Tarachand Sahu vs Saroj Pandey and Others

Sunil Kumar Sinha, J.—This order shall dispose of LA. No. 1/2009, an application filed by respondent No. 1/returned candidate under Order 7, Rule 11 of the CPC read with Section 86 of The Representation of the People Act, 1951 (hereinafter referred to as the Act, 1951).

The facts, briefly stated, are as under:

The petitioner contested the election of Member of Parliament from Durg Parliamentary Constituency No. 7 which took place on 16th of April, 2009. He was an independent candidate. Respondent No. 1 was the candidate of Bhartiya Janta Party (BJP) and respondent No. 2 was the candidate of Indian, National Congress. In all there were 15 candidates (petitioner and respondents 1 to 14), who contested the said election. According to the averments made in the election petition, the petitioner secured 2,61,679 votes. Respondent No. 1 secured 2,83,170 votes and respondent No. 2 secured 2,73,216 votes. Therefore, respondent No. 1 belonging to Bhartiya Janta Party (BJP) was declared elected and the petitioner was defeated by 21,491 votes.

The petitioner, challenging the election of respondent No. 1, has filed this petition under Sections 80, 80-A and 81 of the Act, 1951. Along with the relief of declaration of election of respondent No. 1 as null and void on the grounds mentioned in Section 100(1)(d) of the Act, 1951, the petitioner has further prayed for a direction of re-counts of the votes and for declaration of the person elected, whose votes are more in the re-counting prayed. He has also prayed for directions of inquiry of looking of two electronic voting machines, program of electronic machines and manipulation of electronic voting machines in polling and counting.

Following are the main grounds (extracted from the pleadings of various paras of election petition) on which the petitioner has prayed for the aforesaid relief(s):

(i) "Respondent No. 1 being sponsored candidate of the Ruling Party managed the election system and defeated the petitioner by 21,491 votes."

(ii) "From the very beginning apprehension was made that the Election Officer may take side of candidate sponsored by Ruling Bhartiya Janta Party and it became true when these officer declared respondent No. 1 elected."

(iii) "The votes in two EVM machines could not be counted as it was said that these two machines were locked and the votes inside cannot be counted. The petitioner at the time of counting of votes raised objections in counting procedure which were not considered, because the correct information of received votes of petitioner were not given and complaint made in this regard to Returning Officer either by agent of the petitioner or the petitioner himself has not be attended. At last the petitioner and his election agent prayed for re-counting of votes, then it was told that the action demanded would be done after order of the Court. Even written application for prayer of re-counting was not accepted and the petitioner had to send a letter to Election Commission of India."

(iv) "There are number of irregularities in counting procedure in order to give undue benefit to returned candidate."

(v) "The signatures of the counting agents of the petitioner were not taken after each round of counting which is serious irregularity and it has affected the result of election materially and substantially."

(vi) "Votes contained in the EVM machine of polling station 64/168 Guru Ghasidas Ward No. 44, Durg City in which total 428 votes were cast were not counted; likewise the votes contained in EVM machine of polling station No. 66/86 Vaishali Nagar, Bhilai, Kohaka were also not counted."

(vii) "Respondent No. 16 had called EVM machine from Uttar Pradesh which creates suspicion in conduct of respondent No. 16."

(viii) "Votes secured by the petitioner were manipulated and his votes were counted in the account of respondent No. 1 which has materially affected the result of election."

(ix) "Respondents No. 16 and 17 have supported respondent No. 1 in order to win the election as Bhartiya Janta Party is Ruling Party in Chhattisgarh and it was in a position to influence them" etc. etc.

After service of the notice, the first respondent filed I.A. No. 1/2009 and has raised preliminary objections regarding the maintainability of the election petition on the ground that the petition is lacking in material facts and particulars and is also defective as the affidavit in support of allegations of corrupt practices was not proper. According to the first respondent, the petition does not disclose a cause of action so as to send it for trial.

A reply to the said objection has been filed by the election petitioner who denied all the grounds raised in LA. No. 1/2009 and prayed for dismissal of the said application.

I have heard the learned Counsel for the parties at length and have also perused the records of the election petition.

Section 100 of the Act, 1951 provides grounds for declaring election to be void. Sub-section (1)(d) provides that subject to the provisions of Sub-section (2) if the High Court is of opinion that the result of the election, in so far as it concerns a returned candidates, has been materially affected

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.

Section 101 provides grounds for which a candidate other than the returned candidate may be declared to have been elected. It provides that if any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion

(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or

(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes.

the High Court shall, after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.

In the present case, the petitioner has taken the grounds of Section 100(1)(d)(ii) and (iii) and has claimed the relief(s) on the said grounds. As stated supra, the focus is on the corrupt practices allegedly committed in the interests of the returned candidate, and improper reception of the votes in favour of the said candidate (first respondent) on account of corrupt practices by the authorities of the State.

Along with Section 100(1)(d), Sections 83 and 87 are also relevant for disposal of this application. For ready reference these Sections are quoted as under:

Contents of petition.- (1) An election petition

(a) shall contain a concise, statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings :

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2) Any scheduled of annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

Procedure before the High Court.- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall subject to the provisions of this Act, be deemed to apply in all respect to the trial of an election petition.

In Jagan Nath Vs. Jaswant Singh and Others, , the Constitution Bench of the Supreme Court held that the statutory requirement of election law must be strictly observed and that the election contest is not an action at law or a suit in equity, but is purely statutory proceeding unknown to the common law and that Court possesses no common law power. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.

In Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, the Supreme Court laid down that (i) Section 83 of the Act is mandatory and requires first a concise statement of material facts and then the fullest possible particulars; (ii) omission of even a single material fact leads to an incomplete cause of action and statement of claim becomes bad; (iii) the function of particulars is to present in full a picture of the cause of action and to make the opposite party understand the case he will have to meet; (v) material facts and particulars are distinct matters - material facts will mention statements of fact and particulars will set out the names of persons with date, time and place and (v) 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.

In Hardwari Lal Vs. Kanwal Singh, referring to Section 123(7) of the Act, 1951, the Supreme Court held "that the provisions of the aforesaid section indicate these heads of corrupt practices. First, the obtaining by a candidate or his agent or by any other persons any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate''s election from any person in the service of the Government as mentioned in the section. Second, the procuring by a candidate or his agent or by any other person with the consent of the election petitioner any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate''s election. Third, the abetting by a candidate or his agent or by any other person with the consent of the candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate''s election as mentioned. Fourth, the attempting to obtain or procure by a candidate or his agent, or by any other person with the consent of a candidate or his election agent any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate''s election. Fifth, the assistance that is forbidden or prohibited by the statute is any assistance other than the giving of vote. It is clear that the four different heads of corrupt practices are (a) obtaining, (b) procuring, (c) abetting, and (d) attempting to obtain or procure assistance". A note of the judgment of Samant N. Balkrishna (supra) was also taken in the said judgment.

In Ram Sukh Vs. Dinesh Aggarwal, the Supreme Court has noticed the distinction between the phrases "material facts" as appearing in Clause (a) and "particulars" as appearing in Clause (b) of Sub-section (1) of Section 83. It held that the "material facts" are primary or basic facts which have to be pleaded by the petitioner to prove its cause of action and by the defendant to prove its defence. "Particulars", on the other hand, are details in support of the material facts, pleaded by the parties. 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. Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that opposite party is not taken by surprise.

In this judgment, the Supreme Court has also noticed the judgment of Virender Nath Gautam Vs. Satpal Singh and Others, , in which it was held as follows:

There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facta probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.

Apart from the above, principles laid down in Santosh Yadav Vs. Narender Singh, , are also important. In para 15 of the said judgment, the Supreme Court held - "A word about the pleadings, Section 83 of the Act mandates an election petition to contain a concise statement of the material facts on which the petitioner relies. The rules of pleadings enable a civil dispute being adjudicated upon by a fair trial, and reaching a just decision. A civil trial, more so when it relates to an election dispute, where the fate not only of the parties arrayed before the Court but also of the entire constituency is at a stake, the game has to be played with open cards and not like a game of chess or hide and seek. An election petition must set out all material facts where-from inferences vital to the success of the election petitioner and enabling the Court to grant the relief prayed for by the petitioner can be drawn subject to the averments being substantiated by cogent evidence. Concise and specific pleadings setting out all relevant material facts, and then cogent affirmative evidence being adduced in support of such averments, are indispensable to the success of an election petition. An election petition, if allowed, results in avoiding an election and nullifying the success of a returned candidate. It is a serious remedy.'' Therefore, an election petition seeking relief on a ground u/s 100(1)(d) of the Act, must precisely allege all material facts on which the petitioner relies in support of the plea that the result of the election has been materially affected." Further in para 8, it was held that the success of a winning candidate at an election should not be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else. That is why the scheme of Section 100 of the Act, especially Clause (d) of Sub-section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by Sub-clauses (i) to (v) of Clause (d), the election of a returned candidate shall not be avoided unless and until it was proved that the result of the election, in so far as it concerns a returned candidate, was materially affected.

On perusal of the above provisions of the Act, 1951 and the law laid down by the Supreme Court in various decisions supra, as per requirement of Section 83, the election petition must contain a concise statement of "material facts'' on which the petitioner relies and the petitioner should also furnish "full particulars" of the corrupt practices which he is alleging. The provisions of Section 83 are mandatory and if the petition is lacking in mandatory requirements, the same cannot be entertained in view of the provisions of Sections 86 & 87 of the Act, 1951.

It is in this background, we are to examine the contents of the election petition to find out as to whether the petition is lacking in "material facts" and "particulars", as contended by the first respondent, so as to reject it at the preliminary stage.

The grounds taken and pleaded by the petitioner in election petition have been mentioned in para 3 (supra). As per grounds (i) and (ix), the petitioner contended that respondent No. 1 was favoured by the State authorities being the candidate of Bhartiya Janta Party which was the Ruling Party in the State. The petitioner, thus, makes an allegation of corrupt practices against the persons in service of the Government. In Azhar Hussain Vs. Rajiv Gandhi, the allegations were relating to obtaining assistance from the person in service of the Government. In the said case averments made in the petition did not show who had obtained or procured assistance from the person in service of the State; how the assistance was procured; how it was said that it was with the consent of the returned candidate or his election agents. The Supreme Court held that the pleadings in this regard were vague. Unless the particulars with reference to Section 83 are there it cannot be said that the petition disclosed a cause of action in regard to the corrupt practices with the assistance of the Government authorities. It was held that in absence of material facts and particulars, the Court could not have rendered a verdict in favour of the election petitioner, in case, the returned candidate had not appeared to oppose the election petition. The Supreme Court further held that no amount of evidence could cure the basic defect in the pleading and the pleadings as it stood must be construed as one disclosing no cause of action.

In the present petition also, the petitioner has simply said that respondent No. 1 being sponsored candidate of the Ruling Party managed the election system and respondents 16 & 17 have supported respondent No. 1 in order to win the election as Bhartiya Janta Party is Ruling Party in Chhattisgarh and it was in a position to influence them. Needless to say that the pleadings are too vague and they do not satisfy the requirements of Section 83 of the Act, 1951. No material facts have been pleaded by the petitioner. Even the particulars are also lacking. How the respondents 16 & 17 supported respondent No. 1? In what manner respondent No. 1 took their assistance being candidate of Ruling Party are completely lacking. Therefore, the vague pleadings in this regard cannot be held to be forming a cause of action or a part of cause of action to contest the election petition.

So far as ground No. (ii) is concerned, that merely says about apprehension that the Election Officer may take side of the candidate sponsored to the Ruling Party. Mere apprehension of the petitioner cannot be made basis to challenge the election of a returned candidate. The petitioner, in similar manner has taken ground No. (iv) that there were number of irregularities in counting procedure in order to give undue benefit to the returned candidate. What were those irregularities in counting procedure? Who at all committed those irregularities? In what manner those irregularities were committed in the counting procedure and how such irregularities allegedly committed in the counting procedure have materially affected the election are lacing in the pleadings. The petitioner has taken the plea that the signatures of the counting agents of the petitioner were not taken after each round of counting which is serious irregularity and it has affected the result of election materially and substantially. The petitioner never disclosed the names of those counting agents whose signatures were not taken by the concerned authority who was engaged in counting. Who were authorities who had not taken the signatures of the agents and how the result of the election has been materially affected by not taking signatures of the counting agents of the petitioner after each round of counting. The pleadings in this regard are not with particulars as stated above. Therefore, these pleadings are also vague and general so as to short of forming any part of cause of action to maintain an election petition.

Similar is the position with ground Nos. (vii) and (viii). The petitioner has pleaded that respondents 16 had called EVM machines from Uttar Pradesh which creates suspicion in conduct of respondent No. 16. He has pleaded that votes secured by the petitioner were manipulated and his votes were counted in the account of respondent No. 1 which has materially affected the result of election. These pleadings are also vague. The suspicion of the petitioner cannot constitute a cause of action. The pleadings are again lacking in the material facts as also the particulars. Who manipulated the votes secured by the petitioner and counted it in the account of respondent No. 1. In what manner the manipulations were made to count illegal votes in favour of respondent No. 1. Nothing has been pleaded in the election petition. The Supreme Court has said time and again that it is basic to the law of elections and election petitions that in a democracy, the mandate of the people as expressed at the hustings must prevail and be respected by the Courts and that is why the election of a successful candidate is not to be set aside lightly. The Supreme Court said that a heavy onus lies on the election petitioner seeking setting aside of the election of the successful candidate to make out a clear case for such relief both in the pleadings and at the trial. The legislature has taken extra care to make special provision for pleadings in an election petition alleging corrupt practice. (Please see R.P. Moidutty Vs. P.T. Kunju Mohammad and Another, ). The purpose of quoting this judgment is to highlight that a case for relief(s) claimed in the petition has to be made out in pleadings as well, and if the pleadings are short in meeting the requirement of Section 83, the result would be non-disclosure of cause of action leading to the rejection of the petition at the preliminary stage before sending it for trial.

The petitioner has also pleaded that the votes polled in polling station No. 64/168 and 66/86 were not counted. From the records annexed with election petition it is shown that in polling station No. 64/168, 428 votes were polled. Even if these votes are counted in the account of the petitioner along with votes of polling station No. 66/86, looking to the margin of votes, nothing material is going to happen.

In Santosh Yadav (supra), the Supreme Court, referring to the scheme of Section 100 has very specifically said that the election of the returned candidate shall not be avoided unless and until it was proved that on accounts of grounds contained in Section 100(1)(d) the result of election, so far as it relates to the returned candidate, was materially affected. Therefore, the grounds relating to the above two polling stands would also not form the part of cause of action so as to maintain this election petition for the relief(s) claimed therein.

So far as prayer for re-count is concerned, the Supreme Court held in Kattinokkula Murali Krishna Vs. Veeramalla Koteswara Rao and Others, that an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course. Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out. In the present case no prima facie case appears to be there for re-count. The petitioner pleaded that a request was made for re-count of votes and the written application for prayer of re-counting was not accepted and the petitioner had to send a letter to the Election Commission of India. It appears to be strange as to why an application made by a candidate or his counting agent would be refused by the Returning Officer. Who was the election agent, who prayed for re-counting of the votes. These facts have not been pleaded with "particulars". All has been mentioned in vague manner. In fact no foundation for re-count has been laid down in the pleadings of the election petition.

In Azhar Hussain (supra), the Supreme Court held that the High Court has power to reject an election petition summarily under the provisions of the Code of Civil Procedure. The purpose of conferment of such power is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. There is greater reason why in a democratic set up, in regard to a matter pertaining to an elected, representative of the people which is likely to inhibit him in the discharge of his duties towards the nation, the controversy is set at rest at the earliest if the facts of the case and the law so warrant. Since the Court has the power to act at the threshold the power must be exercised at the threshold itself in case the Court is satisfied that is a fit case for the exercise of such power and that exercise of such power is warranted under the relevant provisions of law.

After considering the entire facts and circumstances, I am satisfied that it is a fit case for exercising the power contained in Order 7, Rule 11 of CPC. The pleadings are vague and the facts pleaded are short of being "material facts" and "the particulars" as per requirement of Section 83 of the Act. The pleadings also do not disclose that in what manner the result of the election, so far as it relates to returned candidate/first respondent, was materially affected on the averments made in the petition. The petition, therefore, is short of cause of action, which deserves to be rejected.

For the foregoing reasons, I.A. No. 1/2009 is allowed and the election petition filed by the petitioner is rejected.

The parties shall bear their own costs. Order accordingly.