Karnataka High Court
Sri. Nemarajanaik K vs Sri Bheemanaik Lbp on 1 July, 2015
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY 2015
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
ELECTION PETITION NO.07 OF 2013
BETWEEN:
SRI.NEMARAJANAIK K
S/O KASHYANAIK
AGED ABOUT 41 YEARS
RESIDING AT 260, WEST WING GOUDARA VONI
MARIYAMMANAHALLI THANDA
MARIYAMMANAHALLI
HOSPET TALUK
BELLARY DISTRICT 583 222 ... PETITIONER
(BY SRI. SIDDHARTHA H M, ADV.)
AND:
1. SRI BHEEMANAIK LBP
S/O L B SAMYA NAIK
MAJOR
RESIDING BEHIND APMC,
NEAR VISHWA BHARATHI SCHOOL
HAGARIBOMMANAHALLI
2. SRI MARENNA L
S/O LATE LALEPPA
MAJOR
RESIDING AT HOUSE NO.LIG 71
KHB COLONY
NETAJI NAGAR, NEAR OPD
BELLARY
2
3. SRI DODDA RAMANNA
S/O P HANUMANTAPPA
MAJOR
MALLANAYAKANA HALLI
KOTTUR POST
KUDLIGI TALUK
BELLARY DISTRICT
4. SRI EKAMBRESH NAIK
S/O DURGYA NAIK
MAJOR
DOOR NO.352
ANJANEYA SWAMI TEMPLE AREA
MARIYAMMANAHALLI THANDA
HOSPET TALUK
BELLARY DISTRICT
5. SRI MOHAN DASARI
S/O D BHAGAVANTAPPA
MAJOR
RESIDING AT NO.28
RAMANAGARA
H B HALLI
BELLARY DISTRICT
6. SRI RAVIKUMAR V
S/O V GIRIVAPPA
MAJOR
OLD H B HALLI
HAGARIBOMMANAHALLI
BELLARY
7. KUM MANASVI
D/O V H HANUMANTAPA
MAJOR
32, 1ST B MAIN BANDI
MATA BADAVANE
KENGERI UPANAGARA
3
BANGALORE
8. SRI NAGARAJA V
S/O MANJAMMA
MAJOR
GAJAPURA POST
KUDALGI TALUK
BELLARY DISTRICT
9. SRI AROGYA SWAMY B
S/O BALARAJU
MAJOR
RESIDING AT NO.48
ARDINENS ROAD, FORT
BELLARY DISTRICT
10. SRI BHEEMAPPA POOJARA
S/O HANUMANTAPPA
MAJOR
RESIDING NEAR MARUTHI GARADIMANE
RAMANAGARA
HAGARIBOMMANAHALLI
BELLARY DISTRICT
11. SRI V PAVANA KUMAR
S/O V GOVINDA
MAJOR
RESIDING AT WARD NO.8
DOOR NO.202 A
BANGALORE ROAD
PATAKANDAKAM STREET
BELLARY
12. SRI H GOPALA
MAJOR
RESIDING AT MALIYAPPA
4TH WARD
A MARIYYAMMANAHALLI
HOSPET TALUK
4
BELLARY DISTRICT
13. KOTRESHAPPA M
S/O BASAVARAJAPPA
MAJOR
RESIDING AT K AYYANAHALLI
KUDLIGI TALUK
BELLARY DISTRICT ... RESPONDENTS
(BY SRI.JAGADISH, SR. ADV. FOR SRI.V JAVAHAR BABU, ADV.
FOR R1 )
THIS ELECTION PETITION IS FILED U/SS 81,83 & 100 OF
THE REPRESENTATION OF THE PEOPLE ACT, 1951 READ WITH
RULE 4 OF THE ELECTION PETITION PROCEDURE RULES
KARNATAKA 1967, PRAYING TO A) DECLARE THE ELECTION OF
THE RESPONDENT NO.1 (RETURNED CANDIDATE) AS VOID ON
THE GROUND OF IMPROPER RECEPTION, REFUSAL OR
REJECTION OF ANY VOTE OR THE RECEIPT OF ANY VOTE WHICH
IS VOID AND FOR NON-COMPLIANCE WITH THE PROVISIONS OF
THE CONSTITUTION OR OF THIS ACT OR OF ANY RULES OR
ORDER MADE UNDER THIS ACT AS THE SAME FALLS UNDER
SECTION 100(1)(D)(III) AND SECTION 100(1)(D)(IV) OF THE
REPRESENTATION OF PEOPLE ACT, 1951; B) FURTHER,
DECLARE THE PETITIONER AS HAVING BEEN ELECTED TO THE
HAGARIBOMMANAHALLI CONSTITUENCY RESERVED FOR SC
CANDIDATE ; C) FOR SUCH OTHER RELIEF/S AS THIS HON'BLE
COURT DEEMS FIT AND PROPER CIRCUMSTANCES OF THE CASE
INCLUDING COST OF THESE PROCEEDINGS.
THIS ELECTION PETITION COMING ON FOR
PRONOUNCEMENT OF ORDERS ON IA NO.1/2015 THIS DAY
AFTER HAVING HEARD AND RESERVED FOR ORDERS ON
11.06.2015, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner has filed this election petition u/s 81, 83 and 100 of the Representation of the People Act, 1951 r/w Rule 4 of Election Petition Procedure Rules Karnataka, 1967, hereinafter referred to as `the Act' and `the Rules' respectively. The petitioner has prayed for declaring the election of Respondent No.1 as void on the ground of improper reception, refusal or rejection of any vote or the receipt of any vote which is void and for non-compliance with the provisions of the Constitution or the Act and rules or order made under this Act as the same falls u/s 100(1)(d)(iii) and Section 100(1)(d)(iv) of the Act and to declare the petitioner as the returned candidate.
2. The facts to be stated in brief are that petitioner is a resident of Mariyammanahalli Thanda, Hospet, Bellary District belongs to SC. He was also member of the Legislative Assembly from the same constituency from 2008-13. He 6 contested from the same constituency to the State Assembly to the election held on 5.5.2013 for which counting took place on 8.5.2013. The first respondent secured 51972 votes as against petitioner securing 51847, the difference being 125. These voting figures are not correct. There is discrepancy between the number of votes polled and number of votes counted. The returning officer has taken into account votes which were not polled at all. He has given instances of discrepancy in respect of Mutaganahalli, Kogalli, Jagatageri polling stations and claims 21 votes were excess votes as against the votes polled there. It is stated, it is quite possible that from the remaining 211 polling stations even if there is difference of 1 vote per each polling station it would make a marked difference in the votes polled and votes counted.
3. It is further stated that apart from the discrepancy in the counting votes and its calculation in the counting votes and its calculation, there is a marked difference between number of postal ballots supplied to voters on election duty 7 and the postal ballot papers that were received. The Returning Officer has received only 897 postal ballot votes as against 1017 issued. The grounds on which the votes were rejected were not revealed to the candidate or their counting agents. The petitioner stated, because of loud noise in the counting hall and also considerable distance between the counting clerk and the supervisor, report could not be heard properly. The counting hall was over crowded by the candidate, their counting agents and other observers. It is claimed, the result of the election has materially affected by the above irregularity.
4. The respondent No.1 filed statement of objections denying the averments made in the election petition. It is stated, election commission has conducted the election in a fair and impartial manner. The counting process was also conducted in accordance with the procedure prescribed as per the Election Commission Rules. The votes polled and votes counted are one and the same. The cursory glance at 8 the election petition neither discloses any cause of action nor the mandatory compliance of the requirements in the pleadings and the documents in support of the Election Petition. Election petition lacks merits and deserves to be dismissed.
5. The first respondent filed application u/s 87 of the Act r/w Order VI Rule 16 of Code of Civil Procedure seeking to strike out the pleadings in the election petition, which are unnecessary, frivolous and vexatious. It is sworn to in the affidavit that after striking out such pleadings, no cause of action survives and accordingly petition itself to be dismissed. It is stated, the allegations made in Paras 8 to 11 and 14 to 18 relate to discrepancy in number of votes polled and counted and that the Returning Officer has taken into account the votes which were not polled. The said statements are vague and do not disclose cause of action.
6. At paragraphs 23 to 25 the grounds in support of the said allegations are also equally vague and do not disclose the 9 cause of action. Section 100(1)(d)(iv) of the Act is not applicable to the case on hand. The first respondent seeks to strike out the pleadings of paragraphs No.8 to 10 regarding discrepancy in counting of votes, excess votes counted i.e., 21 votes and Returning Officer taking into account the invalid votes. So also the averments made in Para-11 regarding discrepancy in declaring the result of the election, para-14 regarding not furnishing certified copies. In W P No.221160/2014 (GM-KEB) DD 15.6.2004 this court directed to furnish the documents in two days but the petitioner has utterly failed to produce certified copy of the said order.
7. As regards para-15 relating to counting of only 897 postal ballot votes as against issuance of 1017 ballot papers and the Returning Officer rejected 40 votes out of 897 votes, Para-16 relating to oral report of the figures by the counting clerk to the supervisors could not be recorded immediately by the supervisor because of loud noise in the counting hall etc., Para-17 relating to counting clerks counted the second and 10 third round even before the results of first round and hence lot of confusion was created, paragraphs 23, 24 & 25 and para-18 relating to election being materially affected are all frivolous, vexatious and bereft of material facts. It is stated that there is no foundation laid nor there is any pleading nor any ground made out to show that election is materially affected. Without mentioning all necessary material facts which afford basis for the grievance and without stating how they affect the process of counting, the said pleadings cannot form foundation for filing the election petition. Hence the first respondent prays for allowing the application.
8. The above application is resisted by the petitioner by filing statement of objections reiterating the averments made in the election petition and prays for rejection of the application.
9. I have heard the learned senior counsel for the first respondent on the application and learned counsel for the petitioner. The point that arises for consideration is, whether 11 the application IA No.1/2015 filed by the first respondent deserves to be allowed? The said point is answered in favour of the first respondent for the following reasons.
10. The election petition is founded on the grounds of discrepancy in counting of votes i.e., excess counting of voters, Returning Officer has counted the votes which were not polled and discrepancy in counting of postal ballot papers of voters who were on election duty. It is stated, as against 1017 ballot papers issued, only 897 ballot papers were received and in that 40 votes were rejected without assigning any reasons. As a next ground, it is averred that there was heavy crowd in the counting hall, unnecessary people were gathered there, they could not hear the report from the counting clerks and that there was confusion created by the counting clerks also in going to count 2nd and 3rd rounds without displaying the results of first round.
11. The learned senior counsel for the first respondent has placed reliance on the following authorities and 12 submitted to allow the application and to dismiss the election petition summarily as there is no triable case made out by the petitioner.
(a) Azhar Hussain vs., Rajiv Gandhi,reported in 1986(Supp) SCC 315 to contend that election petition could be summarily dismissed for want of cause of action.
(b) Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, (1987) (Supp) SCC 93 to contend that vague pleadings are fatal to the election petition.
(c) (Santosh Yadav vs., Narender Singh) (2002) 1 SCC 160 to contend that fate of the election petition not only of parties before court but of entire constituency is at stake.
Therefore, trial must be played out with open cards, not like a game of chess or hide and seek. All material facts, from which appropriate inferences may be drawn, must be set out in election petition and substantiated by cogent evidence before petitioner can succeed.
(d) Ram Sukh vs., Dinesh Aggarwal, (2009) 10 SCC 541 to contend that material facts and full particulars are to be 13 furnished. They are facts which, if established, would give petitioner the relief asked for. However, what could be said to be material facts would depend upon facts of each case and no rule of universal application can be laid down.
(e) Shri Jitendra Bahadur Singh vs., Shri Kirshna Behari & others, (1969) 2 SCC 433 to contend that allegations must be supported by material facts.
12. The learned counsel for the petitioner has placed reliance on the following authorities and prays for rejection of the application.
(a) K Devanna Naik vs., S Pakkirappa & ors. Misc. Cvl.Nos.1360 & 1362/2011 in E PNo.23/2009 DD 12.7.2011, Para-9 therein which reads as follows:
"9.....He further submitted that the wrong acceptance of nomination paper of Respondent No.2 would not materially affect the result of the returned candidate, inasmuch as, all the votes polled in favour of Respondent No.2 would have been polled in favour of the petitioner and the petitioner cannot presume that all the votes polled in favour of Respondents 1 & 2 would 14 have been polled in his favour. Such submissions will have to be considered at the time of disposal of the matter after full fledged trial. Evidence may be necessary to consider such questions of fact. Hence, this court does not wish to strike off the pleadings in paragraphs-11 and 12 of the election petition..."
(b) Roop Lal Sathivs., Nachhattar Singh, AIR 1982 SC 1559 in which Para-41, relevant portion reads as follows:
"41.....The function of "particulars" under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim-gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial"15
Therefore, it is submitted, what is pleaded in the election petition is in accordance with the requirement of law and does not warrant striking of any of the pleadings as sought for the application.
13. The petitioner has stated in the election petition that in respect of three polling stations namely, Mutaganahalli, Kogalli, Jagatageri, 21 excess voters were counted in favour of the first respondent. The material facts in support of the said pleadings is not pleaded rendering the said pleading as vague as it could be. Further it is stated in Para-9 of the petition that "it is quite possible that from the remaining 211 polling stations even if there is difference of 1 vote per each polling station it would make a marked difference in the votes polled and votes counted". This is based on presumption and assumption of the petitioner without being definite about the same, which cannot be the basis to proceed with trial of the case. Further the said 21 votes which are said to have been counted in favour of the first respondent, the material facts 16 are not there to show that they are counted in favour of the first respondent only.
14. The postal ballot papers against issuance of 1017 ballot papers, only 897 papers were received in which 40 votes have been rejected without mentioning the reason. It is not the case of the petitioner that those rejected votes are voted in favour of the petitioner, which has materially affected the election results.
15. It is also the basis of the election petition that in the counting place there was commotion and lot number of people assembled and the agents were not in a position to hear properly the counting report by the counting staff. The petitioner has not at all made the Returning Officer a party to the Election Petition. This grievance of the petitioner cannot be answered by the respondents, who are the contestants in the election. Therefore, the petitioner is very casual and not serious about the case he wants to make and materials required to meet that case.
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16. The material facts are facts upon which the petitioner's cause of action lies or the respondent's defence depends. In other words, material facts means the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition. It is also true that no rule of universal application can be applied in finding out whether the statements of fact made in the election petition amount to material facts or not. If there are more than one allegations and the material facts are sufficient with regards to one of such allegations, the petition is maintainable and cannot be thrown out.
17. The distinction between material facts and particulars was brought out in Manubhai Mondial Amersey v. Popat Lal Manilal Joshi, (1969) 1 SCC 372. It was held that the settled principle of law, as it emerged from numerous decisions of the Supreme Court in regard to the question as what exactly was the content of expression "Material Facts and Particulars" which the election petitioner should 18 incorporate in petition by virtue of Section 83(1) of the Act is that material facts are facts which if established would give the election petitioner the relief asked for.
18. "Particulars" are details in support of material facts pleaded by the party. The functions of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. `Particulars' give distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative.
19. Keeping these cardinal principles so as to the facts to be stated by way of material facts and particulars, if the case of the petitioner is to be examined, the petition averments lack "material facts" and "particulars". Even if the case pleaded by the petitioner assumed to be true that 21 votes are excess counted and 41 votes are illegally rejected 19 and in respect of other counting stations, no particulars are furnished, petitioner is not likely to get the reliefs sought for in the election petition. The election petition cannot be directed to fish out the evidence. In that view of the matter, the election petition lacks material facts and also the particulars and the petitioner has failed to make out a triable case. The pleadings in paragaraphs-8, 9, 10, 11,14, 15, 16, 17, 18, 23, 24 & 25 are liable to be struck out for want of material facts and particulars, and as a consequence there remains nothing to constitute cause of action for the election petition.
In the circumstances, the application I A No.1 /2015 is allowed. The pleadings in paragraphs-8, 9, 10, 11, 14, 15, 16, 17, 18, 23,24 & 25 are struck off and as a consequence there remains no cause of action to put the election petition for trial. Accordingly, election petition is rejected.
Sd/-
JUDGE akd