Madhya Pradesh High Court
Mithlesh Jain vs Sandeep Jaiswal on 13 August, 2019
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
Election Petition No.02/2019
Mithlesh Jain
Vs.
Sandeep Jaiswal & Others
=================
Shri Mukesh Agrawal with Shri Utkarsh Agrawal, learned counsel for
the petitioner.
Shri Sanjay K. Agrawal with Shri Siddharth Sharma, learned counsel
for the respondent No.1.
==================================
ORDER
Reserved on 08/08/2019 Passed on 13/08/2019 This order shall govern the disposal of application (I.A.No.8262/2019), filed under Order VII Rule 11 of the C.P.C., read with section 86 of the Representation of the People Act, 1951 (for short "the Act"), wherein the respondent No.1 has challenged the tenability of the election petition.
2. Learned counsel for the respondent No.1 submitted that petitioner filed the present election petition under Section 80, 80-A, 81, 100 of the Act and challenged the election of respondent No.1 from 93 Murwara Legislative Constituency, District Katni on the grounds specified in Section 100(1)(d), (iii) & (iv) of the Act. However, the election petition does not fulfill the mandatory requirement of law, which reads as thus :-
A. The petition does not contain a concise statement of material facts on which the petitioner relies and therefore does not disclose a triable cause of action.Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 2
B. The election petition has not been verified in the manner laid down in the Code of Civil Procedure, 1908, inasmuch as the petitioner has not disclosed the source of information on the basis whereof allegations have been made in the petition.
C. Copy of the election petition as served upon the respondent No.1 has not been attested by the petitioner. The memo of petition bears such attestation, but the documents filed along with the election petition do not bear any such attestation and non-compliance of the provisions of Section 81(3) of the Act.
D. The averments made in the election petition are completely vague and lacking in material particulars. No trial or enquiry is permissible on the basis of such vague, indefinite and imprecise averments. The petition, therefore, does not disclose a triable issue or cause of action.
3. Learned counsel further submitted that Section 81 of the Act deals with presentation of the petition. Sub-Section 3 of the Section 81 of the Act specifically provides that every election petition shall be accompanied by as may copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. But the copy of the election petition provided by the petitioner to the respondent No.1 was not attested by the petitioner. Likewise, Clause (b) of Sub-Section 1 of Section 83 provides that such an election petition shall set forth full particulars of any corrupt practices that the petitioner alleges, including as full statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. Clause (c) of Sub- Section 1 of Section 83 of the Act provides that the election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. The proviso of Sub-Section 1 of Section 83 of the Act further mandates that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 3 allegation of such corrupt practice and the particulars thereof. But, the petition filed by the petitioner is completely lacking compliance with the aforesaid mandatory provisions.
4. Learned counsel further submitted that the petitioner in Para-12 of his petition mentioned that petitioner found few discrepancies. In para 13 also petitioner averred that he found tampering with some EVMs. However he did not point out in what manner the tampering in voting machine was done and which machines were tampered and on which polling booths said tempered machines were used. In para 15 of his petition petitioner averred that some of the EVM's were not functioning properly and without any prior intimation to the petitioner or his polling agents 13 EVM were changed during polling on 28/11/2018 and in these changed EVMs polling had taken place without any knowledge to the petitioner or the concerned polling agents of the petitioner. But petitioner has not pointed out as to which EVMs were not functioning properly and which 13 EVMs were changed and did not give any detail of said machine with particular reference to booth number. In para 16 also the nature of irregularities is not mentioned. In para 22 of the petition, the petitioner contended "information supplied through blank papers and not in the prescribed format under Form 17-C" and further averred that EVMs were not at all sealed and therefore the petitioner could not compare the EVMs from such numbers. In para 23 of the petition, the petitioner has questioned the accuracy and fairness as regards the use of EVMs in the Assembly Election. But the said ground taken by the petitioner is no longer res- integra as it has already been settled by the Hon'ble Apex Court that tampering of EVMs is not possible. A bare perusal of the pleadings would clearly reveal that the same is also completely vague and is lacking in material particulars. Petitioner did not point out the discrepancies allegedly noticed by him. Similarly, petitioner has not Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 4 pointed out as to how and in what manner tampering was done with the EVMs. On the basis of such vague, indefinite and imprecise allegations made in the election petition, no trial is possible or permissible. It would not be possible for the respondent No.1 to defend the petition on the basis of such vague assertions and allegations.
5. He further submitted that the affidavit filed by the petitioner do not confirm to the provisions of order 6 rule 15(4) of the CPC. Petitioner has not disclosed as to what facts are based on his personal knowledge and what are based on information derived by him. The petitioner has also not disclosed the source of information on the basis of which allegations have been made in the petition. In the absence of proper affidavit as required under Order VI Rule 15(4) of the CPC the petition is also liable to be dismissed.
6. Learned counsel further submitted that the annexures filed alongwith the election petition have not been verified by the petitioner. A copy of the election petition has been served on the respondent No.1, which has also not been certified properly. Annexures filed alongwith the petition does not bear any such attestation, while document filed alongwith the petition form an integral part of the election petition and therefore, ought to have been attested as a true copy of the original filed alongwith election petition which shows the non-compliance of mandatory provision of Section 81(3) of the Act. So the election petition suffers from non-compliance of the mandatory provisions of the Act and deserves to be dismissed under Section 86 of the Act. Similarly, since the petition did not disclose any triable issue or cause of action, the petition is also liable to be rejected under Order VII Rule 11 of the CPC.
7. In support of his contention learned counsel placed reliance on the judgments passed by Hon'ble Apex Court in the cases of Dhartipakar Madan Lal Agrawal Vs. Rajiv Gandhi, 1987 (Supp) SCC Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 5 93, Ram Sukh Vs. Dinesh Aggarwal, (2009), 10 SCC 541, Azhar Hussain Vs. Rajiv Gandhi, 1986 (Supp) SCC 315, V.S. Achuthanandan Vs. P.J. Francis & Another, (1993) 3 SCC 737, Hari Shanker Jain Vs. Sonia Gandhi, (2001) 8 SCC 233, Virender Nath Gautam Vs. Satpal Singh & Others, (2007) 3 SCC 617, Samant N. Balkrishna & Another Vs. George Fernandez & Others, 1969(3) SCC 238 and the judgments of Coordinate Bench of this Court passed in the case of Dr. Vivek Tiwari Vs. Divyaraj Singh & Others (decided on 12/09/2014 in E.P.No.4/2014). On the point that the affidavit filed by the petitioner in support of his petition is not in consonance with the relevant provisions of the law applicable on an election petition, learned counsel placed reliance on the judgment passed by Hon'ble Apex Court in the cases of V. Narayanaswamy Vs. C.P. Thirunavukkarasu, (2000) 2 SCC 294 and R. Moidutty Vs. P.T. Kunju Mohammad & Another, (2000) 1 SCC 481.
8. Per contra, learned counsel for the petitioner submitted that the petitioner has pleaded specific averments and material facts with full particulars with regard to the subject matter of the case. There is no ambiguity in the petition. Learned counsel further submitted that there is no violation or non-compliance of Section 81(3) of the Act. Even otherwise for the sake of arguments if it is assumed that there are any defect in the verification, affidavit, service of copy, signature of parties etc., the same are not fatal defect so as to attract Section 86 of the Act and the same are curable defects for which this Court may direct the petitioner if Court is of the opinion that there are any such defect. In this regard learned counsel placed reliance on the judgment of Hon'ble Apex Court passed in the case of Sitaram Vs. Radhey Shyam Vishnav & Others, 2018 (4) SSC 507 and S.M. Siddeshwar Vs. Prasanna Kumar, 2013 (4) SCC 776. Learned counsel further submitted that petitioner has not filed the petition on the allegation of corrupt practices Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 6 so the question of the non-compliance of the provisions of Section 86 of the Act does not attract as held by Hon'ble Apex Court in the case of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddyu, 2012 (7) SCC
788. From the pleadings of Para 12, 12, 20 & 21 of the election petition it is clear that petitioner clearly pleaded full concise statement of material facts on which petitioner relies. Proviso to Section 83 of the Act is not applicable in the present case as in the instant case election of respondent No.1 has not been called in question, on the ground of corrupt practice. There is a specific pleading in the election petition that complaint of the petitioner shall be treated to be the part of pleading. Thus, from the above it is clear that there is full compliance of Section 83 of the Act. It is also submitted that averments made in Para 12, 13, 20 & 21 of the election petition are weak and have no force, cannot be gone into at this stage. Learned counsel further submitted that Order VI Rule 15(4) of the Act has been complied in its true spirit and sense. In the present case the affidavit is filed by the petitioner in support of the pleadings, while the same is not required under Section 83(1)(c) as held by Hon'ble Apex Court in the case of G.M. Siddeshwara (supra), so the application be dismissed.
9. This Court has gone through the record and arguments put forth by the learned counsels of both the parties.
10. On perusal of the provisions of the Section 81, 83, 100, 101 & 123 of the Act it is revealed that Section 81 of the Act contemplates that an election petition calling in question of any election has to be presented on one or more grounds specified in Sub-Section (1) of Section 100 and Section 101 of the Act by any candidate or an elector. The requirement of Section 83 of the Act is that an election petition shall contain a concise statement of the material facts on which the election petitioner relies and shall set forth the full particulars of any corrupt practice, which the election petitioner alleges. Where the Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 7 petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practices and the particulars thereof. Section 100 envisages the grounds for declaring the election to be void. Section 123 of the Act defines what is a corrupt practice.
11. The petitioner filed this election petition under Section 80 of the Act questioning the validity of the election of the respondent No.1 on the grounds specified in Section 100(1)(d), (iii) & (iv) of the Act. From the judgements of the Hon'ble Apex Court passed in the cases of Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, (Supra), Ram Sukh Vs. Dinesh Aggarwal, (Supra) Azhar Hussain Vs. Rajiv Gandhi, (Supra), V.S. Achuthanandan Vs. P.J. Francis & Another, (Supra), Hari Shanker Jain Vs. Sonia Gandhi, (Supra), Virender Nath Gautam Vs. Satpal Singh & Others, (Supra), Samant N. Balkrishna & Another Vs. George Fernandez & Others, (Supra), V. Narayanaswamy Vs. C.P. Thirunavukkarasu, (Supra) and R.. Moidutty Vs. P.T. Kunju Mohammad & Another, (Supra) relied upon by the learned counsel of the respondent No.1 it transpires that Section 83 (1) (a) of the Act mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. 'Material facts' mean the entire bundle of facts which would constitute complete cause of action. All those facts which are essential to clothe the petitioner with a complete cause of action, are 'material facts' which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of section 83(1)(a) of the Act. 'Particulars' on the other hand are the details of the case set up by the party. 'Material Particulars' within the contemplation of clause (b) of section 83 (1) of the Act would mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a).
Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 8'Particulars' serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative. Failure to plead material facts is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition. The absence of material particulars can be cured at a later stage by an appropriate amendment. In the context of a charge of corrupt practice as mentioned in 83(1)(b) of the Act 'material facts' would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Although Section 83 (1) (a) of the Act is not adverted to Section 86 of the Act, but the provisions of the Code of Civil Procedure applies to the trial of election petitions by virtue of Section 87 of the Act. Since CPC is applicable the petition can be dismissed under order VII rule 11 of the CPC where petition does not disclose a cause of action. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order VII Rule 11 of the Code of Civil Procedure.
12. An election petition is required to be signed and verified in the same manner as laid down in the Code of Civil Procedure for the verification of pleadings. However, if the petition alleges any corrupt practice then the petition has additionally to be accompanied by an affidavit in form 25 prescribed by Rule 94-A of the Conduct of Elections Rules, 1961 in support of the allegations of such corrupt practice and the particulars thereof. An election petition alleging commission of corrupt practice has to satisfy some additional requirements, mandatory in nature, in the matter of rising of the pleadings and verifying the averments at the stage of filing of the election petition and then in the matter of discharging the onus of proof Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 9 at the stage of the trial. The object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, Section 83(1)(c) of the Act merely requires an election petitioner to sign and verify the contents of the election petition in the manner prescribed under the Code of Civil Procedure. There is no requirement of the election petitioner 'also' filing an affidavit in support of the averments made in the election petition except when allegations of corrupt practices have been made. However, the defect of verification is not fatal to the petition, so it can be cured. After finding the defects the Court should give proper opportunity to cure the defect and in case of failure to remove/cure the defects, it could result into dismissal on account of order VII Rule 11 of the CPC. But in the case where neither the verification in the petition nor the affidavit gives any indication of the source of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and the affidavit in the form is prescribed does not suffer from any defect. The allegations of corrupt practices cannot be inquired and tried at all. In such a case the petition has to be rejected at the threshold for non- compliance with the mandatory provisions of law.
13. Whether in an election petition a particular fact is material or not and as such required to be pleaded is a question which depends on the nature of the allegation levelled and in the light of the special circumstances of the case.
14. In the instant case petitioner in Para-12 of his petition mentioned that in some of the polling booths, the information was not furnished in prescribed format under form 17 C and instead supplied on plain paper which is incomplete and doubtful. In some of Electronic Voting Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 10 Machines, different seal was found. The seal which was put while singing by the polling agent of the petitioner was not found at the time of counting. Even in a replaced seal, signature of polling agent was different, the same shows that there was tampering with the Electronic Voting Machines. In Para-15 of the petition it is mentioned that 13 Electronic Voting machines were changed during polling on 28/11/2018 and in these changed EVMs polling had taken place without any knowledge to the petitioner or the concerned polling agents of the petitioner. The number of booths where the above mentioned discrepancy were found is mentioned in the para 21 of the petition where it is mentioned that in some of the polling booths (number of which is mentioned in the petition) voting got closed before 05:00 P.M. and in some of the polling booths machines were not found to be closed. In some of the polling booths voting started much after 08:00 A.M. in the morning. In booth no.133 voter list showed 505 voters, but EVM count showed 569 votes and in form 17C there is an overwriting, which clearly shows that there was tampering. That pleadings shows non-compliance of the Election Rule 49 of the Conduct of Election Rules,1961.
15. A bare reading of Section 100(1)(d)(iv) of the Act makes it clear that subject to the provisions of Sub-Section (2), if the High Court is of opinion by any non compliance with the provisions of the Constitution or of the act or of any rules or orders made under the Act, the High Court shall declare the election of the returned candidate to be void.
16. The Aapex Court in the case of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and others (supra) relied on by the learned counsel of the petitioner held "the question of disclosure of cause of action to be decided by taking the averments in the totality and by assuming them to be factually correct." The Coordinate Bench of this Court in the case of Dr. Vivek Tiwari Vs. Divyaraj Singh & Others Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 11 (Supra) also on relying the judgement of apex court held "The Court cannot decide the pleadings in several parts to find out the existence of cause of action, rather the petition will have to be read as a whole."
17. In the instant petition, in the light of the aforesaid decisions of the apex court, if the pleadings are read as a whole, it appears that the petitioner has already pleaded that the result of the election of respondent No. 1 has been materially affected by non-compliance of the Rules made under the Act and therefore the petition cannot be rejected at the threshold.
18. Order VI Rule 15 Sub-Rule (2) mandates that the person verifying the petition shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. In the instant case petitioner clearly averred in the verification "the contents of para 1 to 21 of the instant election petition are true to my knowledge and that the contents of para 22 to 31 of the instant election petition are based on information received by me and believed to be true" which shows that petitioner has verified the pleadings according to the provisions of Order VI Rule 15 of CPC. All the annexures filed by the petitioner in support of his petition has the signature of the petitioner. There is no significant discrepancy in the verification of the those annexures.
19. Therefore, in the considered opinion of this Court in the instant case, the reading of the entire election petition discloses a cause of action and does not suffer from any infirmity on the cause of action and the election petition does not require dismissal at the threshold itself as envisaged under Order VII Rule 11 of the C.P.C. Consequently, I.A.No. 8262/2019, is hereby dismissed.
Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21 1220. Written statement has already been filed by Respondent No.1. So, the matter be listed on 30/08/2019 for framing of issues. Both the parties are requested to file proposed issues before the next date of hearing.
Certified copy as per rules.
(Rajeev Kumar Dubey) Judge as/ Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:21