Madhya Pradesh High Court
Mukesh Nayak vs Brijendra Pratap Singh on 24 October, 2009
Reported in 2010 (1) MPHT 396
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Election Petition No.32/2009
Mukesh Nayak, son of Biharilal Nayak,
aged about 49 years, resident of House No.577
Civil-6, Chatrasal Ward No.6, Gram Damoh
District Damoh
...... Petitioner
Versus
Brijendra Pratap Singh, son of Uday Pratap Singh
aged about 45 years, resident of Gram Itori
Amanganj, Tahsil Gunor District Panna
...... Respondent
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Shri Shashank Shekhar, Advocate for the petitioner.
Shri Mrigendra Singh, Advocate for the respondent.
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Date of Hearing : 08/10/2009
Date of Order : 24/12/2009
ORDER
This order shall govern disposal of I.A. No.43/2009, which is an application, under Order VII Rule 11 of the Code of Civil Procedure (for brevity "the Code") read with Section 86 of the Representation of People Act, 1951 (for short "the Act"), seeking rejection of this election petition at the threshold on the following grounds -
(i) The petition is lacking in material facts and particulars.
(ii) The petition does not disclose any cause of action.
(iii) The petition is not supported by any affidavit in Form 25.
(iv) The annexures filed along with the petition are not attested or verified as true copies by the Petitioner.
(v) Material contradictions exist between the contents of verification clause and those of the affidavit filed in support of the pleadings.
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Election Petition No.32/2009
2. In this petition, election of returned candidate viz. the respondent to M.P. Legislative Assembly Constituency No.58 Pawai (hereinafter referred to as the 'Constituency') has been called in question on the ground of irregularities in the counting of votes with a prayer for a direction for recounting of the votes polled as well as the postal ballot papers received in the Constituency. The petitioner has also sought a declaration that irregularities committed by the Returning Officer in counting the votes have vitiated the entire process of election and has further entreated to punish the persons found involved therein.
3. Election to the Constituency was held on 27.11.2008 in which as many as 18 candidates were in the fray. The petitioner and the respondent contested the election respectively as the official candidates of Bhartiya Janshakti Party and Bhartiya Janta Party. Counting of votes through Electronic Voting Machines (EVMs) was scheduled to take place on 08.12.2008. The petitioner had appointed Devendra Kumar Tiwari, Rajaram Singraul, Rajkumar, Ramsewak, Chhotelal Pathak and Shri C.L. Singraul as counting agents whereas one Kedar Prasad, acted as agent of another candidate namely Kamlesh Dwivedi for the purpose. As per the result notified after conclusion of the counting, the respondent was declared duly elected, as he had secured 39921 votes whereas his nearest rival viz. the petitioner could get 39011 votes.
4. According to the petitioner, -
(i) till 16th round of counting, that was concluded at about 16:00 hours, he was leading as against the respondent by a margin of 3779 votes. However, the administrative officers involved in the process of counting were able to gather from the outcomes of the process of counting in other Constituencies that the ruling Bhartiya Janta Party, :: 3 ::
Election Petition No.32/2009 represented by the respondent, was again going to form Government in the State. As an obvious reaction, they suddenly left the counting room and even on being asked the reason for doing so, did not give any logical reply. Their explanation that they were leaving for lunch was also not satisfactory as breaks for the purpose had already been availed of at 13:00 and 14:30 hours.
(ii) At about 16:50 hours, brother of the respondent namely Lokendra Singh and his companion Mahendra Yadav started hurling abuses and throwing chairs on the partition providing separate spaces to the agents and the officers of Election Commission in the counting room.
Finding that the situation was a complete chaos, the officers appointed by the Election Commission not only shifted 8 EVMs which were yet to be used for counting of votes but also dragged his counting agents out of the room. Thus, counting in the 17th, 18th and 19th rounds could not be done in presence of his counting agents.
(iii) Further, the moment the counting agents came out of the room, the entry passes issued in their favour were torn into pieces by the police authorities present there. Although, they preferred an oral complaint to the Superintendent of Police, Panna and also submitted an affidavit to the effect that on 8/12/08 after 4.30 p.m. they were expelled from the counting room by the police officials yet, no action was taken presumably in view of the fact that by that time 80% of the election results in the State were formally announced.
(iv) Immediately thereafter, to his utter dismay and surprise, the respondent was declared elected by exhibiting that in the 17th, 18th and 19th rounds, he had received 237, 634 and 355 votes whereas the respondent had secured 1242, :: 4 ::
Election Petition No.32/2009 2702 and 1971 votes. This apart, his counting agents were compelled to append signatures on the tabulation sheets showing result of those rounds based on the readings of 8 EVMs despite the fact that procedure prescribed under the Election Law for counting of votes in their presence was not followed. One of the counting agents namely Sitaram Patel made an application for recounting of votes recorded by 8 EVMs in 17th, 18th and 19th rounds on the ground that votes were not counted before him. Another counting agent viz. K.K. Pandey also made a complaint to the effect that the EVM in respect of polling booth No.128 of Bada Gaon Sarsela was not at all included in the process of counting. However, the Returning Officer refused to acknowledge receipt of these complaints.
(v) Thus, the figures reflected in the tabulation chart, prepared as per Proforma 20 prescribed under Rule 56C(2)(c), were erroneous, incorrect and bogus. In such a situation, he himself faxed applications to the Returning Officer at 18:46 and 19:10 hours for recounting of 17th, 18th and 19th rounds but no action was taken.
5. In the light of these averments, the petitioner has claimed that in case a recounting is done he would emerge as victorious by a considerable margin of votes.
6. As pointed out already, the prayer for rejection of the Election Petition has been made not only on the ground of non-compliance with the statutory procedural requirements but also for the reason that the petition does not disclose any cause of action.
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Election Petition No.32/2009
7. In reply, the petitioner has submitted that even if it is assumed that the pleadings or the contents of affidavit suffer from any deficiency, the election petition can not be dismissed in limine. To buttress the contention, reference has been made to leading decision of the Apex Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore AIR 1964 SC 1545.
8. At the outset, it may be observed that the objection as contained in ground no.(iii) [above] regarding non-submission of affidavit in Form No.25 prescribed by Rule 94A of the Conduct of Elections Rules, 1961 and the reply that the corresponding particulars may be amended and amplified are apparently misconceived in view of the fact that election in question has not been challenged on the ground of any corrupt practice enumerated in Section 123 of the Act. Further, the ground nos.(iv) and (v) [supra] can be dealt with under the doctrine of curability. As such, the petition can not be rejected on any one of the abovementioned three grounds.
9. The question that arises for consideration is as to whether the petition deserves rejection on the ground nos.(i) and (ii) [ibid] relating to the objection as to non-pleading of material facts and materials and non-disclosure of cause of action respectively.
10. The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary' (Harkirat Singh v. Amarinder Singh AIR 2006 SC 713 referred to). Hence, material facts are facts which if established would give the petitioner the relief asked for even if the respondent had not appeared. Further, for deciding the application under Order VII Rule 11 of the Code, the averments in the petition are germane and the pleas taken :: 6 ::
Election Petition No.32/2009 by the respondent would be wholly irrelevant at that stage. This apart, rejection of plaint in exercise of the power under Order VII Rule 11 would be necessitated only if on a meaningful, not formal reading of the petition it is manifestly vexations, and meritless, in the sense of not disclosing a clear right to challenge the election (See. T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467).
11. Examining the pleadings of the petitioner in the light of these guiding principles, one may easily conclude that the petitioner has only suspected a foul play in the process of counting resulting into his defeat inspite of the fact that he was leading upto last but 3 rounds.
12. Law on the subject has been elaborately explained by the Apex Court in T.A. Ahammed Kabeer v. A.A. Azez (2003) 5 SCC 650 in the following terms -
(1) In an election petition wherein the limited relief sought for is the declaration that the election of the returned candidate is void on the ground under Section 100(1)(d)(iii) of the Act, the scope of enquiry shall remain confined to two questions: (a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an enquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b) any votes were improperly refused or rejected in regard to the returned candidate.
(2) A recrimination by the returned candidate or any other party can be filed under Section 97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected.
(3) For the purpose of enabling an enquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the Election Court shall acquire jurisdiction to do so only on two conditions being :: 7 ::
Election Petition No.32/2009 satisfied: (i) the election petition seeks a declaration that any candidate other than the returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) a recrimination petition under Section 97(1) is filed. (4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act.
(5) The bar on enquiry enacted by Section 97 read with Section 100(1)(d)(iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a re-count the Election Judge finds the result of re- count to be different from the one arrived at by the Returning Officer or when the Election Judge finds that there was an error of counting the bar is not attracted because the court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or re- counting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of sub-clause (iv), and not sub- clause (iii) of clause (d) of sub-section (1) of Section 100 of the Act"
[Emphasis supplied]
13. Accordingly, when a petition is for relief of scrutiny and recount on the allegation of miscount, the petitioner has to offer proof of errors in counting and if errors in counting are prima facie established a recount can be ordered. However, fact of the matter is that in the case on hand, scope of inquiry is limited to the correctness and authenticity of counting that was carried out by means of EVMs whereas all doubts and queries regarding the functioning of EVMs have already been answered in FAQs of electronic voting machines :: 8 ::
Election Petition No.32/2009 published by the Commission on the website. The relevant questions and answers may be reproduced as under:
"Q18. Is it possible to vote more than once by pressing the button again and again?
Ans. No ......
Q21. Is it possible to program the EVMs in such a way that initially, say upto 100 votes, votes will be recorded exactly in the same way as the `blue buttons' are pressed, but thereafter, votes will be recorded only in favor of one particular candidate irrespective of whether the `blue button' against that candidate or any other candidate is pressed?
Ans. The microchip used in EVMs is sealed at the time of import. It cannot be opened and any rewriting of program can be done by anyone without damaging the chip. There is, therefore, absolutely no chance of programming the EVMs in a particular way to select any particular candidate or political party. ......
Q28. In the conventional system, before the commencement of poll, the Presiding Officer shows to the polling agents present that the ballot box to be used in the polling station is empty. Is there any such provision to satisfy the polling agents that there are no hidden votes already recorded in the EVMs? Ans. Yes Before the commencement of poll, the Presiding Officer demonstrates to the polling agents present that there are no hidden votes already recorded in the machine by pressing the result button. Thereafter, he will conduct a mock poll by asking the polling agents to record their votes and will take the result to satisfy them that the result shown is strictly according to the choice recorded by them. Thereafter, the Presiding Officer will press the clear button to clear the result of the mock poll before commencing the actual poll.
Q29. How can one rule out the possibility of recording further votes at any time after close of the poll and before the commencement of counting by interested parties?
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Election Petition No.32/2009 Ans. As soon as the last voter has voted, the Polling Officer in-charge of the Control Unit will press the 'Close' Button. Thereafter, the EVM will not accept any vote. Further, after the close of poll, the Balloting Unit is disconnected from the Control Unit and kept separately. Votes can be recorded only through the Balloting Unit. Again the Presiding officer, at the close of the poll, will hand over to each polling agent present an account of votes recorded. At the time of counting of votes, the total will be tallied with this account and if there is any discrepancy, this will be pointed out by the Counting Agents.
[Underlined by me]
14. From the corresponding 'Press Note', copy of which has also been placed by the respondent on record, one may gather the following information about EVMs used by Election Commission of India -
Facts about EVMs used by ECI ( i) ECI-EVMs are manufactured only by Electronics Corporation of India Limited (Department of Atomic Energy) and Bharat Electronics Limited (Ministry of Defence), both Central Public Sector Undertakings, which are entrusted with development of very high security product/equipment development.
(ii) The ECI-EVMs cannot be reprogrammed.
(iii)The software for this chip is developed in-house by a select group of engineers in the two PSUs independently from each other. A select software development group of 2-3 engineers designs the source code and this work is not sub-contracted.
(iv)The source code is so designed that it allows a voter to cast the vote only once. The next vote can be recorded only after the Presiding Officer enables the ballot on the Control Unit. In between the machine becomes dead to any signal from outside (except from the Control Unit).
(v) After completion of software design, testing and evaluation of the software is carried out by an independent testing group as per the software :: 10 ::
Election Petition No.32/2009 requirements specifications (SRS). This ensures that the software has really been written as per the requirements laid down for its intended use only.
(vi) After successful completion of such evaluation, machine code of the source programme code known as hex-code (not the source code itself) is given to the micro controller manufacturer for fusing in the micro controllers. From this machine code, the source code cannot be read. Source code is never handed over to anyone outside the software group.
(vii) Micro controller manufacturer initially provides engineering samples for evaluation. These samples are assembled into the EVM, evaluated and verified for functionality at great length. Bulk production clearance is given to micro controller manufacturer only after successful completion of this verification.
(viii) The source code for the EVM is stored under controlled conditions at all times. Checks and balances are in place to ensure that it is accessible to authorized personnel only.
(ix) During production, functional testing is done by production group as per the laid down quality plan and performance test procedures.
(x) Samples of EVMs from production batches are regularly checked for functionality by Quality Assurance Group, which is an independent group within the organizations.
(xi) Certain additional features were introduced in 2006 in ECI-EVMs such as dynamic coding between Ballot Unit and Control Unit, installation of real time clock, installation of full display system and date and time stamping of every key pressing in EVM. It is important to note that there was no modification of any type done at this stage in the basic functions of the machine.
Not comparable with EVMs Abroad The Commission has come across some comparisons between ECI-EVM and EVMs used by foreign countries. Such comparisons are both misplaced and misguided. Most of the systems used in other countries are PC based and running on operating Systems. Hence, these could be vulnerable to hacking. The EVM in India on the other hand is a fully standalone machine :: 11 ::
Election Petition No.32/2009 without being part of any network and with no provision for any input. As already stated, the software in the EVM chip is one time programmable and is burnt into the chip at the time of manufacture. Nothing can be written on the chip after manufacture. Thus the ECI- EVMs are fundamentally different from the voting machines and processes adopted in various foreign countries. Any surmise based on foreign studies or operating system based EVMs used elsewhere would be completely erroneous. The ECI-EVMs cannot be compared with those EVMs.
Complete Procedural Security The Commission has in place elaborate administrative measures and procedural checks-and-balances aimed at prevention of any possible misuse or procedural lapses. These measures include rigorous pre-election test and inspection of each EVM by the technicians, two level randomization with the involvement of candidates and their agents, for the random allotment of the EVMs to various constituencies and their subsequent dispatch to various polling stations. Preparation of the EVMs for elections is done in the presence of the candidates/their agents and sealing of the prepared EVMs is also done in candidate's or their agent's presence. Thread seal are fixed on the EVM where again, the candidates or their representatives put their own signature and seals. Paper seals guards against any unauthorized access to the EVMs after preparation. EVMs are then kept in sealed strong rooms with provision for the candidates to put their individual seals on the strong rooms. The EVMs are randomized twice over. The list of EVMs going to individual polling stations is given to the candidates for them to check, on the poll day the actual machine, that is used in that polling station. Furthermore a mock poll is conducted in the presence of polling agents, when the polling agents can verify, inter-alia, the EVM numbers. A mock poll certificate is taken before the commencement of poll. After the mock poll the machine is set back to zero and green paper seal printed at Govt. Security Press is put in, where once again every polling agent is allowed to put his/her signature. After the polls, the EVM are also sealed in such a manner that there is no physical access to any of the buttons on the EVMs. Indeed there is no access to :: 12 ::
Election Petition No.32/2009 the EVMs itself since the carrying case is sealed completely. The machines are put in the strong room again in presence of the candidates, observer of the commission under video camera surveillance. The strong room is allowed to be guarded by the supporters of the candidates besides the police protection provided to strong rooms. At every step, the EVM is very well protected and elaborate arrangements are in place for the same.
15. In Michael B. Fernandes v. C. K. Jaffer Sharief AIR 2004 KARNATAKA 289, the Karnataka High Court had the occasion to analyze these claims regarding functional efficacy of EVM by examining one of the scientists of the Bharat Electronic Limited (in short B. E. L.) as the Court witness who was also cross-examined at length. The findings recorded by the learned Election Judge may usefully be quoted as under -
Voting machine has two major units : one is control unit and other is balloting unit. Control unit is handled by the Presiding Officer, who is in-charge of the Polling Booth. The control unit has all the intelligence in- built. The ballot unit is a dummy unit or otherwise called non-intelligence unit. The ballot unit has buttons and a lamp for each candidate arranged in a line. The ballot unit is kept in the polling compartment, 5 meters away from the control unit. The ballot Unit has a cable permanently attached. At the time of polling, the cable is connected to the control unit, when the voter press the button casting the vote to a candidate, the lamp by the side of the button will glow to indicate that the voting done is proper and simultaneously in the control unit a beep sound is heard to a range of 30 ft. The control unit functions in a non- reversible cycle of voting process.
After the publication of the list of the candidates, the Returning Officer sets the number of contesting :: 13 ::
Election Petition No.32/2009 candidates in the control unit, which functions on a battery specially manufactured and supplied by B.E.L. The effective life of the battery is 48 hours of continuous functioning. In the balloting unit the printed ballot sheet is put behind the transparent screen. The balloting unit is capable of handling the ballot sheet containing 16 contestants and on the whole EVM is designed to handle a maximum of 64 contestants at an election. The balloting unit has got 16 buttons operatable through a panel cut out. After inserting the balloting paper in the ballot unit, the Returning Officer closes the lid and put a seal provided by the election commission in presence of the candidates /their agents. The lid and the flaps once closed and sealed cannot be opened without tampering the seal. The Returning Officer simultaneously will set the control unit to receive the information about the number of candidates contesting in the election. By pressing the last "Can set"
button in the control unit, the number of contesting candidates is recorded. The candidate set compartment of the control unit is closed and sealed in the presence of the candidates/their agents. Thereafter the control unit and the balloting unit are put separately in a carrying cases and are sealed by the Returning Officer in presence of the candidates/agents. The carrying cases containing control unit and balloting Unit are delivered to the Presiding Officers on the previous day to the election and would be carried to the polling booth.
The Polling Officer will verify the seals of the carrying cases, take out the control unit and balloting unit, verify the correctness of the seals. An hour before the polling time, mock poll is conducted to verify the functional capacity. The agents/candidates are asked to press the button in the balloting unit to cast their votes. Later on the "result button" in the micro controller is pressed :: 14 ::
Election Petition No.32/2009 which display the number of votes polled. After demonstration of the correctness of the function, the 'clear button' is pressed which will erase all the data of the mock poll. After the mock poll, the Presiding Officer will close the result compartment by putting the seal provided by the election commission by which the voting machine is ready for polling.
The voter presents before the Presiding Officer, after verifying the identity, the Presiding Officer will press the 'balloting button' in the control unit and send the voter to the polling cabin. When the voter press the 'balloting button' casting vote to the candidate of his choice, the lamp by the side of the button will glow indicating the correctness of voting. The control unit will give a beep sound to indicate that the vote casted is registered in the control unit. For the next vote to be cast, again it is necessary that the 'balloting button' in the control unit is to be pressed by the Presiding Officer, otherwise, mere pressing of button in the balloting unit by the voter will be of no consequence. For every next vote to be cast, it is necessary that the 'balloting button' in the control unit is to be pressed by the Presiding Officer. After polling time is over 'close button' in the control unit is pressed by the Presiding Officer by which the machine gets locked. Thereafter, the balloting unit is disconnected from the control unit, they are separately packed in the carrying cases and sealed in presence of the agents by the Presiding Officer. Later on they are transported to the counting centers and ballot unit and control unit are kept in a strong room before they are taken to the counting centers. At the time of counting, seals put by the Presiding Officer to the control unit is verified to ensure that no tampering has taken place. When the 'result button' is pressed, machine will display the :: 15 ::
Election Petition No.32/2009 number of votes polled against each candidates sequentially.
Control unit has two main devices: one is micro controller and another is memory. Micro controller is one time programmable component. Micro controller once fused with program code and data is unchangeable and irreversible. The memory device is functionally efficient and retain the voting data without the aid of a battery. The micro controller will record and register the voting data by cross checking with the memory for every vote. The programme code is encrypted and stored in the memory. It is not possible to replace the memory device in order to play mischief. If the Memory device is removed, micro controller will detect and declare that the machine is in error state. The memory device and one time programmable micro controller are the pivotal devices of the EVM and they act as tamper proof device for the programme code and poll data.
If a voter damages the button of the balloting unit or for accidental reason the button of the balloting unit gets struckn, such errors are indicated in the control unit. In such cases, a spare balloting unit is used. The sound of error message is heard in the control unit like a alert sound, simultaneously the display panel will show letters "PE" indicating that balloting unit has gone out of order. If the connecting cable is damaged or cut, letter 'LE' is displayed in the display panel of the control unit with an alert sound and these are the possible errors that can happen during use of machine during polling. If there is any error in the memory device, the machine is declared dead. The weak battery can also lead to error and the panel display will indicate by six dash marks. The Presiding Officer will change the battery and continue polling. The defect in :: 16 ::
Election Petition No.32/2009 the battery is a rare phenomenon. If the machine is not functioning, there will be no battery consumption. The Micro controller manufactured with a given programme code is only useful for EVMS made for the elections by the B. E. L. company and cannot be used for any other purpose. The programme code is encrypted by out-source agency in the presence of the responsible official of the BEL and the programme code is a business secret. Out- source agency would keep the encrypted data as utmost secrecy. It is further stated that the encrypted code and data is unchangeable and indelible by anybody, even by the manufacturer. Any attempt to tamper with the encrypted code would only result in damage to the machine. But the micro controller and memory cannot be manipulated by anybody. It is also stated that the EVM is tested to the temperature condition of 20 degree C to + 55 degree C. and electromagnetic radiation also would not affect the functioning of the machine. The witness categorically states that either by manipulation or by accident there is no possibility of transfer of votes from one candidate to another and the machine designed is fully tamper proof.
16. Since the petitioner has raised doubt as to fairness or impartiality of the officials engaged in the counting process, he is under an obligation to demonstrate as to how the EVMs could be tampered with to get the desired result. However, no expert opinion has been placed on record regarding the chances of misalignment of EVMs. On the other hand, correctness of all the technical aspects of the matter, as reflected as FAQs and the Press Note issued and uploaded on its website by Election Commission of India, has already been verified on the judicial side in Michael B. Fernandes's case (supra). Accordingly, the EVM is a foolproof device for counting of :: 17 ::
Election Petition No.32/2009 votes. In this view of the matter, any further probe into the allegations made by the petitioner regarding possibility of malfunctioning and tampering of the EVMs used in the counting of votes in 17th, 18th and 19th rounds or non-inclusion of the EVM pertaining to polling booth No.128 of Bada Gaon Sarsela would be a futile exercise. The averments regarding error in counting of postal ballot papers also do not assume any significance in view of the fact that it precedes the counting of votes through EVMs.
17. For these reasons, I am of the view that the petition does not disclose any material fact necessitating a full-dressed trial.
18. In a democracy the mandate has sacrosanctity. It is to be respected and not lightly interfered with. When it is contended that the purity of electoral process has been polluted, weighty reasons must be shown and established. The onus on the election petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun (Regu Mahesh Rao v. Rajendra Pratap Bhanj Dev AIR 2004 SC 38 referred to).
19. To sum up, even if the averments made in the election petition are taken at their face value and are accepted in their entirety, no triable issue between the parties would arise in absence of complete, precise and specific pleadings in respect of the alleged irregularities in counting of votes through EVMs. As an obvious consequence, the petition deserves to be rejected on the ground nos.(i) and (ii) [above].
20. In the result, the petition stands rejected, under Order VII Rule 11(a) of the Code, for want of any cause of action. The parties shall bear their own costs.
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21. A copy of this order be forwarded to the Election Commission as well as to the Speaker of the State Legislative Assembly.
Petition rejected.
(R.C. Mishra) JUDGE 24.12.2009