Gauhati High Court
Bimalangshu Roy vs Kamaaalendu Bhattacharjee on 21 November, 2003
Equivalent citations: AIR2004GAU107, AIR 2004 GAUHATI 107
Author: I.A. Ansari
Bench: I.A. Ansari
ORDER I.A. Ansari, J.
1. By making this application under Order 6, Rule 16 read with Order 7, Rule 11 and Section 151 of the Code of Civil Procedure, the respondent No. 1, whose election, as a member of the Assam Legislative Assembly from No. 9 Silchar Legislative Assembly Constituency, is sought to get, inter alia, declared void in the Election Petition Case No. 3/2001, has approached this Court to get stuck out the contents of paragraph Nos. 5, 10, 11, 12, 13, 15 and 16 of the election petition on the ground, inter alia, that the contents of these paragraphs are unnecessary vexatious and scandalous and do not disclose any cause of action.
2. It needs to be noted, at the very out set, that the election petitioner, Opposite party made the election petition under Section 80(A) of the Representation of the People Act, 1951 (hereinafter referred to as "the R. P. Act") alleging, inter alia, that the election of the respondent No. 1 -applicant is void on the ground that corrupt practices have been committed by the returned candidate, namely, the respondent No. 1-applicant, his election agent, etc., that there was no-compliance with the provisions of the Constitution as well as of the R. P. Act in holding the election, in counting the votes and in holding re-polling of votes. By his election petition, the election petitioner has prayed, inter alia, for declaration that the election of the returned candidate, namely, the respondent No. 1 -applicant, is void and for further declaration that the election petitioner stands duly elected from the said constituency. The respondent No. 1 has, now, sought to get struck out, as indicated hereinabove, the contents of paragraph Nos. 5, 10, 1. 12, 13, 15 and 16 aforementioned on the ground as indicated hereinbefore.
3. I have heard Mr. N. Choudhry, learned counsel for the respondent No. 1-applicant, and Mr. A. M. Mazumdar, learned senior counsel, appearing on behalf of the election petitioner- Opposite party.
4. Presenting the case, on behalf of the respondent No. 1-applicant, to get struck off the statements made in paragraph Nos. 5. 10, 11, 12, 13, 15 and 16, Mr. N. Choudhury has submitted, inter alia, that according to Section 83 of the R. P. Act and election petition to be valid must contain a concise statement of material facts on which the election petitioner relies and if any allegation of corrupt practices is made against the returned candidate, the election petitioner must set forth the full particulars of such corrupt practices including as full a statement as possible of the names of the parties alleged to have committed such corrupt practices as well as the date and place of the commission of each such corrupt practice. In the case at hand, submits Mr. Choudhary, the statements made in the paragraphs under challenge do not, when taken as a whole, disclose material facts nor do these paragraphs disclose any cause of action inasmuch as, according to Mr. Choudhury, apart from the omission to give material facts, the election petitioner has not even furnished the particulars of the alleged corrupt practices. Far from this, the election petition, submits Mr. Choudhury, contains unnecessary, scandalous and vexatious statements, which deserve to be struck out.
5. An election petition, points out Mr. Choudhury, which is devoid of material facts and suffers from non-furnishing of material particulars with regard to the allegations of corrupt practices, is not maintainable in law and all such assertions, which are devoid of material facts and suffers from omission to furnish material particulars, deserve to be struck down. Mr. Choudhury has taken me through the contents of each of the paragraphs of the election petition, which are under challenge, and has endeavoured to show, with the help of the statements made in the present miscellaneous application, as to how those paragraphs cannot, be held to have disclosed any cause of action. Mr. Choudhury, therefore, submits that the paragraphs, which are under challenge, deserve to be struck out arid this Court may, then, determine if there remains anything in the election petition for trial.
6. Mr. Choudhury has also pointed out that no evidence can be given on any fact for which the foundation has not been laid in the election petition. While making accusation, in the instant case, contends Mr. Choudhury, no foundation has been laid for giving any evidence of corrupt practice in the paragraphs under challenge and even if the contents of these paragraphs are considered in their entirely as true and correct, the same do not, in the absence of material facts and material particulars, disclose, according to Mr. Choudhury, any cause of action.
7. In support of his above submissions. Mr. Choudhury has placed reliance on Samant N. Balakrishna v. George Fernandez reported in, (1969) 3 SCC 238 : (AIR 1969 SC 1201), Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi reported in, (1969) 1 SCC 372 : (AIR 1969 SC 734), Hardwari Lal v. Kanwal Singh reported in, (1972) 1 SCC 214 : (AIR 1972 SC 515), Udhav Singh v. Madhav Rao Scindia reported in, (1977) 1 SCC 511 : (AIR 1976 SC 744), Dhartipakar Madanlal Agarwal v. Rajiv Gandhi reported in, 1987 Supp SCC 93 : (AIR 1987 SC 1577); Mohan Rawale v. Damodar Tatyaba alias Dadasaheb reported in, (1994) 2 SCC 392 : (1994 AIR SCW 2028), Mahendra Pal v. Ram Dass Malanger reported In, (2000) 1 SCC 261 : (AIR 2000 SC 16), Santosh Yadav v. Narendra Singh reported in, (2002) 1 SCC 160 : (AIR 2002 SC 241) and V. S. Achuthanandan v. P. J. Francis reported in, (1999) 3 SCC 737 : (AIR 1999 SC 2044).
8. Controverting the submissions made on behalf of the respondent No. 1, Mr. A. M. Mazumdar has submitted that it is unwise to dissect and segregate one particular statement or one particular paragraph of an election petition and read the same in complete isolation from remaining statements made in the election petition and thereby prejudge that such statement or paragraph, as the case may be, does not disclose any cause of action. It is, no doubt, true, concedes Mr. Mazumdar, that every election petition must contain a concise statement of material facts and so far as allegation of corrupt practices is concerned, the election petitioner must provide full particulars of such corrupt practices. In the case at hand, submits Mr. Mazumdar, the election petition, if read as a whole, discloses complete cause of action and does not suffer from any omission of material facts and/or material particulars.
9. Mr. Mazumdar, points out that only on reading of the pleadings, as a whole, if it transpires that no cause of action is revealed by the pleadings, the Court can strike out such pleadings. Reliance, in support of this submission, is placed by Mr. Mazumdar on Uddham Singh v. Madhav Rao Scindia, AIR 1976 SC 744.
10. So long as, according to Mr. Mazumdar, an election petition contains adequate statements of material facts on which the allegations of irregularities or illegalities are made and so long as material particulars of corrupt practices are punished by any election petition, when read as a whole, such an election petition or statements contained therein cannot be struck out. Reference, in this regard, is made by Mr. Mazumdar to the case of Mahendra Pal v. Ram Dass Malanger, reported in (2000) 1 SCC 261 : (AIR 2000 SC 16).
11. Before entering into the discussion of the facts of the case at hand in order to determine the correctness or otherwise of the rival submissions made before me on behalf of parties, let me, first, settle the position of law governing the case of the parties.
12. There is no dispute before me that the High Court has Jurisdiction to strike out the pleadings under Order VI, Rule 16 of the Code of Civil Procedure and reject an election petition under Order VII, Rule 11 of the Code at the preliminary stage even though no written statement is filed by the respondent. Section 80 provides that no election is to be called in question except by an election petition presented in accordance with the provisions of Part VI of the R.P. Act before the High Court. Section 81 provides that an election petition may be presented on one or more of the grounds specified in Section 100 by an elector or by a candidate questioning the election of a returned candidate. Section 83 provides that an election petition shall contain a concise statement of material facts on which/the petitioner relies and he shall set forth full particulars of any corrupt practice that he may allege in- cluding full statement 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. Section 86 confers powers On the High Court to dismiss an election petition, which does not comply with the provisions of Sections 81 and 82 or Section 117. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any Rules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908.
13. Since the provisions of Civil Procedure Code apply to the trial of an election petition, Order VI, Rule 16 and Order VI, Rule 17, according to what the Apex Court has laid down in Dharatipakar Madan Lal Agarwal v. Rajiv Gandhi reported in, 1987 Supp SCC 93 : (AIR 1987 SC 1577), are applicable to the proceedings relating to the trial of election petitions subject, however to the provisions of the R.P. Act. On a combined reading of Sections 81, 83, 86 and 87 of the R.P. Act, it becomes apparent that those paragraphs of a petition, which do not disclose any cause of action are liable to be struck out under Order VI, Rule 16, as the Court is empowered to strike out or delete, at any stage of the proceedings, pleadings, which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the Court, on examination of a plaint or an election petition, finds that it does not disclose any cause of action, it would be justified in striking out the pleadings. (Refer to Dharatipakar Madan Lal Agarwal v. Rajiv Gandhi reported in, 1987 Supp SCC 93 : (AIR 1987 SC 1577).
14. In Udhav Singh v. Madhav Rao Scindia reported in, AIR 1976 SC 744, the Apex Court has clearly held that failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck out under Order VI, Rule 16 and that if an election petition is based solely on such allegations, which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action.
15. In Mohan Rawale v. Damodar Tatyaba alias Dadasaheb reported in, (1994) 2 SCC 392 : (1994 AIR SCW 2028), the Supreme Court has, however, made it clear that so long as an election petition discloses some cause of action or raises some questions 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.
16. It is pertinent to note that Section 83 of the R. P. Act, itself lays down, as reflected from Hardwari Lal v. Kanwal Singh, reported in (1972) 1 SCC 214 : (AIR 1972 SC 515), following the legal propositions namely, (i) Section 83 of the R.P. Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars, (ii) omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad, (iii) the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet, (iv) material facts and particulars are distinct matters, material facts mention statements of fact and particulars set out the names of persons, who Indulge in corrupt practice, (v) material facts will show the ground of corrupt practice and due complete cause of action and the particulars will give necessary information to present a full picture of the cause of action, (vi) in stating the material facts, it will not do merely to quote the law, rather the fact, which constitutes a corrupt practice, must be stated and the fact must be correlated to one of the heads of corrupt practice and (vii) an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition, which merely cites the sections, cannot be said to disclose a cause of action. Reference may also be made, in this regard, to Manubhai Nandlal Amorsey (AIR 1969 SC 734) (supra) and Samant N. Balakrishna (AIR 1969 SC 1201) (supra).
17. In V. Narayanaswamy v. C. P. Thirunavukkarasu, reported in (2000) 2 SCC 294 : (AIR2000 SC 694), the Supreme Court has made it clear that an election petition is based on the rights, which are purely the creature of a statute, and/if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition, the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81. 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an internal scheme. When, so read, if the Court finds non-compliance, it has to uphold the preliminary objection and has no option except to dismiss the petition.
18. In Santosh Yadav v. Narendra Singh reported in, (2002) 1 SCC 160 (171) : (AIR 2002 SC 241) the Apex Court has also clarified that a civil trial, more so, when it relates to an election dispute, where the fate not only of the parties arrayed before the Court, but also of the entire constituency is at a stake, the game has to be played with open cards and not like a game of chess or hide and seek. An election petition must set out all material facts wherefrom inferences vital to the success of the election petitioner and enabling the Court to grant the relief prayed for by the petitioner can be drawn subject to the averments being substantiated by cogent evidence. Concise and specific pleading setting out all relevant material facts, and then cogent affirmative evidence being adduced in support of such averments, are indispensable to the success of an election petition.
19. It is, however, imperative to note that a pleading has to be read as a whole to ascertain its true impact. No particular paragraph of an election petition can be read by keeping the same in watertight compartment segregated from rest of the pleadings or by separating the same from the rest of the pleadings. It is not permissible to cull out a sentence or a passage from an election petition and to read the same in isolation out of the context. Although it is the substance and not merely the form that has to be looked into, 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 pleading taken as a whole I am guided, to adopt this view from the law laid down by the Apex Court in Udhav Singh v. Madhav Rao Scindia, reported in AIR 1976 SC 744, wherein the Apex Court has held thus;
"We are afraid this ingenious method of construction after compartmentalization, dissection, segregation and invasion of the language of the paragraph, suggested by counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, 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, for the tenor and terms of his pleading taken as a whole.
*** *** *** All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence are "material facts". In the context of a charge of corrupt practice "material facts" would mean all the 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. 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 charge levelled, the ground relied upon and the special circumstances of the case. In short, 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 93(1)(a).
"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) would therefore 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)." 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."
20. From the law laid down in Udhav Singh (AIR 1976 SC 744) (supra), it is also clear that all the primary facts, which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are "material facts". In the context of charge of corrupt practice, "material facts" would mean all the 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. Whether in an election petition, a particular fact is material or not and, as such, is required to be pleaded is a question, which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts, which are essential to clothe the petitioner with a complete cause of action, are "material facts", which must be pleaded and failure to plead even a single material fact amounts to non-compliance of the mandate of Section 93(1)(a). "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) would, therefore, 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). "Particulars" serve the purpose of furnishing finishing touches to the basic contours of a picture already drawn to make it full, more detailed and more informative.
21. Reverting to the facts of the present case, let me for the sake of brevity, pause and reproduce hereinbelow the paragraphs Nos. 5, 10, 11, 12, 13, 15 and 16, which are under challenge in the present miscellaneous application :
"Para 5 : That the result of the election from No. 9 Silchar LAC so far as it concerns the Returned Candidate, Respondent No. 1, has been vitiated by commission of wide spread corrupt practice by the returned candidate himself along with his agents. Further, the result of the election so far as it concerns the returned candidate, the respondent No. 1 has also been materially affected by improper reception of void votes, reception of votes cast in favour of the election petitioner but counted in favour of the returned candidate as well as improper rejection of valid votes case In favour of the election petitioner. Further, the result of the election in so far as it concerns the returned candidate has also been materially affected due to total non-compliance of the provisions of Section 58 of the Representation of People Act, 1951, hereinafter referred to as R.P. Act 1951, rendering the election of the returned candidate liable to be declared void. The election petitioner in addition to calling in question the election of the returned candidate is also praying for a declaration that but for the votes shown to have been polled by the returned candidates as a result of the aforesaid illegalities, in fact the election petitioner had received majority of the valid votes and hence he is liable to be declared to have been duly elected from the No. 9 Silchar LAC.
Para 10. That the re-polling in respect of polling station No. 137, Silchar Pt. X at Madhurbond Girls" M.E. Madrassa and polling Station No. 140 Silchar Pt. XI at Madhurbond Muktab (Room No. 2) was held on 13-5-2001 from 7.00 a.m. to 4 p.m. The turn out of voters in both these polling 5 stations on 13-5-2001 was remarkably low compared to the turn out of voters in respect of these two polling stations on 10-5-2001. While polling was taking place in these two polling stations, simultaneously counting of voters of No, 9 in Silchar LAC had started at 8 a.m. on 13-5-2001, at Regional Engineering College, Silchar. By about 12 noon the result of counting of votes started reaching the general public including the voters at polling stations No. 137 and 140. It was declared at the site of the counting centre that the Respondent No. 1 was already leading over his nearest rival i.e. the election petitioner by a comfortable margin. This news spread like wild fire amongst the voters of No. 137 and 140, thereby definitely influencing the mind of the electors. At about 2 p.m. on 13-5-2001, the petitioner himself went to the polling station No. 137 and 140 and found that many of the electors who were his known supporters were leaving polling premises without casting their votes being dejected by the news of maintenance of lead by the returned candidate in the process of counting. In this process the petitioner was deprived of at least 150 votes each in these two polling Stations, thereby totaling to a loss of at least 300 votes. The petitioner contends that if the marked copy of the electoral roll in respect of these two polling stations pertaining to the poll dated 10-5-2001 are even scrutinized at random, it would be definitely found that at least 940 voters and 660 voters cast their votes respectively in polling stations No. 137 and 140 while on the date of re-poll i.e. 13-5-2001 only 781 votes were cast in polling station No. 137 and 575 votes were cast in polling station No. 140. The petitioner reiterates that at least 300 votes who are supporters of your petitioner left the polling station on 13-5-2001 being influenced and dejected by the result of the counting process thereby materially affecting the result of the election so far as it concerns the returned candidate, inasmuch as, if the votes of at least these 300 persons who had left the polling station without casting their vote and who had originally cast their votes on 10-5-2001 had been taken into account, your petitioner would have been declared as returned candidate, the ultimate lead of the returned candidate being only 781 votes.
Para 11, That the election petitioner has got widespread support-base in Madhurbond village and had polled majority of the votes of voters of this village Madhurbond on 10-5-2001 at polling station No. 137, 139, 149 and 140(ka), polling station Nos. 139, 140 and 140(ka) are situated in three adjacent rooms of Madhurbond Muktab while polling station No. 137 is situated at Madhurbond Girls's M.E. Madrassa. As apparent in the Final Result Sheet, the election petitioner polled 157 votes out of 783 total votes cast in polling Station No. 139 while in polling station No. 140(ka) he polled 350 votes out of 351 votes cast. The election petitioner was informed by his polling agent and workers that in the adjoining polling Station No. 140 also he had polled at least 650 out of total about 660 votes cast on 10-5-2001 while in polling station No. 137 at least 925 votes were polled in his favour out of total of about 940 votes on 10-5-2001. In the fresh poll held on 13-5-2001 only 781 votes were cast in place of 940 votes cast on 10-5-2001 whereby the petitioner was deprived of at least 100 votes cast in his favour on 10-5-2001. Similarly, in polling station No. 140, 575 votes were totally cast on 13-5-2001 in place of at least 660 cast on 10-5-2001 thereby depriving the election petitioner of at least 75 votes. The totally unwarranted and illegal order of fresh poll in respect of polling Station Nos. 137 and 140 has thus materially affected the result of election so far as it concerns the returned candidate, the respondent No, 1.
Para 12. The scrutiny of the marked copy of electoral Roll in respect of poll dated 10-5-2001 of polling Station Nos. 137 and 140 will reveal that about 86 percent and 83 percent total casting of votes were recorded in respect of these two polling stations respectively. Similar and even higher percentage of voting was recorded on the same day in respect of following amongst other polling stations also :--
1. Polling Station No. 131 Kanakpur Primary School ------91.9 per cent.
2. Polling Station No. 132 Anjur Ali Pathsala ------90.1 per cent.
3. Polling Station No. 134 N. K. Girls School ------83.56 per cent.
4. Polling Station No. 144 Bagadahar L. P. School ------87 per cent.
5. Polling Station No. 145 Bagadahar L. P. School ------87 per cent.
6. Polling Station No. 149 Sangjurai L. P. School ------90 per cent.
Polling Station Nos. 139, 140 and 149(ka) are situated in three adjacent rooms of Madhurbond Moktab. On 10-5-2001 the following percentages of polling were recorded in these polling stations :--
(A) Polling Station No. 139 -- 71.70 percent.
(B) Polling Station No. 140 -- 83.50 percent.
(C) Polling Station No. 140(ka) --83.87 percent.
However, for reasons best know to him, the Returning Officer took up the matter for holding fresh poll in respect of polling Station No. 140 which similar percentage of vote was recorded in the adjacent room housing Polling Station No. 140(ka).
The Returning Officer while submitting his report to the Election Commission regarding the polling Station Nos. 137 and 140 reportedly cited high percentage of polling in these two polling stations being the sole basis of recommending fresh poll whereas there were other polling stations recording similar or even much higher percentage of poll as cited above. The action of the authorities in arbitrarily ordering fresh poll in polling Station Nos. 137 and 140 is thus based on no logic and/or reasoning as contemplated under Section 58 of the R. P. Act, 1951.
Para 13. That the order of the authorities in holding fresh poll in respect of polling station Nos. 137 and 140 is totally illegal and vocative of the provisions of Section 58 of the R.P. Act, 1951. Section 58 of the Act stipulates that if at any election any ballot box used at a polling station are unlawfully taken out of the custody of the Presiding Officer or accidentally or unintentionally destroyed or lost or damaged or tampered with to such extent that the result of the poll at that polling station cannot be ascertained or that any error or irregularity in procedure which is likely to vitiate the poll was committed at the polling station, the Returning Officer is to forthwith report the matter to the Election Commission. There upon taking material circumstances into account the Election Commission is empowered to declare the poll at such polling Station to be void and further order for taking fresh poll in such polling station.
Para 15. That coupled with illegality in ordering fresh poll in respect of polling Station Nos. 137 and 140, the fresh poll held on 13-5-2001 has materially affected the result of the election so far as it concern the returned candidate. Inasmuch as, at least 300 voters who had cast their votes on 10-5-2001 in polling station No. 137 and 140 in favour of the petitioner did not cast their votes at all on 13-5-2001 whereby the petitioner was deprived of at least 300 votes. Taking into account the fact that the respondent No. 1 was declared elected only a margin of 71 (seventy one) votes, the loss of 300 votes has materially affected the result of the election so far as it concern the Respondent No. 1.
Para 16. That the Respondent No. 1 Shri Bimolangshu Roy also committed corrupt practice of bribery as well as booth capturing at Madhurbond village in the night of 12-5-2001 by offering money to voters thereby directly inducing and also threatening them not to go to the polling station on 13-5-2001 to cast their votes in the fresh poll ordered in respect of polling station Nos. 137 and 140. The detailed material facts and particulars of the commission of aforesaid corrupt practice by respondent No. 1 himself are furnished as follows :
That on 12-5-2001 at least about 11 p.m. at night respondent No. 1 Shri Bimolangshu Roy went to Madhurbond village under No. 9 Silchar LAC along with one Shri Noor Uddin Mazumder, a resident of Madhurbond village, who is also the Vice President of Madhurbond Village unit of the Bharatia Janata Party. The respondent No. 1 along with the aforesaid Noor Uddin Mazumdar had first gone to the house of Md. Saidur Rahman Chowdhury s/o Mahllbur Rahman Chowdhury of Madhurbond village. After reaching Madhurbond village Shri Bimolangshu Roy instructed Shri Noor Uddin Mazumdar to call the neighbouring voters to the house of Saidur Rahman Chowdhury. On the request of said Noor Uddin Mazumdar the following voters and residents of Madhurbond amongst others assembled inside the house of Saidur Rahman Chowdhury at about 11.30 p.m. in the night.
1. Jamir Uddin Mazumdar -- s/o Mohohar All Mazumdar
2. Giasuddin Laaskar -- s/o Ambar ali Laskar
3. Saifuddin Laskar -- s/o Irfan Ali Laskar
4. Abdul Rajak Sodiol -- S/o Abdul Latif Sodiol
5. Anowar Hussain Mazumdar -- s/o Aftab Uddin Mazumdar.
6. Selim Islam Mazumdar -- s/o Abdul Kuddus Mazumdar.
7. Jamiruddin Mazumdar -- s/o Abru Mia Mazumdar.
8. Kalamuddin Mazumdar -- s/o Ayub Ali Mazumdar.
9. Manikuddin Mazumdar -- s/o Akkas ali Mazumdar,
10. Haji Abdul Wahab -- s/o Arjumond Ali Borbhuyia.
In the aforesaid assembly of the voters and villagers of Madhurbond village Sri Bimolangshu Roy told all the aforesaid persons not to go for the polling station on the next day i.e. 13-5-2001 to cast their votes. The aforesaid villagers were thereafter handed over Rs. 1000/- each by the respondent No. 1 himself further instructing them that they should honour his words and should ensure that neither they themselves or any of their 4 family members should go to polling stations on 13-5-2001 to cast their votes in any event. The meeting continued till about 12.30 a.m. of the mid night of 12/ 13-5-2001. Whereafter Sri Bimolangshu Roy left Madhurbond village in a white coloured Mahindra Armada Vehicle.
The aforesaid facts were brought to the knowledge of your petitioner by Haji Abdul Wahab, son of Arjumand Ali Borbhuiya, a resident of the neighbouring village Kanakpur village on 17-5-2001."
22. Let me, now, clarify the grounds on which the respondent No. 1 has made the present miscellaneous application. As regards the contents of paragraph 5 of the election petition, the respondent No. 1 has submitted that the statements made in this paragraph are nothing but bald, vague and wild allegations and that the same do not furnish any material fact. This paragraph, according to respondent No. 1 does not, on account of lack of material facts, disclose any cause of action and as such, this paragraph needs to be struck out.
23. With regard to the statements made in paragraph No. 10 of the election petition, it is submitted by respondent No. 1 that the same are unnecessary, vexatious and scandalous. In the paragraph, the election petitioner has made, according to respondent No. 1, vague allegation that as the results of the counting were coming in, some voters of polling station Nos. 137 and 140 got disgruntled and, being frustrated, they left the place without casting their votes. The election petitioner contends that those, who had so returned from polling station Nos. 137 and 140, were, at least, 300 in number and all of them would have cast their votes in favour of the respondent No. 1, had the results of counting not been announced. The respondent No. 1 points out that the election petitioner has failed to specify the identity of those voters. These allegations, the respondent No. 1 contends, are superficial and vague and the purpose of these statements is to make a fishing enquiry by misusing the powers of the Court.
24. So far as the statements made in paragraph 11 of the election petition are concerned, the same are, according to respondent No. 1, speculative in nature inasmuch as the same do not furnish any material fact and are based on mere speculations, superficial statements and lack in specificity, the same are unnecessary, scan-dalous and vexatious and hence, the same are liable to be struck out. This paragraph, submits the respondent No. 1, does not disclose any cause of action. A bare reading of the paragraph would show, according to the respondent No. 1, that the election petitioner has aimed at making fishing enquiry to collect materials by filing this election petition, which is not permissible. The election petitioner has failed to furnish, contends the respondent No. 1, the bare minimum material facts, which would justify a reasonable claim of the election petitioner that he was deprived of, at least, 100 votes as claimed by him. There is no particular, contends the respondent No. 1, as to who are those 100 voters and there is no prima-facie case to show that these 100 voters would have cast vote in favour of the election petitioner only.
25. Regarding paragraph 12 of the election petition, the respondent No. 1 has submitted that the statement contained therein is unnecessary, vexatious and scandalous. By this paragraph, submits the respondent No. 1, the election petitioner has merely expressed his surprise as to why the Returning Officer ordered re-polling in respect of polling station Nos. 137 and 140, while under similar circumstances, there was no order for re-polling. In this paragraph also, the election petitioner has failed to furnish, according to the respondent No. 1, the material facts as to what prompted him to believe that the order for re-poll in polling station Nos. 137 and 140 is not reasonable and/or is bad.
26. Referring to paragraph 13 of the election petition, respondent No. 1 has submitted that the statements made in this paragraph also do not disclose any cause of action. The respondent No. 1 alleges that the election petitioner in paragraph 13 has merely stated his opinion as to how the poll can be declared void. Such opinion, according to respondent No. 1 does not have any bearing with an election petition and the same is unnecessary.
27. In connection with the statements made in paragraph 15 of the election petition the respondent No. 1 contends that the statement made therein are repetition of paragraph 10 of the election petition and hence, the same are also liable to be struck out as unnecessary, vexatious and irrelevant, more so, when even this paragraph, according to respondent No. 1, lacks in material facts and does not disclose any cause of action.
28. Coming to the statements made in paragraph 16 of the election petition, which contains the allegations of "both capturing" at Madhurbond Village, the respondent No. 1 asserts that the same are bald and vague. There is, submits respondent No. 1, no material fact whatsoever even remotely to make out a case of "booth capturing" except making mention of the word "booth capturing". According to respondent No. 1, the baseless statement of facts following the allegation of booth capturing have no bearing whatsoever with the allegation and, as such, this paragraph too is liable to be struck out.
29. Before proceeding any further, it is desirable to emphasize that from the authorities discussed above, it is clear that before the person, whose election is under challenge, is required to face the proceedings in an election petition, it is the duty of the Court to examine the election petition and, upon such examination, if it finds that the election petition does not disclose any cause of action, it would be justified in striking out the pleadings having no cause of action. Order VI, Rule 16 itself empowers the Court to strike out such pleadings at any stage of the proceedings, which may even before the filing of the written statement by the respondent or commencement of the trial. If after striking out such pleadings, the Court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII, Rule 11.
30. In the case at hand, since the respondent has made the application under Order 6, Rule 16 read with Order 7, Rule 11 and Section 151 of the CPC seeking to get strike out the pleadings at paragraph Nos. 5, 10, 11, 12, 13, 15 and 16, it becomes the duty of the Court to ensure that if the statements made in these paragraphs do not make out any cause of action and/or are unnecessary, scandalous, frivolous or vexatious, then, the same are to be struck out and, then, the Court shall determine if the election petition can be proceeded with at all. This position is not disputed before me. What has been disputed is that the statements made in the paragraph under challenge, when read together, will show that for sustaining the allegations of corrupt practice, material facts have been stated and full particulars for sustaining such accusations have been stated in the election petition.
31. What is, however, of immense importance to note is that while conflicting the question of striking out of the pleadings arise for determination, it is the bounden duty of the Court to read the pleading as a whole.
32. Keeping in view the position of law as stated hereinabove, let me, now, determine if the statements, made in the paragraphs under challenge, contain material facts and also furnish material particulars to enable this Court to proceed with the trial of the election dispute.
33. Let me first, deal with the statements made in paragraph 5 of the election petition. Though it has been agitated, on behalf of the respondent No. 1, that the statements made in this paragraph do not disclose any material fact, the fact remains that the statements made in this paragraph have to be read along with other statements made in the election petition as a whole and when so read, it becomes clear that necessary material particular facts to sustain the allegation of corrupt practice, improper reception of void votes, reception of votes cast in favour of the election petitioner but counted in favour of the returned candidate as well as improper rejection of valid votes cast in favour of the election petitioner have, indeed, been mentioned. On a careful reading of not only paragraph 5 of the election petition, but the election petition as a whole, one cannot really hold that the election petition does not disclose any cause of action. To a pointed query made by this Court, even Mr. N. Choudhury conceded that if the statements made in paragraph 5 are read along with other statements made in the election petition, one cannot really say that no cause of action is disclosed by the election petition and/or that no material fact has been stated by the election petitioner to enable the Court to proceed with the present election dispute.
34. Coming to the statements made in paragraphs 10, 11 and 12, it is important to note that so far as the statements made in paragraph 10 are concerned, these statements are innocuous in nature and speak of the effect of what has been done with regard to the holding of re-poll. In paragraphs 11 and 12 of the election petition, the election petitioner challenges the fairness and legality of holding of the re-poll at Polling Station Nos. 137 and 140. According to the statements made by the election petitioner in paragraph 11, the re-polling was unwarranted. In para 12, the election petitioner has sought to show that in ordering the re-poll, the authorities concerned indulged in discrimination inasmuch as while on certain set of facts, re-polling was directed in respect of Polling Station 137 and 140, similar facts were ignored in respect of other polling stations, namely, 129 and 140(K) and no re-poll was consequently held there. The sum total of the statements made in paragraphs 11 and 12 Indicate that the re-poll held was on unfair considerations, arbitrary and discriminatory. When the statements made in para 10 are considered, in the light of what are stated in paragraphs 11 and 12 then, the grievance of the election petitioner made in para 10 that the re-polling resulted into his defeat cannot be said to have not disclosed any material facts. It is pertinent to note that whether the allegations made in the paragraphs under challenge are true and correct is not to be decided at this stage, rather, the statements made in the paragraphs under challenge have to be assumed as true and basing on such assumption, the Court has to find whether the same disclose any material fact to constitute cause of action.
35. So far as the statement made in para 13 of the election petition is concerned, it lays down as to when and how a fresh poll at a particular polling station has to be held. The statements made in this para i.e. para 13 are nothing, but submissions of the election petitioner and when these submissions are read along with the allegations made in paragraphs 11 and 12, then the statements made in para 13 cannot, as indicated hereinbefore, be struck out on the ground that the same do not disclose any material facts.
36. In the face of the statements made in paragraphs 11 and 12 the statements contained in para 10 and 13 cannot as indicated hereinabove, be said to be unnecessary, scandalous or vexatious.
37. The statements made in paragraphs 10 and 15, in fact, contain the grievances of the petitioner as to what the effect of the re-polling had been. Thus, the statements made in these paragraphs cannot be read in Isolation and when the same are read, in the light of what have been stated in paragraphs 11, 12 and 13, then, the same cannot be said to have disclosed no materials particulars, no cause of action and no materials particulars.
38. Coming to Para 16 of the election petition, it is imperative to note that in this particular paragraph, the election petitioner has alleged that the respondent No. 1 has committed corrupt practice by offering bribe as well as by booth capturing. That the particulars of bribery have been furnished in the election petition is not disputed before me, but so far the allegation of booth capturing is concerned, no material fact has at all been pleaded by the election petitioner. This position too is not in dispute and conceded even by Mr. Mazumdar. Viewed from this angle. It is clear that so far as the allegation of booth capturing made in Para 16 is concerned, the same deserves to be struck out.
39. In the above view of the matter, the allegation of booth capturing made in Para 16 cannot be allowed to stand good on record. So far as the remaining statements, which are under challenge, are concerned, the same, as Indicated hereinabove, cannot be said to be completely devoid of any material facts. Situated thus, I have no hesitation in holding that the statements made in Paragraphs 5, 10, 11, 12, 13and 15 deserve to be maintained, but the use of the words "booth capturing" occurring in Para 16 of the election petition between the word 'bribery' and the words "at Madhurbond village" need to be struck out.
40. In the result and for the reasons discussed above, the words 'booth capturing' occurring between the word 'bribery' and the words 'at Madhurbond village' are hereby strike out and shall be treated to be not a part of the pleadings at Para 16.
41. Let the Election Petition be listed for further order(s) on 1-12-2003.