Election Petition No. 5 of 2011 · High Court · 2012

4. I have heard Mr. S Bharali, learned counsel appearing for the applicant/ returned candidate and Mr. P Sharma, learned counsel appearing for the election petitioner/opposite party. Also perused the Election Petition No. 5 of 2011, Mis c Case No. 3279/2011 as well as objection filed by the election petitioner there on and written argument filed by the parties in Misc Case No. 3279/2011.

5. The responsibility cast on a Court adjudicating an election petition has been spelt out by the Apex Court in a series of decisions. It is the responsibi lity of the Court to find out whether prima facie on the basis of the pleadings sufficient materials are found which warrant trial for determination of issues a rising out therefrom. While sanctity of the election process as well as the verd ict of the electorates reflected on the result sheet of an election is not to be lightly interfered with, equally it is the duty of the Court to see that the el ection process which is the very foundation of our democratic polity founded by the Constitution is not vitiated due to illegal and unscrupulous interference fr om any end. The Court has also to keep in mind that the sword of Damocles need n ot be kept hanging over the head of a returned candidate unnecessarily without p oint or purpose. Hence, irrespective of the objections that might be raised by t he parties, it is the prime duty of the Court to examine the prima facie content s of the election petition to come to a preliminary finding that the statements made therein disclose material facts on the basis of which triable issues within the bounds of the Election laws can be framed for trial. In course of this exer cise, the authenticity, veracity or truthfulness of any statement or fact cannot be judged and all the facts that has been stated in the election petition has t o be presumed to be true.

6. Reminding the aforesaid broad parameters, let us now embark upon a journ ey to the pleadings of the election petition. This election petition has been fi led by the election petitioner who is a candidate fielded by the political party viz, All India United Democratic Front (’AIUDF’ for short) for contesting the e lection to the Assam Legislative Assembly from No. 84, Batadroba Legislative Ass embly Constituency, polling whereof was held on 4.04.2011 and 11.04.2011 in two phases. Counting of votes held on 13.05.2011, result whereof was declared on the same day, i.e. on declaring the applicant herein to be the returned candidate f rom the constituency.

7. Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of the election petition contain general statements regarding the dates of the Schedule of Elect ion, filling of nominations, final list of candidates as well as the general pro cess of polling to be conducted through the EVMs. These statements are prelimina ries and although they do not contain any material facts for adjudication by way of framing of issues, nonetheless they clothe the election petition with basic necessary facts regarding the election process. Paragraphs 14 & 15 of the election petition apparently an allegation tha 8. t the Returning Officer had ignored the guidelines given by the Election Commiss ion of India regarding the storage, inspection of EVMs by the representatives of the candidates. Paragraph 16 contains statements regarding storage of EVMs for use in the constituency during polling process. There is a complaint of short li sting of 2 (two) EVMs, details whereof according to the own admission of the ele ction petitioner is not known to him. These statements made in paragraphs 14, 15 and 16 whether read paragraph-wise or conjointly do not disclose any material f act for framing any adjudicable issue.

9. Paragraph 17 of the election petition contains statements regarding appo intment of Election Agent by the election petitioner. Paragraph 18 states that d uring the process of election till the date of poll (cid:28)the Petitioner had a believ ed that the EVMs mentioned above listed for voting for the purpose of voting in No. 84 Batadroba LAC had been used (cid:29). Paragraph 19 contains statement regarding appointment of (cid:28)Pulling agents for each other polling stations (cid:29) by the election petitioner. It further states that (cid:28)The election agent so appointed by the elect ion petition were communicated to the returning officer in a form in possible on behalf and in term the returning officer as per provision of section 46 of the representation of people Act 1950 duly approved the lint so presented by the ele ction petition containing the name of him polling agent (cid:29). Not to speak of contai ning any basic material fact or allegation meriting trial, in fact the contents of these paragraphs do not even disclose any intelligible information in any acc epted linguistic of English language. Paragraph 20 of the election petition contains statements and material f 10. acts regarding the polling schedule as well as anomalies found in the EVMs which were said to be replaced. After giving the list of such replaced EVMs, the peti tioner contends as below:- (cid:28)The aforesaid table purpose to show that the EVM used in such polling station in either defective or Manipulated in as much as the poll starting time and poll ending time shown in the EVM machine are abnormal which suggest that either the EVMs is defective or there was some manipulation in the EVM machine. (cid:29)

11. Paragraph 21 of the election petition contains statement regarding some defects in some EVMs deployed some particular polling stations followed by state ments in paragraph 22 that at the end of the polling all the EVMs were brought t o the office of the Returning Officer for safe custody and storage with a statem ent that (cid:28)But so far the storage of EVMs No. 84 Batadroba LAC the aforesaid inst ructions were not at all followed. (cid:29) Not to speak of any material facts disclosin g as to how the instruction for storage of EVMs were violated, the paragraphs 21 and 22 also do not contain any material to disclose as to how the violations, e ven if any, had materially affected the result of the election of the returned c andidate so as to raise a triable dispute within the framework of the 1951 Act.

12. Paragraph 23 speaks of appointment of counting agents by the election pe titioner while it is discerned from paragraph 24 that the election petitioner co ntends about replacement of 11 EVMs further stating that (cid:28)It is bound is duty of the election office to made known to the election petitioner and as well as the other contesting candidates. About the replacement of the EVMs, even though fro m amongst the reserved EVMs prior to the date of polling. But the same was not d one by the returning officer which cost a serious doubt about the genenunity of the returning officer and also the transparency in the process of the election w hich is sufficient cause for interference with the election by this Hon’ble cour t (cid:29). Even assuming that the statements made in paragraph 24 are correct and the E VMs were replaced illegally, then also the highest amount of (cid:28)serious doubt (cid:29) as raised by the election petitioner cannot form the basis of a trial so as to give rise to any occasion of fishing and roving enquiry. Further, mere illegality in the absence of further material to show that it has effected materially the res ult of the election of the returned candidate, would render all the statements r edundant and devoid of any cause of action.

13. Paragraph 25 contains statement that on the day of counting, i.e. 13.5.2 011, when the counting was in progress of No.84 Batadroba LAC, the counting agen t of the election petitioner in Table No.1, round No.5, the Poll Start Time (PST ) was shown as 6.53 AM but Poll End Time (PET) was not mentioned, wherein the re turned candidate secured 348 votes, but the election petitioner could only manag e 115 votes against total polling of 528 votes. Paragraph 26 contains similar s tatement regarding securing votes by candidates in respect of PS No. 86 wherein some voters were allegedly deprived of their right of franchise because of early closure of polling with further statement of the polling agent of the election petitioner not reporting the same in time thereby depriving the election petitio ner from filing complaint in time. Similar statements are made regarding Polling Station 150. There is a further statement that the scrutiny of videography of t he counter hall will reveal the fact that the election petitioner had lodged obj ection before the superior authorities. Paragraph 27 contains statement regardin g anomalies found in EVMs used in Polling Station No. 55 wherein an anomaly of 1 0 votes can be prima facie detected. Nothing further can be discerned from the p leadings to even presume as to how this fact could materially effected the resul t of the election of the returned candidate. Paragraph 28 contains statement regarding recording of total turnout of 14. voters in Polling Station No. 5 to be 727 while total number of votes recorded i n EVM being 724 without recording even a single rejected vote. Similar statement is made regarding Polling Station 121 where number of votes polled is shown as 635 while the (cid:28)final list prepared on 12.4.2011 (cid:29) shows the total votes in the EV Ms to be 634 without any recording of rejection of votes. Even assuming these to be correct, these anomalies alone or read with the other alleged illegalities o f the foregoing paragraphs do not disclose the basic potential for affecting the result of the election of the returned candidate so as to give rise to any tria ble issue.

15. Paragraph 29 running for 10 pages contains the names and numbers of 157 polling stations of the constituency. Paragraph 30 quotes the provisions of the Rules 1961. Paragraph 31 contains statement regarding counting of postal ballot s at the commencement of counting process followed by counting of votes register ed on EVMs and recording of total number of votes counted and received in favour of the returned candidate to be 40950 and that of the election petitioner as 40 819 whereby the returned candidate/applicant being declared elected by a margi n of 131 votes followed by statements in paragraph 32 regarding issue of Certifi cate of Return by the Returning Officer in favour of the returned candidate foll owed by a statement that the election petitioner had brought to the notice of th e Returning Officer regarding the anomalies found in the EVMs as well as the num ber of votes differing in form 17 C (cid:28)and the sheet immediately prepared after th e pol, and the number of votes actually found to have been recorded in the EVMs and thereby requested him not to declare the election result but the returning o fficer did not pay heed to it and declared that Sri Gautam Bora elected from No. 84 Batadraba LAC (cid:29). Paragraph 33 contains statement regarding the election petiti oner preferring representation before the Election Commission of India on 18.05. 2011. Paragraph 34 contains allegations regarding violation of the provisions of the 1951 Act and the Rules 1961, result of the election having been materially effected and the returned candidate being not entitled to the Certificate of Ele ction issued in his favour. Paragraph 35 contains statement regarding non-tallyi ng of votes polled recorded in EVM with that of numbers recorded in Form 17C wit h the specific instance of Polling Station Nos. 5 and 151. Paragraph 36 alleges that the final result sheet declared by the Returning Officer does not contain t he correct result based on (cid:28)actual counting votes (cid:29), albeit without furnishing an y material fact to substantiate this statement.

16. Paragraph 37 alleges that the manipulation and tempering of records and preparation of result sheets contrary to the actual number of votes polled by ea ch candidates in the EVM have been done to show undue favour and help to elect the returned candidate thereby vitiating the election of the returned candidate (cid:28)on account of the provisions of section 123(7) of the Representation of Pe oples, Act, 1951 (cid:29). However, even the boldest of such assertions without the basic material facts and particulars to disclose commission of corrupt practice within the ambit of section 123(7) of the 1951 Act do not and can not me rit trial. In the instant case the basic material facts of the person or persons committing such corrupt practice, the manner of commission along with the date, time, place and other ingredients necessary for a valid pleading being absent, the extreme vague statements of paragraph 37 do not merit any trial. In fact it is not understood how the statements made in paragraph 37 are shown in the veri fication as true to his information gathered from the text of relevant document referred to therein. The affidavit purportedly sworn in support of allegation of corrupt practice do not contain any affirmation regarding the statements made i n paragraph 37. Paragraph 38 onwards in the Election Petition are absolutely no t material for any trial except that the Election Petition has been filed in tim e after deposit of the requisite sum under section 117 of the 1951 Act.

17. In the verification to the election petition, the petitioner has stated that paragraphs 28-34 are true to his knowledge and again has stated that paragr aphs 32-40 are true to his information gathered from the texts of relevant docum ents referred to therein, which he believed to be true, i.e. paragraphs 32-40 ar e derived from the record of the case. Thus, paragraphs 32, 33 and 34 are verifi ed as true both from his knowledge as well as from the record of the case.

18. The best attempt of this Court even by way of a broad and liberal approa ch to locate material facts within the ambit of Election Law so as to identify d isputes permissible to be adjudicated in an Election Trial of the instant nature by way of framing triable issues has been faced with frequent violence on langu age with which the pleadings of the Election Petition rest. More often than not it has been difficult for the Court even to find out a plain intelligible meanin g of the statements made in the Election Petition. More than anything else, it d epicts the casual nature in which the mandate of electorates of this country is sought to be questioned in a court of law.

19. The election petitioner has annexed a verification at page 64 of the ele ction petition which do not contain any affidavit as mandatorily required under Order VI, Rule 15(4) of the Code of Civil Procedure. Even if this defect is held to be curable, there is absolutely no verification appended to any of the 14 (f ourteen) Annexures to the election petition. While a defect in verification may be curable, the total absence of such verification, in my view, cannot be cured by any manner as the same will amount to amendment of the election petition itse lf by bringing in materials to cover up the noncompliance of the requirements of Section 83 (1) & (2) of the 1951 Act. It is true that only on that count the el ection petition may not be liable to be dismissed, but while making an attempt t o locate material facts and triable disputes in the pleadings of the election pe tition, this Court will not take the assistance of the contents of such unverifi ed Annexures.

20. As already stated above, the statements made in the paragraphs of the el ection petition are extremely vague, attempts unintelligible and although contai n some allegations of illegalities in the process of recording of votes as well as counting of votes in EVMs, there is absolutely no material discernable from t he pleadings to show as to how these instances of illegalities, even if assumed to be true for the time being, can constitute any ground for declaring the resul t of the returned candidate to be void even by the broadest possible interpretat ion of section 100 (1) (d) of the 1951 Act.

21. Paragraph 37 of the election petition contains a general statement regar ding election being vitiated on account of provisions of section 123(7) of the 1 951 Act. The affidavit appended at page 65, apparently under Form 25 of the Rule s 1961 state that paragraphs 20 and 21 of the election petition contained statem ent of commission of corrupt practice by Returning Officer, more so, while the s tatements made in concerned paragraph 37 has not been sworn in any manner in the said affidavit. While paragraph 20 records the data regarding replacement of EV Ms, paragraph 21 speaks of anomalies/illegalities of the Presiding Officer of so me polling stations and the resultant anomalies allegedly apparent in the matter of recording of votes of EVMs of PS Nos. 57 & 86 of the constituency. Even if t he statements made in paragraphs 20 & 21 are assumed to be correct, they do not even remotely contain any allegation of commission of corrupt practice by the re turned candidate not to speak of the material facts and particulars thereof. Hen ce, the allegation of corrupt practice made in paragraphs 37 read with paragraph s 20 & 21 also do not merit any trial.

22. The applicant, returned candidate in his application in Misc Case No. 32 79/2011 has also pointed out the instances of variations in the contents of the copy of the election petition served upon him and that of the contents of the el ection petition filed before this Court. While noting these variations this Cour t is of the view that although they display the callous attitude of the election petitioner in filing the election petition, the variations do not in any manner infringe the right of defence of the applicant/returned candidate, inasmuch as, he has already apprised himself of the actual contents of the election petitio n. Mr. Bharali, learned counsel for the applicant/returned candidate in sup

23. port of his argument placed reliance on the following decisions : (i) (1977) 1 SCC 515 [Udhav Singh -vs- Madhav Rao Scindia]. (ii) (1984) 2 SCC 1 [Mithilesh Kumar Pandey -vs- Baidyanath Yadav]. (iii) (1986) Supp SCC 315 [Azhar Hussain -vs- Rajiv Gandhi]. (iv) (1987) Supp SCC 93 [Dhartipakar Madanlal Agarwal -vs- Rajiv Gandhi]. (v) (1999) 1 SCC 666 [L.R. Shivaramagowda -vs- T.M. Chandrashekhar] (vi) (2007) 3 SCC 617 [Virender Nath Gautam -vs- Satpal Singh]. (vii) ]. (2009) 9 SCC 310 [Anil Vasudev Salgaonkar -vs- Naresh Kausali Shigaonkar I have gone through the above mentioned decisions and in all the decisio ns the Apex Court made its observations in unequivocal terms that the material f acts as stipulated in Section 83(1)(a) of the 1951 Act must be pleaded by a part y in support of the case set up by him. The material facts are basic or primary facts which are very much essential to clothe the petition with complete cause o f action. Failure to plead even a single material fact amount to disobedience of the mandate of section 83(1)(a) of the 1951 Act and in such a situation, the Hi gh Court has got power to strike out the pleadings under Order 6, Rule 16 of Cod e of Civil Procedure and to reject the election petition under Order 7, Rule 11 of Code of Civil Procedure.

24. On the other hand, Mr. Sharma, learned counsel for the opposite party/el ection petitioner cited the following decisions on the point of verification, af fidavit as well as Section 83(1)(a) of the 1951 Act;- (i) (ii) (iii) (iv) (v) (vi) (vii) AIR 1990 GAU 41 [Rohiteswar Saikia -vs- Tonu Konwar and others]. AIR 1991 SC 1557 [F.A. Sapa etc. -vs- Singhora and others etc.]. AIR 1994 P&H 161 [Avtar Singh -vs- Harcharan Singh Brar and others] (1999) 2 SCC 217 [H.D. Revanna -vs- G. Puttaswamy Gowda & Others]. (2007) 3 SCC 617 [Virendra Nath Gautam -vs- Satpal Singh] (2008) 11 SCC 740 [Umesh Challiyill -vs- K.P. Rajendran]. 2012 (2) GLT 274 [Naba Kumar Doley -vs- Bharat Ch. Narah] I have gone through the aforesaid Judgments and found that the propositi on of law which have been discussed in the said Judgments in respect of Section 83(1)(a) of the 1951 Act are same as discussed in the judgments cited by the Lea rned Counsel for the election petitioner/opposite party. In view of the settled position of law as laid down by the Apex Court regarding pleading of material fa cts, the same do not render any help to the opposite party/election petitioner. The learned Counsel for the election petitioner also referred to the aforesaid d ecisions in respect of curing of defect in the verification as well as affidavit in the election petition. This Court is of the opinion that the basic issue in the instant case is non-pleading of material facts by the election petitioner as stipulated in Section 83(1)(a) of the 1951 Act. Hence, I do not find there is a ny necessity to make further discussion regarding other issues i.e. rectificatio n of the verification and/or affidavit in the election petition.

25. For the foregoing reasons and discussions made above, I find that pleadi ngs contained in paragraphs 1 to 10 being of general introductory nature, they d o not give rise to any triable issue although they may not be unnecessary. Howev er, the statements made in paragraphs 11 onwards till the last paragraphs of the election petition, even if read as a whole, or taken up singly, do not contain any material fact so as to clothe the election petition with any cause of action sufficient to give rise to any triable issue within the ambit of the 1951 Act a nd the Rules framed thereunder. Consequently, there is no alternative but to str ike out the pleadings in these paragraphs and thereafter as a natural consequenc e to reject the entire election petition for the same having failed to disclose any cause of action which I hereby do.

26. No.5 of 2011 is dismissed for want of cause of action. The Misc Case No.3279/2011 thus stand allowed and the Election Petition