Madhya Pradesh High Court
Sayed Ahmed vs Brijendra Nath Pathak And Ors. on 9 May, 1997
Equivalent citations: AIR1998MP293, AIR 1998 MADHYA PRADESH 293
Author: R.P. Gupta
Bench: R.P. Gupta
ORDER R.P. Gupta, J.
1. The petitioner in this petition was a losing candidate of Indian National Congress in the elections for the M. P. Legislative Assembly from 63 Satna Assembly Constituency, the result of which was declared on 29th January 1994. The respondent was declared elected in this election. Election to M. P. State Legislative Assembly had been notified by the Governor on 23rd Oct. 1993 vide Notification No. 15-93-IV (Elec.) 696 dated 23-10-93 issued Under Section 15(2) of Representation of the People Act 1951. Pursuant to this the Election Commission issued notification No. 964/MP/LA/93 (1) dated 23-10-93 Under Section 30 of that Act. Nominations were invited between 23rd October to 30th Oct. 93. Scrutiny of the nomination papers was fixed for 1-11-1993 and withdrawal dale was upto 3rd November 1993. Polling had been fixed for 23rd Nov. 1993. However, the election of this constituency was postponed by the Election Commissioner vide Notification No. 464/MP/LA/93 dated 21-11-93 received by the District Returning Officer, District, Satna. The election was held on 24th January 1994 and the respondent was declared as the winning candidate by a margin of about 1500 voles. The petitioner felt aggrieved by this result and filed the present election petition on two counts: (i) that the postponement of election was illegal, unjustified and without jurisdiction of the Election Commission and also against the principles of natural justice and violative of the provisions of the Representation of the People Act 1951 and of the Constitution of India in postponing the election date from 23rd November, 1993 to 24th January, 1994 and due opportunity was not given to the petitioner and, therefore, the result of the election was tilted in favour of the respondent due to postponement of election and due to the events following thereafter and (ii) that the postponement of election gave an opportunity for a number of corrupt practices to the candidate 6f opposite party, which are enumerated in the petition. However, the ground of corrupt practices does not survive in this petition, because, vide order of this court dated 11-10-96, it was directed that the allegations of corrupt practices shall stand struck off, for the reason that the petitioner had not supplied, for service of the notice to the opposite party, true copy of the affidavit sworn before the authorised officer or Notary in support of the allegations of corrupt practices and in so far as it has not been disclosed as to before which authority the affidavit has been sworn and a copy of the certificate of verification, of the notary or the authority concerned, has not been supplied to the respondent. This result followed the interpretation put to the provisions of Section 83(1)(c) of the Representation of the People Act, 1951, Rule 94 (A) of the rules framed under that Act, Form 25 prescribing the form of affidavit under those rules and Section 81(3) and Section 86 of the Representation of the People Act, 1951 in the case of Dr. (Smt.) Shipra etc. v. Shantibai Khoiwal etc. cited at AIR 1996 SC 1691.
2. Thus, the only ground which now survives in this petition is on the plea that the postponement of the election was illegal, unauthorised, against the principles of natural justice and so without jurisdiction and further that it has affected the result of the election unduly in favour of the respondent. The petitioner claims that the election of the respondent be set aside on the ground laid down in Section 100(1)(d)(iv) of the Representation of the People Act, 1951 which is in the following terms :--
"Subject to the provisions of Sub-section (2), if the High Court is of opinion -
(a) to (c) -- ---
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected
(i) to (iii) --- ----
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act.
the High Court shall declare the election of the returned candidate to be void.
3. Learned counsel for the petitioner states that Article 324 of the Constitution of India does not give an unbriddled power to the Ejection Commissioner in regard to holding of election and for the purpose of postponement of election; the Chief Election Commissioner should exercise power in the same situations in which a Returning Officer may exercise his powers to postpone the election under Section 57 of the Representation of the People Act, 1951, which is as follows :--
"57. Adjournment of poll in emergencies -
(1) If at an election the proceedings at any polling station provided under Sec. 25 or at the place fixed under Sub-section (1) of Section 29 for the poll are interrupted or obstructed by any riot or open violence, or if at an election it is not possible to take the poll at any polling station or such place on account of any natural calamity, or any other sufficient cause, the presiding officer for such polling station or the returning officer presiding over such place as the case may be, shall announce an adjournment of the poll to a date to be notified later, and where the poll is so adjourned by a presiding officer, he shall forthwith inform the returning officer.
(2) Whenever a poll is adjourned under Subsection (1), the returning officer shall immediately report the circumstance to the appropriate authority and the Election Commission, and shall-as soon as may be, with the previous approval of the Election Commission, appoint the day on which the poll shall recommence, and fix the polling station or place at which, and the hours during which the poll will be taken and shall not count the votes cast at such election until such adjourned poll shall have been completed.
(3) In every such case, as aforesaid, the returning officer shall notify in such manner as the Election Commission may direct the date, place and hours of polling fixed under Subsection (2)"
4. In any case, according to the petitioner, even if the powers of Election Commissioner to postpone the election are considered wider, they cannot be exercised arbitrarily and in violation of principles of natural justice and without an opportunity of hearing to the affected parties. Article 324(1) of the Constitution of India is as 'follows :--
"Article 324. -Superintendence, direction and control of elections to be vested in an Election Commission -
(1) The superintendence, direction and control of the preparation of the electoral rolls for, and conduct of all elections to parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred lo in this Constitution as the Election Commission)"
One more provision of the Representation of the People Act, 1951, which has been referred and has bearing on the power of the Election Commission to postpone the election is Section 153 of the Representation of the People Act,. 1951, which is as under :
"153. Extension of lime for completion of election.-
It shall be competent for the Election Commission, for reasons which it considers sufficient, to extend the time for the completion of any election by making necessary amendments in the notification issued by it under Section 30 or Sub-section (1) of Section 39."
5. At this stage, consideration of the relevant pleadings in the election petition will be appropriate. The petitioner has pleaded that election to the M.P. State Legislative Assembly was notified on 23rd October, 1993, with the period of nomination upto 30th October, 1993 and scrutiny to beconducted on 1-11-1993, while withdrawal of nomination could be made by a candidate upto 3rd November, 1993 and the polling was to take place on 24-11-1993. These dates also govern the election to 63 Satna Legislative Assembly Constituency. However, the petitioner received from the Returning Officer a letter No. 1204/15/25/Nirva/93/Satna dated 22-11-93 informing that the polling for Vidhan Sabha election for this constituency will not be held on 24-11-93, but will beheld on 24th Jan. 94 between 7 AM and 5 PM. Similar letter was addressed by the Returning Officer to all the candidates. The letter made a reference to the order of the Election Commission in this respect which was numbered 464/MP/LA/93 dated 21-11-93. It is averred in the petition that a copy of the alleged letter of the Election Commission dated 21 -11 -93 was not served on the petitioner, nor received by him, that the letter postponing the election was non-speaking and no reasons have been assigned for postponement and no hearing has been given to any candidate or voter for taking decision on postponing of election. It has been asserted that this order is illegal and opposed to the provisions of the Constitution and also the provisions of the Representation of the People Act, 1951 and also the rules made thereunder. The order is alleged to be arbitrary, illegal, unjust and unreasonable and so bad in law. The petitioner further pleads that the power to adjourn the election is given in Section 57 of the Representation of the People Act, 1951. This power is vested in a returning Officer presiding over the place or even in the presiding officer of the polling station where the polling is interrupted or obstructed by any riot or an open violence and if the election is not possible to take place at any polling station on account of any natural calamity or any other sufficient cause, the poll will be adjourned. Such an adjournment is to be immediately reported to the Election Commission and with the previous approval of the Election Commission, the returning officer has to appoint a date on which the poll shall recommence. It was averred that the Election Commission had no power to adjourn the poll in 63 Satna Legislative Assembly Constituency, nor there was any sufficient ground for the same. It was averred that the process of election once started cannot be disturbed nor obstructed by any authority on its whim and caprice. Poll can be adjourned only in an emergency, as prescribed in Section 57 of the Representation of the People Act, 1951, and power has been given to the presiding officer of the polling booth or the returning officer presiding over such place. Power should be exercised by the authority present at the time of polling and at the spot. It is asserted that the poll cannot be adjourned in aconstituency merely on the ground of some corrupt practices of acandidate, although the election of such candidate may be declared void by the High Court on proof of corrupt practices in a proper election petition. It was pleaded that the Chief Election Commissioner, Shri T. N. Seshan, abused the process of law and misused his official position as Chief Election Commissioner that his office is a constitutional one and he has to act strictly in accordance with law. It is urged that in this case, Shri Seshan usurped the jurisdiction not vested in him by law and illegally postponed the election without reason and without cause and so Shri Seshan himself has committed a corrupt practice. The Chief Election Commissioner has unduly influenced and set at naught the process of election and also exercised undue influence as defined in Section 123(2) of the Representation of the People Act, 1951 with the consent of the respondent which has resulted in failure of free exercise of electoral right. It was asserted that the petitioner had made full preparation of the election, that he would have won, if the election would have taken place on 24-11-93. The respondent-returning officer of 63 Satna Legislative Assembly Constituency and the Chief Election Commissioner, Shri T. N. Seshan knew about this situation, they assessed the mood of the electorate of this constituency which was in favour of the petitioner and the Chief Election Commissioner singled out this constituency for postponing the poll and he passed the illegal order. He had no business to interfere with the election process in this constituency. Even a copy of the order of the Election Commissioner was not supplied to the petitioner till filing of the election petition. It is urged that this postponement of poll gave a total impression to the voters that Shri Seshan was deadly against the petitioner and because of this, the petitioner lost about 2000 votes. This postponement of election has greatly damaged the image of the petitioner and materially affected the election process and gave undue advantage to the respondent. It is pleaded that by the postponement order Shri Seshan gave a signal that he was opposing the Congress (I) candidate, i.e. the petitioner, and since he was holding the office of the Chief Election Commissioner, his action has prejudiced the election process of the petitioner.
6. It is further asserted that Article 324 of the Constitution of India does not enable the Election Commissioner to over-ride the provisions of any statute or statutory rules. He must act according to law laid down in a statute or statutory rules. By directing adjournment of poll, the Election Commissioner has violated the statutory provisions as also the constitutional provisions in respect of election and he did not give any opportunity to be heard to the interested persons and to the candidates. So the order of postponement was violative of the provisions of law and also arbitrary and perverse and against the principles of natural justice. He had exercised the power not vested in him -- either by the Constitution or by the Representation of the People Act, 1951 or by the rules made thereunder. It was asserted that the subsequent election was vitiated on the grounds mentioned in Section 100(1)(d)(iv) of the Representation of the People Act, 1951. It was asserted that no notification for extension of time for completion of election by amendment of the notification under Section 13 of the said Act, as alleged, was ever issued and so legally, there was no extension of time made by the Election Commission. It was asserted that neither the Election Commission norany authority (except the High Court in election petition) has any jurisdiction to call in question any election on the grounds specified in Section 100(1) or 101 of the Representation of the People Act, 1951. Even in cases, where there is some allegations of corrupt practices, it may be a ground for setting aside the election of a returned candidate, but the Election Commission has no authority to initiate enquiry or to postpone the election. None of the candidates had made any complaint, nor prayed for adjournment or cancellation of election and so the Election Commission, by its order of postponement, violated the provisions of Representation of the People Act, 1951 as also of the Constitution of Indiaand it vitiated the election of the returned candidate under Section 100(1)(d)(iv) of the Act.
7. It is further asserted that complaints similar to those as in the case of 63 Satna Legislative Assembly Constituency have been received by the Election Commission from Durg Constituency where the boy of Shri Motilal Vora, Governor of U. P., was contesting the election as one of the candidates. However, the Election Commission allowed the poll on the Scheduled date and thereby treated the petitioner discriminately which is violative of Article 14 of the Constitution of India.
8. It may be noticed that the order of the Election Commission dated 21-11-93, whereby the poll was postponed, has been placed on record as Ex. R1/1. Reasons for postponing of poll have been detailed in this order. It is noticed that Shri Sayed Ahmad (present petitioner) was one of the contesting candidates and that he is the son of Gulsher Ahmad, present Governor of the State of Himachal Pradesh. The Commission noticed that complaints have been received in the Commission that Shri Gulsher Ahmad, Governor of Himachal Pradesh, is staying at Satna and campaigning in favour of the petitioner Saycd Ahmad. The Commission had obtained a report from Collector and District Magistrate, Satna through the Chief Electoral Officer of M. P. The Commission noticed that the Collector and District Magistrate, Satna had reported about the visit of Shir Gul Sher Ahmad by train to Satna on 5-11-93 and his stay at his own house at Nazirabad. Shri Gulsher Ahmad then went to Delhi by train on 7-11-93.
Then again his tour programme was received by the Collector, Satna, through official channel showing that the Governor would be coming to Satna to see his ailing wife and further that he came to Satna by train on 12-11-93. According to further programme of the Governor, sent by his Principal Secretary, he was to continue to stay at Satna till 18-11-93. The Governor had not left Satna even upto 18-11 -93 and was continuing to stay on and his further programme was not known to the Collector. No reason for his second visit to Satna had been given. A room had been reserved for the Governor in Satna Circuit House and an official car had been placed at his disposal. That car had been touring in the rural and urban areas of Satna District without any prior official programme. The Election Commission, on the basis of the report of the Collector and of the Chief Electoral Officer, M. P. noticed thai the Governor of Himachal Pradesh continued to stay over in Satna from 5-11-93 onwards and even after 18-11 -93 and that this stay of the Governor in Satnain the context of electioneering of his son had also attracted the notice of the media.
The Election Commission observed as under :--
"In the opinion of the Commission the visit of the Governor of Himachal Pradesh at Satna during the peak period when his own son is a contesting candidate, is compounded by the report df the Collector and District Magistrate of Satna that the official vehicle placed at the disposal of the Governor, by virtue of his being a State Guest, is making repeated visits of the rural and Urban areas when there are no official programme of his visit in the district. It isobvious that the Collector, being aware of his responsibility to ensure that the requirements of a free and fair poll are not transgressed by the aforesaid use of a Govt. vehicle by a dignitary of the level of a Governor, has been at pains toexpress his discomfiture. The Collector has sent an SOS to the Commission seeking Commission's advice whether the Governor should continue to be treated as a State Guest and whether a Govt. vehicle should continue to be provided to him during his stay in the constituency. This SOS of the Collector can leave no one in doubt that the said Govt. vehicle is being misused for electioneering. Efforts at dissuading the Governor from abovementioned misuse were open to the Collector, but he has chosen to seek the advice and instructions of the Commission in his grave discomfiture.
The whole episode is replete with serious repercussions on the purity of election process in the Assembly Constituency of Satna apart from the fact that a clear violation of Model Code of Conduct has taken place. The provisions of para VII(i) of the Model Code of Conduct clearly states that-
(a) the Ministers shall not combine their official visit with electioneering work and shall also not make use of official machinery or personnel during electioneering work.
(b) Govt. transport including official aircrafts, vehicles, mechinery and personnel shall not be used for furtherence of the interest of the party in power."
9. The above quoted provisions should apply even with greater force to those in the highest public office.
10. In the circumstances stated above, the Election Commission is of the firm and unequivocal view that the purity of the election process has been irretrievably sullied in the 63 Satna Legislative Assembly Constituency in M. P. and in the given circumstances, the result of the election cannot reflect the true choice of the people.
11. The Commission, therefore, exercising the powers conferred in Article 324 of the Constitution of India, Section 153 of the Representation of the People Act, 1951 read with Section 30 of the R. P. Act, 1951 and other powers enabling in this behalf hereby direct that the poll in the 63 Satna Legislative Assembly Constituency shall not take place on 24-11 -93 as scheduled. That poll now be taken on Monday the 24th Jan. 94 and the election would be completed before Sunday the 30th January, 1994.
12. The Commission further observed that it intends to investigate the matter further in order to identify the magnitude of the damage done to Ihe purity of the election process in the aforesaid circumstances and if need be, recommend to the Governor of M. P. that he be pleased to remind the Notification No. 15/93/4/Election/696 dated 23-10-93 in so far as it relates to calling of 63 Satna Legislative Assembly Constituency to elect a member so that the entire process can be commenced anew.
13. In his written statement to the election petition, the respondent admitted the fact of initial notification of the Governor for holding an election to the Legislative Assembly of M. P. including the 63 Satna Legislative Assembly Constituency and also that the election in this constituency has been postponed by the Election Commission from 24th November, 1993 to 24th Jan., 1994, the notice for which was received by this respondent also from the returning officer. It is asserted that the order of the Chief Election Commission in this regard has been published on 21 November, 1993 through the media, such as All India Radio, Doordarshan and Track. The Chief Election Commissioner had given good reasons for postponing the election in order to uphold the purity and fairness of the election. It is urged that the returning officer had not postponed the polling date. He only informed the candidates about the order passed by the Election Commission. The Election Commission exercised its power under Article 324 of the Constitution of India for the purpose of ensuring free and fair poll which in case of this constituency was being sullied by the action of the petitioner's father who was then Governor of Himachal Pradesh.
The election had been postponed by the Election Commission on the reportof the returning officer which disclosed that the petitioner being the son of the Governor of Himachal Pradesh was being benefitted in his electioneering by stay and tour of his father in the constituency. A Govt. vehicle had been utilised by the petitioner's father. It is urged that it was not realistic nor practicable to call upon the electorate or the candidate for hearing against the report of the returning officer in order to decide in favour or against postponement of the poll. It is pleaded that Section 57 of the Representation of the People Act, 1951 does not have application to the order of the Election Commission, as the Emergency enumerated in Section 57 of the Act did not arise in this case and so that provision has not been resorted to. It has been asserted that the action or the Election Commission does not amount to influencing the election in favour of the respondent or in favour of another candidate nor does it amount to corrupt practice arid the order was not passed in consultation or in collusion with the respondent. It is denied that any advantage of any kind has accrued to the respondent in the election due to the postponement of election by the Election Commission. It is urged that the petitioner's assertion that he would have won the election, but for postponement, is merely an magination and, in fact, his chance of winning became brighter due to postponement of the poll, because the Congress Party, for which he was the nominee in this election, had won with overwhelming majority in the legislative assembly in those elections and because it had been given out by the Congress Leaders, including the Chief Minister, that if the petitioner was returned as a winning candidate in the election, he would be made a Cabinet Minister as there was no member in Vidhan Sabha of the State belonging to the Muslim community. In fact, the respondent had represented to the Election Commission to hold the polling on 24-11-93 or in any case on 27- 11-93. It is urged that the pleadings of the petitioner are deficient in suggesting as to how and when the respondent and Election Commission through Shri T. N. Seshan joined hands, for an advantage to the respondent and how the respondent has been benefitted by postponement. It is urged that it is the constitutional duty of the Election Commission to take notice of malpractice in the election in any constituency and to take necessary steps in the interest of purity and fairness of the election. It is urged that the electors were in no way concerned with Shri T. N. Seshan and the postponement of the poll did not have any effect in damaging the image of the petitioner or the election prospects. It is urged that the power of the Election Commission to postpone the poll are plenary under Article 324 of the Constitution of India, and also Section 153 of the Representation of the People Act, 1951 empowers him to do so. So there was no non-compliance with any provisions of the Constitution or of the Act. It is urged that the person who offends the electoral Code of Conduct, cannot invoke Article 14 of the Constitution of India to seek protection of election against the required Code of Conduct. It is pleaded that the details about the events in Durg Constituency have not been pleaded at all and so those pleadings cannot be allowed to give any advantage to the petitioner.
14. The election petition has been tried on the following issues :--
1. Was the impugned order passed by the Chief Election Commissioner illegal?
2. Had the Chief Election Commissioner no power (jurisdiction) to pass the impugned order?
3A. Is the election of returned candidate vitiated on the ground of a notification u/S. 153 of Representation of the People Act, having not been issued?
3B. Has the said non-compliance (if any) materially affected the result of election?
4. Relief and cost.
Issues Nos. 3, 4 and 5 have been deleted vide this Court order dated 11-10-96, as those issues pertain to the allegations of corrupt practices which allegations themselves have been struck off vide this Court order of that date for the reasons already noted.
15. Issues Nos. 1 and 2 : It is unnecessary to refer to oral evidence for decision of these issues. The orders of the Election Commission dated 21 -11-93 is Ex. R1/19 and also R1/1, Copies of the reports of Collector, Satna, as returning officer of the constituency, to Joint Chief Returning Officer and Chief Election Officer, M. P. dated 15-11 -93 and another report by him to the Chief Election Officer, M. P. are filed as Ex. R1/1 and R1/3 Second order of the Election Commission dated 8-12-93 on the same subject, following an enquiry, by Shri D. S. Bagga, Dy. Election Commissioner, is placed on record as Ex. R1/20, whereby, on the basis of the enquiry conducted by Shri Bagga, in pursuance to the Chief Election Commissioner's order dated 21-11 -93, the Election Commission accepted the recommendation of Shri Bagga that the election process in 63 Satna Legislative Assembly Constituency in the State of M. P. be not rescinded. So it was directed that the election process in this constituency be continued and the poll shall be taken on 24-1-94, as scheduled. A letter written by the respondent Brajendra Nath Pathak on 22-11-93 to the Chief Election Commissioner, New Delhi and sent by FAX is proved on record as Ex. R1/15 informing the Chief Election Commission that although Shri Gulsher Ahmad, the then Governor of Himachal Pradesh attempted to influence the election by staying in Satna constituency in favour of his son, but he had not succeeded in influencing the election in any manner and so the poll should be held on the date already fixed, i.e. 24-11-93 and if it is not possible, it should be held on 27-11 -93, as the second round of election in the State of M. P. would take place on 27-11 -93. An earlier letter written by Shri Brajendra Nath Pathak to the Chief Election Commissioner, New Delhi, has been proved on record as Ex. P-16, complaining that the Governor of Himachal Pradesh was staying in Satna and was campaigning in the election of his son openly and was pressurising the officers of the administration in favour of his son, and that he would campaign in Satna upto 24th Nov., 93. He was staying over at Satna constituency merely on the pretext of illness of his wife. Some photographs of the election campaigning of the petitioner are proved on record as Exs. RIM to R1/9 and Rl/15. The respondent had orally stated that Gulsher Ahmad had stayed over Satna area from 5-11-93 till 22-11-93 and had moved around for carrying out the election campaign for his son Sayed Ahmad, the petitioner.
15A. The question is whether the orders of the Election Commission in postponing the election from 24-11-93 to 24-1-94 was without jurisdiction or otherwise illegal. Both the sides, in this case.
relied upon the provisions of Article 324 of the Constitution and also Section 153 of the Representation of the People Act, 1951. The petitioner has further relied on the provisions of Section 57 of the Representation of the People Act, 1951, while the counsel for the respondent has argued that that provision does not deal with the power of Election Commission. It only deals with the powers of returning officer and polling officer in certain emergency contingencies. I have already noticed this provision in the judgment. Both the sides relied upon the interpretation placed on Article 324 of the Constitution by the Supreme Court in the judgment of M. S. Gill v. Chief Election Commr. cited as AIR 1978 SC 851. In this case, five Judges' Bench of the Supreme Court of India, speaking through his Lordship Hon. Justice V. K. Iyer, J., observed regarding amplitude of power of Election Commission and width of functions under Article 324 of the Constitution of India as under :--
"Functions as referred to in Article 324(6) include powers as well as the duties. It is incomprehensible that a person or body can discharge any functions without exercising powers. Powers and duties are integrated with function. The Chief Election Commissioner has to pass an appropriate order on receipt of report from the Returning Officer with regard to any situation arising in the course of an election and power cannot be denied to him to pass appropriate orders. Moreover the power has to be exercised with promptitude. Whether an order passed is wrong, arbitrary or is otherwise invalid relates to the mode of exercising the power and does not touch upon the existence of the power in him if it is there either under the Representation of the People Act, 1951 or the rules made in that behalf, or under Article 324(2). The Commission is entitled to exercise certain powers under Article 324 itself on its own right in an area not covered by Representation of the People Act and the Rules."
Their Lordships further observed :--
"When provision is made in the Act toidcal with situations arising in a particular polling station, it cannot be said that if a general situation arises whereby numerous polling stations may witness serious malpractices affecting the purity of the electoral process, that power cannot be denied to the Election Commission to take an appropriate decision. The fact that a particular Chief Election Commissioner may take certain decisions unlawfully, arbitrarily or with ulterior motive or in mala fide exercise of power, is not the test in such a case. The question always relates to the existence of power and not to the mode of exercise of power."
Their Lordships further observed :--
"There is no limitation in Article 324(1) from which it can be held that where the law made under Article 327 of the Constitution or the relevant rules made thereunder do not provide for the mechanism of dealing with a certain extraordinary situation, the hands of the Election Commission are tied and it cannot independently decide for itself what to do in a matter relating to an election. The Election Commission is competent in an appropriate case to order repoll of an entire constituency where necessary. It will be an exercise of power within the ambit of its functions under Article 324."
Their Lordships further observed :--
"Election covers the entire process from the issue of the notification under Section 14 of the Representation of the People Act to the declaration of the result under Section 66 of the Act. When a poll that has already taken place has been cancelled and a fresh poll has been ordered the order therefor, with the amended date, is passed, as an integral part of the electoral process. When the Election Commission amended its notification and extended the time for completion of the election by ordering a fresh poll, it is an order during the course of the process of election. Even if it is a wrong order, it does not cease to be an order passed by a competent authority charged with the conduct of election with the aim and object of completing the elections. Although that is not always decisive, where the impugned order has been passed in the exercise of power under Article 324(1) of the Constitution and Section 153 of the Representation of the People Act, such an order, relating as it does, to election, cannot be questioned except by an election petition under the Act. If during the process of election, at an intermediate or final stage, the entire poll has been wrongly cancelled and a fresh poll has been wrongly ordered, that is a matter which may be agitated after declaration of the result on the basis of the fresh poll, by questioning the election in the appropriate forum by means of an election petition in accordance with law. The petitioner then will have a remedy to question every step in the electoral process and every order that has been passed in the process of election including the countermanding of the earlier poll." Their Lordships further observed :--"Where the Election Commission has passed an order professedly under Article 324 of the Constitution and Section 153 of the Representation of the People Act, 1951 and the order is within the scope and ambit of Article 324 of the Constitution, if there is any illegality in the exercise of the power under Article 324 or under any provision of the Act, Section 100(1)(d)(iv) will be attracted to it. If exercise of a power is competent either under the provisions of the Constitution or under any other provision of law, any infirmity in the exercise of that power is, in truth and substance, on account of non-compliance with the provisions of law, since law demands of exercise of power by its repository, as in afaithful trust, in a proper, regular, fair and reasonable mariner."
16-17. Their Lordships observed that remedy of writ petition is involved while the process of election is going on and ordinarily repoll is not attracted in the process of election. So a writ petition would be barred under Article 329 of the Constitution of India.
Their Lordship further observed :--
"An election can be challenged only under the provisions of the Act. All the substantial reliefs. which the party seeks in the writ application, including the declaration of the election to be void and the declaration of the party to be duly elected, can be claimed in the election petition. It will be within the power of the High Court, as the election Court, to give all appropriate reliefs to do complete justice between the parties. In doing so it will be open to the High Court to pass any ancillary pr consequential order to enable it to gran the necessary relief provided under the Act.
18. Their Lordship discussed in this case another issue, whether it was permissible to invoke into Article 324(1) of the Constitution, an obligation to act in accordance with natural justice. Their Lordships observed that the function of the Election Commission are subject to normal fairness and it cannot be arbitrary. Unchecked power is alien to our system. Even so, situations may arise which enacted law has not provided for. Legislatures are not prophets but only pragmatists. So it is that the Constitution of India has made comprehensive provision under Article 324 to take care of surprise situations. That power has itself to be exercised not mindlessly nor mala fide nor arbitrarily nor with partiality but in keeping with the guidelines of the rules of law, and not to satisfy the Presidential notification nor existing legislation. More is not necessary to specify. "Superintendence, direction andcontrol" as well as "conduct of election" are the broadest terms. Myriad situations may call for prompt action to reach the goal of free and fair election.
19. Their Lordships lay down that the Election Commission has to act fairly and not arbitrarily. It has to accomplish free and fair election expeditiously. However, if he acts like a despot or against the principles of fairness, the appropriate Court, who hears the election petition, at the appropriate stage can quash that action.
20. After considering a number of cases and number of situations regarding the extent and applicability of the principles of natural justice regarding 'audi alteram partem', their Lorships finally observed :
"We consider that in the vital area of elections where the people's faith in the democratic process is hypersensitive, it is republican realism to keep alive 'audi alteram partem' even in emergencies, even amidst, the clash of arms. Its protean shades apart....."
"We recognise that 'hearing' need not be an elaborate ritual and may, in situations, be even formal, nevertheless real. In this light, the Election Court will approach the problem....."
"Fair hearing is thus a postulate of decision making for cancelling a poll, although fair abridgment of that process is permissible. It can be fair without the rules of evidence of forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent. The philosophy behind natural justice is, in one sense, participatory justice in the process of democratic rule of law."
21. Learned counsel for the petitioner has urged that at least some form of notice should have been given to the candidate by the Election Commission before deciding to postpone the entire election. At least telephonic explanation might have been sought from this petitioner, as his father's presence in the constituency area was the basis of postponement of election and the observations were likely to bring detriment to his election prospects. In that sense, at least, it is urged, the principles of natural justice were violated. May be that, expedition requires that full scale hearing should not be given to a candidate at that juncture. But some earlier discussion could have taken place by the Election Commission or by its representative with the candidate or at least with this petitioner. All this was not done and unilateral decision was taken mainly because the respondent had complained about the Governor of Himachal Pradcsh, being present in the area and the Governor being father of the petitioner and on that basis the returning officer wrote to the Election Commission without ascertaining the real purpose of visit of the Governor and without ascertaining as to whether it will affect the election process or the election of a candidate or will affect the voters in free exercise of rights of their votes. Even the returning officer in his report had not said that there is apprehensive of free exercise of right of vote, of the people of the constituency, being adversely influenced by the presence of the Governor. In this light, it is argued that the decision of the Election Commission has itselt sulleied the process of election and it was illegal and arbitrary decision.
22. The Supreme Court in the case of Mahendra Singh Gill, while dealing with the question of competitive claim of 'hurry' and 'hearing',' referred to the observation of Lord Denning M. R. in Haward Bornman, 1974 (3) WLR 660 and themselves observed as follows :--
"Disclosure of the prominent circumstances and asking for an immediate explanation orally or otherwise may, in many cases, he sufficient compliance. It is even conceivable that an urgent meeting with the concerned parties, summoned at an hour's notice, or in a crisis, even a telephone call, may suffice. If all mat is not possible, as in the case of a fleeing person whose passport has to be impounded, lest he should evade the course of justice or a dangerous nuisance, needs immediate abatement, the action may be taken followed immediately by a hearing for the purpose of sustaining or setting aside the action to the extent feasible.....we do not wish to disclose our mind on what, in the critical circumstances should have been done for a fair play of fair hearing. This is a matter pertinently for the election tribunal to Judge, having before him the vivified totality of all the factors, Al| that we need emphasise is that content pf natural justice is a dependent variable not an easy casuality."
23. One thing is clear that this Court in an election petition docs not sit in appeal against administrative decisions of the Election Commission which decisions arc taken by the Election Commission in the course of superintendence, direction, control and conduct of election and to maintain free and fair play in election as per the provisions of Article 324 of the Constitution. If a particular decision is taken in violation of the rules of natural justice, this Court may take an appropriate inference and pass an appropriate order as the jurisdiction of the Court in respect of election, the process for which has started, arises after completion of the election. The Court will not say that, under the peculiar circumstances, it would have taken decision different from that taken by the Election Commission of that a different decision would be appropriate. Facts and circumstances' of each case are the relevant factors, as observed by the Supreme Court.
24. Counsel for the petitioner relied upon one more pronouncement the Supreme Court cited as AIR 1984 SC 921 titled A. C. Jose v. Sivam Pillai. In this case, their Lordships considered the validity of the order of the Election Commission directing casting of votes by mechanical process. Their Lordships said that there were rules prescribed regarding the method of casting of votes. The Election Commission, by its own order, could not supplant all the rules. The Election Commission may pass order to supplement the existing rules but not to supplant them. Their Lordship considered the powers of the Election Com mission under Article 324 of the Constitution of India and observed that in spite of wide amplitude of these powers, the powers were to be exercised subject to the following limitations:--
(a) when there is no parliamentary legislation or rules made under the State Legislature, the Commission is free to pass any order in respect of the conduct of election.
(b) where there is an Act or Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass an order in direct disobedience to the mandate contained in the Act or the Rules.
(c) where the Act or the Rules are silent, the Commission has no doubt the plenary powers under Article 324 of the Constitution to give any direction in respect of the conduct of the election.
(d) where a particular direction by the Commission is submitted to the Govt. for approval, as required by the rules, it is not open to the Commission to go ahead with the implementation at its own free-will, even if the approval of the Govt. is not coming.
25. Counsel for the petitioner further brought to the notice of this Court, a Division Bench pronouncement of this Court in the case of State Election Commission v. Rasbihari Raghuvanshi cited as 1996 MPLJ 966 : AIR 1995 MP 245.
In this case, a Division Bench of our High Court was dealing with the case where nominations for the post of Sarpanch of Panchayat were filed. On the day of scrutiny of nomination, the nomination papers of all the candidates except one were rejected by the returning officer on the ground that serial number and ward number and the voters list of the said candidates showed unauthorised overwriting. The Election Commission took a decision to countermand the election and to order re-election on the ground that the nominations had been tempered with by the Election Officer. A writ was filed in the High Court against the order of the Election Commission. A single Judge held that the order of the Election Commission was against the principle of natural justice, since the petitioner was not heard by the Election Commission and no notice was given to him. Tt was held that the aggrieved candidates could only file an election petition. The election could be countermanded only under particular circumstances described in Rule 43 of the Panchayat Rules. So the single bench quashed the order of Commissioner. The State Election Commission approached the Division Bench. The Division Bench upheld the finding of the single bench.
26. In the two judgments, one of Mahendra Singh Gill by Supreme Court and the other of Ras Bihari Raghuvanshi by Division Bench of the M. P. High Court, the Courts were dealing with situations where decision of the Election Commission, which were challenged, had been taken when the election process had been completed and the elections were countermanded in the case before the Supreme Court after the counting and in the case before the Division Bench of M. P. High Court where no voting had taken place because only one candidate was accepted as properly nominated candidate. In both cases, writ petition had been filed to challenge the decision of Election Commission. In the case before Supreme Court, writ was dismissed holding that only an election petition could be filed after fresh election was completed and in the case before the Division Bench of this Court, the writ was allowed holding that result should have been declared and thereafter only the orders of the returning officer could be challenged in the election petition. In the case before us, the impugned order of Election Commission does not cancel the election nor amounts to cancellation of voting. Here is a case of postponement. To what extent a postponement adversely affects the parlies is also a question to be seen. Is postponement, such an order for which also a hearing was needed. It does not debar anybody from voting, the candidates remain the same. Only the start of voting is deferred due to contingency which is considered by the Election Commission as jeopardising the purity of elections.
27. There can be no doubt that within the scope of powers of Election Commission under Article 324 of the Constitution it is inherent power to postpone the election also, in certain exigencies, which need not be named or specified by Courts. It is for the Election Commission to consider whether an exigency is such which requires such a step. It is not that the order ot postponement is without jurisdiction. Such an orderby Election Commission is not to be passed Under Section 57 of Representation of the People Act, 1951, as has been argued by counsel for petitioners Section 57 gives certain authority in prescribed exigencies to returning officer or polling officer to only postpone the polling in aparticular polling booth or booths. These situations are interruption of voting or obstruction to voting by riot or open violence or natural calamity or any other sufficient cause. This provision is restricted to exercise of powers by presiding officers of the polling stations or returning officers of that area. The powers of Election Commission are much wider and are exercised under Article 324 of the Constitution. The plenary nature of these powers has been fully accepted by Supreme Court of India in case of Mahcndra Singh Gill and in other cases also. The question is whether it can be said that the type of exigencies due to which, the Election Commission postponed this election was such for which this power should have been exercised. As we have seen in detail, the situation was that the Election Commission felt that the purity of election was being jeopardised because Governor of another State was helping his son in the election, in view of the Election Commission. If that was his view and he took an inference that purity of election was being adversely being affected, then in order to maintain the purity of elections, it cannot he said that the Election Commission abused its powers. I have already observed that the High Court while hearing an election petition, docs not sit in appeal over the judgment of Election Commission in passing various orders to complete the process of elect ion. If passing of any order by Election Commission is shocking abuse of his powers the High Court may take proper inference. But if there is scope for different views, the High Court will not say that the order of Election Commission was an abuse of his power or was shocking, bordering on arbitrariness orcapricious. On the fact of situation with which the Election Commission was faced, it would be best for the High Court not to interfere with thut judgment if there was no inherent lack of jurisdiction or other illegality.
28. The case of the petitioner's counsel is that there was such an illegality, in so far as principle of natural justice was violated and nobody was heard, before postponing the election. The evidence which has come on record shows that the Election Commission was faced with the question whether to recommend rescision of election notification itself and start anew the process of election by advising the Governor to declare fresh dates of election process by inviting fresh nominations etc., so that the entire process can be started anew. In order to decide this, the Election Commission ordered enquiries through Shri D. S. Bagga, Deputy Elect ion Commissioner. That enquiry was actually made. Shri Bagga conducted the enquiry on 2nd December, 1993 in the office of the returning officer of 63-Satna Assembly Constituency and submitted his report on 7-12-1993. This is clear from the order of the Election Commission dated Sth Dec., 1993, copy of which is Ex. R-1/20 on record. Shri Bagga reported that the finding of the Commission contained initsorderdaled2l-l 1-93 (Ex. R.1/1) whereby election was postponed, that the purity of election process has been sullied due to the presence of Shri Gulshcr Ahmad, remains doubly established.....". However, in view of the various prevailing factors, Shri Bagga, further reported that the scenario had completely changed after the postponement of election date and that there was no proper reason to recommend a harsher punishment than the one already noted. So the Election Commission need not recommend to the Governor of M. P. to rescind his notification calling electorate of 63-Satna Constituency to elect their members. It was reported that there was no disturbing factor to modify the altered date of election. The commission accepted the report of Shri D. S. Bagga, and the polling was held on 24-1-94 in that constituency.
29. The petitioner Shri Syed Ahmad in his evidence during cross-examination admitted that Shri Bagga had been appointed as Enquiry Officer and before him Shri Brijendranath Pathak and 29 others had filed affidavits. He says that the affidavits were to the effect that Barrister Gulsher Ahmad had not participated in the election process. He admits that Shri Bagga had enquired into the fact whether purity of election process has been sullied and if so the Elect ion Commission would advise the Governor to rescind the election process and issue fresh election notification. Barrister Gulshcr Ahmad while appearing as P.W. 9 had stated that Bagga had not made an enquiry from him. but he has instructed his son Syed Ahmad that if Shri Bagga wanted to make any enquiries from him (Barrister), he would he prepared to appear before Shri Bagga. Even Shri Brijendrunath Pathak (R. 1) (R.W. I) stated that the Election Commission had sent Deputy Election Commissioner, Shri D. S. Bagga, for enquiry in Satna constituency and that he had filed his statement in writing before Shri Bagga and in the statement he had expressed that the Governor was not guilty.
30. The evidence noted above clearly shows that within a week of the postponement of elections, the Election Commission got the enquiry completed into the fact as to what extent the election process had been sullied by the presence of Governor Gulsher Ahmad in Satna Constituency urea during the process of elections there. The enquiry was conducted on 2-12-93 onwards and reporter was given on 7-12-93. The parties had opportunity to make their representation before Shri D. S. Bagga and file their affidavits and also affidavits of a number of other persons were also filed. The election was initially scheduled for 24th Nov. 1993. The postponement order of the Election Commission is dated 21-11-93. The report of the Collector was Ex. R-1. The reference of reports of the Chief Election Officer Bhopal to Election Commissioner clearly suggests that the report was made after 18th Nov. 93. The election was scheduled to be held on 24th Nov. 93. Election Commission had to decide by 22nd Nov. 93 if he considered postponement as imperative. So the Election Commission had, at best 3 days with it toconsider the report and take action as it deemed fit. The Election Commission felt that the process of election had been sullied and, therefore, he had to take some corrective measures. Apparently, he was under constraint of time whether he could make further enquiries as the process of election would have certainly started on 24th November, 93. He had to take an early decision. The contents of the notification postponing the election (Ex. R-1/9 dated 21-11-93) clearly suggest that the election which came to his mind was to get rescinded the election notification itself through Governor and to get issued fresh notification by advising the Governor. He wanted to make enquiries in that respect and making enquiries for that purpose would certainly be in consonance with the spirit of principle of natural justice. Apparently, he did not want to act arbitrarily, but he was also faced with the dilemma that election would take place unless some drastic step was immediately taken and the voting would be not in a pure atmosphere, but in a polluted atmosphere. So he ordered postponement of polling date and in the mean time to make an enquiry through his Deputy.
31. If we look into the spirit of pronouncement of Apex Court in the case of Mahcndra Singh Gill, it becomes clear that when an executive authority is faced with the situation of "hurry and hearing", it may even postpone the enquiry i.e. 'hearing', till after die passing of the order which is required to be passed expcditiously without loss of time. This sort of enquiry which would be, in the case like this, by giving opportunity to the parties to hear them on the situation, could not be an enquiry on Telephone nor the commission could itself be expected to rush to the scene, collect the parties and listen to them on the subject. An Election Commission is not expected to run around when the whole election process is going in the entire State. He has to be in his Headqarters to control thcentire election process. He gets report from all over the election area and has to decide on them urgently. If he makes himself scarce from the headquarters and goes to a particular site only, he will certainly totally lose control over entire election process in the State. He might have sent a deputy for enquiry. That is what he actually did. Whether he could have done it within 2-3 days available after the report was received by him arid upto 22nd Nov. 1993 would be anybody's guess. If the election was to be postponed or rescinded, the notification would have to be issued expeditiously so that all concerned are notified. Therefore, that had to be by 22nd Nov. 1993 so that the communication could be made to all concerned including the candidates and the voters by publications. Nobody from the Election Commission, nor Sltri Bagga has been examined as a witness, but the situation which is noticed above, stares one in the face. The Election Commission must have been faced with such expediency. He took the middle course of postponing the elections by two months and, in the meantime, to make enquiries as to whether the ultimate drastic steps of rescinding the elections totally were needed. On an enquiry ultimately, it was found that there was no need to rescind the elections.
32. Now let us look to Section 153 of the Representation of Peoples Act, 1951 which is as follows :--
"Section 153 -- Extension of time for completion of election :
It shall be competent for the Election Commission for the reasons which it considers sufficient to extend time for the completion of any election by making necessary amendments in the notification issued under Section 30 or Subsection 39(1)."
So this section specifically empowers Election Commission to extend the time for completion of election in aparlicular constituency under Section 30 of the Act. There are 4 types of timings given in Section 30 of this Act. One is the date of nomination which is fixed as 7th day after the publication. Second is scrutiny on nomination which is fixed as next day after the last date of making nominations. Thirdly there is date for withdrawal of candidature which is within two days after the day of scrutiny. Then, fourthly, there is date for polling which will not be less than 20 days after the last date of withdrawal. So this period could be more than 20 days also. If the Election Commission for the reasons to be recorded, refixes this date of polling by extending the period, he certainly acts within the powers given to him by R.P. Act 1951 under Section 153 thereof. When, for the purposing of exercising this power, the lime available to exercise this judgment is extremely short with the Election Commission , then, even though, the principles of fair play (i..e. hearing of the affected parties) may not be supplanted, yet it may be postponed in a proper case so that the hearing may be made after the order is passed. Such post-event hearing may be said to be totally ineffective and futile as the event has already occurred and its effect has already taken place, but in an election process the Election Commission has to sec the total effect of happening and the totality of the solution and the extent of remedial action needed. In that sense if the initial step of remedial action is taken and the ultimate stop (in this case rescission was contemplated) is postponed till hearing is completed, the procedureof Election Commission would remain within the ambit of principles of fair-play as enunciated by Supreme Court in the case of Mahcndra Singh Gill and a number of other cases.
33.' The peti tioner has asserted that respondent No. 1 Shri Brajendranath Pathak had a complaint to the returning officer about the visit of Governor Shri Gulshcr Ahmad in the area and that it was pursuant to that complaint that reports were given by the Collector (Returning Officer), Satna resulting in postponement of the polling date. It is urged that on such complaints, the petitioner should have been heard or he could have been contacted by phone. The returning officer could have contacted him. Instead, ex parte report was made by the Collector to the Chief Election Officer. M.P. who in his turn wrote to Election Commission. The argument is that such a situation needed hearing from Syed Ahmad, petitioner also. It was not done. So the principles of natural justice were violated. A letter dated 22-11-1993 written by respondent No. 1 Brijendranath Pathak is on record as Ex. R. 1/16. It was written to the Election Commission praying that election sould not be postponed and should be held on 24-11-1993 itself and the notification of postponement shoud be withdrawn. In this letter, he stated that this was his desire in spite of the fact that the Governor Gulshcr Ahmad had misused his position by influencing the election process in favour of his son by staying in Satna area. This last letter is not of much relevance. The order dated 21 -11-1993 of the Election Commission in postponing the elections is not founded on the complaint of Brijendra Nath Pathak. The foundation is the report of the Chief Election Officer. In fact, the letter of Collector written to the Principal Secretary seeking guidelines as to whether the Governor was continuously to be treated as State Guest even after 18-11-1993 as he was not leaving Satna thereafter also, was communicated to the Election Commission also by the office of the Chief Election Officer.
34. In view of the entire of circumstances disclosed from the material on record in this case, on a just consideration of the entire situation, it transpires that the order of the Election Commission in postponing the election and ordering enquiry and hearing on the heels of postponement was not a breach of the principle of natural justice, as there was a constraint of time and action, a situation of hurry and hearing. The Chief Election Commission had an option to let the matters be as they were without taking any action on the report of the Chief Election Officer, viewing the situation from angle that all infractions of the Code of conduct or of influencing of the election process (if any) could be complained of by the aggrieved party at an election petition and so he need not cause any change in the election calendar. That could be one option to think and decide. But the other option could be to take some corrective measures to maintain purity of election process. It is certainly an obligation of the Election Commission to maintain purity of election process. He has to devise means to achieve that end and some times those means have to be deviated at short notice or al a glance, as in this case. The fact that ultimately Shri Bagga report, on enquiry, that the situation after postponement was not so grave as to need rescinding of election process, will not be relevant for considering how the Election Commission should have exercised his discretion at initial stage. That was his discretion, and he was pressed for time. So why he acted in one way or the other will not be gone into by Courts as they are not sitting in appeal against such order of the Election Commission. They see if the orders are illegal, they see if the orders are without jurisdiction oragainst principle of natural justice. But they will not intervene by saying that another option would have been a better one. Sayed Ahmad was son of Shri Gulsher Ahmad. the then Governor of Himaehal Pradesh. Shri Gulsher Ahmad had been representing Satna Constituency for considerable duration. His presence in constituency during the period of election process could certainly have favourable influence for his son due to his capacity as Governor with a section of electorate. Will the Court fault the Election Commission for not shutting its eyes to the obvious and for preferring one interim corrective step than to sit quiet and watch helplessly.
35. Considering all these circumstances, revealed from evidence, I am of the view that there was no illegality in postponing the election date from 24th Nov. to 24th Jan. 1994.
36. Before parting with this case, it will be a essential to see if the second requirement is proved by the petitioner that is requirement of Section 100(1)(d)(4) of the Rcspresentation of Peoples Act, that is. whether the election of the respondent has been materially affected by the order of postponement of the elections in this respect, presuming argued that the order of postponement was violative of principle of natural justice being without prior hearing. In this respect, the counsel for petitioner has urged that after the postponement of. and in view of the reasons given in the postponement order which was published in various news papers, the people thought or must have thought that the petitioner was indulging in seeking help of his father and that he should be condemned by not voting for him, that the postponement was in fact a condemnation of the petitioner's personality. Secondly, it is argued that before the postponed elections, a renewed election canvassing was made by the respondent through his party's stalwarts, a large number of whom flocked in the constituency to influence the voters. That would not have been the case if election had taken place in time. Thirdly, the petitioner spent his energies in electioneering upto 22-11-1993. So he could not exercise that vigour in canvassing over continuously long period of two further months, ft is argued that ultimately the margin of votes by which he lost election was only 1500, and slight influencing of the voters was sufficient tochangc the balance or trend against the petitioner. It is argued that the petitioner's father had represented Satna constituency for decades and there was no chance of his losing but the tirade that his father, as the Governor, was helping him by influencing people, proved damaging to him and he lost and resultantly the respondent gained. It was respondent who had initiated such complaints, he gained by them.
37. As against these arguments, the learned counsel for the respondent has argued that these assertions are merely based on surmise. On the other hand, the factual scenario was that Congress party had already won overall majority in the State of M.P. and had formed its Ministry. So it was Ruling parly. There was no Mohamadan member in the assembly and, therefore, it was in the air and every voter expected it, that if the petitioner was elected he would be madea minister and therefore he could be useful to the constitutency as a minister. So odds had been increased against the respondent by postponement. The atmoshpere must have changed in favour of the petitioner.
38. The further argument is that in an election petition, the petitioner must plead all the facts whereby he claims that the election should be set aside. He must plead all the facts which have tilted the result of election due to its postponement in favour of the respondent. This has not been done. All the facts now being argued were no! pleaded and so no reliance should be placed on those arguments. It has been further argued thai the action of the Election Commission in postponing election has been urged by the petitioner as an action by T.N. Seshan the Chief Election Commissioner, in conspiracy with the respondent Shri Brijendranath Pathak and so a corrupt practice. The argument is that allegations of corrupt practices have been dropped by order of this Court already. So this allegation has also to he dropped. It cannot be considered as a separate ground under Section 100(1)(d)(4) of the R.P. Act. It is argued that the respondent would have won with a greater margin of votes, if election had taken place on 24-11-1993 itself as he has properly canvassed before that time and his canvassing withered after that date and during the adjournment and till the adjourned lime of the election date. So actually he was loser.
39. The Supreme Court had occasion to consider when the result of an election can be said to be materially affected in a case titled as Paokai Haoki v Rishang AIR 1969 SC 663. Their Lordships said that the burden of proof is on the petitioner who challenges the election to show that the result has been materially affected. Their Lordships said that in such cases, the Court has to see whether this burden has been successfully discharged by the election petitioner by demonstrating to the Court either positively or even reasonably that the poll would have gone against the returned candidate if the breach of rules had not occurred and proper poll had taken place at all the polling stations. Their Lordships noticed that the casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of votes will go to one or the other of the candidates. The general pattern of polling, not only in this constituency, but in the whole of India is that all the voters do not always go to the polls. Those statistics can be called in aid to prove such facts. It is open to Court, in reaching their conclusion, to pay attention to the demonstrative pattern of voting. The returned candidate, in this case had succeeded with a margin of about 1541 votes. The election process had been disturbed by 2 factors : (I) change of polling booths at very short notice and without proper intimation to public, (2) Naga Hostiles had resorted to violence in certain booths creating fear and there was no voting at all or negligible voting at a number of polling booths. Thus in the affected 12 polling booths, out of 8620 voters only 1890 voters cast their votes and at 3 polling booths only at one 147 votes were cast. So this was a total breach of election process. If sufficient number of votes had been cast as at other booths, the petitioner would have obtained a good proportion or majority thereof, and would have won. Their lordships said that it appears evident that by change of venue and owing to firing, a number of voters probably failed to record their votes which they would have done, if the polling had gone on smoothly and according to rules, and so Rule 100(1)(d)(4) came into play. Their lordships said that still the question remained whether there was proof that the result of election had been materially affected regarding returned candidate. Their lordships referred to an earlier judgment of Supreme Court cited at AIR 1954 SC 513 titled Vasist Narayan Sharma v. Dev Chandra, in which case, there was a difference of only 111 voles between the returned candidate and the next loser candidate. A third candidate was found incompetent to stand in election. The question was if the votes cast for third candidate, if they have been polled in favour of remaining candidates, the result of election would have been materially affected.
40. The following observations were made by Supreme Court in that case of Vashishtha Narayan Sharma at page 516 :
"It is impossible to accept the ipsc dixit of witness coming from one side or the other to say that all or some of the votes would have gone to one or the other, on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence, in a case, such as present, the only inescapable conclusion to which the tribunal can come, is that the burden is not discharged and that the election must stand."
41. Coming to the facts of the case in hand, there is no criteria established on record as to 'in what manner or by what factors the election of respondent has been materially affected by postponement for two moths. The factors, which have been argued by the counsel for the petitioner, even if they be considered as relevant factors, do not at all tend to show the possibility of any loss of votes by the petitioner. From the fact that the postponement was because of Governor Gulsher Ahmad having been present in Satna area and having been allotted a Government Car, it can hardly have any tendency to sway the voters. The experience shows that even those who are in jail,or are known under trials for crimes, have been returned as successful candidates at the hustings. So such things do not necessarily or even probably affect the voters decision to vole for one or the other candidate. The voter is an independent entity having his own decision which he exercises secretly. That secrecy is, maintained and can hardly be broached by surmises of either party or of the Court. The election experts may give their opinion one way or the other. Who knows what expertise works in such matters. Some times a candidate drawing blank at few booths, entirely sweeps the others. The patterns change, the proportions change. It is not correct and not even fair to take any possible estimate. The realm of proof cannot be allowed to be ruled by realm of probabilities or estimations. That would be capricious. Similarly, it cannot be said, for reasons, or arguments advanced by the respondents counsel, that the voting pattern would have been better for him, if voting had taken place on 24-11-1993. There may be cases bringing out circumstances in which the inference may be clear thai the result had been favourably affected in favour of returned candidates due to breach of certain rules. It is useless to imagine that or put them in imagination. The affairs of the world and the situations are so innumerable that they are beyond imaginations and have to be tackled when they come face to face.
42. The sum and substance of the entire discussion is that the petitioner has failed to show in any manner that the result of the election has been materially affected regarding the respondent No. 1 who is the returned candidate by postponement of elections of this constituency.
43. I may note here that argument of defence counsel that the plea that the result has been materially affected cannot be taken as it is merged with the plea of corrupt practices, is not acceptable. The rule of interpretation of pleadings always is that if a particular pleading discloses more than one grounds, the permissible ground has to be segregated from the non-permissible one. The party is not required in his pleading to state a set of facts again and again, if those particular facts fit in more than one legal ground of attack. The allegations in the present case in the petitioner's pleading are clear that the postponement of elections date was against the principle of natural justice and in violation of the powers of Election Commission and so illegal and that it had materially affected the the result of elections. This Court will certainly take it that this is an independent ground pleaded and so even though the allegations are merged with the allegations of corrupt practice, the Court will considerall factors which may prove trial the result has been materially affected, if there is any illegal act of the Election Commission in the conduct of elections.
44. The net result is that neither of the essential ingredients required for setting aside this election petition has been established on record. The petition fails and is dismissed. The petitioner must pay the costs as per Section 119 (Proviso) of Representation of Peoples Act 1951. I fix the cost of Rs. 5000/-.
45. A copy of this judgment shall be sent to the Chief Election Commissioner, New Delhi and Speaker of M.P. Rajya Vidhan Sabha, Bhopal, as required under Section 103 of Representation of Peoples Act, 1951.