Allahabad High Court
Anita Devi Chaurasiya vs State Of U.P. And 6 Others on 17 January, 2024
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Neutral Citation No. 2024:AHC:7748 Reserved on 11.01.2024 Delivered on 17.01.2024 Court No. - 6 Case :- WRIT - C No. - 22128 of 2023 Petitioner :- Anita Devi Chaurasiya Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Jitendra Kumar Srivastava,Ashish Kumar Singh Counsel for Respondent :- CSC,Ashutosh Pandey,Rahul Sahai Hon'ble Rohit Ranjan Agarwal,J.
1. The petitioner (Election Petitioner) before this Court had contested the election for the post of Gram Pradhan of Gram Panchayat Bhangura, Vikas Khand Kudaraha in the year 2021. The result was declared on 02.05.2021 and respondent No.4, the Returned Candidate, won the election and secured 349 votes while Election Petitioner got 335 votes.
2. The election petition was filed by the petitioner before Sub-Divisional Officer, Tehsil Sadar, District Basti under Section 12-C of Uttat Pradesh Panchayat Raj Act, 1947 (hereinafter called as "Act of 1947") on the ground that husband of Returned Candidate Jaggiram was Booth Level Officer (hereinafter called as "BLO") appointed in the same Village Panchayat and had influenced the election by inducting 49 new voters of another village and succeeded in getting the result in favour of Returned Candidate.
3. An allegation was made in the election petition that 49 voters, who were included in the voter list of Village Panchayat in which elections were held, the names of these 49 voters also found place in 6 Village Panchayats and the votes counted in favour of the Returned Candidate led to her victory on the ground of double voting. In paras 8 to 14 of the election petition, descriptions of voters whose names appear in the electoral roll of Gram Panchayat Bhangura as well as other Gram Panchayats namely Vihara, Bhedwa, Sonbarsa, Turkauliya, Devadeeha, and Paun have been given. Further ground has been taken that Section 62(3) of Representation of People Act, 1951 (hereinafter called as "Act of 1951) provides that each person shall be entitled to vote only once and no person shall vote in more than one constituency of the same class, and if he does so, his votes shall be void in all such constituencies. Section 9(6) of Act of 1947 secures the spirit of 'one elector one vote'. Para 15 of the election petition takes note of 11 affidavits filed by residents of the six Gram Panchayats confirming that the voters, mentioned in paras 9 to 14 of election petition, had not only voted in Gram Panchayat Bhangura but also in their respective Gram Panchayats.
4. The aforesaid election petition was contested by the Returned Candidate by filing a written statements. It was alleged that after publication of electoral role, objections were invited, but, the Election Petitioner did not file any objection to the electoral role. Further, there was no documentary evidence on record to prove that 49 voters, whose names appear in the voter list of Gram Panchayat Bhangura, had also voted in the other Gram Panchayat.
5. The Prescribed Authority, on the basis of pleadings of the parties and the evidence led therein, vide order dated 27.12.2022, proceeded to hold the election null and void as names of 49 persons of six different Gram Panchayats appeared in the electoral role of Gram Panchayat Bhangura and 11 persons have given their affidavits to the effect that they have seen those persons casting their vote in their Gram Panchayat also, and declared the post of Pradhan vacant.
6. Aggrieved by the order of Prescribed Authority, the Returned Candidate preferred Civil Revision No.1 of 2023 before the District Judge, Basti. The Revision was allowed vide order impugned dated 24.05.2023 and the order of Prescribed Authority dated 27.12.2022 was set aside hence the present writ petition.
7. Sri Ashish Kumar Singh, learned counsel for Election Petitioner submitted that the Revisional Court had exceeded its jurisdiction in allowing the revision and the order passed de hors the rules and the process established by law. He contended that the Returned Candidate Anju Kumari was married to Jaggiram on 24.03.2021, and prior to that she was residing in another village but her name had been entered in the voter list of Village Bhangura, which had already been finalized and the elections were held in April, 2021. He next contended that the husband of Returned Candidate was appointed as BLO in the same Village Panchayat, who had influenced the election and thus the election needs to be set aside. According to him, 49 members of six different Village Panchayats have been included in the electoral roll of Village Bhangura and the affidavits filed by 11 persons stating that they have voted both in their respective Village Panchayats and Village Bhangura clearly spells out the ground for declaring the election of the Returned Candidate void. He has placed reliance upon decision of Apex Court rendered in Rupadhar Pujari vs. Gangadhar Bhatra (2004) 7 SCC 654 wherein the Apex Court had held that the procedural laws relating to panchayat elections and the election petitioner cannot be allowed to be interpreted with too much rigidity and by indulging in hair-splitting. Reliance has also been placed upon the decision of Apex Court in K.Venkatachalam vs. A. Swamickan & Anr. (1999) 4 SCC 526.
8. Counsel submitted that the Court exercising power under Article 226 of the Constitution can also deal with the issues which has not been raised in the election petition, which goes to the root of the matter and the prayer made in the election petition allows to be granted though the pleadings are missing.
9. Sri Rahul Sahai, learned counsel appearing for the Returned Candidate submitted that the election petition filed by election petitioner lacks basic pleadings and only the fact to the extent that names of 49 members, whose names are there in the electoral roll of Village Bhangura, also find place in another village has been mentioned. According to him, there is no pleading that these 49 voters had not only cast vote in Village Bhangura but also in the other Village Panchayat in which their names have been entered. He submitted that the alleged 49 voters were already there in the previous voter list of 2005, 2010 and 2015. The Election Petitioner had contested the election of member of Block Development Council in the year 2015 and was elected as Block Development member, but, no objections were ever raised by her with regard to voter list.
10. He next submitted that the husband of Returned Candidate was appointed as Rojgar Sewak in the year 2008 and was given oral instructions by the superior authority in the year 2010 to discharge duty of BLO. It is a Class IV post and he cannot influence the election in any manner. He next contended that the Returned Candidate was married to Jaggiram in the year 2020 and Gauna was solemnized in March, 2021 and since her marriage she became resident of the said village and her name was entered in the voter list. Reliance has been placed upon decision of this Court in Smt. Archana vs. State Election Commission & Ors. 2018 (7) ADJ 703 wherein electoral roll was questioned after finalization of the election. The Court held that no such objection can be raised in regard to preparation of electoral roll after the election had been completed. Relevant para 18 of the judgment are extracted hereasunder :
"Considering the matter in its entirety and particularly with regard to the facts of the present case with reference to the law laid down by the Supreme Court in the cases of Inderjit Barua (supra), Lakshmi Charan Sen (supra) and Pampakavi Rayappa Belagali (supra), the petitioner never having raised any objection against the preparation of the electoral roll in the manner provided in the Rules, 1994 it is not open for her now after the election has already been completed and the result declared to challenge the same on the ground that the electoral roll had not been correctly prepared and it contained names of persons belonging to other villages of persons who had died."
11. Reliance has also been placed upon decision of this Court in Mudi vs. State Election Commission 2000(4) AWC 3374. Relevant para 8 of the judgment is extracted hereasunder :
"In view of the aforesaid provision, a challenge to the correctness of electoral roll cannot be permitted to be raised after the publication of the final electoral roll. If a person feels that name of a dead person or a person who is not eligible to be included in the electoral roll has been included in the electoral roll, his remedy lies in filing an application at the opportune time for correction of the entry. Similarly, if the name of someone has not been included in the electoral roll though he is eligible for the said purpose, he ought to make an application in that regard within the prescribed period. The decision of the Assistant Electoral Registration Officer in these matters is subject to an appeal and sub-rule (4) of Rule 21A attaches finality to the order passed in appeal. The provisions of the Act and the Rules thus provide a complete safeguard against any wrong inclusion or wrong omission of name in the electoral roll. After publication of the final roll, the same is immune from any challenge at a subsequent stage. Once the process of election has begun, they can neither be challenged by means of a writ petition under Article 226 of the Constitution nor in an election petition filed under Section 12C of the U. P. Panchayat Raj Act which gives the procedure for challenging the election of a person as pradhan."
12. On the question of specific pleading in the election petition, reliance has been placed upon decision of Apex Court rendered in Ram Bhual vs. Ambika Singh AIR 2005 SC 4233, relevant para 8 whereof is extracted hereasunder :
"The decisions relied on by the learned counsel in Mohd. Zahoor Ali Khan v. Thakooranee Rutta Koer (1867) 11 Moo IA 468 and Secy. of State for India in Council v. Laxmibai (1922) 50 IA 49 : AIR 1923 PC 6 that the pleadings in mofussil courts in our country are loosely drafted and a liberal construction has always to be given to such pleadings, cannot help the appellant. Here is a case of no pleading at all. How far the principles of those decisions can be applied to a High Court like the High Court of Allahabad, one of the chartered High Courts of this country and that too, more than 50 years after independence, need not be answered in this case. This Court in Badat & Co. v. East India Trading Co. AIR 1964 SC 538 after referring to Order 8 Rules 3 and 4 of the Code of Civil Procedure, 1908, held that this construction of pleadings would not apply to the Original Side of the High Court of Bombay. But in any election petition, it is well settled by the decisions of this Court, that pleadings are very important and they, in fact, play a large part in adjudications arising under the Representation of the People Act, 1951. In Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673 (SCC p. 695, para 75) this Court stated, "The pleadings in an election petition must likewise be construed strictly." Therefore, the attempt of learned counsel for the appellant to gloss over the failure of the appellant to deny the relevant and crucial allegations in the election petition, cannot succeed. The fact is that the pleadings as regards what transpired before the Returning Officer at the time of scrutiny of nominations remain un-rebutted in the pleadings of the appellant. The pleadings in the election petition also stand supported by the oral evidence of PW 1 and PW 2, in the light of the oral evidence of the appellant as RW 1 in which not even an attempt is made to deny the facts spoken to by PW 1 and PW 2. It is clear from Section 36(4) of the Act that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. Section 33(4) of the Act provides that on the presentation of a nomination paper, the Returning Officer has to satisfy himself that the names and the electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll. The proviso thereto clearly provides that no misnomer or inaccurate description or clerical, technical or printing error in regard to the name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place and in a case where there was an error in the nomination paper in regard to the description, he shall direct that the same be corrected and he could even overlook such errors. It is in the context of the proviso to Section 33(4), that the case set up by the appellant, of Sita Ram drawing the attention of the Returning Officer to the defect being only an error in the serial number and that Sant Lal, the ninth proposer, was actually at Serial No. 352 on the same page of the voters' list assumes great significance. It is a minor defect which obviously should have been got corrected by the Returning Officer even while accepting the nomination and certainly he could not have rejected the nomination on that ground in the light of Section 36(4) of the Act. At the risk of repetition, we may mention that there is no case for the appellant that Sant Lal was not the voter shown at Serial No. 352 in Part 91 of the voters' list."
13. Reliance has also been placed upon decision of Apex Court in Arikala Narasa Reddy vs. Venkata Ram Reddy Reddygari & Anr. (2014) 5 SCC 312, relevant para 15 whereof is extracted hereasunder :
"This Court has consistently held that the court cannot go beyond the pleadings of the parties. The parties have to take proper pleadings and establish by adducing evidence that by a particular irregularity/illegality, the result of the election has been "materially affected". There can be no dispute to the settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". Thus, a decision of the case should not be based on grounds outside the pleadings of the parties. In the absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The court cannot exercise discretion of ordering re-counting of ballots just to enable the election petitioner to indulge in a roving inquiry with a view to fish material for declaring the election to be void. The order of re-counting can be passed only if the petitioner sets out his case with precision supported by averments of material facts. (Vide Ram Sewak Yadav v. Hussain Kamil Kidwai AIR 1964 SC 1249, Bhabhi v. Sheo Govind (1976) 1 SCC 687 : AIR 1975 SC 2117 and M. Chinnasamy v. K.C. Palanisamy (2004) 6 SCC 341."
14. I have heard the respective counsels for the parties and perused the material on record.
15. The question, which has been raised for consideration through this writ petition is, as to whether in an election petition filed under Section 12-C of Act of 1947, the rule of strict pleading would apply or not and the facts not stated and narrated in the election petition could be taken into account by the Prescribed Authority or by this Court exercising power under Article 226 of the Constitution of India?
16. Before adverting to decide the issue in hand, a cursory glance of Section 12-C(1) of Act of 1947, Rule 3 of U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter called as "Rules of 1994") and Sections 80 and 83 of Act of 1951 are necessary for better understanding of the case which are extracted hereasunder :
"12-C. Application for questioning the elections - (1) The election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the Panch of the Nyaya Panchayat under Section 43 shall not be called in question except by an application presented to such authority within such time and in such manner as may be prescribed on the ground that -
(a) the election has not been a free election by reason that the corrupt practice of bribery or undue influence has extensively prevailed at the election, or
(b) that the result of the election has been materially affected-
(i) by the improper acceptance or rejection of any nomination or;
(ii) by gross failure to comply with the provisions of this Act or the rules framed thereunder."
"3. Election Petition.-(1) An application under sub-section (1) of Section 12-C of the Act shall be presented before the Sub-Divisional Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the day on which the result of the election questioned is announced and shall specify the ground or grounds on which the election of the respondent is questioned and contain a summary of the circumstances alleged to justify the election being questioned on such ground:
Provided that no such application shall be entertained unless it is accompanied by a treasure challan to show that the amount of rupees fifty has been deposited in the Personal Ledger Account of the Gram Panchayat concerned as security.
(2) The person whose election is questioned and where the petition claims that the petitioner or any other candidates shall be declared elected in place of such person, every unsuccessful candidate shall be made a respondent to the application.
(3) Every respondent may give evidence to prove that any person in respect of whom a claim is made that such person be declared elected, should not be declared so elected on the same ground or ground on which his election could have been questioned if he had been elected."
"80. Election petitions.--No election shall be called in question except by an election petition presented in accordance with the provisions of this Part."
"83. Contents of petition.--(1) An election petition--
(a) shall contain a concise statement of the material 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."
17. Section 12-C(1) of Act of 1947 provides for the application for questioning the election of a person as Pradhan or as member of a Gram Panchayat including the election of a person appointed as the Panch of the Nyaya Panchayat. The election is not to be questioned except on the ground mentioned in Section 12-C(1)(a) & (b) of Act of 1947.
18. Rule 3 of Rules of 1994 provides that the election petition is to be presented before the Sub-Division Officer, within whose jurisdiction the concerned Gram Panchayat lies, within ninety days after the declaration of the result, specifying the ground or grounds on which the election of a Returned Candidate is questioned and shall contain a summary of the circumstances alleged to justify the election being questioned on such ground.
19. The Act of 1951 and the rules framed thereunder provides for questioning the election in regard to Parliamentary and Assembly election. Section 80 of the Act of 1951 provides that no election shall be questioned except by means of an election petition presented in accordance with provisions of Part VI while Section 83(1) provides that an election petition should contain concise statement of the material facts on which the election petitioner relies.
20. Comparing the provisions of Act of 1947 and the rules framed thereunder and those of Act of 1951, it transpires that they are almost identical to each other. The matter came up for consideration before the Full Bench of this Court in Ram Adhar Singh vs. The District Judge, Ghazipur & Ors. 1985 AWC 246. The Full Bench, in para 18 of the judgment, has held as under :
"We are unable to accept the submission made by the learned Counsel. As already explained the Supreme Court has, in cases arising under the Representation of the People Act, spelt out the condition that all the courts dealing with an election petition should not exercise its discretion to permit inspection of ballot papers unless the petition contains an adequate statement of material facts on which the Petitioner relies in support of his case (viz. that the petition meets the requirements of Section 83(1) of the Representation of the People Act regarding contents of an election petition) for the reason that under the Act, it is a matter of utmost importance to maintain the secrecy of ballot which is sacrosanct and which should not be lightly allowed to be violated on vague and indefinite allegations. This reason applies equally to an election held under the U.P. Panchayat Raj Act which too cherishes secrecy of ballot to the same extent. Viewed from this angle, it becomes evident that the amplitude and purpose of the requirement of Section 83(1)(a) of the Representation of the People Act that the election petition must contain a concise statements of material facts on which the Petitioner relies and that of Rule 24 of the Rules framed under the U.P. Panchayat Raj Act to the effect that an application under Section 12-C(1) of the Act must specify the grounds on which the election of the Respondent is being questioned as also a summary of circumstances alleged to justify the election being questioned on such grounds, is the same, viz. that the court or the authority dealing with an election petition under the respective enactments, should not countenance or proceed to investigate into any ground taken in the election petition unless the ground as well as the material in support of such ground have been adequately disclosed in the petition. Neither of the two enactments countenances the court or the authority to permit the election Petitioner to make or indulge into making of a roving enquiry with a view to fish out material for declaring an election void; and it is this weighty factor which impels the court or the authority not to look into or permit inspection of ballot papers unless the foundation for the purpose has been properly laid in the petition by specifying the ground and the material or the circumstances in support of such ground. Viewed in this light, the provisions contained in the U.P. Panchayat Raj Rules permitting the summary hearing of an application under Section 12-C(1) of the Act and authorising the Sub-Divisional Officer to, instead of recording evidence in full, merely maintain a memorandum thereof, has no bearing on the question regarding circumstances in which the ballot papers can either be looked into or permitted to be inspected in proceedings under Section 12-C of the U.P. Panchayat Raj Act."
21. In Ram Sewak Yadav vs. Hussain Kamil Kidwai & Ors. AIR 1964 Sc 1249, the Constitution Bench of Hon'ble Apex Court had held that allegation made by election petitioner against the Returned Candidate must be clear and specific and must be supported by adequate statement of material facts. Further, the Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegation made on record. Relevant paras 6 and 7 of the judgment are extracted hereasunder :
"6. An election petition must contain a concise statement of the material facts on which the petitioner relies in support of his case. If such material facts are set out the Tribunal has undoubtedly the power to direct discovery and inspection of documents with which a civil court is invested under the Code of Civil Procedure when trying a suit. But the power which the civil court may exercise in the trial of suits is confined to the narrow limits of O. 11, Code of Civil Procedure. Inspection of documents under O. 11, Code of Civil Procedure may be ordered under rule 15, of documents which are referred to in the pleadings or particulars as disclosed in the affidavit of documents of the other party, and under rule 18(2) of other documents in the possession or power of the other party. The Returning Officer is not a party to an election petition, and an order for production of the ballot papers cannot be made under O. 11 Code of Civil Procedure. But the Election Tribunal is not on that account without authority in respect of the ballot papers. In a proper case where the interests of justice demand it, the Tribunal may call upon the Returning Officer to produce the ballot papers and may permit inspection by the parties before it of the ballot papers. That power is clearly implicit in Sections 100(1)(d)(iii), 101, 102 and rule 93 of the Conduct of Election Rules, 1961. This power to order inspection of the ballot papers which is apart from O. 11 Code of Civil Procedure may be exercised, subject to the statutory restrictions about the secrecy of the ballot paper prescribed by 94 and 128(1).
7. An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled :
(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and
(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between parties inspection of the ballot papers is necessary.
But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a more allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection."
22. In Jyoti Basu and others vs. Debi Ghosal and others AIR 1982 SC 983, the Apex Court while dealing with an election dispute has held that an election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes, applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Relevant para 8 of the judgment is extracted hereasunder :
"A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An Election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the Common Law nor the principles of Equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance With the statutory creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self contained code within which must be found any rights claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say ?"
23. In dealing with the question for declaring an election to be void, the Apex Court in L.R.Shivaramagowda & Ors. vs. T.M. Chandrashekar (Dead) by Lrs. & Ors. (1999) 1 SCC 666 has held that it is absolutely necessary for the election petitioner to plead that result of election insofar as it concerned the returned candidate had been materially affected by the alleged non-compliance with the provisions of the Act or of the Rules. The Court further stressed the importance of pleadings in an election petition and pointed out the difference between "material facts" and "material particulars". Relevant paras 10 and 11 of the judgment are extracted hereasunder :
"10. That apart, it is rightly pointed out by the appellant's counsel that in order to declare an election to be void under Section 100(1)(d)(iv), it is absolutely necessary for the election petitioner to plead that the result of the election insofar as it concerned the returned candidate had been materially affected by the alleged non-compliance with the provisions of the Act or of the Rules. We have already extracted para 39 of the election petition which is the only relevant paragraph. One will search in vain for an averment in that paragraph that the appellant had spent for the election an amount exceeding the prescribed limit or that the result of the election was materially affected by the failure of the appellant to give true and correct accounts of expenditure. In the absence of either averment, it was not open to the appellant to adduce evidence to that effect. It cannot be denied that the two matters referred to above are material facts which ought to find a place in an election petition if the election is sought to be set aside on the basis of such facts.
11. This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. In Balwan Singh v. Lakshmi Narain AIR 1960 SC 770 the Constitution Bench held that an election petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. On the facts of the case, the Court found that the alleged corrupt practice of hiring a vehicle for the conveyance of the voters to the polling station was sufficiently set out in the pleading. The Court pointed out that the corrupt practice being hiring or procuring of the vehicle for the conveyance of the electors, if full particulars of conveying by a vehicle of electors to or from any polling stations were given, Section 83 was duly complied with, even if the particulars of the contract of hiring, as distinguished from the fact of hiring were not given."
24. In the instant case, the election petitioner had pleaded before the Prescribed Authority in paras 9 to 14 that 49 members of six different villages were also enrolled as voters in Village Bhangura. The affidavits of 11 members corroborated that they had seen many of the enrolled voters to have voted in two villages, but, there is no averment in the election petition that which member of the Village Panchayat voted in two villages which had materially affected the result of the Returned Candidate.
25. The pleadings are missing, and only through the election petition it was brought to the notice of the Prescribed Authority that 49 members of other Village Panchayat had been enrolled in the electoral roll of Village Panchayat Bhangura. Moreover, the Prescribed Authority wrongly assumed taking note on 11 affidavits that these 49 members have voted in two villages in violation of Section 62(3) of the Act of 1947 and held the election of Returned Candidate void.
26. The result could have only been declared void once there was a specific pleading in the election petition and the issue was framed by the Prescribed Authority and by the evidence led, the factum of double voting was proved by the election petitioner as to the casting of double votes by the voters in two different Village Panchayat, which had materially affected the result of the Returned Candidate. In absence of specific pleadings by the election petitioner, the order passed by Prescribed Authority was not sustainable and the Revisional Court had rightly proceeded to reverse the same.
27. As far as argument raised from petitioner's side that Returned Candidate was married in the year 2021, this Court cannot go into this question as it was never raised by the election petitioner in the election petition nor it was discussed by the Prescribed Authority. It was for the first time that before the Revisional Court the said question was raised, which has been decided and needs no interference by this Court.
28. Now coming to the issue raised by the election petitioner that this Court while exercising power under Article 226 of the Constitution can interfere to set aside a void election though the pleading was not there in the election petition, this Court finds that the election petitioner has herself alleged that according to her the marriage was solemnized between Returned Candidate and her husband Jaggiram on 24.03.2021 prior to filing of nomination papers, which has been denied by the Returned Candidate that marriage was held in the year 2020, This Court finds that this disputed question of fact cannot be dealt with under Article 226 of the Constitution of India and once the issue was not raised before the Prescribed Authority, this Court cannot go into this question.
29. Moreover, reliance placed by election petitioner on the judgment rendered by Apex Court in K.Venkatachalam (supra) is distinguishable in the present case, as in that case writ of quo warranto, filed under Article 226 before the Single Judge, was dismissed as not maintainable, against which an appeal preferred before the Division Bench was allowed and the matter was travelled up to the Apex Court, which confirmed the order of Division Bench.
30. In the instant case the election petitioner had preferred an election petition under Section 12-C of the Act of 1947, which was allowed by the Prescribed Authority. The order passed in election petition had been reversed by the Revisional Court, which is under challenge in the present proceedings and no relief of quo warranto has been sought against the Returned Candidate, but the order passed by Revisional Court is under challenge.
31. In the proceedings under Section 12-C of the Act of 1947, the election petitioner has to state the grounds and the concise summary of facts which has materially affected the result of the election. The pleadings has to be specific in regard to the result of the election insofar as it concerned the Returned Candidate and had materially affected by the alleged non compliance with the provisions of the Act or Rules.
32. Thus, the question, framed above, stands answered in view of the decision of Full Bench of this Court in case of Ram Adhar Singh (supra) and Constitution Bench judgment of this Court in Ram Sewak Yadav (supra).
33. Considering the facts and circumstances of this case, I find that the election petition filed by the election petitioner lacks basic pleadings. Hence, the order passed by Revisional Court needs no interference.
34. The writ petition fails and is hereby dismissed.
Order Date :- 17.1.2024 Kushal