Patna High Court - Orders
Ritu Kumar vs Gaytri Devi on 20 March, 2023
Author: Sunil Kumar Panwar
Bench: Sunil Kumar Panwar
IN THE HIGH COURT OF JUDICATURE AT PATNA
ELECTION PETITION No.15 of 2020
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Ritu Kumar wife of Sri Arun Kumar resident of Village- Narkatian, P.O.
Singhwahini, P.S. Sonebarsa, District Sitamarhi.
... ... Petitioner/s
Versus
1. Gaytri Devi wife of Sri Ram Naresh Prasad Yadav Resident of Village-
Manikpur Mushaharniya, P.O. Andauli, P.S. Parihar, District- Sitamarhi.
2. Amjad Hussain Anwar son of Anwarul Haque Resident of Village and P.O.
Garahia, P.S. Sheohar, District- Sheohar.
3. Abdul Shalik son of Md. Hussain Resident of Village- Demhua, Parihar
Uttari, P.O. and P.S. Parihar, District- Sitamarhi.
4. Chandan Kumar son of Nagendra Panjiyar Resident of Village- Sahasram,
Ward No. 5, P.O. Barahi, P.S. Parihar, District- Sitamarhi.
5. Nitish Kumar son of Ram Hriday Rout Resident of Village, P.O. and P.S.
Parihar, District- Sitamarhi.
6. Mohammad son of Mahmood Alam Resident of Village- Akhardiha, P.O.
Sonaul, P.S. Majorganj, District- Sitamarhi.
7. Sarita Yadav wife of Mahendra Yadav Resident of Village- Malahi, P.O.
Malahi, P.S. Bela, District- Sitamarhi.
8. Surendra Panjiyar son of Late Chulhai Panjiyar Resident of Village and P.O.
Haribela, P.S. Bathnaha, District- Sitamarhi.
9. Ganesh Sah son of Late Ram Varan Sah Resident of Village- Indarwa, Tole-
Narkatiya, P.O.- Dhalkwa, P.S.- Sonebarsa, District- Sitamarhi.
10. Chandrabhushan Kumar son of Yogendra Rai Resident of Village and P.O.
Sardalpatti, P.S. Parihar, District- Sitamarhi.
11. Jay Kumar son of Kishori Rai Resident of Village Narkatiyan, P.O.
Singhwahini, Bhutahi, P.S. Sonebarsa, District- Sitamarhi.
12. Bhushan Prasad son of Khurshilal Sah Resident of Village- Tedhiya, P.O.
Yogiwana, P.S. Sahiyara, District- Sitamarhi.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Shashi Bhushan Kumar Manglam
For the Respondent/s : Mr.Mohit Agarwal
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CORAM: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR
ORAL ORDER
27 20-03-2023CAV ORDER I.A. No- 02/2022 This Interlocutory Application has been filed on behalf Patna High Court E.P. No.15 of 2020(28) dt.20-03-2023 2/11 of Respondent No. 1 namely Smt. Gayatri Devi, the elected member of legislative assembly from 25, Parihar Assembly Constituency for rejection of this election petition under Section 86(1), of the Representation of the People Act, 1951, at its threshold.
Mr. S.D. Sanjay, Senior Counsel appearing on behalf of Respondent No. 1 submits that the Section 81 of the Representation of the People Act, 1951 mandates that an Election Petition calling in question any election may be presented on one or more of the grounds specified in Sub Section 1 of Section 100 of the Representation of the People Act, 1951 and Section 101 of the Representation of the People Act, 1951 to the High Court by any candidate at such election or any elector within 45 days. Thus, from the perusal of Section 81 of the Representation of the People Act, 1951, it becomes evident that an election petition can be presented only on the grounds mentioned in Section 100(1) of the Representation of the People Act, 1951. Any petition which is not filed on the ground stipulated in Sub Section 1 of Section 100 or Section 101 of the Representation of the People Act, 1951, is liable to be dismissed under Section 86(1) of the Representation of the People Act, 1951 being a petition not complying the provisions of Section 81 or 82 of the Representation of the People Act, 1951. Patna High Court E.P. No.15 of 2020(28) dt.20-03-2023 3/11 He further submits that election petition filed by petitioner is completely vague and the petitioner has not questioned the election of the Returned Candidate on any ground set out in Section 100(1) of the Representation of the People Act, 1951, and hence fit to be dismissed at the threshold.
Learned Counsel for Respondent No. 1 further submits that this election petition does not disclose any material facts and particulars constituting the cause of action to challenge the election of the Returned Candidate, and also not stated any grounds set out nor made out that any corrupt practice has been committed by the Returned Candidate.
He further submits that the election petitioner has alleged that the nomination paper of the Returned Candidate has been improperly accepted by the Returning Officer but no ground with the foundational facts have been set out in support of such allegation as required under Section 100 of the Representation of the People Act, 1951 to meet the mandatory requirement of Section 86(1) of the Representation of the People Act, 1951.
Learned Counsel for Respondent No. 1 also submits that the election petitioner has made vague allegations without any material facts which are as follows:-
(i) The nomination paper of the answering respondent was wrongly accepted even in absence of proper affidavit in Form Patna High Court E.P. No.15 of 2020(28) dt.20-03-2023 4/11 26;
(ii) There were serious irregularities committed by the returning officer in the counting of the votes polled in the said election in order to ensure the victory of the answering respondent;
(iii) The respondent has not furnished the relevant information about herself and her spouse as well as the dependents, she has not made any declaration about the assets and liabilities of her dependents, thus she had tried to mislead the voters;
(iv) She has not properly disclosed about any pending criminal case against her as she has made not applicable;
(v) She has also not properly disclosed the fact about her conviction in any criminal case;
(vi) She has not declared as to whether the agricultural land shown is inherited property or her purchased property as in both the columns it is mentioned as not-applicable;
(vii) The Returning Officer has committed irregularity in counting of votes polled and the Returning Officer had first deal of postal ballots and only thereafter the counting of other votes but the Returning Officer in gross violation of the rules had taken of the counting of the postal ballots at the end of the counting and that to in absence of the petitioner.
Thus, these defects are of substantial character and on Patna High Court E.P. No.15 of 2020(28) dt.20-03-2023 5/11 these grounds her nomination was fit to be rejected.
He further submits that the alleged ground set out in the election petition on the face of it, does not constitute any ground either in law or in fact as mentioned in Section 100(1)(a) to (b) of the Representation of the People Act, 1951. It also does not constitute any ingredients of corrupt practice under Section 100(2).
He further submits that the alleged ground set out in the election petition on the fact of it does not constitute any ground either in law or in fact as mentioned in Section 100(1)(a) to (b) of the Representation of the People Act, 1951.
Learned Counsel for the Returned Candidate submits that on the face of the affidavit that it is evident that the Respondent No. 1 has not concealed any fact as she does not have any dependent, all three sons are self dependent and they are doing their own job.
He further submits that so far as the disclosure of criminal antecedent is concerned from the bare perusal of the Affidavit, it will be evident from reading of Serial No. 5 and 6 that there has not been any criminal case, even instituted or pending or decided against the Respondent No. 1 which can be said to have concealed. There is no discrepancy or misleading information in Para 7 of the affidavit requiring the movable & immovable property.
Patna High Court E.P. No.15 of 2020(28) dt.20-03-2023 6/11 Learned Counsel for the Returned Candidate submits that the affidavit of irregularity in counting of votes is concerned, the allegations are vague and does not constitute any ingredient of irregularity in the counting of votes and no any document has been annexed in support of irregularity in counting.
In support of his argument, Learned Counsel for the Returned Candidate cites two judgments of the Hon'ble Apex Court of Shambhu Prasad Sharma Versus Charan Das Mahant and others as reported in (2012) 11 SCC, 390 and Mangani Lal Mandal Versus Bishnu Deo Bhandari as reported in (2012) 3 SCC 341.
He further submits that the Election Petition is liable to be dismissed for want of cause of action to call for trial of the Election Petition on merits as there is no allegation as to how the allegations as leveled materially affected the result of the Returned Candidate. To the aforesaid effect, Order 7 Rule 11 is quoted for easy access;
"11. Rejection of plaint. - The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action."
The Learned Counsel Mr. S.B.K. Mangalam, appearing on behalf of election petitioner vehemently opposed the prayer made in the Interlocutory Application and submits that provision under Section 86(1) of the Representation of the People Act, 1951 Patna High Court E.P. No.15 of 2020(28) dt.20-03-2023 7/11 does not cover the present election petition as the grounds are very well laid out and the entire exercise has been made to delay this election petition by Respondent No. 1 He submits that the election of the Respondent No. 1 is fit to be declared void on the grounds that :-
(a) Nomination paper of Respondent No. 1 was accepted by the Returning Officer even in absence of proper Affidavit in Form 26 and
(b) Serious irregularities and illegalities were committed by the Returning Officer in the counting of votes polled in the said election in order to insure the victory of Respondent No. 1.
He further submits that after the Judgment of Hon'ble Apex Court in Union of India Versus People's Union for civil liberty Section 33A Right to information was inserted in the Representation of the People Act, 1951 by the Amendment Act 72 of 2002 which came into effect from 24.08.2002 that As per this provision, a candidate was mendaterily required to furnish the information in consonance with the requirement as contemplated under Section 33A(i) & (ii) of the Representation of the People Act 1951 in a separate Affidavit to be delivered to the Returning Officer verifying these information in Sub Section (i) of Section 33A of the Representation of the People Act, 1951.
Patna High Court E.P. No.15 of 2020(28) dt.20-03-2023 8/11 Learned Counsel for the petitioner submits that in the prescribed Form 26, a candidate is required to declare his/her criminal antecedent, assets (movable & immovable) of his/her own, his/her spouse and his/her dependent besides liability, his/her educational qualification, occupation etc. In her nomination paper, the Respondent No. 1 has filed an affidavit in Form 26 but without complying the requirements of Section-33A(i) of the Representation of the People Act, 1951 and also not furnished all relevant information about herself and her spouse and she had not even whispered in her affidavit about her dependents.
He further submits that the affidavit filed by Respondent No. 1 in Form 26 before the Returning Officer along with her nomination paper, it is evidently clear that she had not made any declaration about the assets and liabilities of her dependents as the judgment of the Hon'ble Supreme Court and instructions issued by the Election Commission of India under Article 324 of the Constitution and therefore, on this ground alone, the nomination of the Respondent No. 1 was fit to be rejected by Returning Officer but he could not do so.
He further submits that Respondent No. 1 concealed her criminal antecedent as in para no. 5 of prescribed Affidavit in Form 26 where a candidate is required to declare that no criminal Patna High Court E.P. No.15 of 2020(28) dt.20-03-2023 9/11 case is pending against him/her, the Respondent No. 1 has declared this paragraph is not applicable to her (LAGOO NAHI HOTA) and in Paragraph No. 5(ii) also where a candidate is required to disclose the details of the criminal cases pending against him/her, the Respondent No. 1 again declared that it is not applicable to her (LAGOO NAHI HOTA).
Learned Counsel for the petitioner also submits that the nomination of Respondent No. 1 was fit to be rejected by the Returning Officer for misleading information given in paragraph no. 7 of the Affidavit in Form 26 as in paragraph no. 7B(i), the Respondent No. 1 had declared about agricultural land of her husband where the total area has been mentioned as 13.97 Acres in the next column of paragraph 7(B)(i), a candidate is required to declare as to whether the agricultural land shown is inherited property or it is a purchased property. In both the columns, the Respondent No. 1 had declared that this is not applicable to her (LAGOO NAHI HOTA).
He further submits that Rule 54(A) of the conduct of Election Rules, 1961 has mandatorily directed the Returning Officer to first deal with the postal ballot paper and only thereafter he can proceed for counting of other votes polled at any election. Rule 54(A) reads as follows;-
Rule 54A(1) : counting of votes received by post:-
Patna High Court E.P. No.15 of 2020(28) dt.20-03-2023 10/11 The Returning Officer shall first deal with the postal ballot papers in the manner hereinafter provided.
11:- The Returning Officer shall count all the valid votes given by postal ballot in favour of each candidate, record of total thereof in the result-sheet in Form 20 and announce the same.
Rule 55 of the Conduct of Election Rules, 1961 also deals with scrutiny and opening of ballot papers and Rules-56 thereof provides the detail procedure of counting of votes, but in order to manage the victory of the Ruling Alliance Government, the Returning Officer of 25, Parihar Assembly constituency conducted the counting of votes without following the procedure of conduct of Election Rules, 1961. The postal ballot was also counted in the absence of petitioner or her agent or counting agent. Further there was also illegalities in counting of postal ballot and counting of votes of Electronic Voting Machines in 31st and 32nd round of counting. Hence, the election of Respondent No. 1 is fit to be declared void.
Having perused the Interlocutory Application and considering the arguments made by the learned counsel of both sides, the Court is of the firm view that rival contentions of the parties can be examined/considered only when evidence in this regard is adduced by them. If there is any breach of statutory provisions in framing the election petition moving the parties Patna High Court E.P. No.15 of 2020(28) dt.20-03-2023 11/11 thereto, the Court is obliged to consider the same at the threshold of the trial of the election petition.
After consideration of all the facts, this Court does not find much substance in the preliminary objection raised by Respondent No. 1 (Returned Candidate) for rejection of the election petition at its threshold, I have already noticed that the trial is already in progress as much as written statement has been filed and now the documents are to be summoned for evidence. In view of the facts of this case as a consequence, the preliminary objection petition filed by the Respondent No. 1 (Returned Candidate) questioning the maintainability of the election petition is hereby rejected.
Accordingly, Interlocutory Application No. 02/2022 is hereby disposed off.
Learned counsel for the Respondent No.1 is directed to file proposed issue.
List this case on 23.03.2023 for settlement of the proposed issues.
(Sunil Kumar Panwar, J) Amandeep/-
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