Lakhan Ghanghoriya vs Anchal Sonker

G.S. Solanki, J.—This order shall govern disposal of I.A. No. 2/2014, which is an application under Order VI Rule 16 of the CPC , I.A. No. 3/2014, which is an application under Order VII Rule 11 of the CPC and I.A. No. 18/2014, which is an application under Order VI Rule 17 and Order XXIII Rule 1 read with Section 151 of the CPC.

I.A. No. 2/2014 has been filed under Order VI Rule 16 of the CPC by respondent No. 1. It is submitted in the application that the petitioner has called in question the election of respondent No. 1 from Assembly Constituency No. 97, Jabalpur (East) mainly on the following grounds :-

(i) The polling booths close to the house of respondent No. 1 were not changed as a result of which certain voters could not exercise their franchise.

(ii) There were undue changes in the voters list resulting in exclusion of certain voters who would have voted for the petitioner.

(iii) The EVM machines, not functioning properly were replaced and in one such EVM machine 340 votes were found as against the total 520 votes polled as per the Presiding Officer.

(iv) The returned candidate resorted to corrupt practices by distributing saries, T-shirt with BJP colours.

It is further submitted that the pleadings relating to changes in the voters list as contained in Paragraphs 9, 10, 11 and 16 of the election petition being unnecessary, scandalous and frivolous, are liable to be struck out. The work of addition and deletion of names in the voters list is carried out by statutory authorities and any change in the voters list is not a ground enumerated in Section 100 of the R.P. Act, 1951 for declaring election to be void. It is further submitted that the pleadings contained in Paragraph 12 of the election petition with regard to setting up of Polling booth near the house of respondent No. 1, are also unnecessary, scandalous and frivolous, therefore, liable to be struck out. The pleadings made in Para 13 and 14 of the Election Petition in regard to replacement of EVMs is totally unnecessary and frivolous. Pleadings of Paragraph 15 are scandalous and frivolous. It is further submitted that the impleadment of respondent Nos. 2 and 3 is with the object of creating undue pressure on the election machinery and for prejudicing fair trial of the election petition. It is settled law that the officials of Election Commission cannot be impleaded as respondents in an election petition.

On the basis of aforesaid contentions, it is submitted that the pleadings contained in Paragraphs 9, 10, 11, 12, 13, 14, 15 and 16 of the election petition be struck out.

The petitioner, in the reply, has denied the allegations made by respondent No. 1 in the application and submitted that the pleadings of Paragraphs 9, 10, 11, 12 of the election petition have been made in strict compliance of the provisions of the Representation of People Act, 1951 (hereinafter referred to as the Act of 1951) and are duly covered under the grounds enumerated under Section 100 of the Act of 1951. So far as pleadings made in Paragraphs 13 and 14 of the election petition are concerned, they have been made with concise statement of material facts and grounds with full particulars thereof, therefore, it cannot be said that the aforesaid pleadings are unnecessary or frivolous. Further the pleadings of Paragraph 15 of the election petition are in regard to committing corrupt practice by respondent No. 1 by distributing T-shirts and Saries among the voters of Assembly Constituency No. 97 and the petitioner has specifically made concise statements of material facts with full particulars thereof by mentioning the names of the parties, alleged to have committed such corrupt practice.

On the basis of aforesaid contentions, the petitioner has prayed for dismissal of I.A. No. 2/2014.

I have gone through the pleadings made in Paragraphs 9, 10, 11 of the election petition, wherein the petitioner has specifically pleaded that the names of 9746 voters, belonging to Muslim community, were illegally deleted from the voters list. They were residing across different wards of Assembly Constituency No. 97. It is further pleaded that their names found place in the previous voters list of Assembly Elections held in the year 2008. The petitioner made representation before the Election Officer for addition of the names of the aforesaid voters in the voters list, but the same was not considered, then the petitioner filed W.P. No. 17120/2013 wherein this Court directed respondent No. 2 and 3 to look into the grievance of the petitioner but the names of the aforesaid voters were not added in the final voters list. It is further pleaded that since the names of the aforesaid voters were illegally deleted, the result of the election has been materially affected. Certainly, this pleading is covered under Section 100(1)(d)(iv) of the Act of 1951, which pertains to non-compliance of the provisions of the Act of 1951 or of rules or orders made under the same Act.

So far as the pleadings made in Paragraph 12 and 16 of the election petition are concerned, they also pertain to non- compliance of Section 130 of the Act of 1951. It is specifically pleaded against respondent Nos. 2 and 3 that despite representation made by the petitioner, they have not complied with the provisions of Section 130 of the Act of 1951 and this pleading is covered under Section Section 100(i)(d)(iv) of the Act of 1951 and cannot be said to be unnecessary or frivolous.

So far as objection raised in Paragraphs 13 and 14 in regard to irregularities in EVMs is concerned, all doubts and queries regarding EVMs have already been answered in FAQs on the website of Election Commission of India wherein it has been specifically shown that there is no possibility to vote more than once by pressing button again and again. Since the petitioner has raised doubts in regard to fairness or impartiality of the officials engaged in the counting process, he is under an obligation to demonstrate as to how the EVMs could be tampered with to get the desired result. However, no expert opinion has been placed on record regarding the chances of misalignment of EVMs. On the other hand, correctness of all the technical aspects of the matter, as reflected as FAQs and the Press Note issued and uploaded on its website by Election Commission of India, has already been verified on the judicial site in Michael B. Fernandes Vs. C.K. Jaffer Sharief and Others, . Thus, the EVMs are full proof device for counting, therefore, the allegation made in the petition in regard to mal-functioning and tampering of EVMs used in counting of votes, are baseless and unnecessary, therefore, they are liable to be struck out.

Coming to the pleadings made in Paragraph 15 of the election petition, which relate to corrupt practice committed by respondent No. 1 by distributing Saries and T-shirts to the voters within the constituency; in Paragraph 15 of the election petition, the petitioner has specifically pleaded the names of the persons, who distributed the aforesaid articles and the names of the persons to whom the aforesaid articles have been distributed along with particular date and time, therefore, these pleadings cannot be said to be unnecessary, frivolous or scandalous.

In view of the aforesaid discussion, I.A. No. 2/2014 is partly allowed. The pleadings of Paragraphs 13 and 14 of the election petition are liable to be struck out.

I.A. No. 18/2014 has been filed by the petitioner under Order VI Rule 17 and order XXIII Rule 1 read with Section 151 of the CPC. It is submitted in the application that the petitioner by way of instant election petition has called in question the election of respondent No. 1 and has prayed for the following reliefs:-

A. Declare the election of respondent No. 1 as null and void and consequently the notification dated 8.12.2013 declaring respondent No. 1 as returned candidate.

B. Declare the petitioner as returned candidate.

C. Award suitable punishment to those found to be involved in irregularities.

D. Award appropriate and suitable cost to the petitioner.

It is submitted by the petitioner in the application that due to some inadvertent mistake the petitioner, in Clause B of the prayer clause, has made a prayer to declare him as returned candidate. It is further submitted that as per Section 98 of the Act of 1951, the High Court can declare the petitioner or any other candidate to have been duly elected, if so prayed but the High Court cannot declare him as returned candidate, as prayed in the election petition. It is further submitted that as per definition of the returned candidate, the returned candidate means the candidate whose name has been published under Section 67 of the Act of 1951 as duly elected, therefore, the petitioner may be permitted to delete the relief clause (B) from the prayer clause.

In reply of aforesaid application, respondent No. 1 has submitted that no amendment in an election petition is permissible beyond the period of limitation i.e. 45 days, which is over long ago on 22.1.2014, therefore, now the election petition can neither be amended nor any relief claimed thereunder can be abandoned or deleted. It is further submitted that there is clear foundation in the election petition on the basis of which prayer clause (B) is sought for, therefore, the plea of inadvertent mistake is an after-thought, thus, this application is liable to be dismissed.

I have gone through the election petition, specially the prayer clause, which reads as under :-

A. Declare that, the election of respondent No. 1 as null and void and consequently the notification dated 8.12.2013 declaring respondent No. 1 as returned candidate.

B. Declare the petitioner as returned candidate.

C. Award suitable punishment to those found to be involved in irregularities.

D. Award appropriate and suitable cost to the petitioner.

A bare perusal of Section 84 of the Act of 1951 makes it clear that a petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. In the instant election petition, the petitioner has claimed for the relief to declare him as ''returned candidate'' in place of ''duly elected candidate''. As per Section 79 of the Act of 1951, returned candidate means a candidate whose name has been published under Section 67 as duly elected. Section 67 of the Act of 1951 is nothing but procedure of sending the report of the result of the election wherein the returning officer shall report the result to the appropriate authority and the Election Commission, and in the case of an election to a House of Parliament or of the Legislature of a State also to the Secretary of that House, and the appropriate authority shall cause to be published in the Official Gazette the declarations containing the names of the elected candidates.

It is clear from the aforesaid provisions that an elected candidate becomes the returned candidate after publication of his name in the Official Gazette and one cannot become the returned candidate until and unless he has been declared as duly elected candidate. In the instant petition, the petitioner has prayed for the relief to declare him as the returned candidate, in which the prayer for declaring him elected candidate is implied. Since the relief clause is based on the pleadings made in the election petition, therefore, same cannot be said to be an inadvertent mistake. Further, this relief is concerned with non- compliance of Section 82 of the Act of 1951 and defect of non- compliance of Section 82 of the Act of 1951 cannot be cured by way of amendment of the petition. This question has been elaborately considered by the Apex Court in Inamati Mallappa Basappa Vs. Desai Basavaraj Ayyappa and Others, wherein it has been observed by the Apex Court that the Court has no power to allow such amendment after the election petition was presented under the Act. In view of the aforesaid legal position, I am of the view that this application for amendment in the prayer clause, cannot be allowed. Consequently, I.A. No. 18/2014 is hereby dismissed.

I.A. No. 3/2014 has been filed by respondent No. 1 under Order VII Rule 11 of the CPC. It is submitted in the application that the petitioner has called in question the election of respondent No. 1 from Assembly Constituency No. 97, Jabalpur (East) mainly on the following grounds :-

(i) The polling booths close to the house of respondent No. 1 were not changed as a result of which certain voters could not exercise their franchise.

(ii) There were undue changes in the voters list resulting in exclusion of certain voters who would have voted for the petitioner.

(iii) The EVM machines, not functioning properly were replaced and in one such EVM machine 340 votes were found as against the total 520 votes polled as per the Presiding Officer.

(iv) The returned candidate resorted to corrupt practices by distributing saries, T-shirt with BJP colours.

It is further submitted in the application that the pleadings contained in Paragraphs 9, 10 and 16, relating to alleged changes in the voters list, is not a ground under Section 100 of the Act of 1951 for declaring the election void. It is further submitted that the pleadings of Paragraph 12 with regard to location of polling booths also does not give rise to any cause of action. The pleadings of Paragraphs 13 and 14 relating to replacement of EVMs also do not disclose any cause of action for challenging the election of respondent No. 1. The pleadings of Paragraph 15 of the election petition relating to commission of corrupt practices are vague, scandalous and without material particulars, as such there is non-compliance of Section 83(1)(b) of the Act of , 1951.

On the basis of aforesaid contentions, it is submitted that no cause of action arises from the pleadings made by the petitioner in the election petition. It is further submitted that on the ground of non-compliance of Section 81 and 82 of the Act of 1951, the instant election petition is liable to be dismissed under Section 86 of the Act of 1951.

In the reply, the petitioner has denied the contentions raised in the application and submitted that the petitioner has specifically made concise statements of material facts with full particulars thereof by mentioning the names of the parties, alleged to have committed such corrupt practice. It has been specifically pleaded that the T-shirts and Saries were distributed by respondent No. 1 and his agents to specific persons on a specific date and time. It is further submitted that the petitioner has specifically pleaded in regard to non-compliance of the provisions of the Act or any rule or order made under this Act whereby the election of respondent No. 1 has been materially affected. It is further submitted that though the petitioner has inadvertently prayed in relief clause (B) that he be declared as returned candidate but he has not claimed any relief in regard to declaring him as elected candidate. The petitioner has not taken any ground under Section 101 in his petition and has not pleaded that he has received a majority of valid votes or that for the votes obtained by the returned candidate by corrupt practice, the petitioner would have obtained majority of valid votes, therefore, the petition does not fall under non-compliance of Section 82 of the Act of 1951. On the basis of aforesaid contention, the petitioner has prayed for dismissal of this application.

I have gone through the entire pleadings made in the election petition by the petitioner. It is true that the petitioner has specifically pleaded in Paragraph 15 that respondent No. 1 has resorted to corrupt practice with full particulars of the names of the persons by whom and to whom the T-Shirts and Saries have been distributed on a specific date and time. There is specific pleading in regard to non-compliance of Section 130 of the Act of 1951 and the non-compliance of the rules and orders made under the Act of 1951 has materially affected the election of respondent No. 1. In these circumstances, it is not the case wherein no cause of action is disclosed but when the prayer clause is perused the petitioner has prayed for the following reliefs :

A. Declare that, the election of respondent No. 1 as null and void and consequently the notification dated 8.12.2013 declaring respondent No. 1 as returned candidate.

B. Declare the petitioner as returned candidate.

C. Award suitable punishment to those found to be involved in irregularities.

D. Award appropriate and suitable cost to the petitioner.

Since the relief clause is based on the pleadings made in the election petition, when the pleadings made in paragraph 10 of the election petition is considered, the petitioner has specifically pleaded that the votes which were to be casted in favour of the petitioner, were deliberately deleted ignoring the fact that, these voters are still residing in their respective houses and since decades they are voters from the same constituency and also casted their votes in the previous Assembly elections in the year 2008. It is further pleaded that names of these voters were not added in the final voters list. The margin by which the petitioner lost the election was 1051 votes whereas 9746 names were illegally deleted and thereby this illegal deletion of names materially affected the elections, which shows that the petitioner has made pleading for declaring him as elected candidate. Mere non-mentioning of Section 101 of the Act of 1951 in the grounds of petition, do not absolve the controversy. Thus, in my opinion, the petitioner has prayed to declare him as elected candidate under the garb of claiming the relief to declare him as returned candidate, which cannot be done without declaring him as elected candidate.

It is undisputed that the petitioner has not impleaded all the contesting candidates as respondents in the election petition as provided under Section 82 of the Act of 1951. Section 82 and the relevant extracts of Section 86 of the Act of 1951 read thus :-

"82. Parties to the petition. - A petitioner shall join as respondents to his petition -

(a) where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.

Trial of election petition. - (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117."

Section 82 of the Act provides that where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected then he must join as respondents to his petition all the contesting candidates. If the provisions of Section 82 are not complied with, this Court is directed by Section 86 to dismiss the election petition. In K. Kamaraja Nadar Vs. Kunju Thevar and Others, , the Supreme Court held that when the provisions of Section 82 were not complied with, the Election Tribunal, enjoined under Section 90(3) to dismiss such an election petition, was bound to dismiss the same as Section 90(3) was mandatory. Section 90(3) has been substituted by Section 86 of the Amendment Act, 1966 with the same mandatory obligation to dismiss such an election petition. As the petitioner admittedly did not join all the contesting candidates as respondents in the petition wherein he has prayed for a further declaration that he be declared as returned candidate, in which the prayer to declare him as elected candidate is implied, his petition is bound to be dismissed under Section 86, which is mandatory. In these circumstances, the petition is barred by the law under Order VII Rule 11(d) of the CPC.

Accordingly, I.A. No. 3/2014 is allowed, as a consequence thereof, this election petition is dismissed.

No order as to costs.