Karnataka High Court
Sri V Nagaraj vs Sri Dinesh Gundu Rao on 1 April, 2014
Author: B.S.Patil
Bench: B.S.Patil
EP 1/2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF APRIL, 2014
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
E.P.No.1/2013
BETWEEN:
Sri V.Nagaraj,
S/o Sri Varadappa,
Aged about 51 years,
R/a No.'U'-7, II Main Road,
II Cross, Hanumanthapuram,
Srirampuram,
Bangalore - 560 021. ... PETITIONER
(By Sri H.N.Shashidhara, Adv. for
M/s. Kesvy & Co., Advs.)
AND:
Sri Dinesh Gundu Rao,
S/o late Gundu Rao,
Aged about 44 years,
R/at No.159, MLA Layout,
R.T.Nagara,
Bangalore - 32. ... RESPONDENT
(By Sri K.Shashikiran Shetty, Adv.)
This Election Petition is filed under Section 81 of the
Representation of the People Act, 1951, by the Petitioner along
with his Counsel Sri K.R.Venkataramana, challenging the
election of the respondent as Member of Legislative Assembly
from No.164, Gandhinagar Legislative Assembly Constituency,
General Election held in t1he year 2013, praying to (a) pass an
order/direction to inspect/verify/investigate the genuineness of
the EV machines and eth software of the 232 EVMs used in the
Gandhinagara Assembly Election, from the independent person
EP 1/2013
2
or body, technically qualified person/s and re-count the votes,
(b) declare that the election result announced by the Returning
Officer on 08.05.2013 declaring the respondent is winner as
null and void, etc.
This petition having been heard and reserved for orders
on 06.02.2014, coming on for 'Pronouncement of Orders', this
day, the Court made the following:
ORDER
1. Petitioner - V.Nagaraj has filed this election petition seeking a declaration that election result announced by the Returning Officer on 08.05.2013 declaring respondent-Sri Dinesh Gundu Rao as duly elected to the Gandhinagar Assembly Constituency to the State Legislative Assembly is null and void.
2. In this petition, respondent has filed IA No.6/2013 under Order VI Rule 16 read with Section 151 CPC praying to strike off certain pleadings in the election petition as unnecessary, frivolous and vexatious. IA No.7/2013 under Order VII Rule 11(a) read with Section 151 CPC is filed praying for rejection of the election petition on the ground that it does not disclose any cause of action.
3. Question that falls for consideration is:
EP 1/20133
"whether the respondent-applicant has made out any grounds for allowing these applications?"
4. Facts necessary for consideration of the applications briefly stated are as under:
5. Election to the State Legislative Assembly for 164- Gandhinagar Assembly Constituency was held on 05.05.2013. Petitioner contested from BSR (Congress), whereas the respondent contested as candidate from Indian National Congress. One BJP candidate amongst others was also in the fray. Election result was declared and respondent-Dinesh Gundu Rao won with 54,968 valid votes polled, defeating his nearest rival Sri P.C.Mohan of Bharatiya Janata Party who secured 32,361 votes. Petitioner with 10,875 votes lost the elections.
6. In the present election petition, petitioner has alleged that he is a social worker and has rendered yeoman service to the residents of Gandhinagar. Respondent being son of former Chief Minister of Karnataka - late Gundu Rao having political influence had nexus with underworld goondas and criminals apart from having nexus with Government officials. He was involved in misappropriation of public money. Cases registered EP 1/2013 4 against respondent in this regard were pending before jurisdictional Magistrate Court, Bangalore.
7. It is alleged in paragraph 3 of the election petition that with a view to come to power, he committed mal practices of all sorts. He filed illegal and baseless complaint against petitioner before Srirampura Police Station and got him arrested under the Goonda Act but eventually the High Court of Karnataka, Bangalore, directed the police to remove his name from the rowdy list. Copy of the High Court order is produced at Annexure-B. The averments in paragraph 4 in so far as the alleged attempt made by the respondent to defame the petitioner is bereft of any material facts. In the rest of the paragraph, he has only stated that he contested from BRS Congress. Similarly in paragraph 5, he states about the symbol allotted to him, which has nothing to do with any allegations of corrupt practice, therefore they are unnecessary.
8. In paragraph 6 of the petition, petitioner has alleged that at the time of filing nomination, he had more than 15,000 followers. Realizing the same, the respondent decided to commit mal practices in the election and began distributing money in all the booth areas with the help of underworld goondas and EP 1/2013 5 rowdies. Though the police seized the money, they did not take further action.
9. It is alleged in paragraph 7 that Gandhinagar Assembly Constituency had 232 voting booths. On completion of voting, all booth agents complained about defective electronic voting machines and their complaint about the same to concerned persons in charge of the booth was of no avail. It is further alleged in paragraph 8 of the petition that, after the completion of voting, on the same day, respondent made a statement that he would win the election with a margin of 20,000 votes. Petitioner entertaining doubt and suspicion about the free and fair election made inquiries and discovered from reliable sources that the respondent in collusion with manufacturers of electronic voting machines, contractor, the Returning Officer and the maintenance people had installed new software in all the electronic voting machines to divert votes cast in favour of the petitioner to the respondent. He was shocked and surprised that he did not secure the votes as he expected, but all his followers, fans and well-wishers opined that the problem was with the voting machine. According to him, the number of votes cast in his favour in the electronic machines did not tally with EP 1/2013 6 the number of votes cast by his followers, well-wishers and friends. Therefore, petitioner entertained a serious doubt against the respondent that he had somehow manipulated the AVM machines. In paragraph 9 of the petition, petitioner has alleged that after analyzing the malpractice in relation to electronic voting machines, he complained to the Chief Electoral Officer on 13.05.2013. In this background, he has approached this Court seeking to set aside the election of the 1st respondent.
10. Respondent has filed written statement denying the allegations made against the petitioner. It is contended that as per Section 83(a) of the Representation of People Act, 1951 (for short, 'the Act'), the petition shall contain a concise statement of material facts but petitioner has failed to set forth particulars of any corrupt practice. The alleged illegalities committed along with the names of the persons against whom allegations of corrupt practices have been made have not been stated. He has further alleged that as the provisions of the Code of Civil Procedure are applicable including Order VI Rule 16, the Court is entitled to strike off any pleading which is unnecessary, frivolous, vexatious and scandalous and also dismiss the EP 1/2013 7 election petition by invoking Order VII Rule 11 CPC, as the petition did not disclose any reasonable cause of action.
11. It is urged that petitioner lacked bona fides in presenting the election petition. He has made reckless allegations without verification of facts and that election petition had been filed too casually. It is also alleged that petitioner was not a serious candidate interested in representing the constituency or serve the people. There were no defects in the 232 electronic voting machines used in Gandhinagar Assembly Constituency and the elections have taken place in a free and fair manner. Respondent has contended that similar allegations had been made by the petitioner against the respondent at the time when the respondent was elected as MLA from Gandhinagar Assembly Constituency during 2004 and 2009 and the said petitions were also dismissed. He has urged that same averments are repeated in the instant election petition. Thus, the respondent has sought for dismissal of the election petition.
12. In I.A.No.6/2013, respondent has contended that the election petition did not disclose any cause of action, and the contents of the petition are either unnecessary or vexatious and do not disclose necessary facts, let alone material facts. EP 1/2013 8
13. It is urged by Mr. Shashikiran Shetty, learned Counsel for the applicant/respondent that as per Section 83, petitioner has to set forth particulars of corrupt practice including the names of persons who committed such corrupt practice, the date, place, etc., of the corrupt practice and failure to set forth these essential facts will entail dismissal of election petition in limine. According to him, the averments made in paragraphs 3, 4, 5 & 6 lacked material facts regarding the allegations. Pleadings contained therein are totally unnecessary and hence liable to be struck off. Similarly, allegations and averments made in paragraph 7 of the election petition urging that after completion of voting, all the polling agents complained about the defect in the electronic voting machines, without disclosing the names of the polling agents and without furnishing any other details regarding such complaints as to what was the nature of complaint made by them regarding the machines, were bald and vexatious and hence liable to be struck off. The allegations made in paragraph 8 are also attacked as bereft of any particulars. The grounds set out in the petition are also described as grounds not falling within the purview of Section EP 1/2013 9 100(1)(d)(iii) of the Act. He has, therefore, sought for rejection of the election petition.
14. The applications are resisted by the petitioner by denying the averments and allegations made in the affidavits filed in support of the applications.
15. I have heard the learned Counsel for both parties. They have relied on number of judgments of the Apex Court on the point.
16. It is well established by a catena of judgments of the Apex Court that an election petition is liable to be summarily dismissed exercising powers under Order VI Rule 16 and Order VII Rule 11 in case the petitioner fails to furnish any of the material facts as mandated under Section 83 of the Act, which are essential for disclosing cause of action relating to the charge of corrupt practice. Useful reference can be made to the judgment in the case of AZHAR HUSSAIN VS RAJIV GANDHI - 1986 (Supp) SCC 315, in this regard. It is laid down in this judgment that as per Section 83 of the Act, which deals with contents of the election petition, an election petition (a) shall contain a concise statement of material facts on which the EP 1/2013 10 petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including the names of parties alleged to have committed such corrupt practice and the date and place of commission of each of such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in CPC. If the mandatory requirement enjoined by Section 83 of the Act to incorporate material facts in the election petition are not complied with, an election petition can be summarily dismissed.
17. The law as enunciated by the Apex Court in Azhar Hussain's case, wherein other judgments of the Apex Court have been referred, clearly shows that 'whole purpose of conferment of such power of dismissal of election petition in limine is to ensure that the litigation which is meaningless and is bound to prove abortive should not be permitted to occupy the time of the Court and engage the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily, without point or purpose. The Apex Court has further gone on to express that even in ordinary civil litigation, the Court readily exercises the power to reject the plaint if it does not disclose any cause of action. Therefore, there was EP 1/2013 11 greater reason for taking the same view in regard to matters pertaining to elections, in as much as, so long as the sword of Damocles of the election petition remains hanging, an elected member of the legislative assembly would not feel sufficiently free to devote his wholehearted attention to matters of public importance, as he would be required to divert his attention to contest the election petition. He will have not only to win the vote of the people, but also to win the vote of the Court in a long drawn out litigation before he can wholeheartedly engage himself in discharging the trust reposed in him by the electorate'.
18. In the case of SUBASH DESAI VS SHARAD J RAO - AIR 1994 SC 2277, the Apex Court opined that Section 83 is not only procedural, but has an object behind it; so that a person declared to have been elected, is not dragged to court to defend and support the validity of his election, on allegations of corrupt practice which are not precise and details whereof have not been supported by a proper affidavit. Apart from that, unless the material facts and full particulars of the corrupt practice are set out in the election petition, the person whose election is EP 1/2013 12 challenged, is bound to be prejudiced in defending himself of the charges, which have been leveled against him.
19. In the case of RAM SUKH VS DINESH AGGARWAL -
(2009)10 SCC 541, the Apex Court while emphasizing strict compliance with statutory provisions in election petitions, has held that success of a winning candidate should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of law. At the same time, the Apex Court has expressed a note of caution that it is the duty of the Courts to zealously ensure that people do not get elected by flagrant breaches of the law or by indulging in corrupt practices. In the above mentioned case, the Apex Court referring to the judgment in SAMANTH N.BALAKRISHNA VS GEORGE FERNANDEZ - 1969(3) SCC 238, has ruled that Section 83 of the Act is mandatory and requires a concise statement of material facts and then the fullest possible particulars. Omission of even a single material fact leads to an incomplete cause of action and statement of claim becomes bad. In the facts of the said case, the Apex Court found that where the election petition suffered from the vice of non-disclosure of EP 1/2013 13 material facts as stipulated in Section 83 of the Act, petition was liable to be rejected at the threshold on that ground.
20. In order to appreciate the contentions urged by the learned Counsel for the respondent, who has strongly asserted that the election petition completely lacks material facts regarding the allegations of corrupt practice and therefore, it fails the mandatory requirement mentioned in Section 83 of the Act, the Court has to first find out what constitutes material facts. All basic and primary facts which must be proved at the trial by a party to establish the existence of a cause of action or defence are material facts. Bare allegations are not treated as material facts. Material facts are such facts which afford a basis for the allegations made in the election petition. The meaning of 'material facts' has been explained by the Apex Court in VIRENDER NATH GAUTAM VS SATPAL SINGH - (2007) 3 SCC
617. In paragraphs 34 & 35 of the said judgment, it is observed as under:
"34. A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary are basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the EP 1/2013 14 other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise.
35. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."
21. In the case of MOHAN RAWALE VS DAMODAR TATYABA ALIAS DADASAHEB & ANOTHER - (1994)2 SCC 392, it is held that, distinction between "material facts" and "full particulars"
is one of degree. The lines of distinction are not sharp. "Material facts" are those which a party relies upon and which, if he does not prove, he fails at the time. The purpose of "material particulars" is in the context of the need to give the opponent EP 1/2013 15 sufficient details of the charge set up against him and to give him a reasonable opportunity.
22. No rule of universal application can be applied in finding out whether statements of fact made in an election petition amount to material facts or not. It is necessary to consider the pleadings in each case. Therefore, it is necessary to now consider the pleadings.
23. The allegations of corrupt practice attributed to the respondent in the election petition are that, the respondent has got nexus with the underworld goondas and criminals and had been involved in many misappropriation cases. This allegation is made in paragraph 2. The said allegation is as bald as baldness could be. Material facts pertaining to this allegation are not pleaded. The expression nexus with the underworld goondas and criminals is so vague and general that it cannot be called an allegation containing material facts. Similarly, allegations of having nexus with Government officials and involvement in many cases of misappropriations are absolutely vague and bereft of any material facts.
EP 1/201316
24. In paragraph 3 of the petition, it is alleged that respondent had disrepute, whereas the petitioner enjoyed goodwill and faith among the people, which gave room for an apprehension to the respondent of his failure in the election. Therefore, by adopting mal practices, the respondent made baseless complaint against the petitioner and got the petitioner arrested under the Goonda Act, but the High Court quashed the rowdy list and ordered removal of the name of the petitioner from the list. The material facts with regard to the alleged complaint, the consequent arrest, are not forthcoming. The order of this Court in W.P.No.6255/2012 dated 14.03.2013 refers to the entry of the name of the petitioner in the rowdy list during the year 1997 and its removal in 2006 and the subsequent re-inclusion of his name in the rowdy list on 10.10.2010 because two criminal cases had been filed against him in that year. Such re-inclusion in the rowdy list only due to pendency of two cases against him was found fault with by this Court. Nothing is forthcoming in the allegations regarding the role of the complainant. There is no reference to the respondent in the order passed by this Court in the said writ petition. Therefore, these allegations are wholly unnecessary and vexatious. More over, these allegations do not pertain to any EP 1/2013 17 mal practice during the process of the present election. In MOHAN RAWALE's case referred to supra, the Apex Court has clearly held that allegations of corrupt practice relating to the period anterior to the date of candidate's nomination would not constitute allegations of corrupt practice and therefore must be excluded from consideration.
25. In paragraph 6, petitioner claimed that he had more than 15,000 followers. Seeing the said situation, respondent decided to indulge in mal practice in the election and distributed money in all booth areas which Magadi Police seized. These allegations are also bald and vague. The date, time and place and names of persons who allegedly helped the respondent in distributing the money are not mentioned. No material facts are furnished regarding the alleged seizure.
26. In paragraph 7, the allegations are that Gandhinagar Assembly Constituency has got 232 voting booths, wherein petitioner had stationed booth agents. After completion of voting, all the booth agents complained about defective electronic voting machines and told him that they had brought it to the attention of the officers incharge of the booth. EP 1/2013 18
27. Petitioner further states in paragraph 8 of the petition that as the respondent confidently stated that he would win with a margin of 20,000 votes, he entertained suspicion about the free and fair election. Hence, petitioner enquired and came to know from 'reliable sources' that in collusion with manufacturers of electronic voting machines, contractors, election returning officers and maintenance people, respondent had installed, in all the EVMs, new software through which the votes cast in favour of the petitioner were diverted in favour of the respondent. These allegations do not contain any material facts about the nature of the defect complained of by the booth agents in the machines; the nature of complaint given to the returning officers; the date when such complaints were given. The so-called reliable source from where the respondent learnt about the collusion between manufacturers, contractor, returning officer, maintenance people and the respondent is not disclosed. A bald averment making sweeping allegations generally attributing 'insertion of new software' in all the 232 voting machines, admittedly based on information received from undisclosed sources, cannot be called as an allegation supported by material facts. Anybody can make such allegations against the voting machines and file a petition EP 1/2013 19 challenging the election. Such bald allegations cannot constitute material facts for the purpose of Section 83(a) of the Act, nor can they form basis for reasonable cause of action to file the election petition. These allegations are hopelessly bereft of particulars. They are not capable of being answered effectively. They cannot form basis of any cause of action to engage the respondent in the litigation calling upon him to defend such allegations. In MOHAN RAWALE's case, it is held that a reasonable cause of action is said to mean a cause of action with some chances of success when only allegations in the pleading are considered. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. In the case of BRUCE VS ODHAMS PRESS LTD. - (1936) 1 ALL ER 287, Scott LJ said, "the word 'material' means necessary for the purpose of forming a complete cause of action, and if any one 'material' statement is omitted, the statement of claim is bad."
28. In the case of ANIL VASUDEV SALGAONKAR VS NARESH KUSHALI SHIGAONKAR - 2009(9) SCC 310, the Apex Court in paragraph 64 of the judgment dealing with the expression 'material facts' has said that, material facts are facts upon EP 1/2013 20 which the plaintiff's cause of action or the defendants defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party. In paragraph 67, it is observed as under:
"67. The legal position has been crystallized by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are "material facts" which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act."
29. Further allegations made in paragraph 8 in connection with the voting machines are that petitioner entertained doubt regarding the defect in the machine because several persons had voted in favour of petitioner as disclosed by them but their number did not tally with the number of votes cast through the electronic voting machines. The voting pattern being through EP 1/2013 21 secret ballot, such assertion cannot be made a foundation of a cause of action to file an election petition as it cannot be a basis for challenging the election. These averments are therefore wholly unnecessary being vexatious and irrelevant.
30. It is very essential to notice here that petitioner had contested the election to the legislative assembly from the very constituency during 2004 and 2008 polls. He had filed E.P.No.3/2004 and E.P.No.6/2008 challenging the election of the returned candidate in those two elections. As is evident from the orders passed by this Court vide Annexures-R1 & R2 in the two election petitions, the first of the election petition was dismissed as withdrawn and the second election petition was dismissed on merits.
31. It is also relevant to notice that the respondent who is declared elected has secured 54,968 valid votes polled, whereas petitioner has secured only 10,875 votes. Immediate rival of the petitioner belonging to BJP secured 32,361 votes. He has not chosen to challenge the election alleging any such manipulation or defect in the 232 voting machines installed in 232 booths of Gandhinagar Assembly Constituency. It is only the petitioner EP 1/2013 22 who has come up with such bald allegations attributing manipulation and defect in the electronic voting machines.
32. Thus, it is amply clear that material facts pertaining to the allegations of corrupt practice are not stated and bare and bald allegations as referred to above which are unnecessary, frivolous and vexatious do not disclose any reasonable cause of action to maintain the election petition.
33. Reliance is placed by the Counsel for the petitioner on the judgment in the case of V.S.ACHUTHANANDAN VS P.J.FRANCIS & ANOTHER - AIR 1999 SC 2044, to contend that lack of full particulars could not be made a basis for rejecting the election petition as the petitioner had the right to amend the pleadings. A perusal of the said judgment clearly discloses that in the facts of the said case, the election petition had been dismissed by the Trial Judge due to absence of details regarding the mal practice. In such circumstances, referring to the misconception of the legal position regarding the difference between material facts and material particulars, the Apex Court held that as long as there were material facts forming a reasonable cause of action with some chance of success and questions fit to be decided, mere absence of full particulars could not entail rejection of the EP 1/2013 23 election petition. Hence, this judgment does not in any manner help the petitioner.
34. Similarly, reliance is also placed on the judgment in the case of PONNALA LAKSHMAIAH VS KOMMURI PRATAP REDDY & OTHERS - AIR 2012 SC 2638. In the said case, the Apex Court has found that Courts have to be cautious in dealing with requests for dismissal of election petition at the threshold and exercise their powers of dismissal only in cases where even on plain reading of the pleadings, no cause of action is disclosed. In the said case, as observed in paragraph 12 of the judgment, the High Court had indeed held that material facts constituting the foundation of the case set up by the election petition had been stated in the election petition. That being so, the Apex Court found that the requirement of Section 83 of the Act requiring the petition to contain a concise statement of material facts had been satisfied, hence, question of dismissing the petition on that ground did not arise. In paragraph 22 of the said judgment, the Apex Court has clearly found that while 'it was important to respect a popular verdict and the courts ought to be slow in upsetting the same, it was equally important to maintain the purity of the election process. An election which is EP 1/2013 24 vitiated by reason of corrupt practices, illegalities and irregularities enumerated in Sections 100 & 103 of the Act cannot obviously be recognized and respected as a decision of majority of the electorate. The Courts are therefore duty bound to examine allegations whenever the same are raised within the frame work of statute without being unduly hyper-technical in its approach and without being oblivious of ground realities'.
35. However, in the facts of the present case as adverted to in detail above, the bald allegation directed against the voting machines and alleged change of software in all the voting machines of 232 booths, the other allegations which are either vexatious or unnecessary do not refer to any material fact. As regards the voting machines, the allegations being general and casual, lacks material facts which are absolutely necessary to maintain an election petition.
36. I have kept in mind the concern expressed by the Apex Court and need to be alive to the present conditions in which the elections are held as spelt out by the Apex Court in PONNALA LAKSHMAIAH's case referred to supra, while examining the facts of this case. A bare, but careful perusal of the pleadings in the present election petition makes it clear that EP 1/2013 25 there is absolutely no cause of action and the one pleaded being devoid of factual details, the election petition is only designed to unnecessarily engage the valuable time of the court by dragging the winning candidate to the court.
37. It is also to be noticed here that as per Section 100 which deals with "Grounds for declaration of election as void" along with Section 123 which defines "Corrupt practices", defect in the electronic machines or tampering of electronic voting machines are not listed as one of the grounds. Therefore, such bald allegations of manipulation of electronic voting machines cannot form basis for a reasonable cause of action.
38. For the aforesaid reasons, both the applications IA- 6/2013 and IA-7/2013 are allowed in terms stated above and the election petition is rejected with costs at the threshold for not disclosing material facts and for not making out any reasonable cause of action for the grievance made. Petitioner shall pay costs of Rs.10,000/- to the respondent within two weeks from today.
Sd/-
JUDGE KK