Bombay High Court
Rajendra Shriramji Mahadole vs The Election Commission Of India, ... on 16 December, 2019
Author: Manish Pitale
Bench: Manish Pitale
CAO1974.19.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLN. (O) NO. 1974 OF 2019
IN
ELECTION PETN. NO. 8 OF 2019
AND
ELECTION PETN. NO.8 OF 2019
Adv. Rajendra Shriramji Mahadole
-Vs.-
The Election Commission of India, thr. Its Chairkman and others
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr.N.B.Rathod, & Mr. Barun Kumar, counsel for the
petitioner.
Ms Neerja Choubey, counsel for respondent No.1.
Mr.S.Y.Deopujari, GP for respondent No.2.
Mr.A.A.Dhawas, counsel for respondent No.3.
CORAM : MANISH PITALE, J.
DATE : 16.12.2019.
This application has been filed on behalf of respondent No.3 under Order VII Rule 11 of Code of Civil Procedure (For short "CPC") read with section 86 of the Representation of People Act, 1951 (for short "Act"), claiming that the election petition filed by the petitioner deserves to be dismissed at this stage itself due to non-compliance of provisions of the aforesaid Act, particularly sections 81 and 83 thereof, leading to non-disclosure of cause of action.
2. The present election petition has been filed by the petitioner challenging election of respondent No.3 as Member of Parliament from the KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 2/17 constituency of Chandrapur in Maharashtra in general elections held in April/May, 2019. The petitioner has pleaded corrupt practices and it is claimed that the manner in which the election was conducted by respondent Nos.1 and 2, the entire process of election was vitiated. It was further pleaded that there was violation of the provisions of the aforesaid Act and orders issued by respondent No.1, which materially affected the result of the election.
3. Respondent No.3 filed the aforesaid application for dismissal of the election petition at this stage itself, claiming that a bare perusal of the election petition would show that there was no corrupt practice alleged against respondent No.3 at all. It was further submitted that no particulars of any corrupt practice pertaining to the date and place of commission of each such corrupt practice, was stated in the petition. It was further alleged that the election petition did not satisfy the requirements of section 83(1)(a) of the aforesaid Act, requiring a concise statement of material facts on which the petitioner relied and that therefore, the only ground that could possibly have been raised by the petitioner concerning non-compliance of provisions of the Constitution or of the aforesaid Act or Rules or Orders made under the said Act under section 100(1)(d)(iv) of the Act, was also not KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 3/17 made out.
4. In support of the statements made in the aforesaid application Mr. A. A. Dhawas, learned counsel appearing on behalf of respondent No.3, submitted that no case was at all made out by the petitioner, even on a bare reading of the election petition, regarding corrupt practice against respondent No.3, as no pleadings with full particulars of corrupt practice were even pleaded in the election petition as required under section 83 (1)(b) of the said Act. It was submitted that the so called corrupt practices stated in the election petition were in fact, allegations made against respondent No.1 i.e. the Election Commission of India and respondent No.2 i.e. the Returning Officer. On this basis, it was submitted that there was no ground of corrupt practice made out against respondent No.3 on the face of the pleadings in the election petition, even if they were taken to be true. It was further submitted that insofar as the violation of the provisions of the Constitution and the aforesaid Act or the Rules and Orders concerning the said Act, that had materially affected the result of the election under section 100(1)(d)(iv) of the Act, the pleadings in the election petition were wholly inadequate, vague and devoid of any material facts required to be pleaded as per section 83(1)(a) of the said Act. It was submitted that in KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 4/17 terms of the law laid down by the Hon'ble Supreme Court and this Court in the context of section 83(1)
(a) of the said Act, the election petition was wholly deficient and it did not deserve to go to trial.
5. The learned counsel for respondent No.3- applicant relied upon judgments of the Hon'ble Supreme Court in the cases of Ram Sukh v. Dinesh Aggarwal, reported in (2009) 10 SCC 541, Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, reported in (2009) 9 SCC 310, Laxmi Kant Bajpai v. Haji Yaqoob and others, reported in (2010) 4 SCC 81, Jyoti Basu and others v. Debi Ghosal and others, reported in AIR 1982 SC 983 and Jitu Patnaik v. Sanatan Mohakud and others, reported in (2012) 4 SCC 194.
6. Per contra, Mr. N.B.Rathod, learned counsel appearing for the petitioner, submitted that there was no substance in the application filed on behalf of respondent No.3, because the election petition deserved to go to trial, as material facts were clearly stated therein. It was specifically contended that the emphasis of the petitioner in the election petition was on the ground specified in section 100(1)(d)
(iv) of the aforesaid Act as the material facts pertaining to violation of the provisions of the said Act, Rules and Orders issued under the said Act were pleaded in the election petition, demonstrating that the result of the election was KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 5/17 materially affected by such violations. It was conceded that although corrupt practice was stated in the election petition, no particular allegation was made against respondent No.3 on the ground of corrupt practice and that therefore, the election was liable to be set aside under section 100(1)(d)(iv) of the said Act. It was submitted that the petitioner was only required to state facts that were facta probanda and not facta probantia. It was submitted that as long as the petitioner had stated the material facts, particulars or evidence were not required to be pleaded in the election petition and that therefore, the pleadings were sufficient. On this basis, it was contended that the application filed by respondent No.3 deserved to be dismissed and the matter deserved to go to the trial, particularly when sufficient material facts had been placed on record to demonstrate that the entire election stood vitiated.
7. The learned counsel for the petitioner also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Ram Sukh v. Dinesh Aggarwal (supra) to contend that the application filed by respondent No.3 deserved to be rejected and that the election petition was required to be considered on merits by granting opportunity to the parties to lead evidence.
8. Mr. S.Y.Deopujari, the learned Government KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 6/17 Pleader appeared on behalf of respondent No.2 and Ms Neerja Choubey, learned counsel appeared on behalf of respondent No.1. They supported the application filed on behalf of respondent No.3 and submitted that even if the pleadings in the election petition were to be taken as it is, no case for trial under section 100(1)(d)(iv) of the said Act was made out. It was submitted that the difference in votes polled by the candidates as pleaded in the election petition itself demonstrated that even if, same was to be taken to be true, it did not materially affect the election at all. It was further submitted that the basis of calculation of difference in votes or discrepancy therein claimed by the petitioner was based on data pertaining to counting of votes polled by each candidate, said to have been collated by the petitioner himself from the website of respondent No.3. It was submitted that such data had no sanctity at all. It was further submitted that there was pleading regarding Form 17-C prepared by respondent No.2 concerning account of votes recorded and result of counting because the said form maintained under the Rules framed under the aforesaid Act provided specific stages for the candidates and their agents to lodge protest and objections regarding discrepancy, if any, in the counting of votes. It was submitted that when there was no pleading pertaining to such matters and not even a reference to the account of votes and the KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 7/17 result of counting under Form 17-C, the pleadings on behalf of the petitioner were wholly insufficient to justify trial. It was further submitted that the pleading pertaining to violation of direction 15.30(D) of the Handbook issued by respondent No.1, was also not a pleading sufficient to justify the election petition to go for trial. On this basis, it was submitted that the election petition deserved to be dismissed at this stage itself.
9. Before considering the submissions made on behalf of the rival parties, it would be appropriate to refer to the law pertaining to requirement of pleadings in an election petition, which would justify it going to trial. Section 83 of the aforesaid Act pertains to contents of an election petition. It specifies that an election petition shall contain a concise statement of material facts on which the petitioner relies under section 83(1)(a) of the Act. Since it has been conceded on behalf of the petitioner and it is also evident from a bare reading of the election petition that no allegation of corrupt practice is made against respondent No.3 herein, this Court in the present case is concerned only with the question as to whether the petitioner has complied with section 83(1)(a) of the Act for raising ground under section 100(1)(d)(iv) thereof to claim that the election petition deserves to go to trial, as the result of the election was materially affected due KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 8/17 to non-compliance of provisions of the said Act or Rules framed there under or Orders made under the said Act.
10. The pleadings in the election petition have to be perused and appreciated strictly in terms of the requirement of the aforesaid Act, because the Hon'ble Supreme Court in the case of Jyoti Basu and others v. Debi Ghosal and others (supra) has laid down that since deciding an election petition under the said Act is a special jurisdiction, the same is always required to be exercised in accordance with the statute creating it. It is laid down that the Court while considering an election petition is put in a straight jacket and therefore, the pleadings need to satisfy the requirement of section 83(1)(a) of the said Act to justify such an election petition to go to trial. The Hon'ble Supreme Court in the cases of Ram Sukh v. Dinesh Aggarwal and Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar has laid down that to clothe the election petition with a complete cause of action, the petitioner is required to plead all material facts and failure to place even a single material fact amounts to disobedience of the mandate of section 83(1)(a) of the said Act. In the context of the question as to what could be said to be "material facts", the Hon'ble Supreme Court has laid down that the election petitioner is required to state what can be categorized as facta probanda KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 9/17 only and not facta probantia. In other words, all such facts that can be said to be fundamental, vital, basic, cardinal, central, crucial, decisive, essential and pivotal can be said to be material facts, required to be pleaded in the election petition to comply with the stringent requirement of section 83(1)(a) of the aforesaid Act. It has been clarified by the Hon'ble Supreme Court that the election petitioner is not required to state particulars or evidence constituting facta probantia. This position has been reiterated in the judgment of the Hon'ble Supreme Court in the case of Laxmi Kant Bajpai v. Haji Yaqoob and others (supra).
11. The stringent manner in which the Hon'ble Supreme Court has analyzed the concept of cause of action in an election petition under section 83(1)(a) of the aforesaid Act is evident from the observations made in the case of Harishchandra Jain v. Sonia Gandhi, reported in (2001) 8 SCC 233, wherein it is stated that the expression 'cause of action' has been compendiously defined to mean that every fact, which is necessary for the plaintiff to prove and omission of a single material fact leads to an incomplete cause of action. The said strict requirement has been prescribed, because when considering the validity of an election of a returned candidate, the Court would exercise a power to annul the will of the majority of voters and an KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 10/17 election ought not to be permitted to go to trial if it is found that the pleadings are deficient under section 83(1)(a) of the said Act, particularly because it would be meaningless to allow such an election petition to go to trial, which would occupy the time of the Court. The Hon'ble Supreme Court has observed in the case of Azhar Husain v. Rajiv Gandhi, reported in (1986) Supp SCC 315 that the sword of Damocles need not be kept hanging over the head of the respondent unnecessarily, without point or purpose.
12. It is in this backdrop that rival submissions need to be considered. Since this Court is considering an application under Order VII Rule 11 of the CPC, read with provisions of the said Act, only the contents of the election petition can be read to analyze as to whether it deserves to be dismissed at this stage itself or that the matter needs to go to trial. A perusal of the election petition shows that the entire thrust of the petitioner is on alleged violations of the provisions of the said Act and Rules framed there under and directions issued by respondent No.1 under the said Act, particularly pertaining to the electronic voting machine, as a result of which the entire election process stood vitiated. In order to plead in respect of ground relatable to section 100(1)(d)(iv) of the said Act, the election petitioner has pleaded KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 11/17 specifically with regard to difference between votes polled and votes counted. Even according to the specific pleadings in the election petition, the difference in number of votes, even if taken to be true, does not in any manner materially affect the result of the election. In fact, only the alleged difference in total votes polled and total votes counted is stated but it has not been pleaded as to how it materially affected the result of the election. The source of the votes counted and the votes polled is not disclosed in the election petition at all while the learned counsel for the petitioners submitted that the same was based on data taken by the petitioner from the website of respondent No.1- Election Commission of India. The list showing purported difference in votes in various constituencies, annexed at Annexure-B, is also a list prepared by the petitioner himself with no pleading regarding its source or any connection with official figures. The number of votes which according to the petitioner were unaccounted for in totality was stated to be 672 votes. It was not pleaded in the election petition as to how this had materially affected the result of the election, as it was not even claimed that the difference between respondent No.3 as the returned candidate and the one who finished second in tally of votes was around the aforesaid figure of 672 votes. In fact, it was specifically stated that respondent No.3 polled KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 12/17 5,59,507 votes while the petitioner polled only 1,12,079 votes.
13. Much emphasis was placed on the pleadings found in para-11 of the election petition wherein direction 15.30(D) from the Handbook issued by respondent No.1-Election Commission of India by respondent No.1, was quoted. It was stated that the said direction was not followed by respondent No.2, thereby rendering the entire process as dubious. Here again, there is no pleading as to the manner in which violation of the said direction from the Handbook resulted in materially affecting the result of the election. In this context, the learned counsel appearing for respondent No.3 was justified in relying upon judgment of the Hon'ble Supreme Court in the case of Jitu Patnaik v. Sanatan Mohakud and others (supra), wherein it has been held by the Hon'ble Supreme Court that the Handbook issued by respondent No.1 does not have statutory character and that it was designed to give information and guidance to the Returning Officer, holding further that since this Handbook does not have statutory character, it could not be said that there was non-compliance of the provisions of the said Act to raise a ground under section 100(1)(d)
(iv) of the said Act. Thus, apart from the fact that there is absence of pleading regarding the election in the present case being materially affected due to KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 13/17 alleged violation of direction 15.30(D) of the Handbook, it could still not be construed as a ground under section 100(1)(d)(iv) of the Act, as laid down by the Hon'ble Supreme Court.
14. In this context the learned Government Pleader was justified in inviting attention of this Court to Form 17-C maintained by the Returning Officer under the aforesaid Act and Rules. The said Form 17-C provides in Part-I about the account of votes and Part-II regarding the result of counting. The specific contents of the said form show that under Part-I as well as Part-II of the said form, there is provision for raising objection or pointing out discrepancy in the total number of votes recorded as per the voting machine as against the total number of votes entered in the register of voters. Thus, at two stages during recording of Form 17-C, being the statutory requirement under the Rules, the candidates and/or their counting agents need to point out discrepancy, if any, between the votes recorded in the voting machine and the total number of voters entered in the register of voters. The election petition is totally devoid of any such pleading pertaining to Form 17-C, in order to demonstrate violation of provisions of the said Act.
15. It is thus clear, that the pleadings in the election petition do not satisfy the stringent requirement of section 83(1)(a) of the said Act, in KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 14/17 the light of the law laid down by the Hon'ble Supreme Court in that context. A perusal of the election petition shows that in paras-1 to 3 facts are stated regarding the holding of election in April, 2019 and allegation that respondent No.1-Election Commission of India and respondent No.2- Returning Officer for Chandrapur Lok-Sabha committed serious offence of non-compliance of provisions of the Act rendering the election void. In para-4, it is stated that the petitioner was sponsored by a political party and that although he was a popular candidate which utmost reach to the voters, which was openly expressed by certain people and political experts were certain abut the victory of the petitioner, he suffered defeat due to non- compliance by the respondents as also commission of corrupt practices. In para-5, the petitioner has stated that there were 19,08,555 registered voters of which 12,34,358 polled their votes. Thereafter, it is stated that while respondent No.3 polled 5,59,507 votes, the petitioner polled 1,12,079 votes. Thereafter, it is alleged that the final tally of votes does not match and that in totality, there is a difference of 672 votes. It is relevant that there is no reference to the source from which such numbers have been quoted and there is absolutely no reference to official source regarding numbers of votes.
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16. In para-6, allegation has been made against respondent No.2-Returning Officer, with reference to Form-17C as per the Rules framed under the said Act and in para-7, it is alleged that respondent No.2 handled the electronic voting machines mentioned in such a manner with respondent No.3 and his agents would be able to rig the same. An allegation of serious corrupt practice is made against respondent Nos.1 and 2. Thereafter, in paras-8, 9 and 10, allegations are made that since electronic voting machines could not be trusted, fresh poll through ballot papers was necessary and further that respondent No.2 had exceeded his Authority. In para-11, direction 15.30(D) of the Handbook issued by respondent No.1-Election Commission of India is quoted and allegation is made that there was discrepancy noted in the votes polled and votes counted thereby rendering the result dubious. In paras-12 to 18 statements have been made by the petitioner how the electronic voting machines could not be trusted and that the votes of the voters were not reflected through the electronic voting machines thereby giving a feeling to the people at large that they had been manipulated. General statements are made as regards the desirability of not using electronic voting machines for elections. In paras19 to 34, grounds have been raised in the petition, which repeat the allegations regarding violation of handbook, specifically direction 15.30(D) as also KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 16/17 use of electronic voting machines leading to the election being vitiated and that respondent Nos.1 and 2 ought not to have declared respondent No.3 as the elected candidate. Paras-35 to 40 are formal paras and then prayer is made for declaring of election of respondent No.3 as void.
17. A perusal of the said paras of the election petition show that other than making vague and general allegations and statements, material facts have not been stated to make good the only ground raised by the petitioner under section 100(1)(d)(iv) of the Act to the effect that that violation of the provisions of the said Act, Rules and Orders issued there under had materially affected the result of the election. The numbers of votes and the alleged difference in votes has been stated without reference to any source regarding the said data. Annexure-B referred to in para-27 of the election petition annexed with the petition is a list showing alleged difference in votes in the constituencies in Maharashtra including Chandrapur Lok-Saba Constituency. In the said annexure it is not stated as to from where such data was collected. The learned counsel for the petitioner simply stated that such information was taken from the website and tabulated by the petitioner himself.
18. Upon traversing the entire election petition and upon applying the requirements of law as noted KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 ::: CAO1974.19.odt 17/17 above, this Court has come to the considered conclusion that the election petition does not satisfy the requirement of section 83(1)(a) of the said Act and that the cause of action as required therein has not been made out by the petitioner even for considering the petition to go to trial. The present election petition clearly does not satisfy the requirements as laid down by the Hon'ble Supreme Court that material facts presenting complete cause of action must be pleaded and the failure to place even a single material fact amounts to disobedience of the mandate of section 83(1)(a) of the Act.
19. Since this Court has found that the election petition in the present case lacks in material facts, it does not disclose cause of action required under section 83(1)(a) of the said Act and, therefore, it is liable to be rejected under Order VII Rule 11 of the CPC, read with the provisions of the aforesaid Act.
20. In view of the above, the application filed by respondent No.3 is allowed and the election petition is dismissed.
JUDGE KHUNTE ::: Uploaded on - 17/12/2019 ::: Downloaded on - 18/12/2019 01:13:40 :::