High Court
Facts
ep-22 & 5-2019.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADELECTION PETITION NO. 2 OF 2019WITH EPAP/8/2024 IN EP/2/2019 AND EPAP/9/2024 IN EP/2/2019Dr. Sharadchandra s/o Ganpatrao WankhedeAge : 65 years, Occu : Professor,R/o : “Saiprasad” 32, Maharana Pratap,Housing Society, CIDCO, N-7.Aurangabad, Dist. Aurangabad....PetitionerVersus1) Raosaheb S/o. Dadarao Danve,Age: 65 years, Occu:R/o: Shivaji Nagar, Jalna Road,Bhokardan, Tq. Bhokardan, Dia. Jalna.2) Vilas S/o. Keshavrao Autade,Age: 55 years, Occu:R/o: At Post Palashi,Tq, and Dist. Aurangabad.3) Mahendra S/o. Kachru SonavaneAge: Major, Occu: Social Woric,R/o: Ambedkar Nagar, CIDCO N-7,Aurangabad, Tq. and Dist. Aurangabad.4) Uttam S/o. Dhanu Rathod,Age: Major, Occu: Social Work,R/o: Gurudatt Residency, House No.9.Gat No.175, Satara Parisar, Aurangabad.5) Ganesh S/o. Shankar Chandode,Age: Major, Occu: Social Work,R/o: Rohilla Galli Infront of S.B. School,Smarat Ashok Nagar, Jalna,Tq. and District: Jalna.6) Pramod S/o. Baburao Kharat,Age: Major, Occu: Social Work,R/o: At Post Ahankar Deoolgaon,Tq. and Dist. Jalna – 431203.7) Feroz Ali Shabbir Ali Shaikh, ep-22 & 5-2019.odt(2)Age : Major, Occu : Social Work,R/o: Rahim Nagar, infront of Railway Station,Jalna, Tq. and Dist. Jalna.8) Trimbak S/o. Baburao Jadhav,Age: Major, Occu: Social Work,R/o: Gat No.215/1, Near Bhonai Mandir,At Mharola, Tq. Paithan, Dist. Aurangabad.9) Annasaheb Devidasrao Ugale,Age: Major, Occu: Social Work,R/o: Near Palang Bawadi, Indira Nagar,Old Jalna, Tq. and Dist. Jalna.10) Anita Lalchand Khandade (Rajput)Age: Major, Occu: Social Work,R/o: Row House No.12, Sakir Shrushti,Gat No.70, Satara Parisar, Aurangabad.11) Arun S/o. Chintaman ChavanAge: Major, Occu: Social Work,R/o: Deshmukh Galli, Ajintha Gaon,Tq. Sillod, Dist. Aurangabad.12) Ahemad Rahim Shaikh,Age: Major, Occu: Social Work,R/o: Yusuf Colony, Dukhi Nagar,Old Jalna, Jalna, Tq. and Dist. Jalna13) Dnyaneshwar S/o. Dagaduji Nade,Age: Major, Occu: Social Work,R/o. Priydarshini Colony, Sambhaji Nagar,Tq. and Dist. Jalna.14) Yogesh S/o. Dattu Gullpelli,Age: Major, Occu: Social Work,R/o: Suvarnakarnagar, in front ofGanpati Mandir, Jalna.15) Ratan S/o. Asaram Landge,Age: Major, Occu: Social Work,R/o. Morandi Mohalla,Old Jalna, Tq. and Dist. Jalna.16) Raju S/o. Ashok Gawali,Age: Major, Occu: Social Work,
Legal Reasoning
ep-22 & 5-2019.odt(7)However, in Form 20, the valid votes were shown as 12,08,139. Therewas a difference in these two countings. The Returning Officer failedto maintain the proper record of the total number of valid votes. Afterdeducting the postal votes from the total votes, the total votes were12,03,821. However, as per the record of respondent no.20, the totalnumber of votes polled were 12,02,958. So, there was a difference of863 votes. Respondent no.1, in connivance with respondents nos.20to 22, indulged in tampering with the machines and due to thetampering of the EVM, there was a difference in the number of validvotes. There was prima facie evidence of tampering with the EVMmachines. In view of these facts, the election has been materiallyaffected and deserves to be declared void under Section 100(d)(iii) ofthe Act of 1951. The cause of action arose when the notification of theelection program was published, and the authorities violated therelevant Rules of 1961 and the guidelines issued from time to time.7.In Election Petition No.5 of 2019, similar were thepleadings. In this case, there was a difference of 665 votes in the totalnumber of votes counted, as shown in Form 20. Similar allegations oftampering with the machines in connivance with respondent nos. 36to 38, and benefits to respondent no.1 have been alleged. Since asimilar case has been put forth, the pleadings have not beenreproduced in detail. ep-22 & 5-2019.odt(8)8.The first question to be considered is whether the resultof election has been materially affected due to the difference in votes. 9. In the case of Sanjay Sadashivrao Mandlik (In the matterbetween Dr. Aruna Mohan Mali) Vs. The Election Commission ofIndia and others, Application (Lodging) No.6 of 2020 in ElectionPetition No.15 of 2019 decided on 26.02.2022, it has been held inpara 18 that in Sub Clause (d) of Section 100, the important wordingtherein is the result having been "materially" affected. Therefore, ithas to be pleaded that such non-compliance had materially affectedthe result of the election. It has also been observed that there was avast difference between the votes polled for respondent No.3 andthose for the petitioners. Therefore, it cannot be said that suchviolation, if any, has materially affected the result of the election.10.In the case of Harkirat Singh Vs. Amrinder Singh, 2006AIR (SC) 713, it has been observed that the expression 'material facts'is neither defined in the Act nor in the Code. It may be stated that thematerial facts are those facts upon which the parties relies for hisclaim or defence. In other words, 'material facts' are facts upon whichthe plaintiff's cause of action or the defendant's defence depends.What particulars could be said to be 'material facts' would dependupon the facts of each case, and no rule of universal application canbe laid down. It is, however, absolutely essential that all basic andprimary facts that must be proved at the trial by the parties to ep-22 & 5-2019.odt(9)establish the existence of a cause of action or defence are materialfacts and must be stated in the pleading by the parties.11.Learned counsel for the petitioners has advanced thearguments that the respondents have misread the plaint and believedthat the petitions were filed under Section 123 of the Act of 1951. Shewould submit that the petitioner has no case of corrupt practice. Hercase falls under Section 100 of the Act of 1951. She referred to clause(d)(1) of Section 100. She has vehemently argued that since therewas mishandling of EVM machines, respondent no.1 has improperlyreceived the votes, which has materially affected the elections. Insimple words, she wanted to point out that since there was a variancein the counting of votes, and given in Form 20, the election has beenmaterially affected. Therefore, it is liable to be declared illegal.However, this Court, in the case of Sanjay Mandlik (supra) held that avast difference between the votes polled, it cannot be said that suchviolation, if any, has materially affected the result of the election.Herein the case, there was a vast difference between the votes polledto the petitioner and respondent no.1.12.Learned counsel for the petitioner relying on the case ofA. Manju (supra), has correctly pointed out a defect in the verificationof an affidavit cannot be sufficient ground for dismissal of thepetitioner’s petition summarily, and such an affidavit can be permittedto be filed later. She has also pointed out on the basis of the ratio laid ep-22 & 5-2019.odt(10)down in the case of Sardar Harcharan Singh (supra) that failure tocomply with the requirement as to the filing of an affidavit cannot bea ground for dismissal of an election petition in limine under sub-section (1) of Section 86 of the Act. Non-compliance with theprovisions of Section 83 of the Act, however, does not attract theconsequences envisaged by Section 86(1) of the Act. The defect in theverification and the affidavit is a curable defect.13. She has vehemently argued that the affidavit has alreadybeen on record disclosing the cause of action. She has also pointedout the observations recorded in the case of Saritha S. Nair (supra)that the defect in the prayer made by the petitioner was also a curabledefect. 14.Learned counsel for the petitioner emphasized that thereare no allegations of corrupt practices. However, the petitioner is notexempted from making a concise statement of allegations seeking adeclaration of respondent no.1 void and null. 15. The cause of action is a bundle of facts. The allegationswere of doing something wrong. Collusion with someone requirespleading to believe that the Returning Officer was working under theinfluence of respondent no.1. Reading the pleadings of both theplaint, direct allegations were made against the Returning Officer thathe was working under the influence of the winning candidate i.e.respondent no.1. If the applicant noticed any such mistake, immediate ep-22 & 5-2019.odt(11)action had to be taken. Reading the plaint as a whole, the Courtbelieves that the pleading is insufficient to prove the charges ofsecuring improper votes. It does not constitute the cause of action.16.On scrutinizing the facts of the case and the provisions oflaw referred to by the respective counsels, the Court is of the viewthat the concise statement made in the plaint is not on material factsand it does not have any material effect on the election of respondentno.1. As due to the vast difference between the votes polled to thepetitioner and respondent no.1, it is hard to accept the case of thepetitioner that the election has materially affected the result.17.For the above reason, the Court is of the view that theapplications deserve to be allowed. Hence, the following order :ORDER(i)Application in EP Nos.9 of 2024 and 11 of 2024 are allowed.(ii)The plaints in both suits stands rejected under Order VII Rule11 of the Civil Procedure Code.(iii)Application in EP Nos.8 of 2024 and 10 of 2024 stand disposedof as infructuous. (S.G. MEHARE, J.)Mujaheed//
Arguments
ep-22 & 5-2019.odt(3)R/o. At Post Walsawangi,Tq. Bhokardan, Dist. Jalna.17) Shahadeo S/o. Mahadeo Palve,Age: Major, Occu: Social Work,R/o. At Sultanpur, Post. Khadgaon,Tq. Paithan, Dist. AurangabadPresently R/o. Plot No. 18,Vivek Housing Society, Viveknagar,N-2, CIDCO, Aurangabad.18) Lilabai Dharma Sapkal,Age: Major, Occu: Social Work,R/o. Sangram Nagar,Jalna-Aurangabad Road,Jalna, Tq. and Dist. Jalna.19) Sham S/o. Rustamrao Sirsath,Age: Major, Occu: Social Work,R/o. Behind Priyanka Motors,Old Jalna, Shantinath Nagar,Jalna, Tq. And Dist. Jalna.20 to 22) Deleted...RespondentsELECTION PETITION NO. 5 OF 2019WITH EPAP/10/2024 IN EP/5/2019 AND EPAP/11/2024 INEP/5/2019Vishnu s/o Tulshiram Jadhav,Age : 62 years, Occu : Retired,R/o : Adarsh Colony, Kolher Road,Basweshwar Colony, Georai,Tq. Georai, Dist. Beed....PetitionerVersus1) Smt. Pritam D/o. Gopinathrao Munde,Age: 45 years, Occu: Social Work,R/o: At Post Nathra, Post. Kothali,Tq. Parli Vaijanath, Dist. Beed.2 to 38) Deleted...Respondents...Advocate for Petitioners : Mrs. Priyendra G. Sontakke & Mr. GajananK. Sontakke ep-22 & 5-2019.odt(4)Advocate for Respondent No.1 in EP/2/2019 : Mr. Girish V. Wani &Mr. Sachin S. RandiveAdvocate for Respondent No.1 in EP/5/2019 : Mr. Yogesh Bolkar h/fMr. A.B. GiraseAdvocate for Applicant in EPAP/10/2024 : Mr. Alok M. Sharma... CORAM : S.G. MEHARE, J. RESERVED ON : JUNE 18, 2024PRONOUNCED ON : JULY 05, 2024ORDER :-1.Similar applications under Order VII Rule 11 of the CivilProcedure Code have been filed in both petitions. Hence, they wereheard and decided by a common order.2.The common contentions of the petitioners were that theelection petition does not disclose any cause of action as providedunder Section 100 of the Representation of People Act, 1951 (‘Act of1951’ for short). The petition does not specify any prayer clause as tounder which provisions the said election petition has been tendered.Therefore, the petitioner is unable to file the written statement.3.In Election Petition No.5 of 2019, it has been contendedthat the election petition suffers from compliance with Section 100(1)(d)(iii) of the Act of 1951. The Conduct of Election Rules, 1961,have also not been properly followed. The election has not beenmaterially affected on the grounds of valid votes. The concisestatement of material facts required under Section 83(1)(a) of the Actof 1951 has not been complied with. The petition does not disclose ep-22 & 5-2019.odt(5)the material facts, including the positive statement of facts and thepositive averments of negative facts. The pleading of the petition isbased on vague ballot votes and disclosing without stating thematerial facts, more particularly the material facts in support of theground enshrined under Section 100 (1)(d)(iii) of the Act of 1951.There was no pleading, how many improper votes were received infavour of respondent no.1 and other respondents and how manyrefused or rejected votes were in favour of the petitioner. There is noaccount of invalid votes in favour of the petitioner and how thatmaterially affected the result of the election petition. Objections werenot raised either by the petitioner or his agent about tampering withvoting machines at the time of election or during counting. Thepetition is without grounds mentioned under sub-section (1) ofSection 100 of the Act of 1951. The pleadings are vague. The affidavitunder Form 25 of the Rules 1961 is compulsory as required by theproviso to clause (c) of sub-section (1) of Section 83 of the Act of1951. The mandatory provisions of the law have not been compliedwith. Therefore, the petition deserves to be dismissed under Order VIIRule 11 of the Civil Procedure Code. 4.Both counsels argued and referred to the grounds raisedin their objections mentioned above. Learned counsel Mr. Girase hasrelied on the case of Ram Sukh Vs. Dinesh Aggarwal, (2009) 10 SCC541, Hari Shanker Jain Vs. Sonia Gandhi, (2001) 8 SCC 233, Dr. ep-22 & 5-2019.odt(6)Aruna Mohan Mali Vs. Election Commission of India and Others,2022 SCC Online Bom. 6299 and Manohar @ Sagar s/o PundlikDabrase Vs. Election Commission of India, 2020 (3) Mh.L.J 72.5.Per contra, learned counsel Ms. Sontakke has stronglyopposed the petitions. She would argue that the material facts havebeen specifically pleaded. The special statement required underSection 83 of the Act of 1951 has been attached on Page Nos.89 to 92.Referring to Section 100 of the Act of 1951, she would submit that thecase does not fall under that section. The affidavit under Section83(1)(2) is not mandatory. It is a curable defect. Therefore, anopportunity may be granted to file the necessary affidavit. Shereferred to Section 123 of the Act of 1951 and argued that it is aboutthe corrupt practice. But the petitioner has no case of corruptpractices. She further argued that the necessary provisions have beenstrictly followed. She would submit that it is a case of receipt ofinvalid votes that materially affected the election. To bolster herarguments, she relied on the case of Thangjam Arunkumar Vs.Yumkham Erabot Singh and Others, 2023 DGLS (SC) 912, A. ManjuVs. Prajwal Revanna @ Prajwal R and Others, 2022 AIR (SC) 196,Sardar Harcharan Singh Brar Vs. Sukh Darshan Singh, 2005 AIR (SC)22 and Saritha S. Nair Vs. Hibi Eden, 2021 AIR (SC) 483.6.In Election Petition No.2 of 2019, the petitioner has acase that after 27th round, the total number of votes were 11,97,349.