Bombay High Court
Manohar S/O Babarao Dhonde vs Shankar S/O Ganeshrao Dhondge on 6 May, 2011
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
ELECTION PETITION NO. 16 OF 2009
Manohar s/o Babarao Dhonde,
aged 43 years, occ. Social Worker & Service,
R/o Shewdi (Bajirao), Tq. Loha, Dist. Nanded,
Local Address for correspondence, Plot No.13,
Ajantha Housing Society,Near Darga Road,
Garkheda Parisar, Aurangabad ...Petitioner
VERSUS
1 Shankar s/o Ganeshrao Dhondge,
aged 50 years, Occ. Member of
Maharashtra Legislative assembly,
R/o Bachoti, Tq. Kandhar,
District : Nanded,
2 The Returning Officer,
88, Loha Assembly Constituency,
Dist. Nanded ...Respondents
(No.2 deleted as per
Court's Order, dt.25.10.10)
.....
Shri B.L.Sagar Killarikar, advocate for petitioner
Shri P.R.Katneshwarkar, advocate for respondent no.1
.....
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CORAM : SHRIHARI P.DAVARE, J.
DATE OF RESERVING THE JUDGMENT : 25.4.2011 DATE OF PRONOUNCING THE JUDGMENT : 06.5.2011 J U D G M E N T : -
1 Heard learned counsel for the parties.
2 The petitioner has preferred the present petition challenging the election of respondent no.1 - returned candidate from 88 Loha Assembly Constituency, wherein the polling was held on 13.10.2009 and the result was declared on 22.10.2009.
3 The petitioner claims to be the resident of Shewdi (Bajirao), Taluka Loha, District Nanded and contested the election in afore said 88 Loha Assembly Constituency as an official candidate of Shiv Sena party; whereas respondent no.1 contested the election as an official candidate of National Congress Party; whereas one Pratap Patil Chikhalikar contested the said election as an independent candidate, besides the other candidates.
::: Downloaded on - 09/06/2013 17:16:13 :::3 ep16.09 4 The petitioner assailed the said election, mainly on two grounds;
(i) tampering of EVM i.e. Electronic Voting Machines, amounting to corrupt practice, including the alleged booth capturing, thereby materially affecting the election of the Respondent, under Section 100 (1)(b)(d)(ii) read with Section 123(8)(4) and Section 135-A(1) and (e) respectively, of the Representation of People Act, 1951 (for the sake of brevity, herein after referred to as, "the Act");
(ii) improper reception of votes under Section 100(1)(b)(d)(ii)(iii) of the Act, allegedly amounting to corrupt practice and thereby materially affecting the said election.
5 Respondent no.2 i.e. the Returning Officer, 88 Loha Assembly Constituency, Nanded preferred an application, below Exh. 10, to delete him from the array of the present petition, and after hearing learned counsel for the respective parties, the said application was allowed and name of respondent no.2 was directed to be deleted from the array of the present petition by order dated 25.10.2010.
::: Downloaded on - 09/06/2013 17:16:13 :::4 ep16.09 6 Respondent no.1 i.e. Returned candidate, namely Shankar Ganeshrao Dhondge presented an application below Exh.8 under the provisions of Order VII Rule 11 of the Code of Civil Procedure and thereby raised the objections that the election petition does not disclose the cause of action and also it does not disclose the material facts and particulars of the alleged corrupt practice, nor it disclosed the material facts and particulars of improper reception of votes. It is also contended that the election petition is flimsy, vague and ambiguous, and there is no pleading in the election petition that because of the alleged corrupt practice, the result of election, in so far as it concerned to the Returned candidate, has been materially affected. Hence, it is urged that the election petition is liable to be rejected, in view of the provision of Order VII Rule 11(a)(d) of the Code of Civil Procedure.
7 The election petitioner filed affidavit in reply to the said application at Exh.11 and thereby opposed the said application vehemently and submitted that the election petition filed by the petitioner is perfectly maintainable and all the pleadings and grounds are sustainable in view of Section 83(1)(b) and (c) of the said Act r/w Order VII Rule 11(a) of the Code of Civil Procedure. It is also contended by the petitioner that there is no infirmity in the pleadings and the petition strictly complies with Sections 31, 83(1)(c) and 86 of the Act r/w Rule 94-A of the Rules framed under the Act and Form 25 of the relevant Election Rules. It is ::: Downloaded on - 09/06/2013 17:16:13 ::: 5 ep16.09 further contended that the allegations regarding infirmities in the pleadings and the contentions raised in the afore said application Exh.8 are false, baseless and unsustainable in law, and therefore, consequently, submitted that the said application deserves to be rejected with costs.
8 Before adverting to the submissions advanced by the learned counsel for the parties in respect of the said application Exh.8, and reply thereto at Exh.11, it is necessary to consider the material pleadings in the election petition, and at the out set, the petitioner contends that while submitting the nomination form by respondent no.1-Shankar Anna Dhondge on 25.9.2009, Shri Ashok Chavan, Chief Minister of Maharashtra State was present with him in the said rally, but unfortunately, a political worker of the then M.L.A. (independent) viz. Shri Pratap Patil Chikhalikar threw a shoe on the Chief Minister and the said incident was taken seriously by the Chief Minister as well as party workers of Congress-I party to defeat the then M.L.A. (independent) Shri Pratap Patil Chikhalikar, and hence, the entire campaigning of Congress-I party in 88 Loha Assembly Constituency for the year 2009 was concentrated against said Shri Pratap Patil Chikhalikar to defeat him, and therefore, it was made a prestige issue, and hence, respondent no.1 preferred to avail corrupt practice for success in 88 Loha Assembly Constituency, such as, (1) Tampering of EVMs i.e. Electronic Voting Machines, including Booth capturing and (2) improper reception of votes.
::: Downloaded on - 09/06/2013 17:16:13 :::6 ep16.09 9 In para 10 of the petition, the EVM i.e. Electronic Voting Machine is described as devised and designed by Election Commission of India in collaboration with two Public Sector Undertakings, viz. Electronics Corporation of India Ltd., Hyderabad and Bharat Electronics Ltd., Banglore and the EVMs are manufactured by the above two undertakings and same were first used in the year 1982 in Bye-Election-II Assembly Constituency of State of Kerala.
10In para no.16 of the petition, the possible ways of tampering EVMs are enumerated as follows :-
I) Tampering with the hardware cheap or software by adding malicious code like Trojan Horse or Mis-configuration, can alter vote totals or favour a particular candidate, and swapping of cheap/boards enable Trojans to favour a candidate;
II) Cables of two control units can be swapped to swap votes;
III) Hacking can take place during transportation, handling, polling station, storing places, repair, maintenance, etc.;
::: Downloaded on - 09/06/2013 17:16:13 :::7 ep16.09 IV) Abusing the administrative access to the machine by election officials, might also allow individuals to vote multiple times.
11 It is submitted in para 21 of the petition that as per election programme, the date of withdrawal of the candidature/nomination form was 29.9.2009 and the list of final contesting candidates came to be published. It is stated in the petition that it transpired from the information furnished by the Returning Officer that 318 EVMs were brought to Nanded by vehicles MH-26/B-3369 and MH-22/559 on 23.9.2009 and said 318 EVMs were stored at Tahsil office, District Nanded. It is contended by the petitioner that as per the information supplied and gathered by him from his sources, after allotment of symbols, ballot papers with name and symbol of the candidate were prepared on 6.10.2009 and EVMs were handled by the Engineer appointed by the Electronics Corporation of India Ltd., Hyderabad, namely Shri C. Pullaiah at 88 Loha Assembly Constituency for updating ballot paper screen.
12 It is stated in para 22 of the petition that the process of insertion of ballot paper screen in EVM was done by said Shri Pullaiah, the sole authorized Agent/Engineer appointed by Electronics Corporation of India on 6/7.10.2009 by using laptop. It is also stated that in all 318 machines were to be updated by Shri Pullaiah at Loha, District Nanded and no private individual, except security guard and a hotel ::: Downloaded on - 09/06/2013 17:16:14 ::: 8 ep16.09 owner/attendant, namely Shri Nagnath Madhukar Dhonde (who provided tea and snacks) were permitted to enter the premises. It is also recited in para 22 of the petition that on inquiry, it further disclosed to the petitioner that Shri Pullaiah was updating the machine by connecting it with laptop by a cod and while taking tea and snacks from hotel owner/attendant Shri Nagnath Madhukar Dhonde, he disclosed to the petitioner that he was updating the software of EVMs to suite it for 88 Loha Assembly Constituency.
13 It is also stated in para 23 of the petition that on making further inquiry, it revealed that on 5.10.2009 at 10.30 p.m. Shri Rohan Shankarrao Sundge has seen Shri Shankar Anna Dondge-respondent and Babasaheb Sheshrao Deshmukh (Election Agent) and Shri Pullaiah taking dinner together at Government Guest House, Nanded. Hence, on inquiry, Shri Rohan Sundge informed that though the elections were going on he was surprised to see the respondent-Shri Shankar Anna Dhondge as well as Babasaheb Sheshrao Deshmukh at Government Guest House taking dinner with unknown person. Therefore, out of curiosity, he made inquiry with the available staff and he was informed that the unknown person is Shri C. Pullaiah, an Engineer appointed by Electronics Corporation of India Ltd., Hyderabad for maintenance and updating of EVMs. Moreover, Shri Rohan Shankar Sundge also informed that he had seen said Shri Pullaiah at Loha while distributing EVMs. It is also stated in said paragraph that the petitioner was informed by Shri Rohan Shankar Sundge that he saw ::: Downloaded on - 09/06/2013 17:16:14 ::: 9 ep16.09 respondent no.1, namely Shankar Anna Dhondge, Mr. Deshmukh (election Agent of Respondent no.1) entering in the premises of Government Guest House on 5.10.2009, but he was surprised to see the same, since the Code of Conduct was in operation and politicians in that period were prohibited from using Government Guest House, and hence, he preferred to follow them and made the inquiry, and upon inquiry he was informed that the discussion in respect of EVMs and software therein was under
progress. Therefore, he preferred to observe the demonstration and future planning made by them and said Shri Pullaiah showed the demonstration thereof to respondent no.1 Shri Shankar Anna Dhondge and his election agent Shri Deshmukh. Accordingly, it is submitted that respondent, namely Shri Shankar Anna Dhondge and his agent Shri Deshmukh hatched plan, in collusion with Shri Pullaiah and thereby transferred the votes cast by voters in favour of the petitioner to respondent no.1 by using Trojan horse method/technology, which amounted to unfair means and corrupt practice, and hence, the election of respondent no.1 deserves to be quashed and set aside, since it is a fraud on election process and democratic rights of voters from 88 Loha Assembly Constituency for 2009 election.
14 In paragraph 24 of the petition, it is recited that on inquiry it revealed to the petitioner that after publication of final list of contesting candidates on 29.9.2009 and after allotment of symbols, the ballot papers with the name of candidate and his election symbol were prepared and ::: Downloaded on - 09/06/2013 17:16:14 :::
10 ep16.09 respondent no.1 Shri Shankar Anna Dhondge managed Shri Pullaiah for tampering the EVMs by Trojan horse software/technology to change the election results favourably. Hence, it is alleged that the dinner meeting was nothing but a meeting for manipulation of EVMs by using Trojan horse software/technology for favourable election results, thereby transferring votes cast to the petitioner at Sr. No. 3, to the candidate respondent no.1 at Sr. No.2, at prefixed percentage.
15In the said context, it is pleaded by the petitioner in para 25 of the election petition that all these aspects and factual details came to the notice of the petitioner while taking assessment of election prospects after declaration of results in a meeting held on 4.11.2009 at Meenatai Thakare Ashram School at Risangaon, Taluka Loha, which was attended by not less than 500 party workers and during the discussion it was revealed that at those all 92 booths the trend of voting was in favour of Shiv Sena-BJP, since those were the polling booths where Shiv Sena-BJP candidates were leading in all earlier elections since 1995. It was contended that as far as Shiv Sena-BJP workers were concerned, irrespective of the candidate set up by the party, they used to vote for the party, and therefore, as far as Shiv Sena-BJP was concerned, the change in candidate never affected on the percentage of vote or voting trend.
16 It is recited in para 26 of the petition that on this background, while taking assessment of the situation, boothwise inquiry was made and ::: Downloaded on - 09/06/2013 17:16:14 ::: 11 ep16.09 it revealed that though hundreds of voters cast their votes in favour of Shiv Sena-BJP candidate by pressing the button meant for Shiv Sena-BJP candidate, the result showed that those voters were not counted in favour of Shiv Sena-BJP candidate. Hence, minute inquiry was made in this regard and on analysing and scrutinizing the information brought to the notice by party workers minutely, it revealed that the election results were adversely affected not because of the trend of the voting but because of manipulation and tampering of EVMs by respondent no.1 Shri Shankar Anna Dhondge and Shri Babasaheb Deshmukh (election Agent of Respondent no.1) in collusion with the Engineer appointed by the Electronics Corporation of India Ltd., Hyderabad Shri C. Pullaiah. Hence, it is also contended in said para 26 that it is nothing but a case of well designed fraud committed on 88 Loha Assembly Constituency voters by respondent no.1 Shri Shankar Anna Dhondge and his election agent Shri Babasaheb Deshmukh in collusion with the said engineer appointed by the Electronics Corporation of India Ltd., Hyderabad Shri C. Pullaiah.
Hence, it is urged that on this ground alone, the election of respondent no.
1 is liable to be declared as void under Section 100 (1)(b)(d)(ii) and (iii) read with Section 135-A(1) and (e) of the Act.
17 It is further pleaded in para 27 of the petition that the Returning Officer and the Tahsildar of Tahsil Office, Loha, by letter dated 24.9.2009 have supplied the information in tabulated form running from page nos. 1 to 10, thereby giving information of distribution of the Election Photo ::: Downloaded on - 09/06/2013 17:16:14 ::: 12 ep16.09 Identity Card (hereinafter referred to as, "EPIC") and photo coverage till 6.10.2009 as regards 267 booths. It is alleged that at the same time, the scrutiny sheet for polling station supplied by the Returning Officer showed the number of votes polled in 88 Loha Assembly Election by showing EPIC and comparison of the information as regards supply of EPIC and the number of voters who cast the votes by showing EPIC were unmatched.
Moreover, further comparison of the figures as provided in those two charts showed that the number of voters voted by showing EPIC are more than the actual distribution of EPIC from the said booth. Hence, it is submitted that the election results of 88 Loha Assembly Constituency were adversely affected because of improper reception of votes, and hence, the said election deserves to be declared as void on the said ground alone.
18 On the background of the afore said pleadings, the learned counsel Shri P.R.Katneshwarkar for the respondent no.1 i.e. the Returned candidate, submitted that the election petition is liable to be rejected in view of the provision of Order VII Rule 11(a) and (d) of the Code of Civil Procedure, since the election petition does not disclose the cause of action and also does not disclose the material facts and particulars of alleged corrupt practices, nor it discloses the material facts and particulars of improper reception of votes. It is canvassed by learned counsel for the respondent that the pleadings in para nos. 1 to 26 of the election petition are unnecessary, frivolous and vexatious and do not constitute any of the ::: Downloaded on - 09/06/2013 17:16:14 ::: 13 ep16.09 grounds under Section 100 of the Act and those are just to prejudice, embarrass and to delay the trial, as well as the said pleadings are nothing but abuse of process of law. It is further submitted, more particularly para nos. 1 to 20 of the petition are just mere informative and there is no concise statement therein in respect of the alleged corrupt practices and even no sources are disclosed therein in respect of alleged corrupt practices.
19 According to the learned counsel for the respondent, the Ground No.1 pleaded by the petitioner in the petition is based on the corrupt practice contemplated under Section 123(8)(4) r/w Section 135- A(1)(a) and (e) of the Act and it is contended that Section 123 of the Act pertains to booth capturing by a candidate; whereas Section 135-A is the penal provision and clause thereunder is in respect of 'seizure of a polling station or a place fixed for the poll by any person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections', and clause thereunder is in respect of 'doing by any person in the Government service, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of prospects of election candidate'.
Reading of entire pleadings of Ground No.1 from para nos. 10 to 26 shows that there is no disclosure of material facts, material particulars and cause of action in order to challenge the election of the respondent on the said count.
::: Downloaded on - 09/06/2013 17:16:14 :::14 ep16.09 20 It is further canvassed by the learned counsel for the respondent that all the pleadings are not within the knowledge of the petitioner, but he claims that it is based upon information received by him.
Pertinently, there is no disclosure of date, time and place where the alleged corrupt practice has taken place. It is submitted that even there is no disclosure of names of persons from whom the petitioner received the information. Accordingly, it is submitted that there is no pleading that which booths were captured and the number of booths captured and the manner of capturing the booths. Hence, it is submitted that in the absence of those pleadings, which would constitute complete cause of action, the petition deserves to be rejected.
21 Besides, the learned counsel Shri Katneshwarkar for the respondent argued that in the General Elections in the year 2004-2009, system of voting through EVMs was put in application. In the said context, it is submitted that the allegations contained in the election petition are merely in the nature of apprehension expressed by the petitioner. The question of tampering of EVMs is to be decided upon appreciation of facts. Unless, the petition contains proper pleading with material particulars in respect of tampering of EVMs i.e. Electronic Voting Machines, the vague allegations made by the petitioner in the petition cannot be gone into. It is further submitted that it is not open for this Court to draw a conclusion only on the basis of extraction of information or on ::: Downloaded on - 09/06/2013 17:16:14 ::: 15 ep16.09 the basis of surmises as regards tampering of EVMs. It is also canvassed that there are absolutely no pleadings to the effect that the tampering of EVMs was at the instance of the respondent and the election was vitiated by such action of tampering, which would amount to "corrupt practice", within the meaning of Section 123 of the Act. Hence, it is earnestly submitted by the learned counsel for the respondent that unless and until it is pleaded and demonstrated that : (1) somebody had access to EVMs; (2) those EVMs were tampered; and (3) such tampering was at the instance of respondent herein or his agent with a view to get advantage at the election of respondent, the allegations made in the petition in that behalf cannot be examined. Accordingly, it is submitted that the petition does not set out any "material facts". It is further submitted that it is nowhere pleaded in specific terms that : (1) the Returned candidate or his agent have, in any manner, done acts or manipulated with EVMs, and consequently, the result of election is materially affected as far as Returned candidate is concerned; or (2) due to any fault or interference in the EVMs, the result of election has been materially affected as far as the Returned candidate is concerned.
22 The learned counsel for the respondent further canvassed that nothing has been stated in the petition that what kind of EVMs were used, how they were tampered and what kind of material was used for alleged tampering or whether there is any witness to state that what kind of software was used and even source of information also has not been ::: Downloaded on - 09/06/2013 17:16:14 ::: 16 ep16.09 disclosed, even if the petition is taken as it is. Accordingly, it is submitted that no corrupt practice has been spelt out in the petition filed by the petitioner and even the names of the parties, who alleged to have committed corrupt practices are absent or even there is no statement that the Returned candidate or his Agent in connivance with the Returning Officer tampered the EVMs and even the alleged pleading in paras 23 and 24 of the petition speak about the dinner meeting and alleged plan, but there is no pleading about the implementation of the said plan.
Accordingly, it is submitted that there are mere allegations and no evidence is cited regarding the alleged corrupt practices. It is also submitted that there is no pleading in para 25 of the petition regarding the attendant present at the meeting of the party workers allegedly held on 4.11.2009 and even no objection was raised regarding tampering of EVMs on the date of voting i.e. 13.10.2009, although the alleged meeting of dinner at Government Guest House was held on 5.10.2009, before the declaration of result i.e. on 22.10.2009. Accordingly, the petitioner did not take any steps from the date of knowledge of alleged corrupt practice till the date of result. Besides, it is also argued by the learned counsel for the respondent that there is no whisper regarding alleged booth capturing and there is no pleading that what was the mode of alleged booth capturing and how they participated in alleged corrupt practices and even there are no averments in that respect in the petition.
23 As regards another ground of improper reception of votes, it is ::: Downloaded on - 09/06/2013 17:16:14 ::: 17 ep16.09 submitted by learned counsel for the respondent that para 27 of the election petition does not disclose material facts and particulars pointing out improper reception of votes. Moreover, there is no clear disclosure that how many voters were there and who were the voters who voted with EPIC. Pertinently, there is no pleading that the voters who only possessed EPIC were permitted to vote. In fact, EPIC is for identification purpose.
The voters who do not possess EPIC were not restrained from exercising their votes and their identification was ensured by other documents, such as pan cards, driving license, etc. Accordingly, it is submitted that there is no pleading that the persons who did not possess EPIC are not valid voters and the persons who were not valid voters cast their votes in favour of respondent, thereby the result of the election, in so far as it concerned to the Returned candidate, has been materially affected. According to the learned counsel for the respondent, there is absolutely no pleading that how many votes were improperly accepted. It is further submitted that the election results demonstrated that respondent received 81,203 votes as against the petitioner who received hardly 7,064 votes. Accordingly, it is submitted that considering the huge gap and difference in the votes of petitioner and Respondent, more particularly, in absence of specific pleading, it cannot be said that the election of Returned candidate is materially affected. Thus, it is submitted that the pleading raised about ground no. 2 does not disclose cause of action.
24 Besides, the learned counsel for the respondent further argued ::: Downloaded on - 09/06/2013 17:16:14 ::: 18 ep16.09 that there is no clear statement that how many votes were improperly received affecting the election materially, as well as there is nothing on record to show the difference in votes secured by the Returned candidate and the votes secured by the petitioner i.e. 74,139 votes and those votes were diverted by tampering of EVMs, to suite the Respondent.
25 To substantiate the contentions, raised by the petitioner, in respect of afore said both the grounds, learned counsel for the respondent placed reliance on the following judicial pronouncements : -
In the case of Samar Singh vs Kedar Nath alias K.N.Singh and Ors., reported at AIR 1987 SC 1926 , the Hon'ble Apex Court held that :
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4 The question whether the High Court while trying an election petition has power to reject an election petition summarily under Order 7 Rule 11 of CPC is no longer res Integra as this controversy has been set at rest by this Court in Azhar Hussain v. Rajiv Gandhi MANU/SC/0284/1986 : [1986]2SCR782, Bhagwati Prashad v. Rajiv Gandhi 1986 (4) S.C.C. And Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi Judgment Today MANU/SC/0378/1987 : 1987 (2) 402. In these cases, this Court after detailed consideration held that an election petition is liable to be rejected summarily at the threshold under Order 7 Rule 11 of the CPC. However, the appellant contended that once written statement was filed and after the court applied ::: Downloaded on - 09/06/2013 17:16:14 ::: 19 ep16.09 its mind to the pleadings, raised by the parties and framed issues, it should be presumed that triable issues had been raised in the election petition and therefore the Court could not thereafter summarily reject the petition under Order 7 Rule 11 of CPC. In substance the argument is that once issues are framed the court must proceed with the trial, record evidence and only thereafter it should deal with the preliminary objection raised by the returned candidate that the election petition does not disclose any cause of action. Similar argument was considered and repelled by this Court in Azhar Hussain case in the following words :
" In substance, the argument is that the court must proceed with the trial, record, the evidence, and only after the trial of the election petition is concluded that the powers under the CPC for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercised the mind of the respondent.
The Courts in exercise of the powers under the CPC can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as ::: Downloaded on - 09/06/2013 17:16:14 ::: 20 ep16.09 a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence,if the Court is satisfied that the action would terminate in view of the merits of the preliminary point of objection.
The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfill other commitments. Such being the position in regard to matters pertaining to Ordinary Civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. "
5 The above view was reiterated by this Court in Bhagwati Prashad v. Rajiv Gandhi (supra) and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi (supra). If an election petition does not disclose cause of action, it can be dismissed summarily at the threshold of the proceeding under Order 7 Rule 11 of the CPC. If an election petition can be summarily rejected at the ::: Downloaded on - 09/06/2013 17:16:14 ::: 21 ep16.09 threshold of the proceeding we do not see any reason as to why the same cannot be rejected at any stage of subsequent proceeding. If after framing of issues basic defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition be rejected, under Order 7 Rule 11 and the Court would be acting within its jurisdiction, in considering the objection. Order 7 Rule 11 does not place any restriction or limitation on the exercise of Court's power; it does not either expressly or by necessary implication provide that power under Order 7 Rule 11 CPC should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provision, it is open to the court to exercise that power at any stage. While it is true the ordinarily preliminary objection to be maintainability of the petition on the ground of absence of cause of action should be raised by the respondent as early as possible but if a party raises objections after filing written statement the preliminary objection cannot be ignored.
If the election petition does not disclose any cause of action, the respondent's right to raise objection to the maintainability of the petition, or the Court's power to consider the objection is not affected adversely merely because the objection is raised after filing of written statement or framing of issues. The Court would be acting within its jurisdiction in exercise of its power under Order 7 Rule 11 in rejecting the same even after settlement of issues. "
In the case of Azhar Hussain v. Rajiv Gandhi, reported at 1986 AIR(SC) 1253, the Hon'ble Supreme Court held that :::: Downloaded on - 09/06/2013 17:16:14 :::
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4 In a democratic polity 'election' is the mechanism devised to mirror the true wishes and the will of the people in the matter of choosing their political managers and their representatives who are supposed to echo their views and represent their interest in the legislature. The results of the election are subject to judicial scrutiny and control only with an eye on two ends. First, to ascertain that the 'true' will of the people is reflected in the results and second, to secure that only the persons who are eligible and qualified under the Constitution obtain the representation. In order that the "true will" is ascertained the courts will step in to protect and safeguard the purity of elections, for, if corrupt practices have influenced the result, or the electorate has been a victim of fraud or deception or compulsion on any essential matter, the will of the people as recorded in their votes is not the 'free' and 'true' will exercised intelligently by deliberate choice. It is not the will of the people in the true sense at all. And the courts would, therefore, it stands to reason, be justified in setting aside the election in accordance with law if the corrupt practices are established. So also when the essential qualifications for eligibility demanded by the constitutional requirements are not fulfilled, the fact that the successful candidate is the true choice of the people is a consideration which is totally irrelevant notwithstanding the fact that it would be virtually impossible to re-enact the elections and reascertain the wishes of the people at the fresh elections the time-
scenario having changed. And also notwithstanding the fact that elections involve considerable expenditure of public revenue (not to speak of private funds) and result in loss of public time, and accordingly there ::: Downloaded on - 09/06/2013 17:16:14 ::: 23 ep16.09 would be good reason for not setting at naught the election which reflects the true will of the people lightly.
In matters of election the will of the people must prevail and courts would be understandably extremely slow to set at naught the will of the people truly and freely exercised. If courts were to do otherwise, the courts would be pitting their will against the will of the people, or countermanding the choice of the people without any object, aim or purpose. But where corrupt practices are established the result of the election does not echo the true voice of the people. The courts would not then be deterred by the aforesaid considerations which in the corruption-scenario lose relevance. Such would be the approach of the court in an election matter where corrupt practice is established. But what should happen when the material facts and particulars of the alleged corrupt practices are not furnished and the petition does not disclose a cause of action which the returned candidate can under law be called upon to answer ? The High Court has given the answer that it must be summarily dismissed.
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11 In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the afore said decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by S.83 of the Act to incorporate the material facts in the election petition are not complied with. This court in instant case has expressed itself in no unclear terms that the omission of ::: Downloaded on - 09/06/2013 17:16:14 ::: 24 ep16.09 a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh case the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice if would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of S. 83(1)(a).
An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.
....................... .........................
14 Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as it emerges from the numerous decisions of this court which have been cited before us in regard to the question as to what exactly is the content of the expression 'material facts and particulars', which the election petitioner shall incorporate in his petition by virtue of S.83(1) of the Act.
(1) What are 'material facts and particulars'. Material facts are facts which if established would give ::: Downloaded on - 09/06/2013 17:16:14 ::: 25 ep16.09 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.
(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a government servant, the following facts are essential to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded :
(A) mode of assistance;
(B) measure of assistance; and
(C) all various forms of facts
pertaining to the assistance.
(3) In the context of an allegation's regards
procuring, obtaining, abetting or attempting to obtain or procure the assistance of government servants in election it is absolutely essential to plead the following :
(A) kind or form of assistance obtained or
procured;
(B) in what manner the assistance was
obtained or procured or attempted to be
obtained or procured by the election
candidate for promoting the prospects of his election.
::: Downloaded on - 09/06/2013 17:16:14 :::26 ep16.09 (4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured.
(5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered.
(6)The election petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in the particulars.
..................... ................... "
In the case of Dhartipakar Madanlal Agarwal v. Rajiv Gandhi, reported at 1987 AIR(SC) 1577, the Hon'ble Supreme Court held that :
" ..................... ....................
8 The first question which falls for our determination is whether the High Court had jurisdiction to strike out pleadings under Order VI Rule 16 of the Code of Civil Procedure and to reject the election petition under Order VII Rule 11 of the Code at the preliminary stage even though no written statement had been filed by the respondent. S. 80 provides that no election is to be called in question except by an election ::: Downloaded on - 09/06/2013 17:16:14 :::
27 ep16.09 petition presented in accordance with the provisions of Part VI of the Act before the High Court. S. 81 provides that an election petition may be presented on one or more of the grounds specified in S.100 by an elector or by a candidate questioning the election of a returned candidate. S.83 provides that an election petition shall contain a concise statement of material facts on which the petitioner relies and he shall let forth full particulars of any corrupt practice that he may alleged including full statement of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. S. 86 confers power on the High Court to dismiss an election petition which does not comply with the provisions of S. 81 and 82 or S. 117. S. 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, Order VI Rule 16 and Order VI Rule 17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of S. 81, 83, 86 and 87 of the Act, it is apparent that those paragraphs of a petition which do not disclose any cause of action, are liable to be struck off under Order VI Rule 16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the court on ::: Downloaded on - 09/06/2013 17:16:14 ::: 28 ep16.09 examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI Rule 16 itself empowers the court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement, instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII Rule 11.
.................. ........................
11 In Bhagwati Prasad Dixit 'Ghorewala' v.
Rajeev Gandhi this court again reiterated that in an election petition pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it should be rejected in limine. These authorities have settled the legal position that an election petition is liable to be dismissed in limine at the initial stage if it does not disclose any cause of action. Cause of action in questioning the validity of election must relate to the grounds specified in S.100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contemplated by S.100 of the Act and if the allegations do not conform to the requirement of S. 81 and 83 of the Act, the pleadings are liable to be struck off and the election petition is liable to be rejected under Order VII ::: Downloaded on - 09/06/2013 17:16:14 ::: 29 ep16.09 Rule 11. A pleading if vague and general is embarrassing. If the allegation contained in the election petition even assuming to be true and correct do not make out any case of corrupt practice or any ground under S. 100 of the Act, the pleading would be unnecessary, frivolous and vexatious. It is always open to strike out the same. If after striking out defective pleadings the court finds that no cause of action remains to be tried it would be duty bound to reject the petition under Order VII Rule 11 of the Code of Civil Procedure. If a preliminary objection is raised before the commencement of the trial, the court is duty bound to consider the same, it need not postpone the consideration for subsequent stage of the trial.
.................... ....................
14 .................... ....................
Right to contest election or to question the election by means of an election petition is neither common law nor fundamental right, instead it is a statutory right regulated by the statutory provisions of the Representation of People Act, 1951. There is no fundamental or common law right in these matters. This is well-settled by a catena of decisions of this court in N.P.Ponnaswami v. Returning Officer, Jagan Nath v. Jaswant Singh, Jyoti Basu v. Debi Ghosal. These decisions have settled the legal position that outside the statutory provisions there is no right to dispute an election. The Representation of People Act is a complete and self-contained Code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of the Civil ::: Downloaded on - 09/06/2013 17:16:14 ::: 30 ep16.09 Procedure Code are applicable to the extent as permissible by S.87 of the Act. The scheme of the Act as noticed earlier would show that an election can be questioned under the statute as provided by S. 80 on the grounds as contained in S. 100 of the Act. S. 83 lays down a mandatory provision in providing that an election petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings are regulated by S. 83 and it makes it obligatory on the election petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. If the election petition fails to make out a ground under S. 100 of the Act it must fail at the threshold. Allegation ? Of corrupt practice are in the nature of criminal charges, it is necessary that these should be no vagueness in the allegations so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action. The emphasis of law is to avoid a fishing and roving inquiry. It is therefore necessary for the court to scrutinize the pleadings relating to corrupt practice in a strict manner.
................... ................... "
26 Learned counsel for the respondent invited my attention to the affidavit filed by the petitioner in Form No. 25 under Rule 94-A of the Act and submitted that the said affidavit is not in accordance with the proforma prescribed in the said Act and the Rules and it does not disclose the source of information/knowledge received by the petitioner and even ::: Downloaded on - 09/06/2013 17:16:14 :::
31 ep16.09 paras 1 to 9 of the election petition do not disclose any corrupt practices.
Moreover, it is also canvassed that the verification below the petition signed by the petitioner also does not disclose the source of information received by the petitioner in respect of the averments/allegations made in the petition. Moreover, it is further submitted that as regards the verification to the annexures annexed with the petition, it simply stated that those are the true and correct copies of the original, but the source of the said annexures has not been disclosed therein. To substantiate the said contention as well as the afore said contentions, learned counsel for the respondent relied upon the judicial pronouncement in the case of V. Narayanaswamy v. C.P.Thirunavukkarasu, reported at AIR 2000 SC 694, as follows :-
" ....................... ...................
This Court observed that where the petitioner has alleged corrupt practice that is not enough, proviso to Section 83 demands that the petition shall be accompanied by an affidavit in the prescribed form supporting the allegation of such corrupt practice and particulars thereof. The Court said Para 15 of AIR SCW and AIR :
" Therefore, an election petition in which corrupt practice is alleged stands on a different footing from an election petition which does not carry such an allegation. The legislature has taken special care to ensure that ordinary verification will not suffice, it must be supported by an affidavit in the prescribed form.::: Downloaded on - 09/06/2013 17:16:14 :::
32 ep16.09 Form 25 has been prescribed for such an affidavit under Rule 94-A of the Rules. That rule says that the affidavit referred to in the proviso to Section 83(1) shall be in Form 25. The form of the affidavit requires the deponent to state which of the paragraphs of the election petition in which allegations of corrupt practice are made are based on his own knowledge and which are based on his information. Section 86(1) then mandates that the High Court "shall"
dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act. The language of this sub-section is quite imperative and commands the High Court, in no uncertain terms, to dismiss an election petition which does not comply with the requirements of Section 81 or Section 82. This mandate is, however, qualified by Section 86(5) referred to earlier."
................. ...................
The Court then observed that the procedural precautions intended to ensure that the person making the allegation of corrupt practice realizes the seriousness thereof as such a charge would be akin to a criminal charge since it visits the party indulging in such practice with a twofold penalty and that is why this Court described it as quasi-criminal in nature. It is, therefore, equally essential that the particulars of the charge or allegation are clearly and precisely stated in the election petition to afford a fair opportunity to the person against whom it is levelled to effectively ::: Downloaded on - 09/06/2013 17:16:14 ::: 33 ep16.09 counter the same (see K.M.Mani v. P.J.Anthony (1979 (2) SCC 221) : (AIR 1979 SC 234). This Court then said Para 17 of AIR SCW and AIR :-
" 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. "
16 In Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe, [AIR 1995 SC 2284 : (1995) 5 SCC 347] : (1995 AIR SCW 3407), this Court again said Paras 17 and 18 of AIR SCW and AIR :-
" 1 Section 83 of the Act provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must set forth full particulars of ::: Downloaded on - 09/06/2013 17:16:14 ::: 34 ep16.09 the corrupt practice that he alleges including as full a statement as possible of the name of the parties alleged to have committed such corrupt practices and the date and place of the commission of each of such corrupt practice. This section has been held to be mandatory and requires first a concise statement of material facts and then the full particulars of the alleged corrupt practice, so as to present a full picture of the cause of action.
2 ig A petition levelling a charge of corrupt practice is required, by law, to be supported by affidavit and the election petitioner is also obliged to disclose his source of information in respect of the commission of the corrupt practice. This becomes necessary to bind the election petitioner to the charge levelled by him and to prevent any fishing or roving enquiry and to prevent the returned candidate from being taken by a surprise. "
27 Accordingly, learned counsel for the respondent urged that the Returned candidate has been elected after following the democratic process and the people at large have elected him and the petition challenging his election filed by the petitioner does not disclose the material facts, and consequently, the petition does not disclose cause of action, and therefore, strenuously urged that the said petition be dismissed at its threshold.
28 Learned counsel for the petitioner countered the said ::: Downloaded on - 09/06/2013 17:16:14 ::: 35 ep16.09 arguments vehemently and submitted that the election petition filed by the petitioner is perfectly maintainable and all the grounds raised therein are sustainable in view of Section 83(1)(b) and (c) of the Act r/w Order VI Rule 16 and Order VII Rule 11 (a) of the Code of Civil Procedure. It is also canvassed by learned counsel for the petitioner that there is no infirmity in the pleadings and the petition strictly complies with the provisions of Sections 31, 83(1)(c) and 86 of the Act r/w Rule 94-A of the Rules and Form 25 of the relevant Election Rules. It is also submitted by learned counsel for the petitioner that the allegations regarding infirmities in the pleadings and submissions made in the above referred application are false, baseless and unsustainable in law. It is also canvassed by the learned counsel for the petitioner that similar issues were under consideration before the Apex Court and relied upon the observations made by the Supreme Court in the case of V.Narayanaswamy vs C.P.Thirunavukkarasu, reported at AIR 2000 SC 894, more particularly para 24 thereof, which are as follows :-
" 24 It will be thus seen that an election petition is based on the rights , which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non- compliance. For the purpose of considering a preliminary objection as to the maintainability of the ::: Downloaded on - 09/06/2013 17:16:14 :::
36 ep16.09 election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 31, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read if the Court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between "material facts"
and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub-section (1) of Section 83.
Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and ::: Downloaded on - 09/06/2013 17:16:14 :::
37 ep16.09 that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the Court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegations could have no legal existence and the Court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the Court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of the Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from ::: Downloaded on - 09/06/2013 17:16:14 ::: 38 ep16.09 any defect the allegations of corrupt practices cannot be inquired and tried at all. In such a case petition has to be rejected on the threshold for non- compliance with the mandatory provisions of law as to pleadings, it is no part of duty of the Court suo motu even to direct furnishing of better particulars when objection is raised by other side. Where the petition does not disclose any cause of action it has to be rejected. Court, however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action.
Petition has to be considered as a whole. There cannot be a partial rejection of the petition. "
29 Accordingly the learned counsel for the petitioner submitted that the objections raised by the respondent are too general in nature and vague in nature and the grounds raised therein are not in consonance with Section 100 of the Act and the pleadings therein are also not in consonance with Sections 81 and 83 of the Act. Hence, the learned counsel for the petitioner urged that application filed by the respondent under Order VII Rule 11 of the Code of Civil Procedure lacks merits, and therefore, same be rejected.
30 In this backdrop, it is useful to refer the material provisions in the Act in so far as they are relevant for the purpose of this petition. Section 81 of the Act reads as follows :::: Downloaded on - 09/06/2013 17:16:14 :::
39 ep16.09
81. Presentation of petitions :-
(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
Explanation : - In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
............... ............
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
Section 83 (1)(a) and (b) of the Act reads thus :
83. Contents of petition :-
(1) An election petition -
(a) shall contain a concise statement of the material ::: Downloaded on - 09/06/2013 17:16:14 ::: 40 ep16.09 facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings :
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
Section 100(1)(b)(d)(ii)(iii) of the Act reads as follows :
100. Grounds for declaring election to be void :-
(1) Subject to the provisions of Sub-section (2), if the High Court is of opinion --
.............. ................
(b) that any corrupt practice has been committed
::: Downloaded on - 09/06/2013 17:16:14 :::
41 ep16.09
by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or .......... ..................
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected --
............... ...................
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or ........... ..............
Section 123 (8)(4) of the Act reads thus :
123. Corrupt practices : -
The following shall be deemed to be corrupt practices for the purpose of this Act : -
Explanation :- (1)...... ................
(8) Booth capturing by a candidate or his agent or other person --
(4) For the purposes of clause (8), "booth capturing" shall have the same meaning as in ::: Downloaded on - 09/06/2013 17:16:14 ::: 42 ep16.09 section 135-A. Section 135-A of the Act reads as under :-
135-A. Offence of booth capturing :-
.................. .................
(a) seizure of a polling station or a place fixed for
the poll by any person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other Act which affects the orderly conduct of elections :
(e) doing by any person in the service of Government, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of the prospects of the election of a candidate.
31 From the afore quoted provisions, it appears that Section 81 enables the petitioner to question any election on one or more grounds specified in sub-section (1) of Section 100 of the Act;
whereas Section 83 of the Act is the pivotal provision in the instant case, which mandates that : (a) the election petition must contain a concise statement of the material facts on which the petitioner relies;
(b) he should set forth 'full particulars' of any corrupt practice that the ::: Downloaded on - 09/06/2013 17:16:14 ::: 43 ep16.09 petitioner alleges; and proviso to clause (c) of sub-section (1) of Section 83 of the Act also provides that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof; and sub-section (2) of Section 83 of the Act contemplates that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. It is the plain requirement that disclosure of 'material particulars' and 'full particulars' as stipulated in the said Section is mandatory. Moreover, Section 100 of the Act stipulates the grounds for declaring election to be void and clause
(b) of sub-section (1) thereof pertains to any corrupt practice which has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; and clause (d) of said sub-section 1 thereof contemplates that the result of the election, insofar as it concerns a returned candidate, has been materially affected, (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Section 123 of the Act describes the corrupt practices. And sub-section (8) thereof is in respect of booth capturing by a candidate or his agent or other person and further clause (4) of sub-
::: Downloaded on - 09/06/2013 17:16:14 :::44 ep16.09 section 8 thereof stipulates that "booth capturing" shall have the same meaning as in section 135-A; whereas Section 135-A of the Act contemplates penal provision for the offence of booth capturing.
32 It is apparently clear that the controversy in the present petition is circumscribed in a narrow compass and it revolves around the ambit of Section 83 of the Act. The point for determination is as follows :-
" Whether the election petition lacked 'material facts' and 'full particulars' of the twofold grounds raised in para 4 herein above regarding alleged corrupt practices and improper reception of votes, as required to be stated in the election petition in terms of Section 83(1) of the Act and if so, whether it could be dismissed summarily without trial ? "
As mentioned herein above, it is mandatory that all the 'material facts' are required to be set out in the election petition and it is also trite that if the 'material facts' are not stated in the petition, the same is liable to be dismissed on that ground alone. Hence, the question is whether the election petitioner has set out all the 'material facts' in the present petition.
::: Downloaded on - 09/06/2013 17:16:14 :::45 ep16.09 33 The phrase, 'material facts' has neither been defined in the Act nor in the Code, and therefore, it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, 'material facts' are facts upon which the plaintiff's cause of action or defendant's defence depends. Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are 'material facts'. Material facts are facts which, if established, would give the petitioner the relief asked for, but again, what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down.
34 The election petition shall also disclose all material facts, on which the petitioner relies to establish existence of cause of action. Material facts essentially refer to all the relevant facts, on which the petitioner relies for the purpose of drawing inference in his favour during the course of the trial. The absence of material facts and insufficient cause of action would inevitably lead to dismissal of the election petition.
35 In the case of Virender Nath Goutam vs Satpal Singh and Ors. reported at (2007) SCC 617, the Apex Court explained :-
::: Downloaded on - 09/06/2013 17:16:14 :::46 ep16.09 " All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by Clause (a) of Sub-section (1) of Section 83 of the Act read with Clause (a) of Rule 11 of Order VII of the Code. 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'. [Burton's Legal Thesaurus. (Third edn.):
P.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
36 In the case of Hari Shankar Jain vs Sonia Gandhi, reported at AIR 2001 SC 3689, it was held :-
::: Downloaded on - 09/06/2013 17:16:14 :::47 ep16.09 " Material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression 'cause of action' has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.
Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party 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. "
37 The petition, which does not disclose the material facts or the accrual of cause of action shall have to be dismissed at the threshold, as has been laid down in the case of Anil Vasudev Salgaonkar vs Naresh Kushali Shigaonkar, reported at 2009 (9) SCC 310, if the petition does not contain the pleadings as regards :
" (a) Material particulars of corrupt practice;
(b) Details as to plea that due to corrupt practice ::: Downloaded on - 09/06/2013 17:16:14 ::: 48 ep16.09 on the part of the returned candidate or his agents, the result of the election was materially affected as regards the returned candidate;
(c) Detailed pleading based on facts as to how the corrupt practice by returned candidate or anyone on his behalf has materially affected the result of the election, as it concerns the returned candidate, shall be dismissed at threshold. "
38 The position is well settled that an election petition can be summarily dismissed if it does not furnish cause of action, in exercise of powers under the Code of Civil Procedure. Appropriate orders can be passed if mandatory requirement of Section 83 of the Act, in respect of incorporation of material facts in the election petition are not complied with. Omission to state a single material fact also may lead to an incomplete cause of action and that an election petition, without detailing material facts relating to corrupt practice, is not an election petition at all. All the primary facts, which must be proved by a party to establish cause of action or his defence are material facts.
In the context of charge of corrupt practice, it would mean that the basic facts which constitute ingredients of material facts must be specified in order to succeed on the charge. All the facts, which are essential to clothe with complete cause of action must be pleaded ::: Downloaded on - 09/06/2013 17:16:14 ::: 49 ep16.09 and omission of even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act.
39 Considering the submissions advanced by the learned counsel for the parties and also considering the various provisions of the said Act, as mentioned herein above, as well as considering the material Rulings of Hon'ble Supreme Court and the ratios laid down therein, as well as observations made therein and applying the parameters thereof to the instant case, and more particularly, to the pleadings in the present petition, thereby challenging the election of the respondent by raising the grounds therein, as mentioned herein above, it appears that most of the pleadings are not within the knowledge of the petitioner, and he claims that the pleadings are based upon information received by him, but there is no disclosure about the names of the persons from whom the petitioner has received the information. In substance, source of the information has not been disclosed in the said petition. Moreover, there is no disclosure of date, time and place where the alleged corrupt practices have taken place.
40 Pertinently, paras 1 to 20 of the present petition are merely informative; whereas in paras 21 to 27 no precise, concise and detailed statements have been made in respect of the ::: Downloaded on - 09/06/2013 17:16:14 ::: 50 ep16.09 averments, which are mere allegations. In para 21 of the petition, as mentioned herein above, no source of information has been disclosed; whereas in para 22 of the petition, vague averments have been made that on inquiry the information was disclosed, but there is no specific pleading mentioning that with whom the said inquiry was made by the petitioner and what was disclosed during the said inquiry. The said para only states that the Engineer was uploading the electronic data and not beyond that. Moreover, it is no where disclosed in the said para that the attendant, namely Nagnath Madhukarrao Dhonde had any knowledge of computer or EVM Gadget, who allegedly disclosed that Shri Pullaiah was updating the machine by connecting it with laptop by a cod, and who also allegedly disclosed that the said Shri Pullaiah was updating the software of EVM so as to suite it for 88 Loha Assembly Constituency, and in the absence of specific pleading that whether the said attendant had knowledge of computer or EVM, the subsequent disclosure made by him appears to be meaningless.
41 Para 23 of the petition reveals that the petitioner obtained knowledge, as stated therein on making inquiry, but it is nowhere stated that with whom said inquiry was made by the petitioner, again the source thereof is absent. Moreover, although the allegations are made in the said para that the petitioner was informed by one ::: Downloaded on - 09/06/2013 17:16:14 ::: 51 ep16.09 Shri Rohan Shankarrao Sundge that he saw respondent herein and his agent Shri Deshmukh entering in the premises of Government Guest House on 5.10.2009 i.e. during the period of Code of Conduct, but no specific Guest House has been named in that connection, since there are several Guest Houses in said areas.
Moreover, as regards the inquiry referred in the said paragraph, apparently, the information received is hear say, and no source has been disclosed therefor.
42 Pertinently, as regards the alleged tampering of EVMs i.e. Electronic Voting Machines, there are mere allegations about hatching the plan, but there is no specific pleading that whether the said plan was executed or implemented at the instance of Respondent or his agent. Moreover, there is no positive assertive statement that what illegality was committed by the respondent or his agent and the alleged inference drawn by the petitioner in para 24 of the petition cannot be construed as material facts.
43 Moreover, nothing has been stated in the petition that what kind of EVMs were used and how the said EVMs were allegedly tampered and what kind of material was used for such alleged tampering and/or what kind of software was used for alleged tampering of EVMs and even no source of said information has been ::: Downloaded on - 09/06/2013 17:16:14 ::: 52 ep16.09 disclosed, even if the petition is taken as it is, and accordingly, no corrupt practices have been spelt out in the present petition.
Moreover, the names of the persons who are alleged to have committed corrupt practices are also absent in the present petition.
So also, there is no pleading and statement in the petition that the respondent or his agent Shri Deshmukh in connivance of the Returning Officer tampered with the EVM voting machines and mere allegations in the petition in that respect speaks about the plan and does not state about the execution/implementation thereof.
44 As regards the averments made in para 25 of the petition, it is alleged by the petitioner that all the aspects and factual details came to the notice of petitioner while taking assessment of election prospects after declaration of results as a meeting was held therefor on 4.11.2009, which was attended by 500 party workers, including village chief of Shiv Sena-BJP and during the discussion, it was revealed that though at all 92 booths where Shiv Sena-BJP candidate is shown to have received single digit votes i.e. below 10, but in fact, the trend of voting was in favour of Shiv Sena-BJP candidates, as well as in the earlier election of 1995 they were leading there, and therefore, it is alleged in para 25 of the petition that after analysis and scrutiny, it was revealed that EVMs were tampered and manipulated by the respondent in collusion with the ::: Downloaded on - 09/06/2013 17:16:14 ::: 53 ep16.09 Engineer appointed by the Electronics Corporation of India Ltd., Hyderabad, Shri Pullaiah. However, it is nowhere pleaded in the said paragraph that the said attendant Shri Nagnath Madhukar Dhonde attended the said meeting held on 4.11.2009 and even it is nowhere pleaded as to what kind of steps were taken by the petitioner from the date of knowledge of alleged malpractice till the date of election and further till the date of result. Moreover, there is no pleading, whether objection was raised by the petitioner regarding tampering of EVMs on the date of voting i.e. 13.10.2009, although the alleged meeting of dinner at Guest House was held on 5.10.2009 and the averments in the said paragraph are mere allegations based upon the surmises and conjectures and do not disclose entire bundle of facts which constitutes the complete cause of action.
45 As regards the contention of the petitioner in respect of alleged booth capturing, there is no pleading that which booths were captured, as well as there is no pleading that how many booths were captured and manner thereof. Moreover, there is no disclosure about the names of the persons from whom the petitioner received the said information, meaning thereby, that there is no disclosure regarding the source thereof.
::: Downloaded on - 09/06/2013 17:16:14 :::54 ep16.09 46 As regards Ground No.2, para 27 does not disclose the material facts and particulars and how there was improper reception of votes. There is no clear disclosure as to how many voters were there and who were the voters who polled without EPIC. There is no pleading that the voters who possessed EPIC only were permitted to vote. There is no pleading that who were the persons who did not possess EPIC, were not allowed to vote and further there is no pleading that whether the persons who did not possess EPIC were valid voters and the persons who were not valid voters cast their votes in favour of the respondent, thereby the result of the election, in so far as it is concerned to the returned candidate, has been materially affected. Accordingly, there is no pleading that how many votes were improperly accepted. Admittedly, the election results demonstrated that respondent received 81,203 votes as against that the petitioner received hardly 7,064 votes and there is whopping gap of 74,139 votes between the respondent and the petitioner, and there is no pleading to show that said 74,139 votes were diverted by tampering EVMs and considering the yanning gap between the votes of the respondent and the petitioner, by no stretch of imagination, it can be construed that the election of the petitioner was materially affected.
47 In substance, considering the vague allegations set out in ::: Downloaded on - 09/06/2013 17:16:14 ::: 55 ep16.09 the petition, an inevitable inference is required to be drawn that the petition does not set out material facts. It is well settled that the material facts are the entire bundle of facts, which constitute a complete cause of action and in the present case, it is not only one material fact, which is omitted, but all the facts, which may form the entire bundle, are absent, and hence, complete cause of action could not be made out.
48 Moreover, the verification of the pleadings is also not in consonance with the mandatory procedure prescribed under Rule 94-A of the Conduct of Election Rules, as well as schedules annexed to the petition are not in Form No.25 as contemplated by Rule 94-A of the Rules. Moreover, affidavit in respect of corrupt practices and in respect of particulars thereof also does not appear to be in the prescribed form, and as such, there is apparent non-compliance of procedure prescribed under Section 83(1) of the Act and proviso thereof, and therefore, present petition deserves to be dismissed at the threshold, and the point for consideration is answered accordingly.
49 Besides that, it cannot be ignored that the respondent, who is the Returned candidate, has been elected after following the democratic process and people at large have elected him and the ::: Downloaded on - 09/06/2013 17:16:14 ::: 56 ep16.09 verdict of the people at large cannot be brushed aside lightly without specifying and highlighting material facts in respect of the alleged corrupt practices at the instance of the respondent or his agent.
50 In the circumstances, considering the defects, as mentioned herein above and deficiencies in the pleadings, non-
disclosure of material facts, vagueness in respect of allegations of corrupt practices, failure to comply with the mandatory requirements in respect of verification of the petition and the affidavit in support of the allegations of corrupt practices, as well as schedules thereof as required by the Act and the Rules thereunder, I am inclined to accept the submissions advanced by the learned counsel for the respondent, which lead to an irresistible conclusion of rejection of the present petition and consequent dismissal thereof.
51 In the result, following order is passed : -
(1) Application preferred by the respondent under Order VII Rule 11 of the Code of Civil Procedure for rejection of the Election Petition No. 16 of 2009, below Exh. 8, is allowed and the said Election Petition is rejected under Order VII Rule 11 of the Code of Civil Procedure, and consequently, ::: Downloaded on - 09/06/2013 17:16:14 ::: 57 ep16.09 same stands dismissed with costs.
(2) The Registrar (Judicial) of this Court to comply with the requisitions under Section 103 of the Representation of People Act, 1951 immediately by communicating the afore said order to the authorities referred therein.
ig (SHRIHARI P. DAVARE),
JUDGE.
// Authentic Copy //
D.B.Mahajan,
Private Secretary to Hon'ble Judge.
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