Orissa High Court
Sri Subrat Tarai & Others vs Sri Jagabandhu Behera on 13 May, 2015
Equivalent citations: AIR 2015 ORISSA 180, (2015) 2 ORISSA LR 391, (2015) 2 CLR 557 (ORI), (2015) 4 CIVLJ 847, (2015) 153 ALLINDCAS 327 (ORI)
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA : CUTTACK
MISC. CASE NO.89 OF 2014
(Arising out of ELPET No.11 of 2014)
In the matter of an application under Order-6, Rule-16 and Order-7,
Rule-11 of the Code of Civil Procedure,1908 read with Sections 83, 86
and 87 of the Representation of the People Act,1951.
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Sri Subrat Tarai & others ... ... Petitioners.
Versus.
Sri Jagabandhu Behera ... ... opp.party.
For Petitioners : M/s. Bidyadhar Mishra,
Senior Advocate
Taranikanta Biswal &
P. Bharadwaj.
For opp.party : M/s.Gopal Agarwal, A.K. Biswal,
B.N. Muduli, T. Misra &
P.R. Barik.
PRESENT
THE HON'BLE SHRI JUSTICE B.K.NAYAK
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Date of hearing : 20.03.2015 : Date of order: 13.05.2015
B.K.NAYAK, J.This order arises out of Misc. Case No.89 of 2014 (in ELPET No.11 of 2014) filed by respondent no.1 in the election petition under Order 6, Rule 16 and Order 7, Rule-11 of the Code of Civil Procedure read with Sections 83, 86 and 87 of the Representation of the People Act, 1951 (in short, 'The Act') with a prayer to strikeout the pleadings in the election petition and to dismiss the election petition on the grounds that the pleadings therein are vague, scandalous, vexatious and lack in material particulars and that they do not disclose any cause of action. 2
2. For brevity and convenience, the petitioner in the misc. case is described as respondent no.1 and the opposite party-Election petitioner is described as the petitioner throughout this order.
3. The petitioner has filed ELPET No.11 of 2014 challenging the election of respondent no.1 to the 15th Legislative Assembly from 11- Raghunathpalli (SC) Assembly Constituency. The election to the said Assembly Constituency was held on 10.04.2014 and the result thereof was declared on 16.05.2014 declaring respondent no.1 elected. The petitioner has challenged the election of respondent no.1 on the grounds that his nomination was improperly and illegally accepted by the Returning Officer and such improper acceptance has vitiated and materially affected the result of the election and that respondent no.1 indulged in corrupt practices in violation of the Act and Rules framed thereunder.
4. On receipt of notice of the election petition, respondent no.1 appeared, filed his written statement denying the allegations and the present misc. case. In the miscellaneous petition respondent no.1 has made reference to his written statement, the contents of which are pleaded to be read as part of the miscellaneous application.
5. In particular it is stated in the miscellaneous petition read with the written statement that the grounds of challenge of election of respondent no1 as given in paragraphs 7(A), 7(B), 7(C), 7(D), 7(E), 7(F), 7(G), 7(H) and 8 of the election petition are not only hit by Order 6, Rule 16, C.P.C. but also they do not contain concise statement of material facts and full particulars of corrupt practices, as required Section 83 (1)
(b) of the Act. It is stated that the allegations made in the aforesaid 3 paragraphs of the petition do not make out any corrupt practice. It is further stated that if these paragraphs of the election petition are struck out, the other paragraphs, viz, paragraph nos.1 to 6, 9 and 10 do not make out any cause of action against the petitioner and, therefore, the election petition be rejected at the threshold under Order-7, Rule-11, C.P.C.
6. In paragraphs-7(A) to 7(H) of the election petition the following allegations have been made.
(i) In Form-26 affidavit filed with his nomination as required under Section 33 of the Act, respondent no.1 concealed the details of his spouse and dependants in violation of mandatory requirement of law and the Returning Officer accepted such nomination paper illegally and improperly and as such the result of election has been materially affected. [Paragraph-7(A)]
(ii) Respondent no.1 in express and conscious violation of the Directions/ instructions of the Election Commission of India used vehicles and campaigned on 9th April,2014 without obtaining prior permission of the Returning Officer in different villages of the constituency and after closure of electioneering bribed voters giving them cash and gifts and thereby influenced them to cast vote in his favour and such corrupt practice of respondent no.1 was objected to by some voters, who also intimated the same to I.I.C., Lathikata Police Station, who instead of registering the F.I.R. against respondent no.1 only made a station diary entry on 4 09.04.2014 as because respondent no.1 was a Minister of Ruling Party. [Paragraph-7(B)]
(iii) The Presiding Officers and Polling Officers of twenty booths (Booth Nos.2, 10, 13, 16, 17, 30, 31, 34, 37, 38, 56, 57, 63, 64, 73, 76, 82, 94, 109, 110, 113 & 186) did not press the close button on the control unit of E.V.Ms. after the last voter recorded his vote after the closure of the poll hour and acted as agents of respondent no.1 and rigged/tampered and manipulated the votes in favour of respondent no.1. [(Paragraphs-7(C & D)]
(iv) The Presiding Officers of nine booths (booth numbers given) after completion of the procedure of the Mock Poll did not fix green paper seal in the control unit at the behest of respondent no.1 which has materially affected, the result of the election [Paragraph-7(E)]
(v) The Presiding Officer of some booths (booth numbers furnished) tampered with the control unit of E.V.M by not fixing the green paper seal as per the instruction of the Election Commissioner and tampered the voting machines to further the prospect wining of respondent no.1 and falsely mentioned in Form-17 (c) Part-I that they have used four paper seals in the control unit of E.V.Ms. [Paragraph-7(F)].
(vi) On the date of counting of votes, the Returning Officer was not present in the counting hall during the entire process of counting and that he came to the counting hall in the last hour of the counting, i.e., after 27 rounds of counting was 5 over as apparent from the videograph made during the counting process and that he came to the counting hall to decide the counting of a few booths (booth numbers furnished), which were sent to his table by the counting supervisors, who found that the control units of the said booths did not display the result of the votes due to non- pressing of the close button of the control units, by the Presiding Officers. The Returning Officer without bringing the above lapses of the Presiding Officers to the knowledge of the Chief Electoral Officer, Odisha and the Chief Election Commissioner of India, himself pressed close button of the control units and counted the votes of those units illegally which has materially affected, the result of the election. [paragraph-7 (G)].
(vii) E.V.Ms. installed in polling booth nos.1, 13, 38, 55 and 113 were not the same E.V.Ms found at the time of counting which reasonably raises suspicion that the control units of the above booths have been changed/manipulated by the Election Officers at the behest of respondent no.1 that materially affected the result of the election. [Paragraph-7(H)].
7. The ground of challenge of election of respondent no.1 as averred in paragraph-7 (A) of the election petition squarely falls within the scope of Section 100 (1) (d) (i) and (iv) of the Act. The grounds averred in other paragraphs, i.e., 7(B) to 7(H) come within the ambit of clause (b) and clause (d) (iv) of sub-section (1) of Section 100 of the Act. 6
8. Learned counsel for the petitioner submits that the allegations made in paragraphs-7(A) to 7(H) of the election petition are squarely covered under Section 100 (1) (b), (d) (i) and (d) (iv) and concise statements of material facts and detail particulars of corrupt practice have been pleaded and, therefore, it cannot be said that no cause of action for the election petition is disclosed from those averments.
Learned counsel for respondent no.1 has submitted that the averments made in paragraph-7(A) with regard to failure of respondent no.1 to give the names and particulars of his spouse and children in the affidavit filed with the nomination paper is not a substantial defect and as such it does not call for rejection of nomination paper and, therefore, acceptance of nomination paper of respondent no.1 cannot be said to be improper and illegal. He also submits that with regard to allegations of corrupt practice detailed particulars have not been furnished and, therefore, there is a violation of Section 83 (1) (b) of the Act.
Both the parties have placed reliance on some decisions in support of their contentions.
9. In the decision reported in 1986 (Supp.) SCC 315 : Azaar Hussain v. Rajiv Gandhi, it has been held as follows :
"14. Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as it emerges from numerous decisions of this Court which have been cited before us in regard to the question as to what exactly is the content of the expression 'material facts and particulars', which the election petitioner shall incorporate in his petition by virtue of Section 83(1) of the Act.
(1) What are material facts and particulars ? Material facts are facts which if established would give the petitioner the relief asked for. The test required to be 7 answered is whether the court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition.
(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a government servant, the following facts are essential to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded :
(a) mode of assistance;
(b) measure of assistance; and
(c) all various forms of facts pertaining to the
assistance.
(3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to obtain or procure the assistance of government servants in election it is absolutely essential to plead the following :
(a) Kind or form of assistance obtained or
procured ;
(b) In what manner the assistance was
obtained or procured or attempted to be
obtained or procured by the election
candidate for promoting the prospects of
his election.
(4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured.
(5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered.8
(6) The election petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in the particulars."
10. In the case of H.D. Revanna v. G. Puttaswamy Gowda: 1999 2 SCC 217, the Hon'ble Supreme Court has held that an election petition can be dismissed for non-compliance with Sections 81, 82 and 117 of the Representation of the People Act,1951 but it may also be dismissed if the matter falls within the scope of Order 6 Rule 16 or Order 7 Rule 11, C.P.C.
11. In the case of Liverpool & London S.P. and I Assn. Ltd. V. M.V.Sea Success :(2004) 9 SCC 512, the Hon'ble Supreme Court held that the disclosure of a cause of action in the plaint is a question of fact and the answer to that question must be found only from the reading of the plaint itself. The court trying a suit or an election petition shall while examining whether the plaint or the petition discloses a cause of action, to assume that the averments made in the plaint or the petition are factually correct. It is only if despite the averments being taken as factually correct, the court finds no cause of action emerging from the averments that it may be justified in rejecting the plaint.
In Harkirat Singh v. Amrinder Singh :(2005) 13 SCC 511, the Hon'ble apex Court stated the distinction between material facts and particulars and declared that material facts are primary and basic facts which must be pleaded by the plaintiff while particulars are details in support of those facts meant to amplify, 9 refine and embellish the material facts by giving distinct touch to the basic contours of a picture already drawn so as to make it more clear and informative. To the same effect are the decisions in Virender Nath Gautam v. Satpal Singh: (2007) 3 SCC 617 and Umesh Challiyill v. K.P. Rajendran: (2008) 11 SCC 740.
12. In the case of Ram Sukh v. Dinesh Aggarwal: (2009) 10 SCC 541, the Hon'ble apex Court held that for the purpose of Section 100 (1) (d) (iv) it was necessary for the election petitioner to aver specifically in what manner result of the election in so far as it concerns, the returned candidate was materially affected due to omission on the part of the Returning Officer failing to circulate attested signatures of the election agent of the election petitioner to various polling stations as required under Chapter-VII of the hand book for Returning Officer.
13. In Mangani Lal Mandal v. Bishnu Deo Bhandari: (2012) 3 SCC 314, the Hon'ble apex Court observed as follows :
"A mere non-compliance or breach of the Constitution or the statutory provisions noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100(1) (d) (iv). The sine qua non for declaring the election of a returned candidate to be void on the ground under clause (iv) of Section 100 (1) (d) is further proof of the fact that such breach or non-observance has resulted in materially affecting the result of the returned candidate. In other words, the violation or breach or non-observation or non-compliance with the provisions of the Constitution or the 1951 Act or the rules or the orders made thereunder, by itself, does not render the election of a returned candidate void Section 100 (1) (d) (iv). For the 10 election petitioner to succeed on such ground viz. Section 100 (1) (d) (iv), he has not only to plead and prove the ground but also that the result of the election insofar as it concerned the returned candidate has been materially affected. The view that we have taken finds support from the three decisions of this Court in : (1) Jabar Singh v. Genda Lal; (2) L.R. Shivaramagowda v. T.M. Chandrashekar and (3) Uma Ballav Rath v. Maheshwar Mohanty."
14. Learned counsel for the election petitioner has referred to the decision of the apex Court in the case of Kisan Shankar Kathore v. Arun Dattatray Sawant and others, reported in AIR 2014 Supreme Court 2069, where the election of the returned candidate was challenged under Section 100 (1) (d) (i) and (iv) of the Act alleging that in the nomination paper filed by the returned candidate some material facts have been suppressed. The Hon'ble apex Court held that if there was a substantial compliance of the requirements, it can be treated as adequate compliance of the provisions of the Act, Rules and Orders. In case of non-disclosure or either the affidavit was false or it did not contain complete information leading to suppression, the nomination was improperly accepted, in which case the candidate cannot be said to be entitled to contest and for that the election was void.
Observing that the question of substantial compliance in disclosing the requisite information in the affidavit has to be decided by the Court and not by the returning officer, the Hon'ble apex Court held as follows :
"When the information is given by a candidate in the affidavit filed along with the nomination paper and objections are raised thereto questioning the 11 correctness of the information or alleging that there is non-disclosure of certain important information, it may not be possible for the returning officer at that time to conduct a detailed examination. Summary enquiry may not suffice. Present case is itself an example which loudly demonstrates this. At the same time, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector. In such a case, when ultimately it is proved that it was a case of non-disclosure and either the affidavit was false or it did not contain complete information leading to suppression, it can be held at that stage that the nomination was improperly accepted. Ms. Meenakshi Arora, learned senior counsel appearing for the Election Commission, rightly argued that such an enquiry can be only at a later stage and the appropriate stage would be in an election petition as in the instant case, when the election is challenged. The grounds stated in Section 36(2) are those which can be examined there and then and on that basis the Returning Officer would be in a position to reject the nomination. Likewise, where the blanks are left in an affidavit, nomination can be rejected there and then. In other cases where detailed enquiry is needed, it would depend upon the outcome thereof, in an election petition, as to whether the nomination was properly accepted or it was a case of improper acceptance. Once it is found that it was a case of improper acceptance, as there was misinformation or suppression of material information, one can state that question of rejection in such a case was only deferred to a later date. When the Court gives such a finding, which would have resulted in rejection, the effect would be same, namely, such a candidate was not entitled to contest and the election is void. Otherwise, it would be an 12 anomalous situation that even when criminal proceedings under Section 125A of the Act can be initiated and the selected candidate is criminally prosecuted and convicted, but the result of his election cannot be questioned. This cannot be countenanced."
15. In the instant case, it is found that paragraph-7(A) of the election petition alleges improper acceptance of nomination by respondent no.1 even though in the affidavit particulars of the spouse and children of respondent no.1 were not given at all. Whether for such improper acceptance of nomination in view of suppression of the information the election of respondent no.1 has to be declared void is a question for trial by this Court and, therefore, paragraph-7(A) of the election petition does disclose a cause of action.
So far as paragraphs-7(A) to 7(H) and 8 with regard to allegations of corrupt practice and non-compliance of some provisions of Hand Book for the returning officers, presiding officers and polling officers are concerned, though some non-compliance have been alleged, it has not been shown as to how such non-compliance materially affected the result of election of respondent no.1. So far as the allegation of adoption of corrupt practice by respondent no.1 is concerned the detail particulars about the time, place and persons to whom bribe of cash and gift of other articles were given and the amount of cash and the nature of articles given by way of gifts have not been pleaded. In the absence of pleadings about such detail particulars, evidence in that respect cannot be allowed to be led and in absence of such proof the allegations with regard to corrupt practice as given in paragraph-7(B), even if proved, would not be sufficient to 13 establish the charge of corrupt practice. Therefore, I am of the view that the paragraphs-7(B) to 7(H) and 8 do not disclose cause of action and the pleadings therein are frivolous and vexatious and have a tendency to delay the trial of the election case. In the circumstances, I direct those pleadings in paragraphs-7 (B) to 7(H) and paragraph-8 of the election petition to be struck out.
The trial of the election petition shall proceed only on the ground pleaded in paragraph-7(A) of the election petition.
The misc. case is accordingly disposed of.
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B.K.Nayak,J.
Orissa High Court, Cuttack The 13th May , 2015/Gs.