Bombay High Court
Smt. Bita W/O Ghanshyam Ramteke vs Ig Shri Nanaji Sitaram Shamkule on 4 August, 2010
Author: A. H. Joshi
Bench: A. H. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
ELECTION PETITION NO.8 OF 2009.
PETITIONER : Smt. Bita W/o Ghanshyam Ramteke
Aged about 58 years,
Occ:Service,
R/o Sant Andri Ward, Behind New
English High School, Jetpura, Ward
No.3, Chandrapur, Tq. and District
Chandrapur.
-VERSUS-
RESPONDENT:
ig Shri Nanaji Sitaram Shamkule,
aged about 60 years,
Occu:MLA
R/o Plot No.2, Ashok Colony,
Post Khamla,
Nagpur. Tq. And Distt: Nagpur.
Shri A. S. Kilor Advocate for the petitioner.
Shri A. S. Chandurkar, Advocate for the respondent.
CORAM: A. H. JOSHI, J.
DATED: 04th AUGUST 2010.
ORAL JUDGMENT :
(Order below Issue No.2 and 5 on preliminary point)
1. This is an election petition filed against the returned candidate by the petitioner who had contested from Chandrapur-71i Assembly Constituency.
2. The challenge to the declaration in favour of the returned candidate is mainly on the ground of the information received by petitioner about the ::: Downloaded on - 09/06/2013 16:14:28 ::: 2 unreliability of the Electronic Voting Machines and susceptibility of the Electronic Voting Machines to tampering and petitioner's own knowledge that at 160 booths referred to in paragraph No.19 of Election Petitions, the EVMs were actually ridged/tampered.
3. Considering the rival contentions, issues were framed in relation to lack of disclosure of adequate grounds for challenging the election. Issue no.2 reads as follows:
ig "(2) Are material facts as required to be pleaded by Section 83(1) (a) of the Act absent in the election petition?
Consequential issue No.5 was also framed as to what orders need be passed after passing of the order on issue No.2.
4. The returned candidate has filed an application under Order 7 Rule 11(a) of Civil Procedure Code and prayed for dismissal of election petition on the ground that the EVMS do not disclose the cause of action.
5. Heard parties to the petition at length on preliminary issue.
6. Perused the pleadings and case law relied upon by the respective parties.
::: Downloaded on - 09/06/2013 16:14:28 ::: 37. According to the learned Advocate Shri A. S. Chandurkar, the description contained in the election petition barely discloses the following:
(a) The apprehension that the EVMs are tampered.
(b) Opinion that the EVMs can be tampered.
(c) The fact that the election commission does not have source code of data of the EVMs, is sufficient to believe un-reliableness of EVMs.
(d) For fairness of election, it is necessary that there should be a paper back up of the ballots ig to enable physical verification of the count if required. Therefore, election subject matter cannot be considered or regarded to be fair and impartial.
(e) The petitioner believes that the EVMs are tampered, and believes so because the petitioner has received less votes or the returned candidate received substantial votes in the 160 polling booths listed in paragraph No.19, where the petitioner has a strong hold.
8. In support of the objection, the learned Advocate Mr. A. S. Chandurkar has urged that:-
(a) the election petition does not conform to mandatory requirement of clause (d) of Section 100(1) namely it does not disclose as to how the result of election in so far as it concerns the returned candidate, was materially affected on account of the alleged ::: Downloaded on - 09/06/2013 16:14:28 ::: 4 tamperability of EVMs, and actual tampering which the petitioner believes, has occurred.
(b) The election petition does not disclose material facts as to how EVMs were actually tampered.
(c) The petition is liable to be rejected under Order 7 Rule 11(a) of Civil Procedure Code due to failure tom disclose material facts to describe the cause of action.
9. ig The learned Advocate Mr. A. S. Chandurkar has placed reliance on the following judgments:-
(1) 1986 (Supp) Supreme Court Cases 315, Azhar Hussain Vs. Rajiv Gandhi.
(2) (2009)10 Supreme Court Cases 541, Ram Sukh Vs. Dinesh Aggarwal.
(3) [2010 (4) Mh.L.J.,660 Shishupal Natthuji Patle Vs. Praful Manoharbhai Patel.
(4) Order in C.A. No.4325 of 2005 in Election Petition No.4 of 1994, Vasantrao Itkelwar Vs. Rajendra Mulak, passed by Shri Justice B. P. Dharmadhikari on 10th August, 2006.
(5) 2006(3)AIR Bom R 393 Banwarilal B. Purohit Vs Vilas Muttemwar & Ors.
10. The purpose of reliance on these judgments is to urge that what the petitioner is required to plead while challenging the election the factual matter which if proved the election of returned candidate may be set aside, however, the petition does not withstand this test.
Based on these points it is argued that in absence of pleadings noted in foregoing points the ::: Downloaded on - 09/06/2013 16:14:28 ::: 5 election petition deserves to be dismissed.
11. In the course of reply, the learned Advocate Shri A. S. Kilor for the petitioner has submitted that :-
(a) The election is liable to be set aside on the grounds provided in clauses (iii) & (iv) of Section 100(1)(d) of the Representation of the People Act 1951.
(b) What is required to be pleaded is the ig disclosure of the cause of action and not the proof thereof.
12. Learned Advocate Mr. A. S. Kilor has placed reliance on the reported judgment in case of Mohan Rawale Vs. Damodar Tatyaba alias Dadasaheb and others, (1994)2 Supreme Court Cases 392.
13. In Mohan Rawle's case supra, it is laid down in paragraph no.14 as follows:
"(1) What are material facts and particulars? Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition."
[Quoted from page 327 of the report supra] Based on this Judgment, it is urged that the ::: Downloaded on - 09/06/2013 16:14:28 ::: 6 pleadings adequately spell out the cause of action and therefore, the preliminary issue be answered in favour of the petitioner, and the petition can proceed for trial on merits.
14. This Court has to see whether the description contained in the petition answers the test, namely, whether the pleadings constitute "description of material facts" and disclosure of cause of action, which if proved, the result of election in favour of the returned candidate shall have to be set aside.
15. It is necessary to test and for that purpose analyze the pleadings.
ANALYSIS OF PLEADINGS :
16. In paragraph nos.1 to 9, the petitioner has averred that she had strong hold and support and backing from the people from the constituency as she was a candidate set up by Indian National Congress and had strong support of local Member of Parliament.
17. In paragraph nos.10 & 11, the petitioner has pleaded that she has received information that the EVMS are unreliable and are capable of tampering.
18. In paragraph nos.12, 13 & 14, the petitioner has pleaded that the Election Commission has supplied the information to one Shri Yatindra N. Vidyarthi a ::: Downloaded on - 09/06/2013 16:14:28 ::: 7 Scholar, that since the details of source code of Software etc. used in EVMs are not available with the Election Commission, and said Yatindra N. Vidyarthi holds an opinion that the EVMs are capable of tampering and are unreliable.
19. In paragraph no.15, the petitioner has pleaded that one Shri Omesh Saigal, a retired IAS Officer and former Secretary to the Government of India has opined, on the basis of the information collected from various countries that the EVMs are capable of tampering and manipulating, and it would not be possible to detect any fraud during mock poll.
20. In paragraph no.16, the petitioner has pleaded that one Dr. Satinath Chaudhary, an expert, had expressed that the course of handling and transportation of EVMs from one place to another, EVMs can be programmed and re set in such a fashion that the votes could be automatically polled to favour any particular candidate, and he has lastly suggested that all EVMs should have a paper back-up.
21. In paragraph no.17, it is urged that because of the tamperability, use of EVMs has been abandoned in western countries particularly in United States of America and Germany.
22. In paragraph no.18, it is pleaded that due to ::: Downloaded on - 09/06/2013 16:14:28 ::: 8 the susceptibility and possibility of tampering of EVMs, the act of using the EVMs has become unconstitutional.
23. In paragraph no.19, it is pleaded that the Polling Booths which are about 160 in numbers listed therein, were such that the petitioner was bound to get substantial votes and lead, which it has not received and this has happened because the EVMs were so programmed and tampered that it should help the respondent no.1 to get victory over the petitioner.
24. ig In paragraph no.20, it is pleaded that the Prepoll Survey indicated that the petitioner had a strong hold in the constituency.
25. In paragraph no.21, it is pleaded that the EVMs were tampered and only because of that the returned candidate got victory with a margin of 15410 votes.
26. Rest of the averments contained in the petition have no nexus with the grounds on which the election is sought to be set aside.
27. In order to succeed on preliminary point the petitioner has to show that in the body of election petition, the pleadings contain the following:-
(a) The facts on account of which the petitioner is in a position to show that the manner in which the EVMs were tampered or manipulated.::: Downloaded on - 09/06/2013 16:14:28 ::: 9
(b) The manner in which the said tampering of EVMs was done by the returned candidate or anybody acting on his behalf.
(c) The manner in which the said tampering has resulted in creating a margin of votes which has materially affected in favour of the returned candidate the result of election.
28. This Court has again taken a quick view & check of the pleadings and what this Court reaffirms on the basis of summary noted in the body of foregoing paras of this judgment is that, the averments can be divided in to following:
(a) Petitioner's belief that the voting machines are tamperable.
(b) Expert or Scholars' opinion that the EVMs have been in fact, tampered.
(c) Knowledge of the petitioner that EVMs have been in fact, tampered in the election subject matter so as to help the Respondent no.1 to get victory over the petitioner.
29. In so far as the first two aspects at item (a) and (b) referred to in the foregoing paragraph are concerned those do not constitute ground on which result of election can be set aside, because the apprehensions do not constitute to be the fact on the basis of which the cause of action can arise.
::: Downloaded on - 09/06/2013 16:14:28 ::: 1030. In so far as the aspect contained in item (c) of para 28 that EVMs are actually tampered, is concerned, the averments are seen only in paragraph nos.19 of the election petition.
31. Since the aspect of tampering being done as a 'fact' is concerned, it has to be dealt with.
32. It would be useful once again to refer to the relevant averments, ad verbatim. The averment contained in paragraph no.19 is quoted below :-
ig "19. Thus, in the present matter there is ample circumstantial evidence available to show that the respondent no.1 has got victory by extra ordinary margin. The circumstantial evidence further suggests that fraud was perpetrated in the EVMs of the booths of the areas where the petitioner was having strong hold and those areas have mysteriously chosen the respondent no.1 and these were the polling booths where it is apparent that the EVMs were so programmed and tampered that it should help the respondent no.1 to get victory over the petitioner. The Polling booths where according to the petitioner the respondent no.1 has tampered the EVMs at the Polling Booths are as under:-
Polling Name of the Name of the Building of Station. Polling Station. Polling Station.
3 Tadali Z.P. School Room No.1 4 Tadali Z.P. School Room No.2 6 Tadali Vidyavihar Mandir Uarjagram Tadali.
8 Morwa Z.P. Primary School, Morwa, Room No.2.
10 Vichoda Z.P. Primary School,
Rayatwari Vidhoda Rayatwari.
11 Padoli Z.P. Primary School,
Padoli Room No.1.
13 Padolli Z.P. Primary School,
Padoli Room No.3.
(total 160 polling booths........."
[Quoted from page 25 & 26 of election petition paper book]
33. This Court considers that it is necessary to ::: Downloaded on - 09/06/2013 16:14:28 ::: 11 advert to the verification clause of the election petition. In verification clause, the petitioner has stated as follows:
" I further say that the contents of above paragraphs 1 to 7 and 29 to 34 of the above petition are true to my own knowledge. I further say that the contents of above paragraphs 8 to 18 are based upon the information received by me and believed by me to be true.
.I further say that the contents of above paragraphs 19 to 28 are partly based on my personal knowledge and partly on the information received by me which I further believe to be true.
ig [Quoted from page 39
petition paper book]
of election
Thus, the petitioner claims that the tampering of EVMs narrated in paragraph no.19 is partly a matter of personal knowledge of the petitioner, and partly based on information received by her which are true to her belief.
Analysis of part thereof which is based on personal knowledge and part thereof based on belief is not segregated and affirmed distinctly.
34. Any narration which would constitute the description of the act of programming the EVMs for favouring the respondent, interference & access therein, theft or any other overt acts to or in the EVMs tentamounting to tampering has not been incorporated, any where in the entire body of election petition.
35. As the petitioner claims that the tampering is ::: Downloaded on - 09/06/2013 16:14:28 ::: 12 her personal knowledge, she ought to have given the specific acts or omissions constituting such facts which describe the tampering.
If at all the tampering was done, has to be a human act done by some individual. If it be so, and if it is within the knowledge of the petitioner, she has to plead those facts, so that those can be proved.
36. The petitioner may not know technical data or manner in which the tampering has been done or whether it has been done on somebody's behest and if she knows it, she ought to have disclosed said acts and source of knowledge.
37. Claiming that relevant averments contained in the petition are based on 'personal knowledge' and failing to give the factual matter is equal to failing to give & plead necessary and material facts as regards the grounds on which the declaration of result of election is challenged.
38. Proper verification analyzing and authenticating the pleadings is a mandatory requirement under Section 83(1)(c) of The Representation of the People Act, 1951. It is clear that the petitioner has failed to comply with this mandatory requirement.
39. Therefore, the averments contained in paragraph no.19 quoted and referred to herein before do ::: Downloaded on - 09/06/2013 16:14:28 ::: 13 not constitute the description of material facts which if proved the result of election in favour of the respondent can be set aside.
40. The description contained in the election petition is analogous to an allegation which is devoid of facts constituting factual matter of such allegation, and hence said averment is just like an adjective.
Pleading as to which fact or facts constitute tampering, if proved, can lead to success in the petition is a sine qua non for the petition to proceed for trial on merits.
41. Now the objection raised by the learned Advocate Shri A. S. Chandurkar as to failure to comply with the clause (d) of Section 100 which is condition precedent needs to be dealt with.
42. On discreet scrutiny of the Election Petition, this Court finds that in the body of the petition, the averments as to how the alleged tampering of EVMs has resulted into materially affecting the result of election as regards the returned candidate is concerned, are totally absent.
43. In the result, this Court has to conclude holding that the petitioner has failed to describe the bare facts required to constitute the ground of election petitioner either under clause (iii) & (iv) of Clause ::: Downloaded on - 09/06/2013 16:14:28 ::: 14
(d) of sub-Section (1) of Section 100 of The Representation of the People Act, 1950.
44. In the result, issue no.2 which is treated as a preliminary issue is answered holding that the election petition does not disclose the cause of action on account of failure to aver material facts.
45. Issue No.5 is answered holding that election petition fails and is liable to be rejected under Order 7 Rule 11(a) of Civil Procedure Code.
46. In the circumstances, though the matter is decided on preliminary issue, the parties are directed to bear their own costs. The amount of costs deposited in this Court, be transferred to the fund of Legal Services Committee.
JUDGE //MULEY// ::: Downloaded on - 09/06/2013 16:14:28 :::