Madhya Pradesh High Court
Devashish Jarariya vs Smt. Sandhya Rai on 15 November, 2022
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
ELECTION PETITION No. 34 of 2019
Between:-
DEVASHISH JARARIYA S/O PRAKASH CHANDRA
JATAV, AGED ABOUT 28 YEARS, R/O 11, HARSH
VIHAR, TRIMOORTI NAGAR, MELA GROUND,
DISTRICT GWALIOR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI ALJO K. JOSEPH AND SHRI MANAS DUBEY
-ADVOCATES)
AND
SMT. SANDHYA RAI W/O SHRI SUMAN RAI,
AGED ABOUT 45 YEARS, R/O HOUSE NO. 208,
WARD NO. 13, MORENA ROAD, AMBAH, TEHSIL
AMBAH, DISTRICT MORENA (M.P.)
.....RESPONDENT
(BY SHRI N.K. GUPTA - SENIOR ADVOCATE WITH SHRI S.D.
SINGH AND SHRI RAVI GUPTA -ADVOCATES)
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Reserved on : 12-09-2022
Delivered on : 15-11-2022
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ORDER
Heard on I.A.No.1827/2020.
The instant application is under Sections 82 and 86 of the 2 Representation of People Act, 1951 read with Order VII Rule 11 of CPC at the instance of respondent for dismissal of Election Petition.
2. Precisely stated facts, necessary for adjudication are that petitioner has preferred the instant election petition whereby he challenged the election of respondent who has been declared as returned candidate from Parliamentary Constituency No.2, Bhind (M.P.). Polling was held on 12- 05-2019 and on 23-05-2019, result was declared. As submitted, petitioner secured 3,27,809 votes whereas respondent secured 5,27,694 votes. According to result status, respondent defeated the petitioner by a margin of 1,99,885 votes.
3. Election Commission of India (hereinafter referred to as "the Commission") issued the final result in form -20.
4. Petitioner through election petition called in question the election of respondent of Member of House of Peoples (Lok Sabha) from 02 Parliamentary Constituency, Bhind under Section 100(1)(d)(iv) of the Representation of People Act, 1954 (hereinafter referred as "the Act").
5. Main allegations of petitioner in short are that during election process, Commission and its Officers did not comply the instructions/order dated 13-10-2017 (Annexure P/10) issued by the Commission as well as 3 instructions/order dated 21-05-2019 (Annexure P/11) issued by the Commission.
6. As per instructions dated 13-10-2017, certain directions were issued which are reproduced for ready reference:
"For this 'pilot' verification of VVPAT paper slips of randomly selected 01 (one) polling station per Assembly Constituency, the following procedure shall be followed:
1. The verification of VVPAT paper slips of randomly selected 01 (one) polling station for each Assembly Constituency shall be taken up after the completion of the last round of counting of votes recorded in the EVMs.
2. The random selection of 01 (one) polling station per Assembly Constituency shall be done by Draw of lots, by the Returning Officer concerned, in the presence of candidates/their agents and the General Observer appointed by the Commission for that Assembly Constituency.
3. The draw of lots must be conducted immediately after the completion of the last round counting of votes recorded in the EVMs (Control Units) in the designated Counting Hall for the particular Assembly Constituency.
4. A written intimation regarding the conduct of draw of lots for the random selection of 01 (one) polling 4 station for verification of VVPAT Slips shall be given by the Returning Officer to the Candidates/their election agents well in advance.
5. The following procedure shall be followed for the conduct of draw of lots:
a. White paper cards of postcard size shall be used for conducting the draw of lots.
b. Total number of such paper cards shall be equal to total number of polling stations in the Assembly Constituency.
c. The paper cards shall have pre-printed Assembly Constituency number, AC name and date of polling on the top, and the polling station number in the centre. Each digit of the polling station number shall be atleast 1"x1" (1 inch by 1 inch) size and printed in black ink.
d. The paper cards to be used for draw of lots should be four folded in such a way that polling station number is not visible.
e. Each paper card shall be shown to the candidates/their agents before folding and dropping in the container.
f. The paper cards shall be kept in the big container and must shaken before picking up 01 (one) slip by the Returning Officer."
5
7. Similarly as per allegations, clause 4(a), 4(e) of circular dated 21-05- 2019 were not followed. Said clauses are reproduced for ready reference:
"4(a) The purpose of mandatory counting and matching result of VVPATs and CUs from 5 randomly selected polling stations is to audit and test if any EVM records votes differently vis-a-vis the slips printed by the corresponding VVPAT attached to it. However, there are multiple scenarios owing to human error or non- adherence to the extant instructions by the polling staff during actual polls in which the total VVPAT Slips count may vary from the CU count. A few illustrative scenarios are cases where VVPAT slips are not fully removed from the VVPAT after mock poll or CRC not done in CU after mock poll or other such cases of human error. 4(e) A thorough analysis/enquiry shall be conducted in due course in all cases where the VVPAT slips count failed to tally with the electronic result of the CU and the exact reasons, technological, procedural, systemic, human error or lapses in compliance shall be ascertained and appropriate action(s) taken by the Commission."
8. In brief, it is the allegation of petitioner that authorities failed to delete the data of mock poll from the controlling unit and remove mock poll 6 slips from the VVPAT paper slips (Voter Verifiable Paper Audit Trail) from the drop box of VVPAT and in failure to do so procedure prescribed in para 2(a) of instruction dated 21-05-2019 is violated.
9. It is further alleged that returning officer did not follow the instructions issued by the Commission for mandatory counting and matching result of VVPAT and Controlling Units (CUs) from randomly selected polling stations to audit and test if any EVM records votes differently vis-a-vis the slips printed by the corresponding VVPAT attached to it. Likewise, the mock poll from the Controlling Units was not deleted as also the mock poll from VVPATs were not removed. Therefore, such data has become the data of entire election which has materially affected the result of Parliamentary Constituency, Bhind.
10. As alleged, returning officer did not exhibit the paper cards used for drawing of lots for random selection of one polling station in each Assembly Constituency. According to him, instructions/order issued by the Commission dated 21-05-2019 were not followed by the returning officer.
11. Notice was issued and respondent caused his appearance. Respondent filed an application under Sections 82 and 86 of the Act and Order VII 7 Rule 11 of CPC and submits that election petition does not disclose any cause of action. According to respondent, under Section 100(1)(d)(iv) of the Act, election can be challenged only on the ground when provisions of the Constitution and provisions of the Act or Rules or Order made under said Act are not complied with. Mere perusal of the petition, it appears that there is no pleading that any provision of the Constitution of India or statutory provisions of the Act, Rules and Order have not been complied with. Petition has been filed on the ground that circular dated 13-10-2017 and order and instruction dated 21-05-2019 has not been complied with. Therefore, it does not disclose cause of action because said circulars are not part of rules or orders of Commission.
12. According to learned counsel for the respondent, bald allegations have been levelled and no specific instances have been given where non compliance of said circulars could have been alleged. It is not the case of petitioner that Commission did not adhere to rule 56 D of the Conduct of Elections Rules, 1961 (hereinafter referred to as "the Rules"). It only says that circulars were not followed.
13. Circular dated 21-05-2019 is subsequent to the election held on 12-05- 2019. By that time, returning officer had no authority to proceed as per 8 circular dated 21-05-2019.
14. Rule 56 D of the Rules prescribes that candidate shall make an application to the returning officer to count the printed paper slips in the drop box in the printer in respect of any polling stations or station. Here, no such application was preferred. In absence of any application, no cause of action is supposed to be arisen. He relied upon the judgment of Apex Court in the matter of Lakshmi Charan Sen Vs. A.K.M. Hasan Uzzaman, (1985) 4 SCC 689, Samar Singh Vs. Kedar Nath alias K.N. Singh and others, 1987 Supp. SCC 663, Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, (2009) 9 SCC 310, Ram Sukh Vs. Dinesh Agarwal, (2009) 10 SCC 541.
15. Per contra, learned counsel for the petitioner filed reply to the said application and contested the averments. According to him, Commission is entitled to issue directions to the Chief Electoral Officers and such directions are binding upon the later but their violation cannot create rights and obligations unknown to the Election Law. While relying upon the judgment of Lakshmi Charan Sen (supra) and Dr. Subramanian Swamy Vs. Election Commission of India, (2013) 10 SCC 500, it is submitted by learned counsel for the petitioner that the 9 guidelines issued by the Commission is having binding force. Therefore, according to him, the instructions were to be followed and in the event of violation of such instructions, election petition is maintainable. He relied upon the finding given by the Coordinate Bench of this Court at Indore Bench in Election Petition No.45/2019 vide order dated 10-08- 2021 and Election Petition No.38/2019 vide order dated 13-06-2022 and seeks parity. According to him, case deserves to be tried.
16. Heard learned counsel for the parties at length and perused the documents appended thereto.
17. Main ground raised in the application by the respondent is in relation to cause of action. As per respondent, there no material fact in the election petition which constitute a triable cause of action.
18. So far as scope of application and expression cause of action is concerned Hon'ble Supreme Court time and again discussed this aspect in detail. Hon'ble Apex Court in the case of Hardwari Lal Vs. Kanwal Singh AIR 1972 SC 515 and in Azhar Hussain Vs. Rajiv Gandhi, AIR 1986 SC 1253 categorically held that a suit (election petition) which does not furnish cause of action can be dismissed summarily. The mandate of Apex Court is categorical that all the facts which are 10 essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83 (1) (a) of the Act of 1951. Election petition therefore can be and must be dismissed if it suffers from any such defect. (See: Azhar Hussain Vs. Rajiv Gandhi AIR 1986 SC 1253). The Apex Court in this case considered inter play between Sections 83 and 86 of Act of 1951.
19- Not only this in the case of D. Ramachandran Vs. R.V. Janakiraman, (1999) 3 SCC 267, the Apex Court opined that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the election petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or a triable issue as such. (Para 8).
In (1999) 2 SCC 217 [H.D. Revanna Vs. G. Puttaswamy Gowda and others], the Apex Court opined that Section 86 does not refer to Section 83 and non-compliance with Section 83 does not lead to dismissal under Section 86. It was held that non-compliance with Section 11 83 may lead to dismissal of the petition if the matter falls within the scope of Order VI Rule 16 or Order VII Rule 11 CPC.
In (2009) 9 SCC 310 [Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar], the Apex Court opined that election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of the powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the RP Act to incorporate the material facts in the election petition are not complied with (Para 50).
20. It was further held that there is no definition of "material facts" either in the R.P. Act, nor in CPC. Thus, after taking stock of a plethora of judgments, the Apex Court opined that all facts necessary to formulate a complete cause of action should be termed as "material facts". All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. "Material facts" in other words mean the entire bundle of facts which would constitute a complete cause of action (Para 58)."
21. In the case of Madiraju Venkata Ramana Raju Vs. Peddireddigari 12 Ramachandra Reddy and others, (2018) 14 SCC 1, Apex Court again considered the scope of Order VII Rule 11 of CPC.
22- Therefore, as per Section 87 of the Act of 1951 and the mandate of Apex Court from time to time, it is clear that election petition can be dismissed at the threshold by way of application under Order VII Rule 11 of CPC if material facts lack 'Cause of Action'. Now, this Court will deal the allegations accordingly.
23. In the present case, petitioner has relied upon the instruction dated 13- 10-2017 (Annexure P/10) and instruction dated 21-05-2019 (Annexure P/11). So far as instruction dated 13-10-2017 is concerned first para itself indicates that it was in respect of "Pilot Testing regarding verification of VVPAT paper slips". The procedure which was prescribed for pilot verification was in respect of General Elections of State Legislative Assembly of Himachal Pradesh and Gujarat wherein mandatory following of VVPAT paper slips of randomly selected one polling station per Assembly Constituency had to be done on pilot basis. Therefore, procedure was prescribed accordingly. Perusal of initial paragraph clarifies the position:
"To, 13 The Chief Electoral Officers of
1. Gujarat, Gandhinagar
2. Himachal Pradesh, Shimla.
Subject: Verification of VVPAT paper slips Pilot Testing -regarding Sir, I am directed to state that the Commission has mandated that VVPATs will be used with EVMs at all polling stations in all future General/Bye -Elections to the Parliament and the State Legislative Assemblies, including the upcoming General Elections to State Legislative Assemblies of Himachal Pradesh and Gujarat at all Assembly Constituencies. Now, the Commission has directed that in the General Elections to State Legislative Assemblies of Himachal Pradesh and Gujarat mandatory verification of VVPAT paper slips of randomly selected 01 (one) polling station per Assembly Constituency shall be done on a 'pilot' basis. The above mandatory verification of VVPAT paper slips of 01 (one) polling station (randomly selected) will be in addition to the provisions of Rule 56D of the Conduct of Election Rules, 1961.
For this 'pilot' verification of VVPAT paper slips of randomly selected 01 (one) polling station per Assembly 14 Constituency, the following procedure shall be followed:
1. The verification of VVPAT paper slips of randomly selected 01 (one) polling station for each Assembly Constituency shall be taken up after the completion of the last round of counting of votes recorded in the EVMs.
2. The random selection of 01 (one) polling station per Assembly Constituency shall be done by Draw of lots, by the Returning Officer concerned, in the presence of candidates/their agents and the General Observer appointed by the Commission for that Assembly Constituency.
3. The draw of lots must be conducted immediately after the completion of the last round counting of votes recorded in the EVMs (Control Units) in the designated Counting Hall for the particular Assembly Constituency.
4. A written intimation regarding the conduct of draw of lots for the random selection of 01 (one) polling station for verification of VVPAT Slips shall be given by the Returning Officer to the Candidates/their election agents well in advance."
24. Perusal of said circular gives an expression that it was in respect of Assembly Elections of Himachal Pradesh and Gujarat and therefore, instructions were referred to the Chief Electoral Officers of Gujarat, 15 Gandhinagar and Himachal Pradesh, Shimla. Subject itself indicates regarding Pilot Testing.
25. Petitioner nowhere mentioned the fact in the election petition that these circulars were later on adopted by the Commission for Parliamentary Election, 2019 and thereafter not implemented. Pilot testing in Assembly Election cannot be borrowed automatically in Parliamentary Elections.
26. Even if it is assumed that such instructions were applicable in the Parliamentary Election, 2019 also, even then question arises regarding allegations itself. Petitioner has nowhere mentioned any breach of instruction in specific terms. Method and procedure is of random election of one polling station per Assembly Constituency (as per instructions dated 13-10-2017) and method and procedure of random selection of five polling stations in each State Legislative Constituency in Parliamentary Elections (as per instructions dated 21-05-2019) were breached or not and even if breached then in which Assembly constituency, has not been explained. Similarly, in which constituency and in which polling station this irregularity was caused has not been explained. In other words, it was duty of the petitioner that he ought to have referred non compliance in specific terms by mentioning the facts 16 that in particular constituency particular/specific five polling stations did not comply the instructions dated 13-10-2017 or 21-05-2019 in specific terms.
27. Keeping in view the fact that instructions dated 21-05-2019 was subsequent to the date of polling in Bhind where polling took place on 12-05-2019, therefore, it was the minimum requirement for the petitioner that he could have referred the illegality/irregularity if any, committed by the returning candidate or any presiding officer as instructed in the instructions dated 21-05-2019.
28. In absence of any specific averments, which are required in election petition, plea of respondent gains ground that no triable cause of action exists against the respondent. In para 18, 19, 22 to 23 and 26 allegations have been raised but they are omnibus in nature and reflect allegations of non compliance of circular/instruction. In what manner and to what extent said instructions were not followed with specific actual details are not mentioned in the petition, therefore, if election petition is tried further then it would be a futile exercise and harassment to the respondent.
29. Election is Festival of Democracy, therefore, festivity of returned 17 candidate cannot be diluted on such flimsy pretext because it may pollute democratic spirit and pious purpose for which elections are being held. Popular will of Sovereign (Read People) cannot be toppled at the drop of a hat or with wild allegations, surmises or conjectures. It should have some foundation for some corrupt practice or for non compliance of any statutory provision as referred in the Act of 1951.
30. So far as reliance of petitioner over two judgments passed by the Coordinate Bench at Indore is concerned, from the facts of Election Petition No.38/2019 and Election Petition No.45/2019, it do not appear that facts of those election petitions were so vague or omnibus which could have attracted rigours of Order VII Rule 11 of CPC. Here, in the instant case such vagueness and omnibus allegations appear and no specific imputation exist. Facts of those cases apparently move in different factual realm. Therefore, both the orders are of no help to the cause of petitioner.
31- Cumulatively, after due consideration, this Court is of the considered opinion that respondent has made out his case on the basis of grounds contained in the application by way of Order VII Rule 11 (a) of CPC and petitioner could not plead material facts in election petition to 18 proceed further. Lingering of election petition amounts to hanging of The Sword of Damocles over the respondent and he would not able to serve the people of constituency wholeheartedly for which he is elected and obliged to perform.
32- Resultantly, application (I.A.No.1827/2020) is allowed. Consequently, the election petition preferred by the petitioner is hereby dismissed.
(Anand Pathak) Judge Anil* ANIL KUMAR CHAURASIYA 2022.11.16 10:56:03 +05'30'