Madhya Pradesh High Court
Yadvendra Singh vs Nagendra Singh 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.10/2019
Yadvendra Singh
Vs.
Nagendra Singh & Another
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Shri Pramendra Singh, learned counsel for the petitioner.
Shri Arpan Pawar, learned counsel for the respondent No.1.
Shri Shubham Mishra, learned counsel for the respondent No.2.
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ORDER
Reserved on 25/07/2019 Passed on 13/08/2019 This order shall govern the disposal of application I.A.No.6039/2019, filed under Order VII Rule 11 of the C.P.C., whereby the Respondent No.1 has challenged the tenability of the election petition.
2. Learned counsel for the respondent No.1 submitted that the petitioner filed the present Election Petition alleging the corrupt practice by the respondent No.1. It is alleged that the tampered EVMs were used in the election at the instance of respondent No.1, but the perusal of Election Petition filed by the petitioner does not make any cause of action. The pleading in the Election Petition is deficient and without material facts and particulars. In the absence of the aforesaid, it is not clear as to what case is sought to be set up by the petitioner against the respondent No.1. The pleading in the petition is very vague and there is no detail of the alleged corrupt practice. It is further submitted that the petitioner in Para 9 to 13 of his petition only pleaded that the Electoral Officer, at the instance of respondent No.1 tampered with the EVMs (Electronic Voting Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:22 2 Machines) and VVPAT (Voter Verifiable Paper Audit Trail) and then used it in the Election. Electoral Officer used such voting machines in the election, which were earlier used for Voter Awareness Programme. While according to the direction of the Election Commission such machines could not be used for the election process, but from that pleading, it does not appear that when and where did respondent No.1 or other official tampered those EVMs and VVPAT. No date and incident is mentioned in the petition. He further submitted that the affidavit filed by the petitioner in support of his petition do not confirm to the provisions of the Representation of the People Act, 1951 (for short "the Act") and order VI Rule 15(4) of the CPC. Petitioner has not disclosed as to what facts are based on his personal knowledge and what 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 VII Rule 15(4) of the CPC., the petition is also liable to be dismissed.
3. Even, the annexures with Election Petition though are mentioned in the pleading, they are not verified in accordance with the law. Therefore, the Election Petition is not in accordance with Section 81 & 83 of the Act. Regarding corrupt practices, there is no ingredient of Section 123 in the entire pleadings. 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 Code of Civil procedure.
4. During the course of arguments, in support of his contention, learned counsel for the respondent No.1 also referred the judgments passed by Hon'ble Apex Court in the cases of Hardwari Lal Vs. Kanwal Singh (1972) 1 SCC 214, C.P. John Vs. Babu M. Palissery & Others, (2014) 10 SCC 547, Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, (2009) 9 SCC 310, Laxmi Kant Bajpai Vs. Haji Yaqoob & Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:22 3 Others, (2010) 4 SCC 81, V. Narayanaswamy Vs. C.P. Thirunavukkarasu, (2000) 2 SCC 294, R.P. Moidutty Vs. P.T. Kunju Mohammad & Another, (2000) 1 SCC 481 and Ravinder Singh Vs. Janmeja Singh & Others, (2000) 8 SCC 191 and also the judgments passed by Coordinate Bench of this Court in the cases of Kankar Munjare Vs. Gaurishankar & Another, 2008(1) MPLJ 418 and Shushil Kumar Khatri Vs. Sartaj Singh, 2009 (4) MPLJ 293.
5. 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. He further submitted that there is no violation or non-compliance of provisions of Section 81 of the Act. So it cannot be said that the Election Petition did not disclose any cause of action. The petitioner in Para 8 to 13 of his petition clearly mentioned that at the instance of respondent No.1 Electoral Officer tampered the EVM and VVPAT machines which were allotted for Voter Awareness Programme. According to the direction of Election Commission that machines could not be used in the election process, but were still used by the Electoral Officers in that election and due to which petitioner suffered the marginal defeat. Petitioner has also filed the documents in support of his contentions and clearly verified the said documents according to the provisions of the Act. The petitioner has also filed another affidavit in consonance with the requirement of Section 83 of the Act on 02/07/2019, so it cannot be said that the petitioner has not disclosed the cause of action, so the petition filed by the petitioner is maintainable.
6. In this regard learned counsel for the petitioner also placed reliance on the judgment passed by Hon'ble Apex Court in the cases of G.M. Siddeshwar Vs. Prasanna Kumar, AIR 2013 SC 1549, Bhau Ram Vs. Janak Singh & Others, 2012 AIR (SCW) 4627, Virender Nath Gautam Vs. Satpal Singh & Others, 2007 AIR (SC) 581 and a judgment passed by Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:22 4 the Kerala High Court in the case of T.S. John Vs. Joseph M. Puthussery, AIR 2002 Ker. 166.
7. This Court has gone through the record and arguments put forth by the learned counsels of both the parties.
8. On perusal of the provisions of the Section 81,83,100,101 & 123 of the Act it reveals 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 101of 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 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 of the Act envisages the grounds for declaring the election to be void. Section 123 of the Act defines what is a corrupt practice.
9. 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 of corrupt practices and the ground specified in Section 100(1)
(d), (iii) & (iv) of the Act.
10. From the judgements of the Hon'ble Apex Court in the cases of Hardwari Lal Vs. Kanwal Singh (supra), C.P. John Vs. Babu M. Palissery & Others, (supra), Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, (supra), Laxmi Kant Bajpai Vs. Haji Yaqoob & Others, (supra), V. Narayanaswamy Vs. C.P. Thirunavukkarasu, (supra), R.P. Moidutty Vs. P.T. Kunju Mohammad & Another, (supra) and Ravinder Singh Vs. Janmeja Singh & Others, (supra) and the and judgments passed by Coordinate Bench of this Court in the cases of Kankar Munjare Vs. Gaurishankar & Another, (Supra) and Shushil Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:22 5 Kumar Khatri Vs. Sartaj Singh,(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). '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 in 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, the Code of Civil Procedure 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 of the Act may lead to dismissal of the petition if Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:22 6 the matter falls within the scope of order VII Rule 11 of the Code of Civil Procedure.
11. 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 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 by CPC. 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 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 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 Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:22 7 a case the petition has to be rejected at the threshold for non-compliance with the mandatory provisions of law.
12. 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.
13. In the instant case petitioner challenged the election process only on the ground that in the election process some of the Electronic Voting Machines were tampered by the official in the undue influence of respondent No.1 and in this regard petitioner in para 5 to 12 of his petition pleaded that according to the direction of the Election Commission the EVMs (Electronic Voting Machines) which were used for voter awareness campaign will not be used in the election, in case of providing that machine for voting, a fresh First Level Checking (F.L.C.) as well as randomisation process will be conducted in the presence of representatives of recognised political party. While in this case Electoral Officer at the instance of respondent No.1 used some of the EVMs (Electronic Voting Machines) and VVPAT (Voter Verifiable Paper Audit Trail), in the election which had earlier been used for voter awareness campaign after tampering with them. Whereas no FLC as well as randomisation process was conducted by the agency before sending those machines for voting. Petitioner also mentioned the number of EVMs (Electronic Voting Machines) and VVPAT (Voter Verifiable Paper Audit Trail) which had earlier been used in the voter awareness campaign and thereafter the same were used in the Election. In this regard he also filed the documents to establish his allegations and also mentioned the numbers of those machines.
14. 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 Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:22 8 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.
15. The Apex Court in the case of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddyu, 2012 (7) SCC 788 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 Apex Court in the case of D. Ramachandran vs R.V jankiraman (1999)3 SCC 267 also held "the Court can not dissect the pleading into several parts and consider whether each one of them discloses a cause of action. Under the rule, there can not be a partial rejection of the plaint or petition."
16. 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 orders issued by the Election Commission and corrupt practice. Therefore, the petition cannot be rejected at the threshold. All the annexures filed by the applicant in support of his petition has the signature of the petitioner. There is no significant discrepancy in the verification of those annexures.
17. Learned counsel of the respondent No.1 also submitted that under the proviso to Section 83(1) of the Act, the election petition levelling a charge of corrupt practice is required, by law, to be supported by an affidavit in which the election petitioner is obliged to disclose his source of information in respect of the commission of that corrupt practice. Petitioner in his affidavit did not specify as to which allegations were true to the personal knowledge of the petitioner and which were based on the information of the petitioner believed by him to be true. Neither the verification in the petition nor the affidavit gives any indication of the source of information of the petitioner as to such facts as were not in his own knowledge. So petition is not maintainable. In this regard he also placed reliance on the Apex Court judgements passed in Ravinder Singh Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:22 9 v. Janmeja Singh & others (Supra) and R.P. Moidutty v P.T. Kunju Mohammad & Another (Supra).
18. In this regard his arguments have force. Order VI Rule 15 Sub-Rule (2) mandates that the person verifying 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. While in the instant case petitioner neither in his first affidavit filed along with his petition, nor in the second affidavit filed on 02/07/2019 specify as to what allegations were true to his personal knowledge and which of them were based on the information of the petitioner believed by him to be true.
19. The petitioner in his first affidavit States that the contents of para 1 & 2 of his petition are true to his personal knowledge as gathered from the records of the case and in the second affidavit filed by him on 02/07/2019 also it is mentioned that :-
1. That, the statements made in paragraphs from 1 to 18 of the election petition about the commission of the corrupt practice of making false voting by suing tempered EVMs in the subjected election making undue pressure and the particulars of such corrupt practice mentioned in paragraphs from 8, 9, 13 to 16 of the same petition and in paragraphs no.2 the schedule narrated thereto are true to my knowledge.
2. That, the statements made in paragraphs 1 to 18 of the said petition about the commission of the corrupt practice of making false voting by using tempered EVMs in the subjected election making undue pressure and the particulars of such corrupt practice given in paragraphs from 8, 9, 13 to 16 of the said petition and in paragraphs
2 the schedule narrated thereto are true to my information.
20. So, both the affidavits do not satisfy the requirement of Order VI Rule 15 of the CPC.
Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:22 1021. But, the verifications and affidavits in the election petition are matters pertaining to Section 83 of the Act. This Section is not mandatory and Section 86(1) of the Act does not, enjoin a dismissal of the election petition for non-compliance with the provisions of Section 83 of the Act. The election petition is not liable to be rejected on count of any infirmity in the verification or on account of material particulars of corrupt practice not being duly supported by affidavit. Those defects can be cured as held by the Hon'ble Apex Court in the case of G.M. Siddeshwar Vs. Prasanna Kumar (supra).
22. Therefore, in the considered opinion of this Court, the instant election petition 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 C.P.C. But the affidavit filed by the petitioner does not satisfy the requirement of Order VI Rule 15 of CPC.
23. So petitioner is directed to cure the defect within a period of three weeks.
24. Let the matter be listed on 05/09/2019.
Certified copy as per rules.
(Rajeev Kumar Dubey) JUDGE as/-
Digitally signed by ANURAG SONI Date: 14/08/2019 11:28:22