Akhilesh Das vs District Judge, Lucknow and others

K.C. Bhargava, J.—This writ petition is directed against the orders dated 2551993, 2751993 and 691993 passed by the District Judge, Lucknow. The facts giving rise to the present petition may be stated as under :

The election for the office of Mayor (Nagar Pramukh), Lucknow was held on 1251993 and the petitioner was declared successful in that election. One Manohar Singh, opposite party No. 2, preferred an election petition under Section 61 of the Nagar Mahapalika Adhiniyam (hereinafter to be referred to as the Act) before the District Judge, Lucknow, opposite party no. 1, challenging the election of the petitioner, Akhilesh Das. The petitioner was served with the notice of the election petition dated 18th May, 1993. He, thereafter, moved three applications : one for recalling the order dated 1951993 for summoning the election record ; the second application under Section 66 of the Act seeking dismissal of the election petition and the third application for time to file written statement. Copies of these applications are annexed with the petition. The application for recall of the order dated 1951993 was rejected by the District Judge, Lucknow on 2751993. The application for time to file written statement was allowed. The application for dismissal of the election petition was rejected on 2551993. It is alleged that the learned District Judge had no jurisdiction to summon the election record at this stage and that the order for summoning the record has been passed exparte without recording any findings or reasons for the same. After inspection of the record of the case the petitioner found that the election petition was liable to be rejected under Order 7 Rule 11 CPC after deletion of the paragraphs from the election petition under Order 6 Rule 16 and Section 151 CPC read with Sections 61 and 63 of the Act. No objection was filed against the said application. The application, after hearing the counsel, was rejected by order dated 691993 (annexure8 to the writ petition). It is further alleged that the cases relied upon by the learned District Judge, Lucknow while passing the abovesaid order dated 691993 did not apply. The election petition deserves to be rejected as the grounds of improper rejection of votes have not been given in the election petition by the election petitioner and as such the petition is wanting in material facts. It is alleged that unless material facts are given in the election petition the same cannot be entertained and has to be rejected.

The petition is opposed by the opposite parties.

Learned counsel for the parties have been heard. Learned counsel for the opposite parties has raised an objection that this writ petition is not maintainable as the same cannot be treated as appeal against the orders passed by the District Judge under Section 74 of the Act. This objection maybe taken up first and considered. Section 74 of the Act provides for appeal against the orders of the District Judge. An appeal is provided against every order made by the District Judge under Section 69 and 70 to the High Court. This shows that only the orders which have been passed under the provisions of Sections 69 and 70 of the Act are appealable under Section 74 of the Act. A perusal of Section 69 will make it clear that if the election petition has not been otherwise dismissed in the course of hearing, the District Judge shall at the conclusion of the trial of an election petition make an order (a) dismissing the election petition ; or (b) declaring the election of all or any of the returned candidates to be void ; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. Thus a bare perusal of this section will go to show that it is only against the dismissal of the election petition that an appeal will lie under Section 74 of the Act. In the present case the election petition has not been dismissed but the application moved by the petitioner, referred to above has been dismissed by the District Judge. Therefore appeal will not be maintainable against this order. Section 70 of the Act provides for passing of certain orders by the District Judge at the time of making an order under Section 69 of the Act while disposing of the petition. None of the grounds mentioned in this section indicate that if any application of the nature moved by the petitioner is dismissed by the District Judge then an appeal will also lie under Section 74 of the Act. Therefore from the joint perusal of sections 69, 70 and 74 of the Act it will be apparent that no appeal will lie against the order dismissing an application during the trial of the election petition. Therefore in view of this matter the present writ petition is maintainable and the objection of the learned counsel for the opposite parties is overruled.

The first question raised by the learned counsel for the petitioner is that in the present election petition the respondent No. 2, Manohar Singh, has not disclosed material facts which constitute the cause of action and as such the election petition is liable to be dismissed under the provisions of Order 7 Rule 11 CPC read with certain provisions of the Act. A copy of the election petition has been filed as annexure 1 to the writ petition in order to show that the election petition is not maintainable for want of material facts. Special reference has been made to paras 5, 7, 8, 10 and 11 of the election petition. In para 5 it is not mentioned that Vidya Sagar, opposite party no. 3, had obtained 52 votes while Akhilesh Das, petitioner, obtained 56 votes and Ashok Kumar Gupta, opposite party No. 6 obtained 5 votes ; rest of the respondents were not able even to obtain a single vote. In para 6 it is mentioned that the counting of votes took place on 12th May, 1993 and the petitioner was declared elected as Mayor. In para 7 it is alleged that in the election some votes were declared invalid out of which two votes were cast in favour of Vidya Sagar, opposite party No. 3 and two votes were cast in favour of Ashok Kumar Gupta, opposite party No. 6. Out of 113 total votes cast the six ballot papers were found invalid and thus there remained 107 valid votes. In para 8 of the election petition some calculation has been done on the basis of which it is alleged that the petitioner could not have been declared successful at the above election as he had not obtained the minimum votes. It is alleged in para 10 that the ballot papers which were declared invalid were declared so in a wrong way. The votes which were cast in favour of Vidya Sagar, opposite party No. 3 and which have been declared invalid, were valid and they have been wrongly declared invalid. It is alleged in para 11 that if these votes would have been declared valid then the result of the election would have been otherwise and Vidya Sagar, opposite party No. 3 would have been declared elected as Mayor.

Now it has to be considered as to what material fact is which should be alleged in the election petition. The apex court had an occasion to consider this phrase in the case of Roop Lal Sathi v. Nachhattar Singh Gill (1982)3 SCC 487). In para 26 the Court held as under:

"There is distinction between ''material facts'' and ''particulars''. The words ''material facts'' show that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement or plaint becomes bad..........Thus the word ''material'' in material facts under section 83 of the Act means facts necessary for the purpose of formulating a complete cause of action ; and if any one ''material'' fact is omitted, the statement or plaint is bad ; it is liable to be struck out. The function of ''particulars'' is quite different, the use of particulars is intended to meet a further and quite separate requirement of pleading imposed in fairness and justice to the returned candidate. Their function is to fill in the picture of the election petitioner''s cause of action with information sufficiently detailed to put the returned candidate on his guard as to the case he has to meet and to enable him to prepare for trial in a case where his election is challenged on the ground of any corrupt practice." In this connection it may be mentioned that the words ''material facts'' occurring in Section 63 of the Act are the same as occurred in Section 83 of the Representation of Peoples Act. Section 63 of the Act provides that the election petition shall contain a concise statement of material facts on which the petitioner relies and upon which the election of a respondent is sought to be questioned, and in the case of corrupt practice full particulars are to be alleged. In the above mentioned case the apex court was considering the provisions of the Representation of Peoples Act. As the provisions are the same in both the Acts the meaning assigned to these words will also be the same because they have been used in the same context and in the same nature of election petition. Thus the material facts are to be given so that the opposite party or the respondent may be in a position to know as to what material is against him and what he has to meet in his defence. Unless full facts which have material bearing in the election petition are not stated the election can be safely rejected under the provisions of Order 6 Rule 16 and Order 7 Rule 11 CPC. It may also be stated that the Code of Civil Procedure applies to the election petitions filed and decided under the Nagar Mahapalika Adhiniyam. Section 67 of the Act provides for procedure for hearing the election petition. Rule 8 of the Rules framed under the Act provides for procedure at hearing of an election petition. This provides that except so far as provided by the Act or elsewhere in the Rules, the procedure provided in the Civil Procedure Code in regard to suits, shall so far as it is not inconsistent with the Act or any provisions of the Rules and so far as it can be made applicable, be followed in the hearing of election petitions. Similar provision has to be found in Section 87 of the Representation of Peoples Act. Therefore this rule provides for application of the provisions of the Code of Civil Procedure as far as they are not inconsistent with the Act or the Rules, to the election petitions filed under the Act. Therefore an election petition can be rejected under Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure if it does not disclose any cause of action.

Now we have to see as to what ''material facts'' should have been alleged by the petitioner in the election petition. In this regard learned counsel for the petitioner has placed reliance on the case of Jitendra Bahadur Singh v. Krishna Behari and others (AIR 1970 SC 276). This was a case under Section 92 of the Representation of Peoples Act. In this case also it was observed that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as to afford a basis for the allegations made in the petition. In that case the petitioner was neither a candidate nor was the election agent and in the election petition it was also not alleged that he was a counting agent. Therefore the information which was received by him was on the basis of hearsay information. He does not and he could not vouchsafe their accuracy though he claims to have believed the information given to him to be correct. No affidavit of the nominee or his election agent or any of the persons who could have had personal knowledge of the matter was filed along with the election petition. Even at the time of counting of votes no objection in writing was filed before the Returning Officer. On these facts the Court held that if a person was present at the time of counting it was easy for him to note down the serial number of ballot papers. The order of the trial judge was set aside as recounting of the ballot papers could not have been made unless material facts were disclosed in the election petition necessitating recounting of votes.

In the case of Ram Singh v. Kazi Mohiuddin and others (AIR 1988 Allahabad 210) a single Judge of this Court had an occasion to deal with the controversy which is also present in this election petition. In that case the material facts were not disclosed as to what was the reason for rejection of the ballot papers and therefore the petition was summarily rejected. It was also observed that the petitioner of the election petition must not only give the figures of the votes which according to him were improperly accepted or rejected, but the basis of the allegation must be disclosed, the serial number of ballot papers must be set out, names of the counting agent, number of counting tables, names of the counting supervisor, if any, made to the counting staff, details of the notes, if any, kept by the counting agent and the basis of information must be disclosed. In that case the petitioner was not present during the course of counting but stayed in the P.W.D. Inspection House away from the place of the counting. No objection was also filed by the petitioner in that cafe before the Returning Officer about the improper rejection of the votes. The petitioner was unable to indicate any of the grounds on which the votes were rejected as invalid. No rough work was placed before the Court which might have been prepared at the time of counting of votes. In the present case also the contention of the learned counsel for the petitioner is that the details of the votes which were rejected and the grounds on which they were declared to be invalid have not been incorporated in the present election petition. He has further argued that the person who has filed the election petition was also not present during the process of counting of votes and he has also not disclosed the source of his information about the rejection of the valid votes. In paras 5, 6, 7, 8, 10 and 11 of the election petition, as mentioned in the earlier part of this judgment it is not mentioned as to what was the ground of rejection of valid votes. The numbers of the ballot papers which were rejected have also not been mentioned. Moreover in the election petition it has also not been indicated as to from whom the petitioner got the information about the rejection of the valid votes. The person who has filed the election petition, namely Manohar Singh, opposite party No. 2, was merely a Sabhasad and was not a candidate in the election and he was also not appointed as election agent during the election and he was also not present during the course of counting of votes. Therefore it was incumbent upon him to disclose of the source of his information. Therefore whatever has been alleged in the election petition is merely hearsay and no reliance can be placed on the allegations made in the election petition. The Nagar Mahapalika Adhiniyam provides for assigning reasons for rejection of votes. Rule 25 of the Rules framed under the Act provides for procedure for counting of votes. Subrule (2) (b) of this Rule provides for scrutiny of the ballot papers and separation of those which are valid from those which, in his opinion, are invalid endorsing on the latter the word'' rejected'' and the ground of rejection. The grounds on which the ballot papers can be rejected are enumerated in Rule 26. Therefore Rule 25 provides for the grounds of rejection of ballot papers to be recorded by the Returning Officer. Thus in the present case this was a material fact which should have been mentioned in the election petition by Manohar Singh, election petitioner, in order to show that a particular ballot paper was rejected on what ground. Unless the ground and reason for rejection of a ballot paper is given, how the opposite party can meet the same. There may be several grounds for rejection of a ballot paper as mentioned in Rule 26 but the specific ground on which the ballot paper has been rejected has to be stated by the petitioner in the election petition. Mere mentioning that six ballot papers were wrongly rejected as invalid by the Returning Officer will not suffice and will not meet the requirements of law. Specific ground has to be given in the election petition on which the particular ballot paper was rejected. The numbers of ballot papers which were rejected should also have been indicated in the election petition besides other factors which have been mentioned in the earlier part of this judgment. None of these facts which are material have been mentioned in the election petition.

Therefore on the basis of the material on record it can safely be said that the election petition filed by Manohar Singh, opposite party No. 2, does not fulfil the requirements of various provisions of Nagar Mahapalika Adhiniyam which require that material facts are to be indicated in the election petition when the election of a returned candidate is sought to be challenged. All these material facts have not been alleged! in paras 5, 6, 7, 8, 10 and 11 of the election petition which are sought to be deleted from the election petition. It is found that paras 5, 6, 7, 8, 10 and 11 of the election petition are liable to be deleted for want of disclosure of material facts on the ground that material facts about the rejection of six ballot papers have not been incorporated in these paragraphs. Once these paragraphs are deleted from the election petition there remains no cause of action in the election petition and the election petition deserves to be dismissed. The order passed by the District Judge, Lucknow on the application of the petitioner praying for dismissal of the election petition for want of material facts is liable to be quashed and the above application deserves to be allowed.

An objection has also been raised by the learned counsel for the opposite parties that unless a written statement is filed the election petition cannot be rejected under Order 7 Rule 11 CPC after striking out the pleadings under Order 6 Rule 16 CPC. This question arose for consideration in the case of Dhartipakar v. Rajiv Gandhi (AIR 1987 SC 1577). In para 8 of the above case, while considering the provisions of Sections 81, 82 and 117 of the Representation of Peoples Act the Hon''ble Supreme Court held as under t

"Since provisions of the Code of Civil Procedure apply to the trial of an election petition, O.VI, R. 16 and O. VI, R. 17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is apparent that those paras of a petition which do not disclose any cause of action, are liable to be struck off under O. VI R. 16 as the Court is empowered at any stage of the proceedings to strike out or delete pleadings.......If the court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI, Rule 16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under O. VII, R. 11."

In the present case also, as mentioned in the earlier part of this judgment, the provisions of the Code of Civil Procedure apply as far as they are not inconsistent. Therefore Order VI Rule 16 and Order VII Rule 11 CPC will also apply to the proceedings of the election petition filed by Manohar Singh under the Nagar Mahapalika Adhiniyam. Therefore the observations made by the Hon''ble Supreme Court in the above case fully apply to the present election petition and as such the election petition can be dismissed at any stage if it does not disclose any cause of action under the provisions of the Code of Civil Procedure. It is not necessary that the Court should wait for the filing of the written statement. As the material facts are wanting in the above mentioned paragraphs of the election petition, i.e. paras 5, 6, 7, 8, 10 and 11, and the cause of action has not been disclosed, therefore these paragraphs are liable to be deleted from the pleadings of the election petition and as no cause of action subsists and issues remain after deletion of the above paras, the entire election petition is liable to be dismissed, under Order VI Rule 16 and Order VII Rule 11 CPC. Therefore the order of the District Judge rejecting the application of the petitioner, Akhilesh Das, praying for dismissal of the election petition, is not correct and is liable to be quashed.

It is not necessary to consider other grounds taken by the petitioner in this writ petition.

In view of what has been discussed above the writ petition is allowed. The application moved by the petitioner before the District Judge in the election petition under Order VI, Rule 16 and Order VII Rule 11 of the Code of Civil Procedure is allowed and consequently the election petition filed by Manohar Singh, opposite party No. 2, is dismissed under Order VII Rule 11 read with Section 151 CPC. The petitioner shall get a sum of Rs. 1000/ as costs of this petition from opposite party No. 2.