Nand Kumar Sahu Nand Kumar Sahu Vs Satyanarayan Sharma

Chhatisgarh High Court (Single Judge)

EP->ELECTION PETITION, 13 of 2015, Judgment Date: May 12, 2015

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HIGH COURT OF CHHATTISGARH AT BILASPUR
E.P. No. 13 of 2014
PETITIONER : Nand Kumar Sahu
VERSUS
RESPONDENT : Satyanarayan Sharma
SB: Hon’ble Shri Goutam Bhaduri, J.
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Present:
Mr. Goutam Khetrapal, Advocate for the Petitioner.
Dr. N.K. Shukla, Sr. Advocate with Mr. Aditya Tiwari, Advocate for
Respondent.
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ORDER
(Delivered on 12/05/2015)
1. The order shall govern the disposal of I.A. No.3, which is an
application under Order 7 Rule 11 of C.P.C., wherein the
respondent has challenged the tenability of the election petition
and raised the preliminary objection.
2. The written statements though have been filed on 25.06.2014
prior to that, an application under Order 7 Rule 11 of C.P.C. was
preferred to challenge the maintainability of the petition.
Subsequent there to by an order dated 25.04.2014, the Court had
directed for hearing of the application under Order 7 Rule 11 of
C.P.C., pursuant there to, it has come up for hearing to adjudicate
on maintainability of the petition as to whether cause of action
arises for all the grounds pleaded in election petition.
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3. Application under Order 7 Rule 11 of C.P.C. is preferred by the
respondent No.1, the returned candidate. Perusal of the election
petition would show that initially 16 parties were added as a
respondents, but subsequently, all the names have been deleted
except respondent No.1. Though the respondents numbering upto
2 to 16 were deleted, the averments and the pleadings with
respect to the said parties, still exits. This has led to complete
contradiction and omissions of pleadings and submission led to
complete confusion.
4. The challenge in the election petition is by the contesting
candidate of Legislative Region No.48, Raipur Gramin Legislative
Assembly, District Raipur, who contested the election under the
Bhartiya Janta Party. The respondent No.1 is the returned
candidate of the election held for the Region -48 of Raipur Gramin
Legislative Assembly. The voting took place on 19.11.2013 and
result was declared on 08.12.2013 and the respondent was
declared as a elected member of legislative assembly. The
respondent secured vote of 70,774 while the petitioner secured
votes numbering into 68,931.
5. Dr. N.K. Shukla, Sr. Advocate with Mr. Aditya Tiwari, counsel
appearing on behalf of the respondent would submit as under :-
i). The ground for declaring the election to be void finds place
in Section 100 of Representation of People Act, 1951
(herein after referred to as 'the Act of 1951'). It is stated that
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the provision of sub-section 1 (d) (iv) mandates that in order
to declare a election void, the non-compliance is to be
within the provisions of Constitution or “of this Act” or in
Rules or Act made under “this Act”. Therefore, would submit
that in order to get a relief as has been pleaded and as
alleged by the petitioner that the names of voter were
inserted after the date of nomination, such ground would not
be available as the word “this Act” necessarily refers to Act
of 1951.
ii). He further made a reference to the Representation of
People Act, 1950 (hereinafter referred to as “the Act of
1950”) and stated that one of the preamble of the Act is for
preparation of electoral rolls manner of filing seats in council
to be filed by the representatives and would submit that the
preparation of electoral rolls is covered under Part-III of the
Act of 1950.
iii). He further referred to Section 21 of the Act of 1950 which is
for preparation and revision of electoral rolls. Section 22 is
for correction of entries in electoral rolls. Section 23 is for
inclusion of names in electoral rolls and Section 24 is for
appeals. Therefore, submits that the entire procedure for
inclusion and excluser of name are covered by the Act of
1950, which is a Code in itself, so the election petition would
not lie on the ground of erroneous electoral list and such
remedy is not available to the petitioner.
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iv). He further referred to Section 30 of the Act of 1950 and
would submit that the jurisdiction of Civil Court is barred
under the Act of 1950 about preparation of electoral roll,
and therefore, the finality has been given to such
preparation of electoral rolls, which can not be a subject
matter of election petition.
v). The learned counsel read out the averments of the election
petition and would submit that the allegations about the
deletion of name of voters have been made but it is not
founded on any material facts.
vi). In the context, he referred to the case law reported in AIR
1963 SC 458 and would submit that since the Civil Court
shall have no jurisdiction to question the legality of any
action taken by or under the authority of Electoral
Registration Officer it can be rectified only in the manner
prescribed by law by preferring an appeal under Rule 27 of
the Rules or by resorting to any other appropriate remedy.
Therefore, it is contended that since the object of legislature
was to give finality to the subject, it can not be questioned in
this election petition.
vii). He also made a reference to AIR 1970 SC 340 and stated
that the validity of such votes once casted can not be
questioned by way of election petition and would submit that
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meaning thereby the election can not be challenged on the
ground of wrong electoral rolls.
viii). It was further contended that the allegations have been
leveled against the Returning Officer, who was initially
made as a respondent No.16. He further stated that the
petitioner has stated that the Collector has provided undue
advantage to respondent No.1 and deleted the names of
various voters, which has affected the result but pleadings
are completely vague that how the Collector has worked
under influence of respondent No.1, no particulars have
been pleaded.
ix). He further submits that the materials are required to be
pleaded in the election petition, therefore, the material
pleadings should have been on record that how the
Collector worked under the guidance of respondent No.1.
x). He further submits that honesty and dishonesty are abstract
form, which can not be inferred specially in the election
petition and can be accepted in absence of any material
facts pleaded as to how the Collector/Returning Officer had
supported the respondent.
xi). He further referred to Para 20, 21 and 23 and read out the
allegations and would submit that without disclosing any
fact the allegations have been made and even the fraud has
been stated which can only be inferred from the conduct
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and such conduct also requires a pleading. Therefore, if
such facts, the particulars are not pleaded, the election
petition can not stand as it would be too vague for want of
material particulars.
xii). Learned counsel further referred to Para-31 and would
submit that the allegation of false assurance has been
levelled in the election petition. He further referred to the Act
of 1951 and would submit that corrupt practice is defined
under Section 123 of the Act of 1951. The reference was
further made to Section 100 (1) (b) of the Act of 1951 and
stated that corrupt practice should have been committed
either by a returned candidate or his election agent or by
any other person with the consent of returned candidate or
his election agent. Therefore, in order to bring home the
corrupt practice, involvement of either of four persons are
necessary. It is stated that no pleadings in the subsequent
para has been made that whether it was done by election
agent or by the person with the consent of returned
candidate or the election agent.
xiii). He further submits that no materials have been pleaded that
on which time, the bribe was extended, what is the time,
which is the place etc. He also submits that in Para-29 & 30,
undue influence has been pleaded for one Dr. Shakil and it
is so vague that can not be accepted. He placed his
reliance in AIR 2012 SC 913 and would submit that
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according to Section 83, the petition should have contained
concise statement of the material facts on which the
election petitioner relies and therefore, in absence of any
material facts, the petition is liable to be dismissed.
xiv). Lastly it is contended that the corrupt practice have been
alleged in the petition, but in the affidavit, the same has not
been averred. According to Section 83, the concise
statement of material facts should have been averred. It is
further submitted that bare reading of affidavit would reflect
that it is not in conformity to the Rule 94A and Form-25 of
the Conduct of Election Rules, 1961, therefore, it was
contended that the petition is liable to be dismissed at
threshold.
6. Per contra Mr. Goutam Khetrapal, learned counsel appearing on
behalf of the petitioner would submit that challenge to the election
is on the basis of defective electoral rolls would fall under Section
100 (d) (iii) of the Act of 1951. He would submit that the last date
of filing of nomination was on 03.11.2013, therefore, completion of
voter list should have been before such date but in the instant
case the voter list was issued on 17.11.2013 i.e. two days before
election held. Therefore, the inclusion of name of 1375 voters
would amount to improper reception, which is void ab-initio as the
date had expired on 02.11.2013. He further referred to Subsection
3 of Section 23 of the Act of 1950 and would submit that
no amendments, transposition or deletion or any entry should
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have been made in the electoral roll after the last date for making
nominations. He placed his reliance in the case law reported in
AIR 1970 SC 314 and stated that if after the date of nomination
name of voters are included and such newly added voter had
altered the result then then it will be covered under Section 100
(1) (d) (iii) of the Act of 1951. It was further contended that if the
Electoral Officer/Registration Officer has illegally accepted the
votes casted by voters then in such case, it will amount to wrong
casting of vote which is otherwise void. Therefore, the acceptance
of such vote will be void.
7. He further submits that the petitioner has pleaded all the material
facts, in support of the case, which can not be equated to as
evidence and therefore, it can not be urged that the material facts
have not been pleaded. He placed his reliance on 2004 (7) SCC
181 and 2003 (8) SCC 498, and would submit that the election
petition under these circumstances can not be dismissed at
threshold.
8. On the basis of the submissions made by the parties as a
preliminary objection after reading the election petition, it would go
to show that election is challenged predominantly on the following
grounds :-
i). The name of the voters were accepted/deleted after
prescribed date of filing nomination of 02.11.2013,
therefore, it is in contravention of Section 23 (3) of the Act of
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1950 and as such acceptance of the vote would amount to
improper reception of the vote casted, consequently, the
election is void.
ii). The EVM machines used during election were
changed, which resulted into the defeat of the respondent
No.1. Consequently, undue pressure were created and
false assurance were extended by the respondent and
illegal votes were casted in the polling booth.
iii). Son of the respondent, Pankaj had made gifts like
cloths to woman, undergarment to man and liquor and
blanket to the various voters, thereby corrupt practice and
false tactics were adopted by the respondent No.1 which
had affected the result of the election in favour of
respondent.
9. One of the main objection raised by the respondent that once the
electoral roll is prepared and the votes are casted then in such
case, the election can not be subject of challenge in a proceeding
challenging validity of election. The reliance was placed in the
case law reported in AIR 1963 SC 458 and AIR 1970 SC 340.
10. In the context, it would be relevant to quote the dates, which are
relevant.
i). The date of election was notified on : 25.10.2013.
ii). The last date of filing of nomination : 3rd November, 2013.
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iii). Date of scrutiny and to take : 4th November, 2013.
back the names
iv). Date of election was : 19th November, 2013.
v). The results were declared : 08.12.2013.
11. It was the case of the petitioner that after last date of making of
nomination i.e. 2nd November, 2013, the names of the voters were
included again in the voter list on 17.11.2013, therefore, if the
names were included after the last date of nomination there would
have been contravention of Section 23 (3) of the Act of 1950.
Consequently, the vote accepted after that will amount to improper
reception of the vote, which would make election void. Having
regard to the submission made, and with reference to the case
law reported in AIR 1963 SC 458, B.M. Ramaswamy V. B.M.
Krishnamurthy, and relied by the respondent may not have a
direct application in the case in hand. In that case, supra their
Lordship decided the issue on the premises when it was a
common case that the name of the appellant was included in the
electoral roll of the Mysore Legislative Assembly before the date
prescribed for filing nomination papers of assembly election and
election under challenge in such case was of panchayat
constituency. Their Lordship, therefore, referred to the Section 30
of the Act of 1950 had held that Civil Court shall have no
jurisdiction to question the legality of any action taken by or under
the authority of Electoral Registration Officer. It was further held
that the terms of electoral roll though legally can not be
questioned in Civil Court, but can be rectified only in the manner
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prescribed by law by preferring an appeal under Rule 27 of the
Rules or by resorting to any other appropriate remedy. Herein the
instant case, the inclusion of name of some voters itself is under
challenge on the allegation of inclusion of names for the legislative
assembly itself after the date of nominations. Therefore, in the
facts of this case the cases relied on by the respondent (supra)
can not have a direct application in the present facts.
12. The other case law reported in AIR 1970 SC 340, Kabul Singh
Vs. Kundan Singh and others, was relied on by the respondent.
In such case it was categorically held that inclusion of name in the
electoral roll after the prescribed date is prohibited whether the
application for inclusion was made before or after that date.
Therefore, the ratio rather support the petitioner.
13. Further, their Lordship in the case of Kabul Singh Vs. Kundan
Singh and others, (supra) endorsed the finding arrived at by the
Full Bench that if the name is included in the electoral roll after the
last date of making nomination for election in that constituency, it
would be void. Their Lordship at para-9 has held as under:-
“The right to vote being purely a statutory right, the
validity of any vote has to be examined on the basis
of the provisions of the Act. We cannot travel
outside those provisions to find out whether a
particular vote was a valid vote or not. In view of
Section 30 of the 1950 Act, Civil Courts have no
jurisdiction to entertain or adjudicate upon any
question whether any person is or is not entitled to
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register himself in the electoral roll in a constituency
or to question the illegality of the action taken by or
under the authority of the electoral registration
officer or any decision given by any authority
appointed under that Act for the revision of any
such roll. Part III of the 1950 Act deals with the
preparation of rolls in a constituency. The
provisions contained therein prescribe the
qualifications for being registered as a voter
(Section 19), disqualifications which disentitle a
person from being registered as a voter (Section
16), revision of the rolls (Section 21), correction of
entries in the electoral rolls (Section 22), inclusion
of the names in the electoral rolls (Sec. 23),
appeals against orders passed by the concerned
authorities under Section 22 and 23 (Section 24).
Section 14 to 24 of the 1950 Act are integrated
provisions. They form a complete code by
themselves in the matter of preparation and
maintenance of electoral rolls. It is clear from those
provisions that the entries found in the electoral roll
are final and they are not open to challenge either
before a Civil Court or before a Tribunal which
considers the validity of any election. In B.M.
Ramaswamy V. B.M. Krishnamurthy, 1963-3 SCR
479 = (AIR 1963 SC 458), this Court came to the
conclusion that the finality of the electoral roll can
not be challenged in a proceeding challenging the
validity of the election.”
Analysis of the aforesaid case law would go to show that it
was mainly on the premises of the validity of the electoral roll,
which reaches its finality by affect of Section 30 of the Act of 1950.
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14. Further the Hon'ble Supreme Court in the case of Wopansao Vs.
N.L. Odyuo and others, reported in AIR 1971 SC 2123
considering the law laid down in AIR 1963 SC 458 has held that
finality of the electoral roll is governed by the provisions of Section
14 to 24 of the Act of 1950, which are complete Code in the matter
of preparation and maintenance of electoral. The Court further
held that under Section 100 (1) (d) (iii) of the Act of 1951, if the
result of the election in so far it concerned the returned candidate
has been materially affected by improper reception, refusal or
rejection of any vote which is void, the Court would have
jurisdiction to declaration such election void. Para-8 of the said
judgment are reproduced herein below :-
“8. The other ground on which the qualification of
the service personnel to be registered as voters in
the Wokha Constituency was questioned was that
they were not Indian citizens. Article 326 of the
Constitution confers voting rights on citizens of
India. Section 16 of the 1950 Act disqualifies a
person for registration as a voter if he is not a
citizen of India. Section 62 of the Representation of
the People Act, 1951 called the 1951 Act prohibits a
person from voting at an election in any
constituency if he is subject to any disqualifications
mentioned in Section 16 of the 1950 Act. Under
Section 100 (1) (d) (iii) of the 1951 Act if the result
of the election in so far it concerned the returned
candidate has been materially affected by the
improper reception, refusal or rejection of any vote
or reception of vote which is void, the Court would
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have jurisdiction to declare such an election void.
Therefore, if the allegation that the personnel of the
12th Battalion Assam Rifles were not Indian citizens
was established, it was submitted that the election
would be declared void.”
15. Consequently, the argument, which is advanced by the learned
counsel for the respondent that election petition is not tenable on
the ground under Section 100 (1) (d) as grounds are not available
U/s.100 (1) (d) (iv) of the Act of 1951, can not be sustained. It is
different case that if the petitioner has failed to prove the other
necessary ingredients as required under the Act of 1951. The
petitioner has alleged about the inclusion and exclusion of the
names of the voters list from para 8 to 24. The pleadings though
have been made about inclusion and deletion of names in voter
list but the same pleadings also would be subject to Section 83 of
the Act of 1951 as to whether pleadings have disclosed material
facts. In this regard reference of relevant section of the Act of
1951 would be relevant which are reproduced herein below.
16. Section 83 (1) (a) of the Act of 1951 reads as under :-
“Section 83. – Contents of petition. – (1) An election
petition-
(a) shall contain a concise statement of the
material facts on which the petitioner relies.”
17. Similarly Order VI, Rule 2 of CPC, to the extent it is relevant,
reads as under:-
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“O.- VI, Rule -2. Pleading to State material facts
and not evidence. - (1) Every pleading shall
contain, and contain only, a statement in a concise
form of the material facts on which the party
pleading relies for his claim or defence as the case
may be, but not the evidence by which they are to
be proved.
(2) xxx xxx xxxx
(3) xxx xxx xxx”
18. At para-8, the petitioner has alleged that under the direction and
supervision of respondent No.12, who is Election Commission of
India, the voter list was prepared and published in the month of
June, 2013, copy of which is filed as Annexure P/3 alongwith the
petition. It was pleaded that initially about 222000 voters were
listed. Perusal of Annexure P/3, which have been formed the part
of para-8, shows a date of document is of 08.12.2013, wherein
numbers of voters were shown as 228638. Admittedly by reading
of para-8, it do not describe the contents of Annexure P/3.
Therefore, reading the Annexure P/3, alongwith Para-8 of the
election petition, I am unable to synchronize the same as to how
such document is related to the allegation as made in para-8. If
the document was of 08.12.2013, then it was of the date of
declaration of result. So even if the numbers of voters shows a
different figure then in what circumstances, the allegations are
attributed to the respondent of manipulations it is completely
silent. Neither any reasons have been pleaded nor any pleading
exists as to how the figure shown was prejudicial to the petitioner.
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There can not be any presumption to draw any inference of
acceptance of invalid votes in absence of material particulars.
19. Para -9 of the petition speaks about the final list of voters, which
were numbered as 246047. In such averments allegations have
been levelled on respondent No.16. Admittedly, the respondent
No.16 stands deleted as on date. Para -10 speaks about the
respondent No.16, Returning Officer (though deleted), under the
guidance and supervision of respondent No.1, published the voter
list. The voter list is filed as Annexure P/4. The Annexure P/4
further do not contain any seal or signature of Returning Officer.
Further at para-11, it is alleged that the name of 18000 voters
were deleted from final voter list at the time of polling and only
228638 voters were present in the list of voters. Though the
pleading to this effect that the voter list was made at the guidance
and the supervision of respondent No.1, but no material
particulars have been stated in the pleadings and has pleaded any
single name of any voter. The pleading is completely silent that
how such voters have influenced the decision of the election
which eventually led to defeat the petitioner.
20. Para-12 further states that the respondent No.16 to provide undue
advantage to the respondent No.1, has deleted name of various
voters from the electoral list. This allegation also appears to be too
vague and devoid of any material facts and only vague averments
have been made that few of the voters were deleted. Para-14
speaks about some complaints, which were made to respondent
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No.12 to 15 and the cognizance were taken thereafter. It would be
again relevant to repeat that respondent No.12 to 15 also stands
deleted before this Court, therefore, to what extent the pleading
would go to help the petitioner is uncertain.
21. Para-15 further speaks that about 1375 voters were added after
17.11.2013. No further particulars have been provided as to who
were the voters, whether they casted votes in favour of the
petitioner or respondent and where they casted votes in which
polling booths they were added is also silent. The allegations
further have been made at para-16 that respondent No.12 to 16,
who are the Election Commission of India and Electoral Officer
have not conducted the election in transparent and fair manner.
So what was the nature of unfair-manner or nontransparent
manner is missing. Further nature of the allegation, how the officer
conducted themselves in the election is also completely silent.
Only vague allegations have been leveled with the expectation of
a roving enquiry. Again it is stated at para-17 that Returning
Officer has provided advantage to the respondent No.1, the
returned candidate, which is under the category of mal practice.
This is also silent as to what kind of advantage was provided by
the Returning Officer to the returning officer.
22. Para-18 speaks about the enquiry ordered by the Election
Commission to enquire the voter list. Only shady averments have
been made. At Para-19, it is pleaded that list were prepared,
wherein the voters were shown to be age of 113 years but they
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were actually age of 20 to 40 years and reference is made to
Annexure P/7. The pleading is silent to the effect that how it has
affected the result and whether any votes were casted or not
again on enquiry by this Court is expected so as to find out what is
the actual grievance and if any grievance exists to follow it by
further enquiry. Further at Para-21 mal practice have been
pleaded that respondent No.1 is elected by mal practice and no
particulars have been pleaded.
23. At Para - 22 & 23 of the petition, it is pleaded that the respondent
No.3, Gautam Buddha Agrawal (name stands deleted from
petition), was deleted from the voter list, though his name was
initially mentioned in the final voter list prepared on 02.11.2013.
So how such deletion of name of one candidate the right of
petitioner was affected and was advantageous to the return
candidate is completely absent in pleading. At para-23, it is also
stated that the respondent No.16, the Returning Officer, provided
undue advantage, but what kind of undue advantage was
provided is missing. At para-24, it is stated that immediately after
the election, another list was prepared and published on
31.12.2013 by the SDO, whereby the name of 20033 voters were
added. It is alleged by the petitioner that the name of voters were
deleted and few of names were further added and allegation of
undue influence was clamped over the Returning Officer so how it
caused prejudice to respondent is difficult to assume in absence
of particular.
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24. The petitioner herein has not placed any material facts to show at
least few name of voters who were added or deleted after the
prescribed date. The annexure attached with the petition is
completely vague which leads to form an opinion that again
enquiry has to be conducted at the behest of the petitioner to find
out what pleading suggest followed by enquiry. It appears that
pleading made in the petition are contrary to the annexure which
is attached alongwith the petition. No electoral roll has been
placed alongwith the petition, wherein such allegation can be
substantiated or compared. The allegations, if are compared with
the annexure leads to form an uncertain opinion and leads to
ambiguity. Undue influence and support to the respondent,
returned candidate has been alleged but what kind of undue
influence or any kind of act which tantamount to undue influence
have not been pleaded and what was the compulsion on the
voters to cast the votes is also neither pleaded nor any materials
have been placed.
25. No pleading of material fact exists to show that a voter choice was
arrested. Freedom in exercise of judgment which engulfs a voter's
right, a free choice, in selecting the candidate whom he believes
to be best fitted to represent the constituency should be shown to
have been eclipsed by the pleadings. The casting of votes at an
election depends upon a variety of factors and it is not possible for
anyone to predicate how many or which proportion of the votes
will go to one or the other of the candidates. While it must be
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recognized that the petitioner in such a case is confronted with a
difficult situation, it is not possible to relieve him of the duty
imposed upon him by Section 100 (1) (c) and hold without
pleading of material facts that the duty has been discharged.
Should be the petitioner fail to plead material facts to enable the
Court to find in his favour on this point, the inevitable result would
be that the Tribunal would not interfere in his favour and would
allow the election to stand.
26. By close reading of the pleading it shows that petitioner has failed
to plead the material facts that names were added after
preparation of electoral roll on 17.11.2013. Reading with respect
to the electoral roll and further reading it with the annexures, this
Court is unable to form its opinion to know as to what exactly the
pleadings have been made with respect to the electoral roll
without giving any particulars to the nature of allegations, the
election petition can not therefore, simply raise the allegation of
defect in electoral roll and get away with it.
27. Further at Para-37, the ground is raised under Section 101 (a) &
(b) and 101 (d) repeating the earlier averments that after
publication of electoral roll, inclusion and deletion was made by
the respondent No.16. The respondent No.16 stands deleted.
Now it is further alleged that by deletion of such name, 1300
voters were disabled to cast their votes. Again it is stated that
246046 voters were shown by respondent No.16 and only 228638
voters were permitted, thereby addition and deletion of names
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were made. Further the pleading is made as per direction or
approval of respondent No.1, after 17.11.2013, few persons i.e.
…....... have casted their valuable votes in violation of Section 23
of the Act of 1950. Reading of the para would reflect that after
word i.e. blank space is left. In absence of such material
particulars it allows the court to form an opinion that petitioner
himself is unaware about the number of votes. In this case, the
main allegation is referred against the respondent No.16, the
Returning Officer. The cause title of the petition would show that
the respondent No.16 stands deleted. Further more, no further
particulars have been given and not a single name was given
which shows that the names were deleted and the names were
added. Where and who have casted votes thereby affected the
election, the entire pleading is so vague and by reading of which,
it is difficult to understand that what is the actual ground, the
petitioner wanted to make out. The allegations have been made
on respondent No.16 that he under the influence of the
respondent No.1, the returned candidate has changed the
electoral roll but at least one incident should have been pleaded,
which are the material facts to establish that what were done.
What commission and omission has been made by the
respondent No.1, by making allegation that the respondent No.1
has influenced the Returning Officer, it can not be accepted to be
a material fact.
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28. Therefore, as has been observed in forgoing paragraphs,
examining the aforesaid pleading in light of the statutory
requirements and the principle laid down in the various decision
referred to above, this Court is of the opinion that no triable cause
of action is made out so far as allegation of corrupt practice from
paras 25 to 31, 36 & 37. Consequently, the petitioner is not
entitled for any relief, as the averments made in these paras do
not require the petition to be entertained for the grounds
enumerated and pleaded therein for want of material facts.
29. Reading of the pleading would show that no extra care has been
taken by the election petitioner to leave a room of doubt while
making such averments and allegations of undue influence and
indulgence of the Returning Officer alongwith respondent No.1.
30. Therefore, in view of the reading of the pleading and after
consideration of annexures with reference to the law laid down, it
would be quite vivid that the election petitioner has failed to plead
precise fact constituting the fact of change of electoral roll and
undue influence namely the nature of such inference, the persons
on whom it was exercised and time and place of it in the pleading
as no details of the undue influence or direct or indirect
interference by the returned candidate or his agent has been
raised and the affidavit also is silent about the same. Therefore, in
absence of the pleadings I am of the view that the election
petitioner has failed to raise triable issue with respect to inclusion
and exclusion of voters in the voter list after date of nomination
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from para 8 to 24 and as such failed to disclose the triable cause
of action under Section 100 (1) (d) (iii) of the Act of 1951,
therefore, the grounds raised for declaring the election void under
Section 100 (1) would not be available to the petitioner as in
absence of cause of action.
31. Further reading of Para-25 of the election petition, allegations
have been leveled against respondent No.14, 15 & 16, that with
the help of respondent No.1, they have changed the EVM
machines of 37 public booths. The respondents No.14, 15 & 16
stands deleted at the time of adjudication of this application,
therefore, it is completely vague as to how it has happened.
32. Para-26 also continues with the allegations of change of EVM
machine that the EVM machines were changed which was kept in
the strong room and it was done to provide advantage to the
respondent No.1. Para-27 also speaks that because of change of
EVM machines, the petitioner lost by 1800 votes and from
different EVM machines, the figures are quoted. At para -28 again
the allegation is leveled against respondent No.16, who has been
deleted. The facts therefore, has lead to discrepancy in the
pleading. The petitioner further at para – 29 of the election petition
has pleaded that the respondent, returned candidate has created
pressure over the petitioner and abused the agent of the petitioner
but what kind of pressure was used is completely silent.
Page 24
33. Reading from paras 25 to 29 would go to show that, no material
particulars have been disclosed as to how the EVM machine was
changed, where it was changed, under which manner it was done,
the simple allegation have been leveled that the EVM machines
have changed and therefore, the petitioner has lost. It is apparent
that in these paras complete absence of material facts presence,
which renders cause of action in the election petition is absent for
the aforesaid allegations.
34. At Para-30, it is averred that one Dr. Shakil informed to the
petitioner that due to undue pressure created on him by
respondent No.1, he had not canvassed and he was also abused
by the respondent. It is also stated that the said Dr. Shakil had
sustained grievous injuries also in the earlier election. The
allegation at para-31 is that the respondent No.1 adopted tactics
of false assurance and without any sanction, distributed and
published the pamphlets of various false assurance. Only general
allegations have been made without any material facts.
35. At para-35, the petitioner again has stated that undue influence
was done upon the voters and by using false tactics, the election
was won by respondent No.1. The pleading is completely vague
as to what kind of undue influence was exerted upon the voters, a
single name has not been disclosed on him such undue influence
was exerted. Further what was the false tactics was used, is
completely silent.
Page 25
36. At para-36, it is again repeated that election was conducted under
the supervision of the returned candidate, respondent No.1.
Meaning thereby, instead of returning officer, the respondent No.1
had conducted the election but the manner in which it was done is
completely absent. Therefore, the pleading lacks of the material
particulars as to how such supervision ultimate control was done
by the respondent No.1, no instances have been stated in such
paras and only general allegations have been made.
37. When Section 83 of the Act, 1951 is read, it shows that
substantive part of Section 83 consists of three important
elements namely the election petition should contain concise
statement of material facts which the election petitioner relied
upon. The emphasis is on the material facts which should be
stated in the concise form. The Hon'ble Supreme Court in the
case of Charan Lal Sahu Vs. Giani Jail Singh and another,
reported in (1984) 1 SCC 390 while considering the “undue
influence” as enumerated in Section 18 (1), emphasizing the need
of precise, specific and unambiguous pleading of corrupt practice
particularly with reference to undue influence stated as under :-
“35. The gravamen of this section is that there
must be interference or attempted interference with
the “free exercise” of any electoral right/ “Electoral
right” is defined by Section 171-A(b) to mean the
right of a person to stand, or not to stand as, or to
withdraw from being, a candidate or to vote or
refrain from voting at an election. In so far as is
Page 26
relevant for our purpose, the election petition must
show that Shri Beg interfered with the free exercise
of the voters' right to vote at the Presidential
election. The petition does not allege or show that
Shri Beg interfered in any manner with the free
exercise of the right of the voters to vote according
to their choice or conscience........”
In the later part, their Lordship further held :-
“Therefore, in order that the offence of undue
influence can be said to have been made out within
the meaning of Section 171-C of the Penal Code,
something more than the mere act of canvassing
for a candidate must be shown to have been done
by the offender. That something more may, for
example, be in the nature of a threat of an injury to
a candidate or a voter as stated in sub-section (2)
(a) of Section 171-C of the Penal Code or, it may
consist of inducing a belief of Divine displeasure in
the mind of a candidate or a voter as stated in subsection
(2) (b). The act alleged as constituting
undue influence must be in the nature of a pressure
or tyranny on the mind of the candidate or the voter.
It is not possible to enumerate exhaustively the
diverse categories of acts which fall within the
definition of undue influence. It is enough for our
purpose to say, that of one thing there can be no
doubt: The mere act of canvassing for a candidate
cannot amount to undue influence within the
meaning of Section 171-C of the Penal Code.”
38. Reading of these paras from 25 to 31, 36, & 37 which has leveled
the allegations of addition would reveal that the petitioner has
failed to state concise statement of material facts, as has been
Page 27
held in case of Naresh Kumar Patel Vs. Shri Nand Kumar Patel
and others, reported in 2006 (2) C.G.L.J. 470, which reads as
under :-
“28. In the matters of Samant N. Balakrishnan Vs.
George Fernandez, it has been held that first,
Section 83 of the Act is mandatory and requires
first a concise statement of material facts and then
requires the fullest possible particulars. Second,
omission of a single material fact leads to an
incomplete cause of action and the statement of
claim becomes bad. Third, the function of
particulars is to present in full a picture of the cause
of action to make the opposite party understand the
case he will have to meet. Fourth, material facts
and particulars are distinct matters. Material facts
will mention statements of fact and particulars will
set out the names of persons with the date, time
and place. Fifth, material facts will show the ground
of corrupt practice and the complete cause of
action and the particulars will give the necessary
information to present a full picture of the cause of
action. Sixth, in stating the material facts it will not
do merely to quote the words of the section
because then the efficacy of the material facts will
be lost. The fact which constitutes a corrupt
practice must be stated and the fact must be
correlated to one of the heads of corrupt practice.
Seventh, an election petition without the material
facts relating to a corrupt practice is no election
petition at all.”
Page 28
39. The law as it stands would require a strict pleading and proof of
the factors enumerated in Section 100 of the Act of 1951 for a
obtaining a declaration that the election was void one. Such
declaration can only be made upon consideration of material
brought on record. The Election Tribunal will have jurisdiction to
issue such direction only in the event one or the other factors
enumerated in the sub-clause contained sub-section (1) of Section
100 of the Act of 1951 are fulfilled and not otherwise.
40. Now coming back to para -32 of the petition, the petitioner has
alleged about illegal voting at polling booth Boriyakala was done
by the respondent No.1 with the help of his son and illegal votes
were casted, for which a police report was made by Annexure
P/14. It is also pleaded that the said illegal voting was objected by
the petitioner alongwith Evaj Dewangan and Vinod Tiwari but the
but they were abused by the son of the respondent No.1.
41. Further in para 33, it is alleged that the respondent No.1 with the
help of his son, Pankaj distributed cloths to woman, undergarment
to man and liquor and blanket to the villagers and the agent of the
petitioner had caught them while the goods were being distributed.
It is also pleaded that one Ganesh Ram Verma, was also caught
raid handed by the police, while transporting the illegal liquor, who
is the agent of the respondent No.1 and a case was registered
consequently a report was made by Annexure P/15.
Page 29
42. Both the reading of the aforesaid para would reflect that vague
allegations have been made. The particulars of corrupt practice, in
the manner it was made is not clear, simply allegations have been
leveled that son of the respondent had distributed goods to the
voters, not a single name is disclosed to whom it was given, what
was time it was done and only vague allegation have been
leveled. The pleading would reflect that election petitioner has
failed to come forward with the definite plea of allegation what
corrupt practice is supported by the legally acceptable material
evidence without any iota of doubt.
43. Further in case law reported in (2009) 9 SCC 310, between Anil
Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, the
Hon'ble Supreme Court has reiterated the view observed in case
of Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi, which
reads as under :-
“44. When we revert to the Indian cases, we find
that our courts have accepted the principle laid
down by the English cases. We would like to refer
to some of them. In Manubhai Nandlal Amorsey v.
Popatlal Manilal Joshi this Court observed as under
: (SCC p. 374, para 5).
“5. The first question is whether the trial
Judge should have allowed the amendment.
Section 83 (1) (b) provides that 'An election petition
shall set forth full particulars of any corrupt practice
that the petitioner alleges, including as full a
statement as possible of names of the parties
Page 30
alleged to have committed such corrupt and the
date and place of the commission of each such
practice'. The section is mandatory.”
44. Further the Hon'ble Supreme Court in case of Anil Vasudev
Salgaonkar (supra) has reiterated the view observed in case of
Hardwari Lal V. Kanwal Singh, which reads as under :-
“46. In Hardwari Lal v. Kanwal Singh, a three
-Judge Bench of this Court observed as under:
(SCC p.221, para 22)
“22...............The gravamen of the charge of corrupt
practice within the meaning of Section 123 (7) of
the Act is obtaining of procuring or abetting or
attempting to obtain or procure any assistance
other than the giving of vote. In the absence of any
suggestion as to what that assistance was the
election petition is lacking in the most vital and
essential material fact to furnish a cause of action.”
45. Again the Hon'ble Supreme Court in case of Anil Vasudev
Salgaonkar (supra) in para 57 has held as under :-
“57. It is settled legal position that all “material
facts” must be pleaded by the party in support of
the case set up by him within the period of
limitation. Since the object and purpose is to enable
the opposite party to know the case he has to meet
with, in the absence of pleading, a party can not be
allowed to lead evidence. Failure to state even a
single material fact will entail dismissal of the
election petition. The election petition must contain
a concise statement of “material facts” on which the
petitioner relies.”
Page 31
46. The material facts in respect of the election petition, was
considered by their Lordship in case of Jitu Patnaik Vs. Sanatan
Mohakud and Ors. reported in AIR 2012 SC 913 in para 32 and
33, which is quoted as under :-
“32. A bare perusal of the above provisions would
show that the first part of Order VI, Rule 2, CPC is
similar to clause 1(a) of Section 83 of the 1951 Act.
It is imperative for an election petition to contain a
concise statement of the material facts on which
the election petitioner relies. What are material
facts? All basic and primary facts which must be
proved at the trial by a party to establish the
existence of cause of action or defence are
material facts. The bare allegations are never
treated as material facts. The material facts are
such facts which afford a basis for the allegations
made in the election petition. The meaning of
'material facts' has been explained by this Court on
more than one occasion. Without multiplying the
authorities, reference to one of the later decisions
of this Court in Virender Nath Gautam Vs. Satpal
Singh and others shall suffice.
33. In Virender Nath Gautam, this Court referred
to the leading cases of Philipps Vs. philipps and
others subsequent decision in Bruce v. Odhams
Press Limited that referred to Philipps and
observed in paragraphs 34 and 35 (Pg.629) of the
Report as follows :-
“34. A distinction between “material facts”
and “particulars”, however, must not be
overlooked. “Material facts” are primary or
Page 32
basic facts which must be pleaded by the
plaintiff or by the defendant in support of the
case set up by him either to prove his cause
of action or defence. “Particulars”, on the
other hand, are details in support of material
facts pleaded by the party. They amplify,
refine and embellish material facts by giving
distinctive touch to the basic contours of a
picture already drawn so as to make it full,
more clear and more informative.
“Particulars” thus ensure conduct of fair trial
and would not take the opposite party by
surprise.
35. All “material facts” must be pleaded
by the party in support of the case set up by
him. Since the object and purpose is to
enable the opposite party to know the case
he has to meet with, in the absence of
pleading, a party cannot be allowed to lead
evidence. Failure to state even a single
material fact, hence, will entail dismissal of
the suit or petition. Particulars, on the other
hand, are the details of the case which is in
the nature of evidence a party would be
leading at the time of trial.”
47. Recently, the Supreme Court in a case law reported in (2014) 10
SCC 547, C.P. John Vs. Babu M. Palissery and others has
held in Para 18 as under:
“18. When we read Section 83, the substantive
part of Section 83(1) consists of three important
elements, namely, that an election petition should
Page 33
contain a concise statement of material facts which
an election petitioner relies upon. The emphasis is
on the material facts which should be stated in a
concise form. Under Section 83(1)(b) it is
stipulated that the election petition should set forth
full particulars of any corrupt practice which is
alleged by the petitioner. A reading of the said
Section 83(1)(b) is to the effect that such
particulars should be complete in every respect
and when it relates to an allegation of corrupt
practice it should specifically state the names of
the parties who alleged to have committed such
corrupt practice and also the date and place where
such corrupt practice was committed. In other
words, the particulars relating to corrupt practice
should not be lacking in any respect. One who
reads the averments relating to corrupt practice
should be in a position to gather every minute
detail about the alleged corrupt practice such as
names of the persons, the nature of the alleged
corrupt practice indulged in by such person or
persons, the place, the date, the time and every
other detail relating to the alleged corrupt practice.”
48. As has been laid down by their Lordship in case of C.P. John
(supra) that when a election petition is taken up for consideration,
the Court which deals with such election petition should be in a
position to know the exactitude as to what is the corrupt practice
alleged without giving any room for doubt as to the nature of such
allegation, the parties involved, the date, time and the place, etc.
so that the party against whom such allegation is made is in a
position to explain. The election petitioner can not simply raise any
Page 34
allegation for corrupt practice and get away with it. Since the
successful candidates in an election has got the support of the
majority of the voters who cast their votes in his favour, the
success gained by a candidate in a public election cannot be
allowed to be called in question by any unsuccessful candidate by
making frivolous or baseless allegations and thereby
unnecessarily drag the successful candidate to the court
proceedings.
49. It is settled proposition that the person who has contested the
election and after loosing, while challenging, the election petition
has to be seriously construct. The reading of the pleading would
show that vague allegations have been leveled both with respect
to addition/deletion of the name of the voters alongwith the corrupt
practice.
50. The reading of the entire pleading, the proof of commission of
corrupt practice appears to be absent, so as to give an opportunity
to the petitioner to prove such commission of corrupt practice. The
election petition being a different nature, the pleading can not be
made vague as has been observed and followed by the Supreme
Court repeatedly. The degree of pleading is different unlike the
normal civil suit in the background of the fact that the election
petitioner has contested a election who will represent the mass of
people. In the instant case, the parties on whom the allegations
are leveled except respondent No.1, the other parties who were
initially made as many as 16 in number, the other 15 have been
Page 35
deleted, but the petition contains the allegation against the
Returning Officer and others. The purpose of Section 81 (3) of Act
of 1951 is to put the returned candidate on notice of various
allegations made against him in order to enable him to defend
himself effectively in the election petition. The allegation of corrupt
practice have been made against the returning officer, who stands
deleted, which has further added disqualification about the
addition of parties.
51. On the basis of the aforesaid observation, it is held that the
election petitioner has failed to disclose the material facts as is
mandatory requirements enjoined by Section 83 of the Act of
1951. Therefore, in view of the same, the presumption can not be
drawn in absence of particular pleading of disclosure appears to
the fatal consequently in exercise of power under the Code of Civil
Procedure, as mandatory requirements of material facts are not
pleaded, the instant petition, is liable to be dismissed and
accordingly the same is dismissed.
JUDGEPage 1
HIGH COURT OF CHHATTISGARH AT BILASPUR
E.P. No. 13 of 2014
PETITIONER : Nand Kumar Sahu
VERSUS
RESPONDENT : Satyanarayan Sharma
SB: Hon’ble Shri Goutam Bhaduri, J.
------------------------------------------------------------------------------------------------
Present:
Mr. Goutam Khetrapal, Advocate for the Petitioner.
Dr. N.K. Shukla, Sr. Advocate with Mr. Aditya Tiwari, Advocate for
Respondent.
------------------------------------------------------------------------------------------------
ORDER
(Delivered on 12/05/2015)
1. The order shall govern the disposal of I.A. No.3, which is an
application under Order 7 Rule 11 of C.P.C., wherein the
respondent has challenged the tenability of the election petition
and raised the preliminary objection.
2. The written statements though have been filed on 25.06.2014
prior to that, an application under Order 7 Rule 11 of C.P.C. was
preferred to challenge the maintainability of the petition.
Subsequent there to by an order dated 25.04.2014, the Court had
directed for hearing of the application under Order 7 Rule 11 of
C.P.C., pursuant there to, it has come up for hearing to adjudicate
on maintainability of the petition as to whether cause of action
arises for all the grounds pleaded in election petition.
Page 2
3. Application under Order 7 Rule 11 of C.P.C. is preferred by the
respondent No.1, the returned candidate. Perusal of the election
petition would show that initially 16 parties were added as a
respondents, but subsequently, all the names have been deleted
except respondent No.1. Though the respondents numbering upto
2 to 16 were deleted, the averments and the pleadings with
respect to the said parties, still exits. This has led to complete
contradiction and omissions of pleadings and submission led to
complete confusion.
4. The challenge in the election petition is by the contesting
candidate of Legislative Region No.48, Raipur Gramin Legislative
Assembly, District Raipur, who contested the election under the
Bhartiya Janta Party. The respondent No.1 is the returned
candidate of the election held for the Region -48 of Raipur Gramin
Legislative Assembly. The voting took place on 19.11.2013 and
result was declared on 08.12.2013 and the respondent was
declared as a elected member of legislative assembly. The
respondent secured vote of 70,774 while the petitioner secured
votes numbering into 68,931.
5. Dr. N.K. Shukla, Sr. Advocate with Mr. Aditya Tiwari, counsel
appearing on behalf of the respondent would submit as under :-
i). The ground for declaring the election to be void finds place
in Section 100 of Representation of People Act, 1951
(herein after referred to as 'the Act of 1951'). It is stated that
Page 3
the provision of sub-section 1 (d) (iv) mandates that in order
to declare a election void, the non-compliance is to be
within the provisions of Constitution or “of this Act” or in
Rules or Act made under “this Act”. Therefore, would submit
that in order to get a relief as has been pleaded and as
alleged by the petitioner that the names of voter were
inserted after the date of nomination, such ground would not
be available as the word “this Act” necessarily refers to Act
of 1951.
ii). He further made a reference to the Representation of
People Act, 1950 (hereinafter referred to as “the Act of
1950”) and stated that one of the preamble of the Act is for
preparation of electoral rolls manner of filing seats in council
to be filed by the representatives and would submit that the
preparation of electoral rolls is covered under Part-III of the
Act of 1950.
iii). He further referred to Section 21 of the Act of 1950 which is
for preparation and revision of electoral rolls. Section 22 is
for correction of entries in electoral rolls. Section 23 is for
inclusion of names in electoral rolls and Section 24 is for
appeals. Therefore, submits that the entire procedure for
inclusion and excluser of name are covered by the Act of
1950, which is a Code in itself, so the election petition would
not lie on the ground of erroneous electoral list and such
remedy is not available to the petitioner.
Page 4
iv). He further referred to Section 30 of the Act of 1950 and
would submit that the jurisdiction of Civil Court is barred
under the Act of 1950 about preparation of electoral roll,
and therefore, the finality has been given to such
preparation of electoral rolls, which can not be a subject
matter of election petition.
v). The learned counsel read out the averments of the election
petition and would submit that the allegations about the
deletion of name of voters have been made but it is not
founded on any material facts.
vi). In the context, he referred to the case law reported in AIR
1963 SC 458 and would submit that since the Civil Court
shall have no jurisdiction to question the legality of any
action taken by or under the authority of Electoral
Registration Officer it can be rectified only in the manner
prescribed by law by preferring an appeal under Rule 27 of
the Rules or by resorting to any other appropriate remedy.
Therefore, it is contended that since the object of legislature
was to give finality to the subject, it can not be questioned in
this election petition.
vii). He also made a reference to AIR 1970 SC 340 and stated
that the validity of such votes once casted can not be
questioned by way of election petition and would submit that
Page 5
meaning thereby the election can not be challenged on the
ground of wrong electoral rolls.
viii). It was further contended that the allegations have been
leveled against the Returning Officer, who was initially
made as a respondent No.16. He further stated that the
petitioner has stated that the Collector has provided undue
advantage to respondent No.1 and deleted the names of
various voters, which has affected the result but pleadings
are completely vague that how the Collector has worked
under influence of respondent No.1, no particulars have
been pleaded.
ix). He further submits that the materials are required to be
pleaded in the election petition, therefore, the material
pleadings should have been on record that how the
Collector worked under the guidance of respondent No.1.
x). He further submits that honesty and dishonesty are abstract
form, which can not be inferred specially in the election
petition and can be accepted in absence of any material
facts pleaded as to how the Collector/Returning Officer had
supported the respondent.
xi). He further referred to Para 20, 21 and 23 and read out the
allegations and would submit that without disclosing any
fact the allegations have been made and even the fraud has
been stated which can only be inferred from the conduct
Page 6
and such conduct also requires a pleading. Therefore, if
such facts, the particulars are not pleaded, the election
petition can not stand as it would be too vague for want of
material particulars.
xii). Learned counsel further referred to Para-31 and would
submit that the allegation of false assurance has been
levelled in the election petition. He further referred to the Act
of 1951 and would submit that corrupt practice is defined
under Section 123 of the Act of 1951. The reference was
further made to Section 100 (1) (b) of the Act of 1951 and
stated that corrupt practice should have been committed
either by a returned candidate or his election agent or by
any other person with the consent of returned candidate or
his election agent. Therefore, in order to bring home the
corrupt practice, involvement of either of four persons are
necessary. It is stated that no pleadings in the subsequent
para has been made that whether it was done by election
agent or by the person with the consent of returned
candidate or the election agent.
xiii). He further submits that no materials have been pleaded that
on which time, the bribe was extended, what is the time,
which is the place etc. He also submits that in Para-29 & 30,
undue influence has been pleaded for one Dr. Shakil and it
is so vague that can not be accepted. He placed his
reliance in AIR 2012 SC 913 and would submit that
Page 7
according to Section 83, the petition should have contained
concise statement of the material facts on which the
election petitioner relies and therefore, in absence of any
material facts, the petition is liable to be dismissed.
xiv). Lastly it is contended that the corrupt practice have been
alleged in the petition, but in the affidavit, the same has not
been averred. According to Section 83, the concise
statement of material facts should have been averred. It is
further submitted that bare reading of affidavit would reflect
that it is not in conformity to the Rule 94A and Form-25 of
the Conduct of Election Rules, 1961, therefore, it was
contended that the petition is liable to be dismissed at
threshold.
6. Per contra Mr. Goutam Khetrapal, learned counsel appearing on
behalf of the petitioner would submit that challenge to the election
is on the basis of defective electoral rolls would fall under Section
100 (d) (iii) of the Act of 1951. He would submit that the last date
of filing of nomination was on 03.11.2013, therefore, completion of
voter list should have been before such date but in the instant
case the voter list was issued on 17.11.2013 i.e. two days before
election held. Therefore, the inclusion of name of 1375 voters
would amount to improper reception, which is void ab-initio as the
date had expired on 02.11.2013. He further referred to Subsection
3 of Section 23 of the Act of 1950 and would submit that
no amendments, transposition or deletion or any entry should
Page 8
have been made in the electoral roll after the last date for making
nominations. He placed his reliance in the case law reported in
AIR 1970 SC 314 and stated that if after the date of nomination
name of voters are included and such newly added voter had
altered the result then then it will be covered under Section 100
(1) (d) (iii) of the Act of 1951. It was further contended that if the
Electoral Officer/Registration Officer has illegally accepted the
votes casted by voters then in such case, it will amount to wrong
casting of vote which is otherwise void. Therefore, the acceptance
of such vote will be void.
7. He further submits that the petitioner has pleaded all the material
facts, in support of the case, which can not be equated to as
evidence and therefore, it can not be urged that the material facts
have not been pleaded. He placed his reliance on 2004 (7) SCC
181 and 2003 (8) SCC 498, and would submit that the election
petition under these circumstances can not be dismissed at
threshold.
8. On the basis of the submissions made by the parties as a
preliminary objection after reading the election petition, it would go
to show that election is challenged predominantly on the following
grounds :-
i). The name of the voters were accepted/deleted after
prescribed date of filing nomination of 02.11.2013,
therefore, it is in contravention of Section 23 (3) of the Act of
Page 9
1950 and as such acceptance of the vote would amount to
improper reception of the vote casted, consequently, the
election is void.
ii). The EVM machines used during election were
changed, which resulted into the defeat of the respondent
No.1. Consequently, undue pressure were created and
false assurance were extended by the respondent and
illegal votes were casted in the polling booth.
iii). Son of the respondent, Pankaj had made gifts like
cloths to woman, undergarment to man and liquor and
blanket to the various voters, thereby corrupt practice and
false tactics were adopted by the respondent No.1 which
had affected the result of the election in favour of
respondent.
9. One of the main objection raised by the respondent that once the
electoral roll is prepared and the votes are casted then in such
case, the election can not be subject of challenge in a proceeding
challenging validity of election. The reliance was placed in the
case law reported in AIR 1963 SC 458 and AIR 1970 SC 340.
10. In the context, it would be relevant to quote the dates, which are
relevant.
i). The date of election was notified on : 25.10.2013.
ii). The last date of filing of nomination : 3rd November, 2013.
Page 10
iii). Date of scrutiny and to take : 4th November, 2013.
back the names
iv). Date of election was : 19th November, 2013.
v). The results were declared : 08.12.2013.
11. It was the case of the petitioner that after last date of making of
nomination i.e. 2nd November, 2013, the names of the voters were
included again in the voter list on 17.11.2013, therefore, if the
names were included after the last date of nomination there would
have been contravention of Section 23 (3) of the Act of 1950.
Consequently, the vote accepted after that will amount to improper
reception of the vote, which would make election void. Having
regard to the submission made, and with reference to the case
law reported in AIR 1963 SC 458, B.M. Ramaswamy V. B.M.
Krishnamurthy, and relied by the respondent may not have a
direct application in the case in hand. In that case, supra their
Lordship decided the issue on the premises when it was a
common case that the name of the appellant was included in the
electoral roll of the Mysore Legislative Assembly before the date
prescribed for filing nomination papers of assembly election and
election under challenge in such case was of panchayat
constituency. Their Lordship, therefore, referred to the Section 30
of the Act of 1950 had held that Civil Court shall have no
jurisdiction to question the legality of any action taken by or under
the authority of Electoral Registration Officer. It was further held
that the terms of electoral roll though legally can not be
questioned in Civil Court, but can be rectified only in the manner
Page 11
prescribed by law by preferring an appeal under Rule 27 of the
Rules or by resorting to any other appropriate remedy. Herein the
instant case, the inclusion of name of some voters itself is under
challenge on the allegation of inclusion of names for the legislative
assembly itself after the date of nominations. Therefore, in the
facts of this case the cases relied on by the respondent (supra)
can not have a direct application in the present facts.
12. The other case law reported in AIR 1970 SC 340, Kabul Singh
Vs. Kundan Singh and others, was relied on by the respondent.
In such case it was categorically held that inclusion of name in the
electoral roll after the prescribed date is prohibited whether the
application for inclusion was made before or after that date.
Therefore, the ratio rather support the petitioner.
13. Further, their Lordship in the case of Kabul Singh Vs. Kundan
Singh and others, (supra) endorsed the finding arrived at by the
Full Bench that if the name is included in the electoral roll after the
last date of making nomination for election in that constituency, it
would be void. Their Lordship at para-9 has held as under:-
“The right to vote being purely a statutory right, the
validity of any vote has to be examined on the basis
of the provisions of the Act. We cannot travel
outside those provisions to find out whether a
particular vote was a valid vote or not. In view of
Section 30 of the 1950 Act, Civil Courts have no
jurisdiction to entertain or adjudicate upon any
question whether any person is or is not entitled to
Page 12
register himself in the electoral roll in a constituency
or to question the illegality of the action taken by or
under the authority of the electoral registration
officer or any decision given by any authority
appointed under that Act for the revision of any
such roll. Part III of the 1950 Act deals with the
preparation of rolls in a constituency. The
provisions contained therein prescribe the
qualifications for being registered as a voter
(Section 19), disqualifications which disentitle a
person from being registered as a voter (Section
16), revision of the rolls (Section 21), correction of
entries in the electoral rolls (Section 22), inclusion
of the names in the electoral rolls (Sec. 23),
appeals against orders passed by the concerned
authorities under Section 22 and 23 (Section 24).
Section 14 to 24 of the 1950 Act are integrated
provisions. They form a complete code by
themselves in the matter of preparation and
maintenance of electoral rolls. It is clear from those
provisions that the entries found in the electoral roll
are final and they are not open to challenge either
before a Civil Court or before a Tribunal which
considers the validity of any election. In B.M.
Ramaswamy V. B.M. Krishnamurthy, 1963-3 SCR
479 = (AIR 1963 SC 458), this Court came to the
conclusion that the finality of the electoral roll can
not be challenged in a proceeding challenging the
validity of the election.”
Analysis of the aforesaid case law would go to show that it
was mainly on the premises of the validity of the electoral roll,
which reaches its finality by affect of Section 30 of the Act of 1950.
Page 13
14. Further the Hon'ble Supreme Court in the case of Wopansao Vs.
N.L. Odyuo and others, reported in AIR 1971 SC 2123
considering the law laid down in AIR 1963 SC 458 has held that
finality of the electoral roll is governed by the provisions of Section
14 to 24 of the Act of 1950, which are complete Code in the matter
of preparation and maintenance of electoral. The Court further
held that under Section 100 (1) (d) (iii) of the Act of 1951, if the
result of the election in so far it concerned the returned candidate
has been materially affected by improper reception, refusal or
rejection of any vote which is void, the Court would have
jurisdiction to declaration such election void. Para-8 of the said
judgment are reproduced herein below :-
“8. The other ground on which the qualification of
the service personnel to be registered as voters in
the Wokha Constituency was questioned was that
they were not Indian citizens. Article 326 of the
Constitution confers voting rights on citizens of
India. Section 16 of the 1950 Act disqualifies a
person for registration as a voter if he is not a
citizen of India. Section 62 of the Representation of
the People Act, 1951 called the 1951 Act prohibits a
person from voting at an election in any
constituency if he is subject to any disqualifications
mentioned in Section 16 of the 1950 Act. Under
Section 100 (1) (d) (iii) of the 1951 Act if the result
of the election in so far it concerned the returned
candidate has been materially affected by the
improper reception, refusal or rejection of any vote
or reception of vote which is void, the Court would
Page 14
have jurisdiction to declare such an election void.
Therefore, if the allegation that the personnel of the
12th Battalion Assam Rifles were not Indian citizens
was established, it was submitted that the election
would be declared void.”
15. Consequently, the argument, which is advanced by the learned
counsel for the respondent that election petition is not tenable on
the ground under Section 100 (1) (d) as grounds are not available
U/s.100 (1) (d) (iv) of the Act of 1951, can not be sustained. It is
different case that if the petitioner has failed to prove the other
necessary ingredients as required under the Act of 1951. The
petitioner has alleged about the inclusion and exclusion of the
names of the voters list from para 8 to 24. The pleadings though
have been made about inclusion and deletion of names in voter
list but the same pleadings also would be subject to Section 83 of
the Act of 1951 as to whether pleadings have disclosed material
facts. In this regard reference of relevant section of the Act of
1951 would be relevant which are reproduced herein below.
16. Section 83 (1) (a) of the Act of 1951 reads as under :-
“Section 83. – Contents of petition. – (1) An election
petition-
(a) shall contain a concise statement of the
material facts on which the petitioner relies.”
17. Similarly Order VI, Rule 2 of CPC, to the extent it is relevant,
reads as under:-
Page 15
“O.- VI, Rule -2. Pleading to State material facts
and not evidence. - (1) Every pleading shall
contain, and contain only, a statement in a concise
form of the material facts on which the party
pleading relies for his claim or defence as the case
may be, but not the evidence by which they are to
be proved.
(2) xxx xxx xxxx
(3) xxx xxx xxx”
18. At para-8, the petitioner has alleged that under the direction and
supervision of respondent No.12, who is Election Commission of
India, the voter list was prepared and published in the month of
June, 2013, copy of which is filed as Annexure P/3 alongwith the
petition. It was pleaded that initially about 222000 voters were
listed. Perusal of Annexure P/3, which have been formed the part
of para-8, shows a date of document is of 08.12.2013, wherein
numbers of voters were shown as 228638. Admittedly by reading
of para-8, it do not describe the contents of Annexure P/3.
Therefore, reading the Annexure P/3, alongwith Para-8 of the
election petition, I am unable to synchronize the same as to how
such document is related to the allegation as made in para-8. If
the document was of 08.12.2013, then it was of the date of
declaration of result. So even if the numbers of voters shows a
different figure then in what circumstances, the allegations are
attributed to the respondent of manipulations it is completely
silent. Neither any reasons have been pleaded nor any pleading
exists as to how the figure shown was prejudicial to the petitioner.
Page 16
There can not be any presumption to draw any inference of
acceptance of invalid votes in absence of material particulars.
19. Para -9 of the petition speaks about the final list of voters, which
were numbered as 246047. In such averments allegations have
been levelled on respondent No.16. Admittedly, the respondent
No.16 stands deleted as on date. Para -10 speaks about the
respondent No.16, Returning Officer (though deleted), under the
guidance and supervision of respondent No.1, published the voter
list. The voter list is filed as Annexure P/4. The Annexure P/4
further do not contain any seal or signature of Returning Officer.
Further at para-11, it is alleged that the name of 18000 voters
were deleted from final voter list at the time of polling and only
228638 voters were present in the list of voters. Though the
pleading to this effect that the voter list was made at the guidance
and the supervision of respondent No.1, but no material
particulars have been stated in the pleadings and has pleaded any
single name of any voter. The pleading is completely silent that
how such voters have influenced the decision of the election
which eventually led to defeat the petitioner.
20. Para-12 further states that the respondent No.16 to provide undue
advantage to the respondent No.1, has deleted name of various
voters from the electoral list. This allegation also appears to be too
vague and devoid of any material facts and only vague averments
have been made that few of the voters were deleted. Para-14
speaks about some complaints, which were made to respondent
Page 17
No.12 to 15 and the cognizance were taken thereafter. It would be
again relevant to repeat that respondent No.12 to 15 also stands
deleted before this Court, therefore, to what extent the pleading
would go to help the petitioner is uncertain.
21. Para-15 further speaks that about 1375 voters were added after
17.11.2013. No further particulars have been provided as to who
were the voters, whether they casted votes in favour of the
petitioner or respondent and where they casted votes in which
polling booths they were added is also silent. The allegations
further have been made at para-16 that respondent No.12 to 16,
who are the Election Commission of India and Electoral Officer
have not conducted the election in transparent and fair manner.
So what was the nature of unfair-manner or nontransparent
manner is missing. Further nature of the allegation, how the officer
conducted themselves in the election is also completely silent.
Only vague allegations have been leveled with the expectation of
a roving enquiry. Again it is stated at para-17 that Returning
Officer has provided advantage to the respondent No.1, the
returned candidate, which is under the category of mal practice.
This is also silent as to what kind of advantage was provided by
the Returning Officer to the returning officer.
22. Para-18 speaks about the enquiry ordered by the Election
Commission to enquire the voter list. Only shady averments have
been made. At Para-19, it is pleaded that list were prepared,
wherein the voters were shown to be age of 113 years but they
Page 18
were actually age of 20 to 40 years and reference is made to
Annexure P/7. The pleading is silent to the effect that how it has
affected the result and whether any votes were casted or not
again on enquiry by this Court is expected so as to find out what is
the actual grievance and if any grievance exists to follow it by
further enquiry. Further at Para-21 mal practice have been
pleaded that respondent No.1 is elected by mal practice and no
particulars have been pleaded.
23. At Para - 22 & 23 of the petition, it is pleaded that the respondent
No.3, Gautam Buddha Agrawal (name stands deleted from
petition), was deleted from the voter list, though his name was
initially mentioned in the final voter list prepared on 02.11.2013.
So how such deletion of name of one candidate the right of
petitioner was affected and was advantageous to the return
candidate is completely absent in pleading. At para-23, it is also
stated that the respondent No.16, the Returning Officer, provided
undue advantage, but what kind of undue advantage was
provided is missing. At para-24, it is stated that immediately after
the election, another list was prepared and published on
31.12.2013 by the SDO, whereby the name of 20033 voters were
added. It is alleged by the petitioner that the name of voters were
deleted and few of names were further added and allegation of
undue influence was clamped over the Returning Officer so how it
caused prejudice to respondent is difficult to assume in absence
of particular.
Page 19
24. The petitioner herein has not placed any material facts to show at
least few name of voters who were added or deleted after the
prescribed date. The annexure attached with the petition is
completely vague which leads to form an opinion that again
enquiry has to be conducted at the behest of the petitioner to find
out what pleading suggest followed by enquiry. It appears that
pleading made in the petition are contrary to the annexure which
is attached alongwith the petition. No electoral roll has been
placed alongwith the petition, wherein such allegation can be
substantiated or compared. The allegations, if are compared with
the annexure leads to form an uncertain opinion and leads to
ambiguity. Undue influence and support to the respondent,
returned candidate has been alleged but what kind of undue
influence or any kind of act which tantamount to undue influence
have not been pleaded and what was the compulsion on the
voters to cast the votes is also neither pleaded nor any materials
have been placed.
25. No pleading of material fact exists to show that a voter choice was
arrested. Freedom in exercise of judgment which engulfs a voter's
right, a free choice, in selecting the candidate whom he believes
to be best fitted to represent the constituency should be shown to
have been eclipsed by the pleadings. The casting of votes at an
election depends upon a variety of factors and it is not possible for
anyone to predicate how many or which proportion of the votes
will go to one or the other of the candidates. While it must be
Page 20
recognized that the petitioner in such a case is confronted with a
difficult situation, it is not possible to relieve him of the duty
imposed upon him by Section 100 (1) (c) and hold without
pleading of material facts that the duty has been discharged.
Should be the petitioner fail to plead material facts to enable the
Court to find in his favour on this point, the inevitable result would
be that the Tribunal would not interfere in his favour and would
allow the election to stand.
26. By close reading of the pleading it shows that petitioner has failed
to plead the material facts that names were added after
preparation of electoral roll on 17.11.2013. Reading with respect
to the electoral roll and further reading it with the annexures, this
Court is unable to form its opinion to know as to what exactly the
pleadings have been made with respect to the electoral roll
without giving any particulars to the nature of allegations, the
election petition can not therefore, simply raise the allegation of
defect in electoral roll and get away with it.
27. Further at Para-37, the ground is raised under Section 101 (a) &
(b) and 101 (d) repeating the earlier averments that after
publication of electoral roll, inclusion and deletion was made by
the respondent No.16. The respondent No.16 stands deleted.
Now it is further alleged that by deletion of such name, 1300
voters were disabled to cast their votes. Again it is stated that
246046 voters were shown by respondent No.16 and only 228638
voters were permitted, thereby addition and deletion of names
Page 21
were made. Further the pleading is made as per direction or
approval of respondent No.1, after 17.11.2013, few persons i.e.
…....... have casted their valuable votes in violation of Section 23
of the Act of 1950. Reading of the para would reflect that after
word i.e. blank space is left. In absence of such material
particulars it allows the court to form an opinion that petitioner
himself is unaware about the number of votes. In this case, the
main allegation is referred against the respondent No.16, the
Returning Officer. The cause title of the petition would show that
the respondent No.16 stands deleted. Further more, no further
particulars have been given and not a single name was given
which shows that the names were deleted and the names were
added. Where and who have casted votes thereby affected the
election, the entire pleading is so vague and by reading of which,
it is difficult to understand that what is the actual ground, the
petitioner wanted to make out. The allegations have been made
on respondent No.16 that he under the influence of the
respondent No.1, the returned candidate has changed the
electoral roll but at least one incident should have been pleaded,
which are the material facts to establish that what were done.
What commission and omission has been made by the
respondent No.1, by making allegation that the respondent No.1
has influenced the Returning Officer, it can not be accepted to be
a material fact.
Page 22
28. Therefore, as has been observed in forgoing paragraphs,
examining the aforesaid pleading in light of the statutory
requirements and the principle laid down in the various decision
referred to above, this Court is of the opinion that no triable cause
of action is made out so far as allegation of corrupt practice from
paras 25 to 31, 36 & 37. Consequently, the petitioner is not
entitled for any relief, as the averments made in these paras do
not require the petition to be entertained for the grounds
enumerated and pleaded therein for want of material facts.
29. Reading of the pleading would show that no extra care has been
taken by the election petitioner to leave a room of doubt while
making such averments and allegations of undue influence and
indulgence of the Returning Officer alongwith respondent No.1.
30. Therefore, in view of the reading of the pleading and after
consideration of annexures with reference to the law laid down, it
would be quite vivid that the election petitioner has failed to plead
precise fact constituting the fact of change of electoral roll and
undue influence namely the nature of such inference, the persons
on whom it was exercised and time and place of it in the pleading
as no details of the undue influence or direct or indirect
interference by the returned candidate or his agent has been
raised and the affidavit also is silent about the same. Therefore, in
absence of the pleadings I am of the view that the election
petitioner has failed to raise triable issue with respect to inclusion
and exclusion of voters in the voter list after date of nomination
Page 23
from para 8 to 24 and as such failed to disclose the triable cause
of action under Section 100 (1) (d) (iii) of the Act of 1951,
therefore, the grounds raised for declaring the election void under
Section 100 (1) would not be available to the petitioner as in
absence of cause of action.
31. Further reading of Para-25 of the election petition, allegations
have been leveled against respondent No.14, 15 & 16, that with
the help of respondent No.1, they have changed the EVM
machines of 37 public booths. The respondents No.14, 15 & 16
stands deleted at the time of adjudication of this application,
therefore, it is completely vague as to how it has happened.
32. Para-26 also continues with the allegations of change of EVM
machine that the EVM machines were changed which was kept in
the strong room and it was done to provide advantage to the
respondent No.1. Para-27 also speaks that because of change of
EVM machines, the petitioner lost by 1800 votes and from
different EVM machines, the figures are quoted. At para -28 again
the allegation is leveled against respondent No.16, who has been
deleted. The facts therefore, has lead to discrepancy in the
pleading. The petitioner further at para – 29 of the election petition
has pleaded that the respondent, returned candidate has created
pressure over the petitioner and abused the agent of the petitioner
but what kind of pressure was used is completely silent.
Page 24
33. Reading from paras 25 to 29 would go to show that, no material
particulars have been disclosed as to how the EVM machine was
changed, where it was changed, under which manner it was done,
the simple allegation have been leveled that the EVM machines
have changed and therefore, the petitioner has lost. It is apparent
that in these paras complete absence of material facts presence,
which renders cause of action in the election petition is absent for
the aforesaid allegations.
34. At Para-30, it is averred that one Dr. Shakil informed to the
petitioner that due to undue pressure created on him by
respondent No.1, he had not canvassed and he was also abused
by the respondent. It is also stated that the said Dr. Shakil had
sustained grievous injuries also in the earlier election. The
allegation at para-31 is that the respondent No.1 adopted tactics
of false assurance and without any sanction, distributed and
published the pamphlets of various false assurance. Only general
allegations have been made without any material facts.
35. At para-35, the petitioner again has stated that undue influence
was done upon the voters and by using false tactics, the election
was won by respondent No.1. The pleading is completely vague
as to what kind of undue influence was exerted upon the voters, a
single name has not been disclosed on him such undue influence
was exerted. Further what was the false tactics was used, is
completely silent.
Page 25
36. At para-36, it is again repeated that election was conducted under
the supervision of the returned candidate, respondent No.1.
Meaning thereby, instead of returning officer, the respondent No.1
had conducted the election but the manner in which it was done is
completely absent. Therefore, the pleading lacks of the material
particulars as to how such supervision ultimate control was done
by the respondent No.1, no instances have been stated in such
paras and only general allegations have been made.
37. When Section 83 of the Act, 1951 is read, it shows that
substantive part of Section 83 consists of three important
elements namely the election petition should contain concise
statement of material facts which the election petitioner relied
upon. The emphasis is on the material facts which should be
stated in the concise form. The Hon'ble Supreme Court in the
case of Charan Lal Sahu Vs. Giani Jail Singh and another,
reported in (1984) 1 SCC 390 while considering the “undue
influence” as enumerated in Section 18 (1), emphasizing the need
of precise, specific and unambiguous pleading of corrupt practice
particularly with reference to undue influence stated as under :-
“35. The gravamen of this section is that there
must be interference or attempted interference with
the “free exercise” of any electoral right/ “Electoral
right” is defined by Section 171-A(b) to mean the
right of a person to stand, or not to stand as, or to
withdraw from being, a candidate or to vote or
refrain from voting at an election. In so far as is
Page 26
relevant for our purpose, the election petition must
show that Shri Beg interfered with the free exercise
of the voters' right to vote at the Presidential
election. The petition does not allege or show that
Shri Beg interfered in any manner with the free
exercise of the right of the voters to vote according
to their choice or conscience........”
In the later part, their Lordship further held :-
“Therefore, in order that the offence of undue
influence can be said to have been made out within
the meaning of Section 171-C of the Penal Code,
something more than the mere act of canvassing
for a candidate must be shown to have been done
by the offender. That something more may, for
example, be in the nature of a threat of an injury to
a candidate or a voter as stated in sub-section (2)
(a) of Section 171-C of the Penal Code or, it may
consist of inducing a belief of Divine displeasure in
the mind of a candidate or a voter as stated in subsection
(2) (b). The act alleged as constituting
undue influence must be in the nature of a pressure
or tyranny on the mind of the candidate or the voter.
It is not possible to enumerate exhaustively the
diverse categories of acts which fall within the
definition of undue influence. It is enough for our
purpose to say, that of one thing there can be no
doubt: The mere act of canvassing for a candidate
cannot amount to undue influence within the
meaning of Section 171-C of the Penal Code.”
38. Reading of these paras from 25 to 31, 36, & 37 which has leveled
the allegations of addition would reveal that the petitioner has
failed to state concise statement of material facts, as has been
Page 27
held in case of Naresh Kumar Patel Vs. Shri Nand Kumar Patel
and others, reported in 2006 (2) C.G.L.J. 470, which reads as
under :-
“28. In the matters of Samant N. Balakrishnan Vs.
George Fernandez, it has been held that first,
Section 83 of the Act is mandatory and requires
first a concise statement of material facts and then
requires the fullest possible particulars. Second,
omission of a single material fact leads to an
incomplete cause of action and the statement of
claim becomes bad. Third, the function of
particulars is to present in full a picture of the cause
of action to make the opposite party understand the
case he will have to meet. Fourth, material facts
and particulars are distinct matters. Material facts
will mention statements of fact and particulars will
set out the names of persons with the date, time
and place. Fifth, material facts will show the ground
of corrupt practice and the complete cause of
action and the particulars will give the necessary
information to present a full picture of the cause of
action. Sixth, in stating the material facts it will not
do merely to quote the words of the section
because then the efficacy of the material facts will
be lost. The fact which constitutes a corrupt
practice must be stated and the fact must be
correlated to one of the heads of corrupt practice.
Seventh, an election petition without the material
facts relating to a corrupt practice is no election
petition at all.”
Page 28
39. The law as it stands would require a strict pleading and proof of
the factors enumerated in Section 100 of the Act of 1951 for a
obtaining a declaration that the election was void one. Such
declaration can only be made upon consideration of material
brought on record. The Election Tribunal will have jurisdiction to
issue such direction only in the event one or the other factors
enumerated in the sub-clause contained sub-section (1) of Section
100 of the Act of 1951 are fulfilled and not otherwise.
40. Now coming back to para -32 of the petition, the petitioner has
alleged about illegal voting at polling booth Boriyakala was done
by the respondent No.1 with the help of his son and illegal votes
were casted, for which a police report was made by Annexure
P/14. It is also pleaded that the said illegal voting was objected by
the petitioner alongwith Evaj Dewangan and Vinod Tiwari but the
but they were abused by the son of the respondent No.1.
41. Further in para 33, it is alleged that the respondent No.1 with the
help of his son, Pankaj distributed cloths to woman, undergarment
to man and liquor and blanket to the villagers and the agent of the
petitioner had caught them while the goods were being distributed.
It is also pleaded that one Ganesh Ram Verma, was also caught
raid handed by the police, while transporting the illegal liquor, who
is the agent of the respondent No.1 and a case was registered
consequently a report was made by Annexure P/15.
Page 29
42. Both the reading of the aforesaid para would reflect that vague
allegations have been made. The particulars of corrupt practice, in
the manner it was made is not clear, simply allegations have been
leveled that son of the respondent had distributed goods to the
voters, not a single name is disclosed to whom it was given, what
was time it was done and only vague allegation have been
leveled. The pleading would reflect that election petitioner has
failed to come forward with the definite plea of allegation what
corrupt practice is supported by the legally acceptable material
evidence without any iota of doubt.
43. Further in case law reported in (2009) 9 SCC 310, between Anil
Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, the
Hon'ble Supreme Court has reiterated the view observed in case
of Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi, which
reads as under :-
“44. When we revert to the Indian cases, we find
that our courts have accepted the principle laid
down by the English cases. We would like to refer
to some of them. In Manubhai Nandlal Amorsey v.
Popatlal Manilal Joshi this Court observed as under
: (SCC p. 374, para 5).
“5. The first question is whether the trial
Judge should have allowed the amendment.
Section 83 (1) (b) provides that 'An election petition
shall set forth full particulars of any corrupt practice
that the petitioner alleges, including as full a
statement as possible of names of the parties
Page 30
alleged to have committed such corrupt and the
date and place of the commission of each such
practice'. The section is mandatory.”
44. Further the Hon'ble Supreme Court in case of Anil Vasudev
Salgaonkar (supra) has reiterated the view observed in case of
Hardwari Lal V. Kanwal Singh, which reads as under :-
“46. In Hardwari Lal v. Kanwal Singh, a three
-Judge Bench of this Court observed as under:
(SCC p.221, para 22)
“22...............The gravamen of the charge of corrupt
practice within the meaning of Section 123 (7) of
the Act is obtaining of procuring or abetting or
attempting to obtain or procure any assistance
other than the giving of vote. In the absence of any
suggestion as to what that assistance was the
election petition is lacking in the most vital and
essential material fact to furnish a cause of action.”
45. Again the Hon'ble Supreme Court in case of Anil Vasudev
Salgaonkar (supra) in para 57 has held as under :-
“57. It is settled legal position that all “material
facts” must be pleaded by the party in support of
the case set up by him within the period of
limitation. Since the object and purpose is to enable
the opposite party to know the case he has to meet
with, in the absence of pleading, a party can not be
allowed to lead evidence. Failure to state even a
single material fact will entail dismissal of the
election petition. The election petition must contain
a concise statement of “material facts” on which the
petitioner relies.”
Page 31
46. The material facts in respect of the election petition, was
considered by their Lordship in case of Jitu Patnaik Vs. Sanatan
Mohakud and Ors. reported in AIR 2012 SC 913 in para 32 and
33, which is quoted as under :-
“32. A bare perusal of the above provisions would
show that the first part of Order VI, Rule 2, CPC is
similar to clause 1(a) of Section 83 of the 1951 Act.
It is imperative for an election petition to contain a
concise statement of the material facts on which
the election petitioner relies. What are material
facts? All basic and primary facts which must be
proved at the trial by a party to establish the
existence of cause of action or defence are
material facts. The bare allegations are never
treated as material facts. The material facts are
such facts which afford a basis for the allegations
made in the election petition. The meaning of
'material facts' has been explained by this Court on
more than one occasion. Without multiplying the
authorities, reference to one of the later decisions
of this Court in Virender Nath Gautam Vs. Satpal
Singh and others shall suffice.
33. In Virender Nath Gautam, this Court referred
to the leading cases of Philipps Vs. philipps and
others subsequent decision in Bruce v. Odhams
Press Limited that referred to Philipps and
observed in paragraphs 34 and 35 (Pg.629) of the
Report as follows :-
“34. A distinction between “material facts”
and “particulars”, however, must not be
overlooked. “Material facts” are primary or
Page 32
basic facts which must be pleaded by the
plaintiff or by the defendant in support of the
case set up by him either to prove his cause
of action or defence. “Particulars”, on the
other hand, are details in support of material
facts pleaded by the party. They amplify,
refine and embellish material facts by giving
distinctive touch to the basic contours of a
picture already drawn so as to make it full,
more clear and more informative.
“Particulars” thus ensure conduct of fair trial
and would not take the opposite party by
surprise.
35. All “material facts” must be pleaded
by the party in support of the case set up by
him. Since the object and purpose is to
enable the opposite party to know the case
he has to meet with, in the absence of
pleading, a party cannot be allowed to lead
evidence. Failure to state even a single
material fact, hence, will entail dismissal of
the suit or petition. Particulars, on the other
hand, are the details of the case which is in
the nature of evidence a party would be
leading at the time of trial.”
47. Recently, the Supreme Court in a case law reported in (2014) 10
SCC 547, C.P. John Vs. Babu M. Palissery and others has
held in Para 18 as under:
“18. When we read Section 83, the substantive
part of Section 83(1) consists of three important
elements, namely, that an election petition should
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contain a concise statement of material facts which
an election petitioner relies upon. The emphasis is
on the material facts which should be stated in a
concise form. Under Section 83(1)(b) it is
stipulated that the election petition should set forth
full particulars of any corrupt practice which is
alleged by the petitioner. A reading of the said
Section 83(1)(b) is to the effect that such
particulars should be complete in every respect
and when it relates to an allegation of corrupt
practice it should specifically state the names of
the parties who alleged to have committed such
corrupt practice and also the date and place where
such corrupt practice was committed. In other
words, the particulars relating to corrupt practice
should not be lacking in any respect. One who
reads the averments relating to corrupt practice
should be in a position to gather every minute
detail about the alleged corrupt practice such as
names of the persons, the nature of the alleged
corrupt practice indulged in by such person or
persons, the place, the date, the time and every
other detail relating to the alleged corrupt practice.”
48. As has been laid down by their Lordship in case of C.P. John
(supra) that when a election petition is taken up for consideration,
the Court which deals with such election petition should be in a
position to know the exactitude as to what is the corrupt practice
alleged without giving any room for doubt as to the nature of such
allegation, the parties involved, the date, time and the place, etc.
so that the party against whom such allegation is made is in a
position to explain. The election petitioner can not simply raise any
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allegation for corrupt practice and get away with it. Since the
successful candidates in an election has got the support of the
majority of the voters who cast their votes in his favour, the
success gained by a candidate in a public election cannot be
allowed to be called in question by any unsuccessful candidate by
making frivolous or baseless allegations and thereby
unnecessarily drag the successful candidate to the court
proceedings.
49. It is settled proposition that the person who has contested the
election and after loosing, while challenging, the election petition
has to be seriously construct. The reading of the pleading would
show that vague allegations have been leveled both with respect
to addition/deletion of the name of the voters alongwith the corrupt
practice.
50. The reading of the entire pleading, the proof of commission of
corrupt practice appears to be absent, so as to give an opportunity
to the petitioner to prove such commission of corrupt practice. The
election petition being a different nature, the pleading can not be
made vague as has been observed and followed by the Supreme
Court repeatedly. The degree of pleading is different unlike the
normal civil suit in the background of the fact that the election
petitioner has contested a election who will represent the mass of
people. In the instant case, the parties on whom the allegations
are leveled except respondent No.1, the other parties who were
initially made as many as 16 in number, the other 15 have been
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deleted, but the petition contains the allegation against the
Returning Officer and others. The purpose of Section 81 (3) of Act
of 1951 is to put the returned candidate on notice of various
allegations made against him in order to enable him to defend
himself effectively in the election petition. The allegation of corrupt
practice have been made against the returning officer, who stands
deleted, which has further added disqualification about the
addition of parties.
51. On the basis of the aforesaid observation, it is held that the
election petitioner has failed to disclose the material facts as is
mandatory requirements enjoined by Section 83 of the Act of
1951. Therefore, in view of the same, the presumption can not be
drawn in absence of particular pleading of disclosure appears to
the fatal consequently in exercise of power under the Code of Civil
Procedure, as mandatory requirements of material facts are not
pleaded, the instant petition, is liable to be dismissed and
accordingly the same is dismissed.
JUDGE