used for official purposes of the State.
The Circular Order dated 4th May 2001 issued by the Chief Election Officer, U.P., Lucknow addressed to all the District Election Officers states that under the notification dated 7th October 1989 Urdu has been declared as the Second Official Language of the State. Therefore, according to Rules, all Forms referred to under Rule 2 (1) (g) of the Rules for the purposes of elections to the Lok Sabha, Legislative Assembly and by elections should also be prepared in Urdu language in addition to Hindi and that in future candidates on demand should be supplied with the nomination papers in Urdu as well.
The aforesaid Circular Order is an order of the Chief Election Commissioner, U.P, purported to have been issued under the Rules and the Act and as such any infringement of it amounts to breach or non-compliance of the Orders made or passed under the Act.
In view of the above, non supply of nomination paper to the petitioner in Urdu for the purposes of election to the State Legislative Assembly attracts the provisions of Section 100 (1) (d) (iv) of the Act for setting aside the election of the returned candidate.
But before any decision to set aside the election of the returned candidate is taken, it is incumbent for me to deal with the second aspect of the matter ie., if the election of the returned candidate was materially affected due to non compliance of the above Circular Order.
It is settled law that no election either to the Lok Sabha, Rajya Sabha or the State Legislative Assembly can called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by appropriate legislature. Therefore, challenge to any election has to be by means of election petition presented on the ground contained under the Act.
It has been observed earlier that in view of Section 83 of the Act read with Rule 2 of Order VI CPC it is essential to plead "material facts" constituting a complete cause of action for getting the election set aside on the ground of non compliance with the provisions of the Constitution Act, Rules and the Orders passed under the Act which may have materially affected the election of the returned candidate.
In the entire election petition there is not a single averment that the result of the election was materially affected in any manner whatsoever by non compliance of the aforesaid Rules and Orders.
The petitioner was asked to point out any such pleadings if contained in the election petition but he could only point out to paragraphs 18, 19 and 20 which are reproduced herein below for the sake of convenience:-
18. "That petitioner is filing present Election petition for challenging the 2012 U.P. Assembly Election of 261 Assembly Segment Allahabad West for non compliance of Rules/Regulations as laid down in Representation of People Act, 1950, Registration of electors Rules 1960, election Rules 1961 and numerous directions passed by Election Commission of India, exercising its power under Article 324 (1) of the Constitution of India by the officers and officials ie. District Election Officer, Dy. District Election Officer, Returning Officer of 261 Assembly Constituency of District Office, Allahabad because of their mlalafide action the petitioner could not be nominated as valid nominated candidate due to the fact that the nomination paper in U.P., official language Urdu was not provided/given to the petitioner by the District Election Officer. Thus the present election Petition is being filed herewith as Election Petition on behalf of Elector as well as claimed to be candidate as per provisions of Section 79 of the Representation of People Act, 1951.
19. That as per provision of numerous Section of Representation of People Act, 1950 registration of People Act, 1950, Registration of Electors Rules 1960, Representation of People Act, 1951 and Conduct of Election Rules, 1961 the following malafide action was done by the offices and officials of District Election Office, Allahabad.
a. As per provision of Section 31 of Registration of People Act, 1951 and Rule 2 (1) (g) of Conduct of Election Rules, 1961, the Returning Officer concerned did not published put on notice board for public notice for 2012 Assembly election for 261 Assembly Constituency in Form 1 in Urdu Official Language, whereas same was done in English and Hindi Language. Such type of action is against Rule 2 (1) (g) of Conduct of Election Rules, 1961.
b. That as per provision of Section 33 of the Representation of People Act, 1951 and Rule 2 (1) (g) and 4 of Conduct of Election Rules, 1961 and direction of Chief Election Officer Uttar Pradesh dated 04.05.2001 the complete set of Nomination Forms should have been provided by the Returning Officer concerned in Urdu Official Language also. Whereas the Returning Officer provided complete set of nomination form in Hindi while incomplete set of nomination forms in Urdu was not provided.
c. That there was clear cut discrimination between both official Language of this State (Hindi and Urdu) which was malafide action done by Officers and Officials of District Election Officer, Allahabad. In this regard it is clarified by the petitioner that as per provision of rule 2 (1) (g) of Conduct of Election Rules, 1961 Secretary of the Election Commission of India has given an undertaking to this Hon'ble Court in writ petition no. 20847 of 1999 and 32992 of 2001 in the sense that an specific direction has been issued by Election Commission of India under its exclusive power under Article 324 (1) of the Constitution of India to Chief Electoral Officer, Uttar Pradesh for strict compliance of Rule 2 (1) (g) for future general election/bye election. Under afore mention direction of Election Commission of India, the Chief Election Officer, U.P. Dr. Noor Mohammad issued two successive directions vide its letter dated 04.05.2001and 08.11.2001 directing all District Election Officer of Uttar Pradesh for its strict compliance in future general election/bye election. Therefore, it is submitted that officers and officials of District Election Office concerned has flouted the aforementioned direction wilfully, deliberately and intentionally, the said conduct of aforementioned officers/officials are malafide in nature.
d. That as per provision of "U.P. Officials Language (Amendment) Act 1989" Section 3 have been inserted which says that "In the insert of Urdu Speaking People Urdu Language shall be used as Second Official Language for such purposes as may be notified by the Government from time to time. In this regard the State Government issued several government Orders dated 16.3.1999 and 06.10.2005 is being filed herewith and marked as Annexure No. 12 to this petition.
20. That the petitioner is challenging the Election of the Respondent who has been declared as a returned candidate from 261 Allahabad West Assembly Constituency on the ground of 100 (1) (d) (iv) of the Representation of People Act, 1951."
In none of the above paragraphs, the petitioner has made any averment that the election of the returned candidate was materially affected by non compliance of the aforesaid Rules or Orders or by non supply of the nomination papers to him in Urdu.
The term "material facts" refers to such facts which support the allegations constituting the cause of action. All facts which are material or necessary for constituting a cause of action would be material facts.
In other words, all those facts which are essential to clothe the petition with a complete cause of action, are "material facts" which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1) (a) of the Act.
In Udhav Singh Vs. Madhav Rao Scindia AIR 1976 SC 744 the Court dealing with the term "material facts" as used in Order 6 Rule 2 of the Code and Section 83 of the Act laid down that all primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are material facts. In an election petition, whether a particular fact is material or not and if necessary to be pleaded, is a question which depends on the nature of the allegation, the grounds relied upon and the special circumstances of the case.
It has further been laid down that pleadings have to be read as a whole to ascertain its true import. It is not permissible to extract a sentence or a passage and to read it out of the context in isolation. The pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and terms of his pleadings taken as a whole and failure to plead even a single material fact leads to an incomplete cause of action.
In Virender Nath Gautam Vs. Satpal Singh and others 2007 (3) SCC 617 it has been laid down that "material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of their respective case as set up to establish the cause of action or the defence.
In the absence of primary pleadings a party can not be allowed to lead evidence. Therefore, the omission to state even single "material fact" will entail dismissal of the suit or petition.
In the case at hand the only ground to challenge the election of the returned candidate is one as contained in Section 100(1) (d) (iv) of the Act which specifically provides for the setting aside of the election of the returned candidate for non compliance of the provisions of the Constitution, Act, Rules and the Orders made under the Act provided the result of the election of the returned candidate is materially affected by it. Therefore, averments to this effect are essential and material facts for constituting a complete cause of action for getting the election of the returned candidate set aside on the above ground.
Now in the light of the above legal position if I examine the pleadings of the petitioner as contained in the election petition, I find that it does not contain any material fact if the non supply of the nomination Form to him in Urdu or the breach of the Rules or the Orders of the Chief Election Commissioner U.P., had in any manner materially affected the election of the returned candidate. At the same time there is even no evidence to prove it. In fact evidence can not go beyond the pleadings and therefore the petitioner had rightly not adduced any evidence on the above score in the absence of pleadings.
In the absence of any pleadings constituting "material fact" which may have affected the election of the returned candidate, the aforesaid issue is decided against the petitioner and the petition is liable to be dismissed for want of "material facts and material particulars" constituting the cause of action for challenging the election of the returned candidate on the ground mentioned under Section 100 (1) (d) (iv) of the Act.
Accordingly, in dealing all the three issues, it is held that though the petitioner was entitle to a nomination Form in Urdu language but in the absence of appropriate pleadings regarding material facts which may have materially affected the election of the returned candidate, the petitioner is not entitle to any relief and the petition is liable to be dismissed for want of necessary pleadings regarding material facts constituting the cause of action.
In the end I record my appreciation to the valuable assistance of Sri Om Prakash, learned counsel in his capacity as Amicus Curie.
The petition is dismissed with no orders as to costs.
SKS 3.2.2017 Note:- The words 'Act' and 'Rules' wherever occurring in the judgment would refer to Representation of People Act, 1951 and Conduct of Election Rules, 1961 respectively.