Madhya Pradesh High Court
Dr. Vivek Tiwari vs Divyaraj Singh on 18 February, 2016
IN THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR.
ELECTION PETITION NO.04/2014
DR.VIVEK TIWARI
Vs.
SHRI DIVYARAJ SINGH
____________________________________________________
Present: Hon'ble Shri Justice C.V. Sirpurkar
Shri R.P.Agrawal, Senior counsel with Shri Anuj Agrawal,
counsel for the petitioner.
Shri Anuvad Shrivastava, counsel for the respondent
No.1.
Shri Siddharth Seth, counsel for the respondent Nos.2,3
& 4.
JUDGMENT
{18/02/2016} I.A.No.49/2016
1. This is an application filed on behalf of respondent No.2 Election Commission of India, respondent No.3 State Election Commission and respondent No.4 Smt.Vimlesh Singh, Returning Officer of 68, Sirmour Vidhan Sabha Constituency for striking off their names from the array of respondents on the ground that they cannot be impleaded as respondents in an election petition.
2. Placing reliance upon the judgments rendered by Supreme Court in the case of Jyoti Basu and others vs. Debi Ghosal and others, AIR 1982 SC 983 and B. Sundara Rami Reddy vs. Election Commission of India and others, 1991 Supp. (2) SCC 624, learned counsel for the respondent nos. 2, 3 & 4 have submitted that right to elect, to be elected or to dispute election, are neither fundamental rights nor common law rights but are statutory rights, confined to the provisions of the Representation of People Act, 1951, (hereinafter referred to in this order as âthe Actâ) and the Rules made thereunder. Only candidates, expressly mentioned in sections 82 and 86 (4) of the Act, can be joined as respondents by the election petitioner and no one else can be so joined. Therefore, it has been prayed that the names of Respondent Nos.2, 3 & 4 be struck off as respondents from this election petition. It has further been submitted the respondent nos. 2, 3 and 4 shall be duty bound to produce documents, appear as witnesses or otherwise assist the Court in disposal of this election petition.
3. The petitioner has opposed the application by filing a written reply on the ground that the cases of Jyoti Basu (supra) and B. Sundara Rami Reddy (supra) are distinguishable on facts as in neither of aforementioned cases, allegations of bias and extending unfair advantage by the Election Commission to the elected candidate were made. In this case, the respondent Nos.2, 3 & 4 have been impleaded because the petitioner has made specific allegations against them. There have been allegations with regard to changing electronic voting machines in five polling booths. In three of them, a total of 5,288 votes were already cast. It is not clear whether those votes were counted or not. There are also allegations that the information required to be supplied to the polling agents to the election petitioner in Form No.17-C was furnished in plain papers. Some of the entries made thereunder were blank or incorrect. The original of those forms available on record of the Returning Officer differ from those supplied to the election petitioner which indicates that they were filled- up latter to rectify the defects in the record.
4. It has further been contended on behalf of the petitioner that if the names of respondent Nos.2, 3 & 4 are struck off from the array of respondents in this election petition, aforesaid discrepancies and irregularities committed by the officers/officials of the election commission in general and respondent no.4 in particular, would not have an opportunity of explaining these discrepancies. The cardinal principle of jurisprudence is that no one should be condemned unheard. Thus, respondent Nos.2, 3 & 4, against whom the allegations have been made, are necessary parties or at least proper parties. Therefore, it has been prayed that I.A.No.49/2016 be dismissed.
5. On due consideration of the rival contentions, perusal of record of the case and appraisal of the law applicable, this Court is of the view that I.A.No.49/2016 must be allowed for the reasons hereinafter stated:
6. This election petition has been filed on the grounds of non-compliance with Rules 49-S and 49-T of the Conduct of Election Rules, 1961. It has been contended that the officers/officials of the Election Commission colluded with respondent No.1, the successful candidate, in order to extend unfair advantage to him over the petitioner. This has materially affected the result of the election insofar as it concerns the respondent No.1.
7. It has been held by a three judge bench of the Supreme Court in the case of Dr. P. Nalla Thampy Thera vs. B.L. Shanker and others, AIR 1984 SC 135 that:
â8. This Court has consistently taken the view that elections and election disputes are a matter of special nature and that though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity. As early as 1952 when the first election under the Constitution took place, a Constitution Bench of this Court in N. P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 : (AIR 1952 SC 64), observed (para 18) :
"The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it."
While dealing with an appeal in an election dispute arising out of the first series of elections under the Constitution, Mahajan, C. J., speaking for a Constitution Bench of this Court stated in Jagan Nath v. Jaswant Singh, 1954 SCR 892 at p. 895 : (AIR 1954 SC 210 at p.
212) :
"The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law."
In Charan Lal Sahu v. Nandkishore Bhatt, (1974) 1 SCR 294 at p. 296 : (AIR 1973 SC 2464 at P. 2466) this Court observed :
"The right conferred being a statutory right, the terms of that statute had to be complied with. There is no question of any common law right to challenge an election. Any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes. If no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity. This Court has held that the right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it."
In N. P. Ponnuswami's case it was pointed out that strictly speaking it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members and if the legislature takes it out of its own' hands and vests, in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. In Jyoti Basu v. Debi Ghosal, (1982) 3 SCR 318 at pp. 326-327 : (AIR 1982 SC 983 at p. 986) this Court said:
"A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight-jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act."
That view has been endorsed in Arun Kumar Bose v. Mohd. Furkan Ansari, CA. 2618/83 decided on September 28, 1983 : (reported in AIR 1983 SC 1311), where two of us were parties to the decision.
9. The legal position is, therefore, well settled that election disputes are strictly statutory proceedings.
8. Thus, it is settled position of law that the Representation of People Act, 1951 is a complete code and election disputes are strictly statutory proceedings which are to be regulated by the Representation of People Act, 1951. It has further been held in the case of Jyoti Basu (supra) that right to elect, to be elected or to dispute election are neither fundamental rights nor common law rights but are confined to the provisions of Representation of People Act and the Rules made thereunder.
9. The persons who may be joined as respondents in an election petition are governed exclusively by sections 82 and 86(4) of the Act. Aforesaid provisions are reproduced herein below for ready reference:
82. Parties of the petition.âA petitioner shall join as respondents to his petitionâ
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
86. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation.âFor the purposes of this sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.
10. In this regard, the Supreme Court has held in the case of Jyoti Basu (supra) as hereunder:
â¦. âThere is no other provision dealing with the question as to who may be joined as respondents. It is significant that while cl. (b) of S. 82 obliges the petitioner to join as a respondent any candidate against whom allegations of any corrupt practice are made in the petition, it does not oblige the petitioner to join as a respondent any other person against whom allegations of any corrupt practice are made. It is equally significant that while any candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a respondent under S. 86 (4), any other person cannot, under that provision seek to be joined as a respondent, even if, allegations of any corrupt practice are made against him. It is clear that the contest of the election petition is designed to be confined to the candidates at the election. All others are excluded. The ring is closed to all except the petitioner and the candidates at the election. If such is the design of the statute, how can the notion of 'proper parties' enter the picture at all? We think that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951, Only those may be joined as respondents to an election petition who are mentioned in S. 82 and S. 86 (4) and no others. However, desirable it may appear to be, none else shall be joined as respondents.
10. It is said, the Civil Procedure Code applies to the trial of election petitions and so proper parties whose presence may be necessary in order to enable the Court 'effectually and completely to adjudicate upon and settle all questions involved' may be joined as respondents to the petitions. The question is not whether the Civil Procedure Code applies because it undoubtedly does, but only 'as far as may be and subject to the provisions of the Representation of the People Act, 1951 and the rules made thereunder. Section 87 (1) expressly says so. The question is whether the provisions of the Civil Procedure Code can be invoked to permit that which the Representation of the People Act does not.
â¦â¦. âThat is why Public Policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which does not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86 (4). That is why Public Policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which does not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86 (4).It is not as if a person guilty of a corrupt practice can get away with it. Where at the concluding stage of the trial of an election petition, after evidence has been given, the Court finds that there is sufficient material to hold a person guilty of a corrupt practice, the Court may then issue a notice to him to show cause under. Section 99 and proceed with further action. In our view the legislative provision contained in Sec. 99 which enables the Court, towards the end of the trial of an election petition, to issue a notice to a person not a party to the proceeding to show cause why he should not be 'named' is sufficient clarification of the legislative intent that such person may not be permitted to be joined as a party to the election petition.â â¦â¦ âIf a person who is not a candidate but against whom allegations of any corrupt practice are made is joined as a party to the petition then, by virtue of his position as a party, he would also be entitled to 'recriminate' under Sec. 97. Surely such a construction of the statute would throw the doors of an election petition wide open and convert the petition into a 'free for all' fight. A necessary consequence would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by Sec. 96 (6) of the Act that the trial of the election petition should be concluded in six months. It is just as well to remember that 'corrupt practice' as at present, defined by Sec. 123 of the Act is not confined to the giving of a bribe but extends to the taking of a bribe too and, therefore, the number of persons who may be alleged to be guilty of a corrupt practice may indeed be very large, with the consequence that all of them may possibly be joined as respondents.
13. In view of the foregoing discussion we are of the opinion that no one may be joined as a party to an election petition otherwise than as provided by Sections 82 and 86 (4) of the Act. It follows that a person who is not a candidate may not be joined as a respondent to the election petition.â (Emphasis supplied)
11. Learned Senior Counsel for the petitioner has contended that this case has not been filed alleging corrupt practice against any candidate but has been filed on the ground of non-compliance by officers/officials of Election Commission in collusion with respondent no.1 in order to extend unfair electoral benefit to him. Therefore, the law as laid down in the case of Jyoti Basu (supra) would not be applicable to the present case. However, in the case of B. Sundara Rami Reddy (supra) the orders of Election Commission were challenged in the election petition; therefore, it was argued in that case that the Election Commission, even if not a necessary party, was a proper party. It was further urged in that case that Code of Civil Procedure, 1908, is applicable to trial of an election petition; as such the concept of proper party is applicable but aforesaid argument was rejected by the Supreme Court and it was held that:
âSince Section 82 designates the persons who are to be joined as respondents to the petition, provisions of the Civil Procedure Code, 1908 relating to the joinder of parties stands excluded. Under the Code even if a party is not necessary party, he is required to be joined as a party to a suit or proceedings if such person is a proper party, but the Representation of the People Act, 1951 does not provide for joinder of a proper party to an election petition. The concept of joining a proper party to an election petition is ruled out by the provisions of the Act. The concept of joinder of a proper party to a suit or proceeding underlying Order I of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of the Act. The Act is a self-contained Code which does not contemplate joinder of a person or authority to an election petition on the ground of proper party.â
12. It may further be noted that in the case of Michael B. Fernandes Vs. C.K. Jaffar Sharief and others, A.I.R. 2002 S.C. 1041, the allegations made were in relation to the use of voting electoral machines, under section 61-A of the Act. The gravamen of the allegations in the election petition were that the Returning Officer as well as the Chief Electoral Officer had not complied with several provisions of Conduct of Election Rules and respondent Nos.7 & 8 had not acted in accordance with the guidelines issued by the Election Commission of India. Thus, the grounds were similar to those, taken in the present election petition. A three judge bench of Supreme Court held that:
â¦â¦.. âthe Court took the view that the public policy and legislative wisdom both seem to point to an interpretation of the provisions of the Representation of the People Act which does not permit the joining, as parties, of persons other than those mentioned in Sections 82 and 86(4).The Court also in paragraph (12) considered the consequences if persons other than those mentioned in S. 82 are permitted to be added as parties and held that the necessary consequences would be an unending, disorderly election dispute with no hope of achieving the goal contemplated by S. 86(6) of the Act. In the aforesaid premises, we reiterate the views taken by this Court in Jyoti Basu's case and reaffirmed in the latter case in B. Sundara Rami Reddy and we see no infirmity with the impugned judgment, requiring our interference under Art. 136 of the Constitution. This appeal accordingly fails and is dismissed.â
13. On the basis of aforesaid authoritative pronouncements of the Supreme Court, it is clear that the Representation of People Act, 1951 is a complete Code. Only a candidate who falls in any of the categories enumerated under section 82 or 86(4) of the Act, can be impleaded as respondents in an election petition and none else. The concept of proper party is alien to the proceedings under Representation of People Act, 1951. Thus, no other person can be allowed to be impleaded as a respondent howsoever desirable it may be. Even if there are specific and direct allegations against the officers/officials of the Election Commission of India, they cannot be allowed to be impleaded as respondents on the plea that otherwise they would not have any opportunity to explain their position and would thus be condemned unheard.
14. In aforesaid view of the matter, I.A.No.49/2016 deserves to be and is accordingly allowed. The petitioner is directed to strike off the names of respondent Nos.2, 3 & 4 from the array of respondents in the election petition within two weeks.
I.A. No. 14259 of 201515. This application has been filed on behalf of the election petitioner under Order 6 Rule 17 of the Code of Criminal Procedure for incorporating certain amendments in the election petition.
16. It has been submitted that by virtue of order dated 13.10.2015 passed by Court, the petitioner could inspect the documents filed in sealed cover by the Returning Officer of the concerned constituency, on 27.10.2015. On inspection, particulars of certain deficiencies and irregularities having a bearing on the result of the election, were noted by the petitioner; therefore, the petitioner proposes to incorporate pleadings regarding such deficiencies and irregularities committed by the officers/officials of the election commission by way of incorporating paragraphs nos. 20-A and 10-A in the election petition. The particulars proposed to be incorporated relate to particulars of cover up of irregularities committed by the officers/officials in issuing form number 17-C by interpolating the record kept in the office of Returning Officer. The proposed amendments also relate to particulars with regard to change in electronic voting machine used in certain polling booths which showed that a particular number of votes had already been cast even before the polling had begun. It has been submitted that proposed amendments are absolutely necessary for just adjudication of the petition and have been proposed without any delay.
17. Though, the respondents have not filed any written reply to I.A. No. 14259/2015, they have opposed the application.
18. A perusal of the record reveals that this election petition has been filed mainly on the ground that Presiding Officer had failed to comply with rules 49-S and 49-T of Conduct of Election Rules, 1961 and thus improper reception, refusal or rejection of votes and non- compliance with rules 49-S and 49-T of aforesaid Rules has materially affected the result of the election. In aforesaid circumstances, it is clear that this election petition has been filed on the ground of Section 100 (1)
(d) (iii) and (iv) of the Representation of the People Act, 1951. This election petition has not been filed on the ground of Section 100 (1) (b) alleging any corrupt practice committed by the returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent.
19. As already observed while deciding the I.A. No.49/2016 in foregoing paragraphs of this order that the conduct of proceedings in the election petition is regulated by Representation of People Act 1951. The different stages of the process are dealt with by different provisions of the Act. The Code of Civil Procedure no doubt applies to such proceedings but only âas far as may beâ and subject to the provisions of Representation of People Act, 1951 and the Rules made thereunder.
20. The law of amendment in election petitions is governed by sub-section 5 of Section 86 of the Representation of People Act, 1951, which reads as follows:
86 (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
21. With regard to scope of Section 86 (5), a three Judge Bench of Supreme Court in the case of F.A. Sapa Vs. Singora, AIR 1991 SC 1557 has held that:-
17. The law in regard to the adjudication of an election dispute has been set out, as stated earlier, in Part VI of the R.P. Act, the provisions whereof constitute a self-
contained Code. Therefore, an election petition calling in question the election of a returned candidate must be made in accordance with the provisions of this part of the statute. Under the provisions of this part an election petition calling in question the election of a returned candidate must be founded on one or more of the grounds specified in Sections 100 and 101 for any of the reliefs specified in Section 84 thereof. Section 100 specifies several grounds, one of them being commission of a corrupt practice by the returned candidate. Section 83(1)(a) stipulates that every election petition shall contain a concise statement of the 'material facts' on which the petitioner relies. That means the entire bundle of facts which would constitute a complete cause of action must be concisely stated in an election petition. Section 83(1)(b) next requires an election petitioner to set forth full particulars of any corrupt practice alleged against a returned candidate. These 'particulars' are obviously different from the 'material facts' on which the petition is founded and are intended to afford to the returned candidate an adequate opportunity to effectively meet with such an allegation. The underlying idea in requiring the election petitioner to set out in a concise manner all the 'material facts' as well as the 'full particulars', where commission of corrupt practice is complained of, is to delineate, the scope, ambit and limits of the inquiry at the trial of the election petition.
18. Before the amendment of the R. P. Act by Act 27 of 1956, Section 83(3) provided for an amendment of an election petition insofar as 'particulars' of corrupt practice were concerned. By the 1956 amendment this provision was replaced by Section 90(5) which in turn came to be deleted and transferred as sub-section (5) of Section 86 by the Amendment Act 47 of 1966. Section 86(5) as it presently stands empowers the High Court to allow the 'particulars' of any corrupt practice alleged in the petition to be amended or amplified provided the amendment does not have the effect of widening the scope of the election Petition by introducing particulars in regard to a corrupt practice not previously alleged or pleaded within the period of limitation in the election petition. In other words the amendment or amplification must relate to particulars of a corrupt practice already pleaded and must not be an effort to expand the scope of the inquiry by introducing particulars regarding a different corrupt practice not earlier pleaded. Only the particulars of that corrupt practice of which the germ exists in the election petition can be amended or amplified and there can be no question of introducing a new corrupt practice. It is significant to note that Section 86(5) permits 'particulars' of any corrupt practice 'alleged in the petition' to be amended or amplified and not the 'material facts'. It is, therefore, clear from the trinity of clauses (a) and (b) of Section 83 and subsection. (5) of Section 86 that there is a distinction between ,material facts' referred to in clause (a) and 'particulars' referred to in clause (b) and what Section 86(5) permits is the amendment/ amplification of the latter and not the former. Thus the power of amendment granted by Section 86(5) is relatable to clause (b) of Section 83(1) and is coupled with a prohibition, namely, the amendment will not relate to a corrupt practice not already pleaded in the election petition. The power is not relatable to clause (a) of Section 83(1) as the plain language of Section 86(5) confines itself to the amendments of 'particulars' of any corrupt practice alleged in the petition and does not extend to 'material facts'. This becomes crystal clear on the plain words of the closely connected trinity of Ss. 83(1)(a), 83(1)(b) and 86(5) and is also supported by authority. See Samant N. Balkrishna v. George Fernandez, (1969) 3 SCR 603: (AIR 1969 SC 1201) and D. P. Mishra v. Kamal Narayan Sharma, (1971) 1 SCR 8 : (AIR 1970 SC 1477), In Balwan Singh v. Lakshmi Narain, (1961) 22 ELR 273: (AIR 1960 SC 770) this Court held that if full particulars of an alleged corrupt practice are not supplied, the proper course would be to give an opportunity to the petitioner to cure the defect and if he fails to avail of that opportunity that part of the charge may be struck down.We may, however, hasten to add that once the amendment sought falls within the purview of Sec. 86(5), the High Court should be liberal in allowing the same unless, in the facts and circumstances of the case, the Court finds it unjust and prejudicial to the opposite party to allow the same. Such prejudice must, however, be distinguished from mere inconvenience, vide Raj Narain v. Indira Nehru Gandhi, (1972) 3 SCR 841: (AIR 1972 SC 1302).
22. Likewise, in the case of Gajanan Krishnaji Bapat & Anr. Vs. Dattaji Raghobaji Meghe & Ors., AIR 1995 SC 2284, it has been held that:-
86. Section 86(5) of the Act deals with the amendment of an Election Petition. It lays down that the High Court may upon such terms as to costs or otherwise, as it deems fit, allow amendment in respect of particulars but there is a complete prohibition against any amendment being allowed which may have the effect of introducing either material facts not already pleaded or of introducing particulars of a corrupt practice not previously alleged in the petition. The first part of S. 86(5) of the Act, therefore, is an enabling provision while the second part creates a positive bar. Of course, the power of amendment given in the Code of Civil Procedure can be invoked by the High Court because S.86 of the Act itself makes the procedure applicable, as nearly as may be, to the trial of election petition, but it must not be ignored that some of the Rules framed under the Act itself over-ride certain provisions of the Civil Procedure Code and thus, the general power of amendment drawn from the Code of civil Procedure must be construed in the light of the provisions of the election law and applied with such restraints as are inherent in an election petition.
23. It is clear from aforesaid pronouncements of the Supreme Court that Section 86 (5) of the Act permits only âparticularsâ in corrupt practice âalleged in the petitionâ to be amended or amplified and not material facts. Further, there is distinction between the âmaterial factsâ referred to in clause (a) of Section 83(1) and âparticularsâ referred to in clause (b) thereof. Section 86 (5) permits amendment/amplification of the particulars as referred to in clause (b) but no amendment/amplification of material facts as referred to in clause (a) of Section 83(1). Thus, Section 86 (5) is relatable to clause (b) of Section 83 (1) but does not relate to Clause (a) of Section 83 (1); as such, the power to amend the election petition does not extend to âmaterial factsâ. There is complete prohibition against any amendment being allowed that may have the effect of introducing either material facts not already pleaded or of introducing particulars of a corrupt practice not previously alleged in the petition.
24. In view of the legal position culled out from aforesaid pronouncements of the Supreme Court, it may be noted that the present election petition has not been filed on the ground of any corrupt practice on the part of the returned candidate or his election agent or any person with the consent of the elected candidate or his election agent. It has been filed on the ground of improper reception or rejection of votes and non-compliance with the provisions of the Act and the Rules made thereunder. Thus, what has already been pleaded in the election petition is a statement of material facts on which the petitioner relies as envisaged under Section 83(1) (a) of the Act and as held by Supreme Court in aforesaid authorities, there is complete prohibition against any amendment being allowed which may have the effect of introducing any material fact not already pleaded. In aforesaid view of the matter, petitioner can also not be allowed to take recourse to Order 6 Rule 17 of the C.P.C. for introducing material facts not already pleaded.
25. On the basis of foregoing discussions, I.A.No.14259/2015 cannot be allowed and is therefore, dismissed.
(C.V. Sirpurkar) Judge b/sh/Ahd