Rajasthan High Court - Jodhpur
Mamta vs Santosh & Ors on 23 February, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Writ Petition No. 1779 / 2017
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_____________________________________________________
For Petitioner(s) : Mr. N.R. Choudhary.
For Respondent(s) :
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 23/02/2017 This writ petition has been filed by the petitioner aggrieved against the order dated 3.1.2017 passed by the Senior Civil Judge, Jodhpur District ('Election Tribunal'), whereby the application filed by the petitioner under Order VII, Rule 11 CPC r/w Rule 82 of the Rajasthan Panchayati Raj (Election) Rules, 1994 ('the Rules') has been rejected.
The respondent No.1 - Santosh filed an election petition under Section 43 of the Rajasthan Panchayati Raj Act, 1994 ('the Act') in relation to the election held for the post of Sarpanch, Gram Panchayat, Lavera Kalan, Tehsil Bawari, District Jodhpur on the ground of improper refusal or rejection of valid votes and the reception of void votes. Further a declaration in her favour was also sought.
It was alleged in the election petition that the respondent was declared elected by difference of four votes, as per the Returning Officer 4042 electors had exercised their right of franchise, however, as per the result sheet only 4033 votes were (3 of 9) [CW-1779/2017] accounted for and 09 votes were not accounted for. It was also alleged that initially it was declared that the petitioner had obtained 1020 votes and respondent No.1 had obtained 1026 votes; on request being made for recounting, after alleged manipulation it was declared that the petitioner had obtained 1012 votes and the respondent No.1 had obtained 1016 votes, 08 votes in favour of the petitioner were wrongly rejected while recounting. Based on the said averment, it was claimed that the election of the respondent be set-aside and the petitioner be declared elected.
Initially, the respondent No.1 filed an application under Order VII, Rule 11 CPC r/w Order XXVII, Rule 5A, Section 79 and Order I, Rule 9 CPC r/w Rule 85 & 86 of the Rules alleging non- impleadment of State of Rajasthan as party and sought dismissal of the election petition.
The application was rejected by the Tribunal on 10.8.2015, whereafter, the written statement was filed by the petitioner to the election petition disputing the averments made in the election petition.
Whereafter, another application under Order VII, Rule 11 CPC r/w Rule 82 of the Rules was filed inter-alia making the following averments :-
"06 ;g gS fd bl izdkj jktLFkku iapk;rh jkt pquko fu;e 1994 ds fu;e 82 esa ;g Li"V izko/kku gS fd pquko ;kfpdk esa egRoiw.kZ rF;ksa dk laf{kIr vfHkdFku gksuk pkfg, ,oe~ fu;e 49 ds izko/kkuksa ds vuqlkj oksVksa dh fxurh dks pqukSrh nsus ds vk/kkj ij izLrqr ;kfpdk esa fof'k"V oknxzLr csysV uEcjksa ds lEcU/k esa dFku rFkk izdFku oksVksas dk vuqfpr (4 of 9) [CW-1779/2017] Lohd`r vFkok [kkfjt fd;s tkus tks urhts dks izHkkfor djrk gSA mu csyV i=ksa ds uEcj pquko ;kfpdk esa vafdr djuk iwoZ 'krZ ds :i esa vko';d gSA tks izkFkhZuh }kjk vius }kjk izLrqr bl pquko ;kfpdk esa vafdr ugha fd;s x;s gSAa ftl dkj.k izkFkhZ }kjk izLrqr ;g ;kfpdk vUrxZr vkns'k 7 fu;e 11 O;ogkj izfØ;k lafgrk ds izko/kkuksa ds vuqlkj ukeatjw fd;s tkus ;ksX; gSA""
(emphasis supplied) Though no reply to the application was filed, the same was contested by the respondent No.1.
The Tribunal by its order dated 3.1.2017, came to be conclusion that merely because serial numbers of ballot papers have not been indicated, it cannot be said that cause of action is not disclosed. Further the Tribunal was also of the opinion that the petitioner had not approached the Tribunal with clean hands in as much as the issue now sought to be raised in the application could have been raised on the earlier occasion also and repeated applications for said purpose clearly discloses the malafides, and dismissed the application.
It is submitted by learned counsel for the petitioner that the Tribunal was not justified in dismissing the application filed by the petitioner; the earlier application was filed by the petitioner on different ground and the present application has been presented on a totally different ground and therefore, it cannot be said that the petitioner could not have filed another application and / or filing of the application reflects any malafide on part of the petitioner. Further submissions were made that the respondent in her election petition has failed to indicate material facts, which (5 of 9) [CW-1779/2017] constitute the cause of action in the election petition and therefore, the petition was liable to be dismissed.
It was vehemently submitted that though the averments regarding wrongful rejection of the votes cast in her favour and wrongful acceptance of the votes cast in favour of the petitioner have been made, however, the serial number of such ballot papers have not been indicated in the election petition, which were pre-requisite and therefore, the election petition was liable to be dismissed.
Reliance was placed on judgments in Jitendra Bahadur Singh v. Kirshna Behari & Ors. : 1969(2) SCC 433; Kripal Singh v. Darshan Singh & Ors. : 1986 WLN (UC) 202 and Supyar Kanwar v. Civil Judge (Sr. Dn), Fatehpur Shekhawati & Anr. : 2012(3) WLN 96 (Raj.).
I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.
So far as the bonafides of the petitioner in filing repeated applications under Order VII, Rule 11 CPC is concerned, the Tribunal was perfectly justified in reaching to the conclusion that the petitioner had not approached the Tribunal with clean hands. It is well settled that application under Order VII, Rule 11 CPC is required to be made based on the averments contained in the petition only. The petitioner initially filed an application under Order VII, Rule 11 CPC on the ground that as the State of Rajasthan was not impleaded as party, the petition was liable to be dismissed.
(6 of 9) [CW-1779/2017] At that stage itself, the ground sought to be raised in the subsequent application regarding lack of material facts constituting cause of action for maintaining the election petition could have been raised as no event subsequent to the dismissal of the earlier application happened, which gave rise or cause to the petitioner to file the application after filing of the written statement.
The filing of repeated applications by the returned candidate only for the purpose of delay in the decision of the election petitions cannot be appreciated, though, filing of the subsequent application, by itself cannot be a reason for taking a view against the petitioner.
Coming to the merits of the application filed by the petitioner, the Tribunal after analyzing the contents of the election petition, came to be conclusion that for lack of serial numbers of ballot papers only, it cannot be said that the material facts were lacking in the petition so as to entail dismissal of the election petition for non-disclosure of cause of action.
The only emphasis in the application filed by the petitioner and in the submissions before this Court is that as the serial numbers of the ballot papers, which were allegedly wrongly rejected / accepted have not been disclosed, the cause of action is incomplete and therefore, the petition was liable to be rejected on that ground alone.
The basis for raising the said plea has been the view expressed in the case of Jitendra Bahadur Singh (supra), wherein the Hon'ble Supreme Court noticing the various deficiencies in the (7 of 9) [CW-1779/2017] averments also indicated that the serial numbers of the ballot papers regarding which there were objections were not indicated.
Similarly, in Kripal Singh (supra), this court noticed the situation where the candidate may not be able to note down the serial numbers of ballot papers in respect of which objections about improper rejection or acceptance were raised but required that reason for such rejection at least should be indicated in the election petition.
In Supyar Kanwar (supra), based on judgment in the case of Jitendra Bahadur Singh (supra) for lack of serial numbers of offending ballot papers the Court came to the conclusion that, in the circumstances indicated therein, the petition did not contain the concise statement of material facts.
However, whether in an election petition where the allegations pertain to improper reception / rejection of the ballot papers, the indication of serial numbers of such ballot papers is a pre-requisite or sine qua non for the purpose of completing concise statement of material facts a three judge Bench of the Hon'ble Supreme Court in Jagjit Singh v. Dharam Pal Singh & Ors. : 1995 Supp (1) SCC 422, inter-alia observed as under :-
"4. The election petition filed by the appellant was dismissed mainly on the ground that it did not contain a concise statement of material facts on which the appellant relied. It was also held that vague and general allegations were made about improper rejection of votes. It was further held that serial numbers of the ballot papers, which were wrongly rejected, had not been specifically stated in the petition. The Court ultimately held that material particulars, as required under Section 83(1)(a) of the Act, had not been given. It was held that the appellant had really attempted to embark upon a roving and fishing inquiry which was not permissible under the law. It was also held that as there was no plea in the election petition that the result of the returned candidate had been (8 of 9) [CW-1779/2017] materially affected by the improper reception or rejection of votes, the election petition was devoid of any cause of action.
5. In our view, the election petition should not have been summarily dismissed. It is true that the appellant had not given the serial numbers of the ballot papers which, according to the appellant, were wrongly rejected. The case of the appellant is that counting of votes took place behind an iron net. The counting agents were made to sit 5-6 feet behind the net and as such could not take down the numbers properly. But he had given full particulars of the valid votes which, according to the appellant, were improperly rejected."
(emphasis supplied) Similarly, in Mahendra Pal v. Ram Dass Malanger and Ors. :
(2000)1 SCC 261, another three judge Bench of the Hon'ble Supreme Court observed as under :-
"Our perusal of various paragraphs of the election petition and particularly of the averments contained in paras 10 to 13, 16 and 20, go to show that sufficient material facts, to provide a cause of action, for trial of the election petition have been provided in the election petition. In various sub-paras of para 11 of the election petition, particulars of irregularities have also been spelt out. The non-mention of serial numbers of the improperly counted ballot papers, keeping in view the averments made in para 16 of the petition, could not be a ground to non-suit the election petitioner at the threshold, without trial more particularly because of the discrepancy between Ex.P.-2 and Ex.P.-3. Pleadings have to be read as a whole to ascertain their true import. It is the substance and not merely the form, which is required to be looked into for construing the pleadings. The intention of the party needs to be gathered form the tenor and terms of his pleadings taken as a whole. These well-settled principles appear to have been lost sight of by the learned designated Judge. Construed reasonably, the averments in the election petition, in our opinion, do make out a case for the petition proceeding to trial. Whether or not a case is eventually made out to justify recount/inspection would depend upon the evidence led by the parties in support of their pleadings at the trial."
(emphasis supplied) In Smt. Sushila v. ADJ No.2, Alwar & Ors. : 2006(2) WLC (Raj.) 242 also it was laid down that serial numbers of ballot papers does not constitute material fact for lack of which the petition could be dismissed for non-disclosure of cause of action.
(9 of 9) [CW-1779/2017] It was laid down as under :-
"28. The principles laid down by the Supreme Court and this Court to decide the preliminary objections regarding non-disclosure of cause of action and lacking material facts in the election petition can be summarised as follows :
(1) ...... ...... ...... ...... ...... ...... ...... (2) ...... ...... ...... ...... ...... ...... ...... (3) ...... ...... ...... ...... ...... ...... ...... (4) ...... ...... ...... ...... ...... ...... ...... (5) ...... ...... ...... ...... ...... ...... ...... (6) ...... ...... ...... ...... ...... ...... ...... (7) There is difference between "material facts" and "material particulars". The petition cannot be dismissed on the ground that although the material facts have been mentioned but no material particulars have been mentioned.
(8) Merely not filing the application for recounting before the Returning Officer is not sufficient to dismiss the election petition.
(9) While seeking relief of recounting, the mention of number of ballot papers are not the essential requirement."
It may be noticed that the judgment in the case of Supyar Kanwar (supra) does not take into consideration the judgment of this Court in the case of Smt. Sushila (supra) and Larger Bench judgments of Hon'ble Supreme Court in the case of Jagjit Singh (supra) and Mahendra Pal (supra).
In view of the above, it cannot be said that there was any substance in the plea raised by the petitioner in her application filed under Order VII, Rule 11 CPC seeking dismissal of the election petition for alleged non-disclosure of cause of action.
In view thereof, there is no substance in the writ petition, the same is, therefore, dismissed.
(ARUN BHANSALI)J. Rm/80