NAGPUR BENCH v. Shri Rajendra
Case at a glance
Outcome
Allowed
Hence, Civil Application is allowed and Election Petition is dismissed
Provisions considered
- Representation of the People Act, 1951 ss. 81(3), 83, 83(1), 83(1)(a), 86, 100, 100(1)(d)(iv), 123(7)
- Civil Procedure Act
- Code of Civil Procedure, 1908 ss. 139, 139(c)
- Oaths Act, 1969 s. 3
- Indian Oaths Act
- Constitution of India
Key paragraphs
- Para 66. Lastly, it is contended that the petition is based mostly on 6 hypothesis and inferences and the allegations therein are extremely vague. It is contended that no particulars of any specific instance are given and no details like date, time or names are also…
- Para 77. Shri Bhutda, Advocate for the Election Petitioner has contended that the application has been filed only with oblique motive to delay the disposal of Election Petition. He contends that written statement was also filed belatedly only with that purpose. He points out that insofar…
- Para 99. The objection that Election Petitioner has not supplied true copy or the copies of documents are not certified or that there is no endorsement of oath administering officer on copy of affidavit supplied to Respondent No.1 are basically questions of facts. Respondent No.1 has…
Judgment
also pressed into service in this respect. It is contended that there has to be a specific authorization to enable oath administering authority to administer oath for Election Petition and as there is no compliance with Rule 94-A of Conduct of Election Rules, the Election Petition is liable to be dismissed. It is contention that authorization in favour of Section Officer under High Court Appellate Side Rules is no substitute for compliance with Rule 94-A. The Advocate has contended that judgment of learned Single Judge of this Court in the case of Bhagwan R. Karankal v. Chandrakant, reported at 2000 (Supp) Bom. C.R. 727 does not consider the technical aspect of Rule 94-A and the effect of absence of authorisation in favour of Additional Registrar or Section Officer under the provisions of special rules of this High Court governing the Election Petitions.
Lastly, it is contended that the petition is based mostly on 6 hypothesis and inferences and the allegations therein are extremely vague. It is contended that no particulars of any specific instance are given and no details like date, time or names are also disclosed. It is the contention that the provisions of Section 83(1)(a) and Section 100(1)(d) (iii) and (iv) of Representation of People Act, 1951, are therefore violated. Reliance has been placed on judgments reported at in L.R. Shivaramagowda v. T.M. Chandrashekar, reported at (1999) 1 SCC 666, in Jaipal Singh v. Sumitra Mahajan , reported at (2004) 4 SCC 522, in V. Narayanaswami v. C.P. Thirunavukkarasu, reported at (2000) 2 SCC 294, in Jeet Mohinder Singh v. Harminder Singh Jassi, reported at (1999) 9 SCC 386 and (1995) 5 SCC 347. It is stated that these lacunae are fatal and writ petition is liable to be dismissed and the same cannot be allowed to be removed or cured. Reliance has been placed upon in Regu Mahesh v. Rajendra Pratap Bhani Dev, reported at (2004) 1 SCC 46. It is lastly argued that the lacuna has been pointed out in written statement and also in this application which has been filed in the month of July 2005 and since last about 11 months no steps have been taken by the Election Petitioner to cure them. Therefore, even if it is held that the defects are 7 curable but as sufficient opportunities are already given and has not been utilised by the petitioner, now petition deserves to be dismissed.
Shri Bhutda, Advocate for the Election Petitioner has contended that the application has been filed only with oblique motive to delay the disposal of Election Petition. He contends that written statement was also filed belatedly only with that purpose. He points out that insofar as objection about supply of true and correct copy or endorsement on affidavit or on documents is concerned, no evidence whatsoever has been led by Respondent No.1 to prove the facts on the basis of which the law can thereafter be applied. He states that objections in this respect are to be raised at the earliest possible opportunity and hence even otherwise the present objections are not tenable. He also argues that the objections are curable and substantial compliance is sufficient in the eye of law. He relies upon the judgment of the Hon'ble Apex Court reported at Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar, reported at 2005 (2) SCC 188 to support his arguments.
He states that the burden was upon Respondent No.1 to prove that there was no substantial 8 compliance and as he has failed to do so, this objection is liable to be rejected. Similarly, in relation to the objection about defective verification, it is his contention that the verification has been done as contemplated by provisions of Civil Procedure Code and he further argues that technical requirements on which respondent No.1 is placing reliance are not required to be met with in present matter. He contends that the affidavit in form No.25 as contemplated by Rule 94-A of Conduct of Election Rules is not necessary and affidavit with Election Petition is in accordance with provisions of Order VI Rule 15 of Civil Procedure Code and there is no contradiction between affidavit and the verification. He states that again these objections are to be raised at the earliest and the same are curable. He places reliance upon the above referred judgment of the Hon'ble Apex Court i.e.
Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar (supra) also in support of his contention. He points out that the Hon'ble Apex Court has in this matter considered the earlier judgment in T.M. Jacob vs. C. Poulose, reported at (1999) 4 SCC 274 and has held that if the objections are not removed after they are pointed out within the reasonable time, the Election Petition is liable to be 9 dismissed. According to him, therefore, the application as filed even raising this ground is not tenable and is liable to be dismissed. In relation to competency of Section Officer of this Court to administer oath to the Election Petitioner, he contends that Respondent No.1 is trying to over stretch the requirements. He points out that as per Chapter II Rule 9 of Bombay High Court Appellate Side Rules, this Court has authorised its Section Officer to administer such oath. He states that this is as per provisions of Section 139 of Civil Procedure Code and hence no objection in this respect can be raised.
He further points out that the affidavit otherwise meets the requirement of Rule 94-A and also form No.25 and as such the objection should be rejected. He invites attention to the judgment of this Court reported at Bhagwan R. Karankal vs. Chandrakant, reported at 2000 (Supp.) Bom. C.R. 727 to state that identical issue has been considered by the learned Single Judge of this Court in Election Petition and oath administered by the Additional Registrar of this Court has been held to be valid. He states that same law needs to be followed here. He contends that the objection raised that authorisation in favour of Section Officer under Appellate Side Rules is not valid as there is no 10 authorisation in his favour under the Rules framed by the Bombay High Court for trial of Election Petitions is misconceived and he states that perusal of all provisions show that the only intention is to fasten liability and responsibility upon deponent for facts disclosed by him in such affidavit.
He states that the Section Officer is Commissioner of oaths as contemplated by Section 3(2)(a) of Oaths Act and hence the objection as raised is liable to be rejected. He states that Bombay High Court Appellate Side Rules are framed by the High Court under Section 122 of Civil Procedure Code. He also contends that the insistence upon words “in this behalf” used in Section 3(2) of Oaths Act by Respondent No.1 is not proper and the Oaths Commissioner can administer oath for any judicial proceedings.
About the pleadings, he contends that in view of the provisions of Order 7 of Civil Procedure Act, defect, if any in this respect is not fatal and opportunity needs to be given to the Election Petitioner to cure the lacuna if any. He further contends that the basic challenge of Election Petitioner is to the violation of guidelines by its Election Commissioner and it is 11 covered by Section 100(1)(d)(iv) of Representation of People Act and necessary pleadings are already incorporated in the Election Petition. He states that the effort of Respondent NO.1 is only to harass the present petitioner and hence frivolous objections have been raised. According to him, there is no merit in the application and the same is liable to be dismissed.
The objection that Election Petitioner has not supplied true copy or the copies of documents are not certified or that there is no endorsement of oath administering officer on copy of affidavit supplied to Respondent No.1 are basically questions of facts. Respondent No.1 has not adduced any oral evidence before this Court to show that these defects exist. He has also not produced on record the copies of Election Petition or documents or affidavit served upon him by Election Petitioner so as to enable this Court to note the alleged non-compliance. It is, therefore, clear that the non-compliance itself has not been established. In this respect when the judgment of the Hon'ble Apex Court in Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar, (supra) is 12 looked into, the Hon'ble Apex Court has held that the provisions of Section 81(3) in relation to attestation by the petitioner under his own signatures to be true copy only need substantial compliance and the said defects are curable and non fatal in nature. The Hon'ble Apex Court has in paragraph 18 of this judgment found that the fact of service of copies by Election Petitioner on respondent therein was not proved and High Court could not have relied upon the copies of Election Petition alleged to have been supplied by Registry of High Court to learned counsel for Respondent No.
Thereafter in paragraph 20, the Hon'ble Apex Court has also noted that objection in this respect was not taken immediately and application under Order 7, Rule 11 of Civil Procedure Code was filed after more than one month. The Hon'ble Apex Court noted that if the objection is removed immediately and there is substantial compliance, the matter cannot be dismissed. If despite opportunities such defects are not cured then only the Election Petition can be dismissed.
Shri Bhutda, Advocate has relied upon the provisions of Rule 8 of Bombay High Court Rules in regard to Election Petitions under 13 Representation of People Act as contained in Appendix II of Bombay High Court Original Side Rules, 1980. The said rule required the office to examine the petition with a view to see whether it is in conformity with requirements of law and rules applicable to the same and if it is not so, to raise objections which are then to be removed by the party or advocate concerned. The Rule also specifies that these objections are to be removed by concerned party or by advocate after two days after the office brings the same to their notice as contemplated in Rule 7. The argument is in present case, office did not raise any objection about verification or about affirmation or about supply of true copies and as such the petitioner has been deprived of opportunity available to him to remove the same within two days after the same were brought to their knowledge.
Learned counsel for Respondent No.1 has contended that objections have in fact been brought to the knowledge by present Respondent No.1 immediately in July 2005 itself. It is the argument that the objections of present nature are not covered under Rule 8 and office is not expected to point out such objections about which arguments are 14 required to be advanced and the Court is required to adjudicate. The contention is only non-fulfillment of provisions or any lacuna which can be noticed by clerk like absence of signature, absence of proper court fee etc. are contemplated under Rule 8. As this Court has already held that the objections of present nature are not fatal and the petitioner is to be given opportunity to remove the same and if after grant of opportunity he does not remove them, then only the matter can be dismissed; it is not necessary to consider scope of above referred Rule 8. Here, the very existence of these defects itself is not established.
In this respect, perusal of judgment of Hon'ble Apex Court in Kamal Nath v. Sudesh Verma, (supra) reveals that the Hon'ble Apex Court there, after considering Rule 94-A of Conduct of Election Rules and also Form 25 therein has recorded a finding that the affidavit filed in support of Election Petition disclosing source of information in respect of commission of corrupt practice is must in view of Section 83(1) of Representation of People Act. In paragraph 6 thereof, the Hon'ble Apex Court has considered the contents of Election Petition to hold that there was no infraction of proviso to Section 83(1) so as to reject the petition on that 15 score at threshold.
In this respect reference is already made to the judgment of the Hon'ble Apex Court reported at Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar, (supra) to point out that the requirements being considered here are not fatal and substantial compliance therewith is sufficient. It has been held that mere defect in verification would not warrant rejection of Election Petition at threshold and a defective affidavit would not entail in limine dismissal of Election Petition. Such defects have been held to be curable.
Rule 94-A of Conduct of Election Rules, 1961 requires that the affidavit referred to in proviso to sub-section (1) of Section 83 is to be sworn before the Magistrate of First Class or a Notary or a Commissioner of Oath and shall be in form 25. The form of said affidavit i.e. form 25 shows the requirements of affidavit in this respect. In present case the affidavit has been sworn before Section Officer of this Court. Respondent No.1, therefore, states that affidavit as filed does not meet the 16 requirements of Rule 94-A and hence the affidavit is liable to be ignored and consequently the Election Petition is also liable to be dismissed. Respondent No.1 has pointed out this High Court has framed rules in regard to Election Petitions and Section Officer is not one of the persons authorised to administer oath for that purpose. Under the Original Side Rules in view of Rule 28 of these Rules in regard to Election Petitions. It is, therefore, stated that the Oath administered by the Section Officer is incompetent.
As against this, the Election Petitioner has invited attention to provisions of Section 139 of Civil Procedure Code and also to provisions of Chapter II Rule 9 of Bombay High Court Appellate Side Rules to state that Section Officer has been authorised to administer oath as per High Court Appellate Side Rules and hence the affidavit sworn before him is competent. Both the advocates have invited attention to the judgment of this Court in Bhagwan R. Karankal v. Chandrakant, (supra) which actually is in favour of Election Petitioner and against the stand of Respondent No.
1. However, Respondent No.1 has contended that the issue whether oath 17 administered by an authority under High Court Appellate Side Rules can be treated as valid for the purposes of Rule 94-A has not been gone into in this ruling.
As already discussed above, failure to file appropriate affidavit or failure to verify by itself is not fatal and opportunity needs to be given to Election Petitioner to cure the defect. Similarly, the other objections about the contradiction in verification and affidavit is required to be considered in the light of pleadings in Election Petition and therefore is being considered little later while trying to find out whether the petitioner has made out any case so as to show accrual of cause of action in his favour.
The judgment of learned Single Judge of this Court referred to above in paragraph 15 considers the provisions of Rule 28 of Bombay High Court Rules in regard to Election Petitions and finds that when there is no provision made in the Representation of People Act or in the Civil Procedure Code or those rules, rules of Bombay High Court on Original Side are to be looked into. Thereafter Rule 44 of these Original Sides Rules 18 is looked into to note that it provides for mode and manner of verification of plaints. Rule 126 of Original Side Rules and 197 thereof has thereafter been looked into and it is observed that the Additional Registrar or Section Officer at Benches is not covered therein. After recording this finding, in view of Rule 28, the learned Single Judge has then referred to provisions of Section 139 of Civil Procedure Code and has found that an officer or other person appointed by High Court in this behalf is competent to administer oath.
It is also observed that provision requires specific appointment or authorisation in the name of that officer by his designation as either Additional Registrar or Assistant Registrar or Section Officer as the case may be. Paragraph 17 shows that no such authorisation was produced before this Court in that matter. Thereafter in paragraph 19 provisions of Order VI, Rule 15(1) of C.P.C. and Bombay amendment thereto are considered and it has been observed that even reading of this provision makes it clear that a reference has to be made only to Section 139 of the Code of Civil Procedure. Again observation is no such authorisation under Section 139 in favour of Additional Registrar was placed before it. Then provisions of Rule 9 of Chapter II are considered in 19 paragraph 20 and the contention of Election Petitioner there (Shri Bhagwan) that said rules would apply mutatis mutandis to all proceedings has been considered.
In paragraph 22, this Court then observed that their definitely was a missing link so far as issuance of authorisation in the name of Additional Registrars of Benches of High Court was concerned. However, then it is observed that it will not make Additional Registrars of the Benches of the Bombay High Court incompetent to administer oath or get the verification done. Then provisions of Chapter III in Part II of the Bombay High Court Appellate Side Rules are referred and it is noted that Rule 2 thereof provides for entitling of affidavits relating to proceedings in High Court and Rule 3 speaks of entitling of affidavits in respect of cause not in High Court. Then the question as to when these provisions of Appellate Side Rules can be brought into operation in Original Side Rules has been considered and it has been observed that the Benches at Aurangabad, Nagpur and Goa do not have Original Side Benches except such specially assigned work of election petitions and hence that was the reason why post of Additional Registrar or Section Officer did not figure in Rule 197 of the High Court Original Side Rules.
It is further observed that 20 it did not mean that if said affidavit was sworn before the Additional Registrar or Section Officer, it will be totally illegal. The provisions of Oaths Act, 1969, particularly Section 3(2) has been relied upon for this purpose. The similar issue dealt with by the Hon'ble Apex Court in Kamal Narain vs. Dwarka Prasad, AIR 1966 SC 436 has also been considered and it has been noted that when affidavit done before the clerk of the District Court who described himself to be officer for administering oath in view of his appointment as such by District Judge under Section 139(c) of Civil Procedure Code, the affidavit was before the competent person as contemplated by Rule 94-A of Conduct of Election Rules, 1961. The Hon'ble Apex Court has held that Rule 94-A does not make any difference between oath administering authority as done by Section 139(c) of C.P.C. or old Section 539 of Criminal Procedure Code.
View in an earlier unreported ruling of this Court in Election Petition No. 3 of 1992 decided on 10.2.1992 has also been relied upon to note that an officer of High Court who has been authorised by it to administer oath is a Oath Commissioner under the Indian Oaths Act and therefore affidavit sworn before the Associate of High Court was held to be competent. 21
Provisions of Chapter II Rule 9 of Bombay High Court Appellate Side Rules show that authorisation by High Court in favour of its Section Officer. Said authorisation is not limited only to proceedings on appellate side. Said authorisation when read with Section 3 of Oaths Act, 1969, reveals that Section Officer is Oath Commissioner under Indian Oaths Act and therefore affidavit sworn before him is covered by Rule 94-A of Conduct of Election Rules, 1961. Even otherwise, the purpose of affidavit is only to fasten the responsibility for statements made in Election Petitions and that requirement stands satisfied in the matter even if it is held that technically the oath administered by Section Officer does not meet requirement of Rule 94-A. The swearing of affidavit is important and that has been done in the present case and hence I find that there is substantial compliance of Rule 94-A. The objection in this respect is, therefore, rejected.
Verification filed with the Election Petition is as under:
I, Vasantrao s/o Balajipant Itkelwar, the petitioner herein, do hereby state that I am fully acquainted with the facts of the 22 case. I further say that the contents of above paragraphs No. 1, 3 to 6, 22 and 25 to 29 of the above petition are true to my own knowledge. I further say that the contents of paragraphs No. 10 to 12 are based upon the information received by me and believed by me to be true. I further say that the contents of above paragraphs No. 2, 7 to 9, 13 to 21, 23 and 24 are partly based on my personal knowledge and partly on the information received by me which I further believe to be true. Hence, verified and signed at Nagpur on this 30th day of November 2006. Sd/-V.B. Itkelwar PETITIONER.
Thus, it is clear that the petitioner has disclosed that certain parts are true to his own knowledge. Contents of paragraphs 10 to 12 are stated to be based upon the information received by him and believed to be true by him. However, source of information has not been disclosed either in the verification or in the pleadings. The contents of paragraphs are stated to be partly based upon personal knowledge and partly upon information received and believed to be true by the petitioner. Again what facts in those paragraphs are based upon his personal knowledge and what facts are as per information received him is not specified. Here 23 also, the source of information is not disclosed. The facts in paragraphs 2, 7 to 9, 13 to 21, 23 and 24 which may be based on personal knowledge of the petitioner are not verified to be true and correct. The portion thereof which is based upon information is again not specified to be true and correct. It is only stated that petitioner believes that information received by him is true without disclosing the source.
In this background, when affidavit which is filed separately in support of petition is looked into, after formal paragraph in relation to name, age, occupation and taking of oath, the petitioner has stated that the petitioner has been drafted by his advocate as per his instructions and information provided to the advocate by the petitioner. In paragraph 2, it is stated that the contents of said petition are read over to him in vernacular and he has fully understood the contents of paragraphs 1 to 29 i.e. the entire petition. He further states that those contents are true and correct to the best of his knowledge and belief. Again, it is apparent that the petitioner has not stated that the contents are true to his knowledge. Why he has used the word “belief” in affirmation is not clear but that 24 again creates a doubt about the strength of affirmation itself as it cannot be said that it is solely based upon the knowledge of the petitioner. These comments upon verification or affirmation accompanying the Election Petition will assume importance when the objection of Respondent No.1 in relation to absence of pleadings or making up a case against him will be considered.
In L.R. Shivaramagowda vs. T.M. Chandrashekhar, (supra), the Hon'ble Apex Court has while considering this aspect of proper affidavit in paragraph 16A found that the affidavit along with the Election Petition did not disclose source of information and it also did not set out which part of Election Petition was personally known to him and which part came to be known by him on information. The Hon'ble Apex Court also observed that the affidavit before it stated that certain averments therein were true to the information of petitioner but the affidavit particularly paragraph F was found to be silent about it. It was also noticed that affidavit was not in conformity with the prescribed form No. 25. It was further observed that thus there was failure to comply with Rule 94-A of the Conduct of Election 25 Rules, 1961 and as such it was very serious defect which was overlooked by the High Court.
In V. Narayanaswamy vs. C.P. Thirunavukkarasau, (supra), the Hon'ble Apex Court has observed that the affidavit and verification with the Election Petition must satisfy the requirements of Rule 94-A of Conduct of Election Rules, 1961 and Section 83(1) of Representation of People Act. It has been observed that the affidavit has to be in form No. 25 and the petitioner is obliged to disclose his source of information. He has to specifically state which of his allegations are true to his knowledge and which allegations are true to his knowledge on information received and believed to be true by him. The Hon'ble Apex Court has observed that it is not the form of affidavit but i is its substance that matters. The Hon'ble Apex Court has found that if there is any lacuna in this respect, the Election Petition is liable to be rejected at the threshold. However, it is here to be noted that subsequent ruling of Hon'ble Apex Court in Chandrakant Uttam Chodankar vs. Dayanand Rayu Mandrakar, (supra) had not accepted such rejection at the threshold because of such lacuna 26 and it has been held that the petitioner is entitled to an opportunity to remove/ cure that lacuna and if the objections are not removed after grant of opportunity then only the Election Petition can be dismissed.
Rule 94-A of Conduct of Election Rules, 1961, reads as under : “The affidavit referred to in the proviso to sub-section (1) of section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25.” Perusal of Form No. 25 prescribed therein reveals that the affidavit requires specification of corrupt practice and particulars thereof as mentioned in the affidavit and also specifically requires that the petitioner has to state that the same are to be true to his knowledge and has also to specify the allegations which are true to his information. It is apparent that the present affidavit and verification does not meet these requirements. However, it is also clear that the petition itself cannot be dismissed on this count.
The provisions of Section 100 of Representation of People Act, 1951, are pressed into service by Respondent No.1 to point out the strict 27 requirements of pleading. It is apparent that the allegations in the Election Petition may at the most constitute corrupt practice under Section 100(1)(ii) i.e. corrupt practice committed in the interests of returned candidate by an agent other than his election agent or under (iv) which speaks of any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the Act. The provisions of Section 83 require Election Petition to contain concise statement of material facts relied upon by the petitioner. The petitioner has to set forth full particulars of any corrupt practice and has also to give full 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.
In case the petitioner alleges any corrupt practice, the Election Petition is to be accompanied by an affidavit in prescribed form in support of allegations of such corrupt practice and particulars thereof. Section 123 which defines corrupt practice in its sub-section mentions that it is obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent, or by any other person by consent of a candidate or his election agent, any assistance (other than the giving of vote) for the 28 furtherance of the prospects of that candidate's election, from any person in the service of the Government like Gazetted Officers, stipendiary judges and magistrates; members of the armed forces of the Union; members of the police forces; excise officers and revenue officers or such other class of officers as government may prescribe. It is, therefore, clear from bare reading of this provision that the details as to the officers or persons from whom Respondent No.1 is alleged to have sought help for getting himself elected need to be expressly pleaded with time, date of its commission.
The learned counsel for the Election Petitioner has in arguments stated that it is corrupt practice under Section 100(1)(d)(iv) which has been alleged in Election Petition. Thus, the petitioner states that election of present respondent No.1 is liable to be quashed and set aside on account of non compliance with provisions of Representation of People Act or Rules or Orders made under that Act.
In this respect when the law on the point as settled through various judgments is looked into, the perusal of judgment in L.R. Shivaramagowda vs. T.M. Chandrashekar, (supra) reveals that in an 29 Election Petition to secure an order to declare election to be void under Section 100(1)(d)(iv), it is absolutely necessary for the Election Petitioner to plead that the result of election insofar as it concerns the returned candidate has been materially affected by alleged non compliance with the provisions of the Act or Rules. The Hon'ble Apex Court in paragraph 10 of its judgment has found that in the absence of such averment or an averment that appellant before it spent for election an amount exceeding the prescribed limit, it was not open to adduce evidence to that effect. The Hon'ble Apex Court has noted that these two matters are material facts which ought to find place in election petition if effort is to have election set aside on the basis of such facts.
In paragraph 11, the Hon'ble Apex Court has pointed out difference between material facts and material particulars. It has been observed that while failure to plead material facts is fatal to the election petition and no amendment of pleading can be allowed to introduce such material facts after the time limit prescribed for filing of election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. In paragraph 11 of judgment, the Hon'ble Apex Court has made reference 30 to earlier case between Balwan Singh vs. Lakshmi Narain, reported at AIR 1960 SC 770 and observed that Constitutional Bench held that an Election Petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. The Court found that the alleged corrupt practice of hiring a vehicle for the conveyance of the voters to the polling station was sufficiently set out in the pleading and full particulars thereafter were therefore required.
It has been held that Section 83 was duly complied with, even if the particulars of the contract of hiring as distinguished from the fact of hiring is not given. Again in paragraph 13, the Hon'ble Apex Court has noted that primary facts which need to be proved at the trial by a party to establish the existence of a cause of action or his defence, are material facts. Reference has been made to its earlier judgment in the case of Udhav Singh vs. Madhav Rao Scindia, reported at (1977) 1 SCC 511, and it has been observed that in the context of a charge of corrupt practice “material facts” would mean all the basic facts constituting the ingredients of the particular corrupt practice, which the election petitioner is bound to substantiate in order to succeed on that charge. All those 31 facts which are essential to cloth the petitioner with a complete cause of action are material facts and the same must be pleaded and failure to plead even a single material fact has been held disobedience of the mandate of Section 83(1)(a).
“Particulars” are stated to be the details of the case set up by the election petitioner. “Material particulars” envisaged by clause (b) of Section 83(1) are found to mean all details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). The Hon'ble Apex Court says that “particulars” serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative. Section 83(1) (a) requires a concise statement of material facts i.e. entire bundle of facts which would constitute a complete cause of action. The High Court had declared the election of appellant before the Hon'ble Apex Court illegal but the Hon'ble Apex Court set aside that judgment and allowed the appeal before it.
In V. Narayanaswamy vc. C.P. Thirunavukkarasu, (supra) is the 32 other judgment of the Hon'ble Apex Court which considers the distinction between material facts and material particulars. In paragraph 28, the Hon'ble Apex Court has found that the allegation of appellant was that MLAs were “kept” in Hotel Ashoka but no particulars as to what he meant by the word “kept” were given. Hon'ble Apex Court noted that “Kept” is certainly not “confined”. The Hon'ble Apex Court found that what entertainment was provided to those MLAs in Hotel Ashoka, Pandicherry or in five star hotels in Mahabalipuram was also not specified. It found that it was not the case that the appellant was prevented in any way from meeting any of those MLAs and Hon'ble Apex Court found that all this constituted material fact which ought to have been pleaded and appellant failed to plead it. In para 17, the Hon'ble Apex Court has stated that under Order 7 Rule 11 of Civil Procedure Code, the Court has to reject the plaint where it does not disclose the cause of action. It has been observed that while scrutinising a preliminary objections, test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made by him in the petition are proved to be true. For the purposes of such preliminary objection, the averments made in the Election Petition 33 should be presumed to be true and the Court has to find out whether those averments disclose the cause of action or a triable issue. It has been also observed that the Court could not probe into such controversy on the basis of pleadings in the counter. It is further found that defect in relation to material particulars can be allowed to be cured but if the petitioner failed to cure that defect inspite of opportunity given to him, Election Petition is to be rejected.
In Jaipal Singh vs. Sumitra Mahajan, (supra), the Hon'ble Apex Court has considered the question whether Election Petition filed by the appellant before it was lacking in material facts as required under Section 83(1)(a) of Representation of People Act. The respondent submitted his written statement to High Court in answer to Election Petition and raised objection that Election Petition was liable to be dismissed as the appellant had not disclosed material facts as to on which date he received communication regarding acceptance of his application for voluntary retirement. The High Court framed preliminary issue to find out whether the petition lacked in material facts and did not disclose cause of action. 34 The High Court found that under Section 83(1)(a) of Representation of People Act, it was necessary to give a concise statement of material facts and there was failure on the part of the petitioner before it to plead that his application for voluntary retirement was accepted by the appointing authority before the date of scrutiny and that his request for waiver of notice period of three months was actually accepted. In view of absence of this discloser, the High Court dismissed the election petition. In paragraph 7 the Hon'ble Apex Court has found that material facts are the facts necessary to formulate a complete cause of action and omission to state single material fact leads to an incomplete cause of action and consequently, the plaint becomes barred. The Hon'ble Apex Court did not find any substance in the arguments advanced by the appellant that the acceptance of his voluntary retirement by his appointing authority was not required as there was no difference between “voluntary retirement” and “resignation”. The Hon'ble Apex Court has therefore maintained the judgment of High Court.
Jeet Mohinder Singh vs. Harminder Singh Jassi, (supra) is the 35 judgment of the Hon'ble Apex Court which lays down that details of corrupt practice are required to be given. Paragraph 40(iv) considers provisions of Section 83 of the Representation of People Act and states that names of parties alleged to have committed such corrupt practice and date and place of its commission are required to be pleaded.
Thus, the pleadings in the present matter are required to be considered in the light of provisions pointed out above and these observations of the Hon'ble Apex Court.
The perusal of prayer clause shows that there is only one prayer to declare that Election of Respondent No.1 is void and therefore it should be set aside. In paragraph 2 of the Election Petition, it has been mentioned that Electronic Voting Machines were used for polling of votes and as Respondent No.2 – Returning Officer did not follow the mandate of statutory rules and orders during election process, election has been materially affected and is liable to be set aside. Paragraphs 3, 4, 5 and 6 thereafter give the personal history of petitioner and the various development works undertaken by him or completed by him in the 36 Constituency. Thereafter in paragraph 7, it is stated that because of this, the petitioner reasonably expected to be re-elected. In paragraph 8 it is stated that even in the opinion polls taken before the date of polling, the petitioner was found to be a front runner, however, when the results were declared on 16.10.2004, the petitioner was shocked as also his supporters.
Independent observers also expressed their shock, surprise and even dismay on the loss of the petitioner at the hands of Respondent No.1. The petitioner secured 6668 votes while Respondent No.1 secured 66539 votes. The petitioner has stated that this margin itself was too big to be believed and because of this, many of petitioner's constituents complained about the possibility of tampering with Electronic Voting Machines by and/ or at the behest of Respondent No.1. It is stated that Respondent No.1 runs an Engineering College at Umred and had expert personnel available who can tamper with Electronic Voting Machines. It is further stated that wife of Respondent No.2 – Returning Officer has also worked in that Engineering College of Respondent No.1 and hence there was definite nexus between Respondent No.1 and Respondent No.2 and this proximity would obviously facilitate the effort of Respondent No.2 to 37 tamper with machines.
After getting these inputs from his constituents, the petitioner states that he has followed the matter at different levels and ultimately came to the conclusion that Electronic Voting Machines were tampered with and the result of the Election is vitiated. It is, therefore, apparent that even after loosing by margin almost 60000 votes, Respondent No.1 himself never felt that it was on account of tampering with Electronic Voting Machines. The said doubt was created by his constituents and again there is no definite statement made that Respondent No.1 on account of proximity (alleged) with Respondent No.2 succeeded in rigging Electronic Voting Machines. It is stated that after getting these hints from his constituents, the petitioner followed the matter at different levels and ultimately came to a conclusion which supported by strong grounds. The names of constituents who gave these inputs, the different levels at which matter was followed by the present petitioner or the strong grounds for coming to this conclusion are not disclosed in this paragraph.
In paragraph 9 it is stated that earlier also the petitioner had received information about the unreliability of EVM and there were several reports about the possibility of tampering with EVM. 38 He has also stated some earlier instances in which EVM were tampered with were also known to the petitioner. It is stated that on 14.10.2004, a report appeared in Maharashtra Times confirming his apprehensions that EVMs used in Elections in Mumbai actually wrongly recorded the votes. The petitioner, therefore, has stated that this was alarming and posed a question as to what should be done to those cases which have gone undetected. It is, therefore, contended that it was of utmost importance to ensure that safety measures were followed scrupulously and then he has stated that Respondent No.3 has not followed the prescribe measures in this respect. Thereafter, it has been stated that during election process or prior to date of voting, the EVMs were not properly kept by Respondent No.2 and that left huge scope for manipulation and tampering of EVMs.
It is stated that the EVMs with recorded votes were also not kept in strong rooms as required by law and prescriptions in this respect were not followed by Respondent No.2. It is further stated that several other safeguards like conduct of mock poll were not complied with by Respondent No.2 and that left the scope for doubt that everything was done with deliberate and malafide intention to assist a particular 39 candidate in manipulating the EVMs. It is further stated that there are other surrounding circumstances which support the above submission of the petitioner. It is, therefore, apparent from this paragraph 9 that the petitioner was aware even before elections about unreliability of EVMs and also about its alleged vulnerability to tampering or mal-function. He has never stated that as safety norms were not followed and EVMs were not properly kept, there was scope for manipulation and tampering.
Whether any EVMs at any place was actually tampered with has not been specifically pointed out. Paragraph 10 is of general nature which shows that after gathering some information, it has come to his knowledge that EVMs can be tampered within 5 to 10 minutes. Again complaint has been made that law provides for certain safeguards to avoid such tampering but those safeguards were not followed. Then in paragraph 11, there is reference to one expert in the field by name Dr. Satinath Choudhary and alleged demonstration by him by using Microsoft Windows 98 on a Compaq PC about simulation and programming of EVM to add and credit votes to only one candidate though votes were cast in favour other candidate. There is also description of expert Dr. Choudhary and his 40 opinion. Then there is reference to another expert Shri Ravi Visvesvaraya Prasad and his article in “Indian Express” dated 5.5.2004 about EVMs containing several flaws and possibility of tampering.
The petitioner has stated that even in strong rooms, EVMs are not safe because an expert who knows the resonance frequency of the circuit could remotely send signals from a distance away and it is possible in the natural course of handling of EVMs and their transportation from one place to another that its components could be reset. The petitioner states that therefore it was suggested that all EVMs should have paper back up. Again it is to be noted that there is no material fact pleaded by the petitioner anywhere in this paragraph. In paragraph 12, there is reference to use of EVMs in America and safeguards like paper trail. It is stated that entire data disclosed by the petitioner make it clear that EVM are open to manipulation and tampering. In paragraph 13 it is stated that Election Commission of India has issued detailed guidelines to check the veracity of the machine at different stages during the election process and all these safeguards are external safeguards.
It is the case of the petitioner that there is no method of checking or verifying internal components of 41 machine and to find out whether they are working properly or whether they are manipulated or tampered with. It is stated that internal testing of the machine is done by an employee of manufacturing company and therefore if one is able to exert some influence on the said employee then at that stage itself, the scope for manipulation exists and desired programming can be inserted. It is further stated that after this stage, there is no check on internal components. Again there is reference to opinion of expert Shri Ravi Visvesvaraya Prasad and it has been stated that EVMs can be programmed to accurately record votes for 3 hours and to record 70% of subsequent votes in favour of any particular candidate thereafter. In paragraph 14, it is further stated that Election Commission of India has issued guidelines and rules framed statutorily as well providing for checking of the machines at different process at different stages.
The first stage is stated to be preparation of EVMs by Returning Officers. The next stage is stated to be mock poll. The further stage is stated to be conducting trials even during the process of actual polling. It is the contention of the petitioner that all these provisions are made so as to minimise the possibility of tampering and at least to bring about a 42 sense of fairness and transparency in the entire process. It is stated that Respondent No.2 – Returning Officer did not observe this procedure and again grievance is made that EVMs were not kept in safe custody. It is stated that law requires that the control units are to be kept in strong room and Respondent No.2 did not keep these instructions in any strong room. It is contended that so called strong rooms could be breached very easily. It is further stated that no mock poll was conducted by Respondent No.2 and machines were not prepared in accordance with law.
No mock poll was conducted before actual election started. According to him, all this materially affected the purity and fairness of the election process. In paragraph 15 it has been stated that vulnerability of EVMs was always prime concern throughout the democracy and reference has been made to instructions issued by the Election Commission of India to the Returning Officer and other concerned officers and it has been stated that several provisions have been made so as to secure the EVMs against possible tampering / manipulations. Reference has been made to “Hand Book for returning officers issued by the Election Commission of India” in the year 2004 and it is stated that as per that handbook every 43 machine has to be thoroughly tested for its 100% error free functioning at the time of poll and the process of preparation of machine has to be done in the presence of the candidates. In paragraph 16, it is further stated that in India there is no competent authority independent of the machine manufacturing company to verify its reliability for its certification as being tamper proof.
The petitioner has expressed that there has to be some such authority. Reference has been made to State Certification Procedure adopted in United State of America. It is again reiterated that there is huge scope for manipulation at this level. It is further stated that all this left scope for hijacking of the vote as has apparently happened in the present case at the instance of Respondent No.1. In paragraph 17, it is again repeated that none of the security measures provided for were followed by Respondent No.2 and strong room was not kept fully guarded and strong room was not under the charge of Senior Officer not below the rank of Deputy Superintendent of Police. There were no double locks on strong room as contemplated and duty to guard machines was entrusted to junior officer. It is stated that CRPF could have been used on duty but that was not done. No notice about date and time of opening of strong 44 room was given and hence clause 18.1 to 18.4 of the Hand-book is breached. It has been stated that all this cast serious doubt on voting in favour of Respondent No.1.
In paragraph 18, it is stated that rules provided for random checking of EVMs and said random checking was not done in present election. It has been mentioned that even after counting in United State of America, at least 10% of the machines are tested and checked before actual declaration of the results. He states that in India there is a provision for random checking of machine even during the course of polling. It is complained that Respondent No.2 and his subordinates did not comply with this requirement. The petitioner has concluded that safety of machines was thrown to the winds with the sole intention to provide scope for manipulation to Respondent No.1.
In paragraph 19, there is reference to instructions issued by Election Commission of India about conducting mock poll and it is stated that no such mock poll was conducted in present case. It is stated that 45 had mock poll been conducted, the manipulation done at the instance of Respondent No.1 could have been possibly detected at that stage itself. It is stated that Respondent No.2 – Returning Officer deliberately avoided to follow guidelines and therefore petitioner reasonably believes that it was only done in order to assist and abet the tampering of machines at the instance of candidate i.e. Respondent No.1.
In paragraph 20, there is reference to debate in United State of America about reliability of EVMs and it is stated that petitioner has collected data about the various methods by which EVM is likely to be manipulated. It is stated that these are conclusions drawn by researchers and/ or scientists in different renowned academic institution in United State of America and in India none of these safety measures have been provided for. Again there is reference to safety measure of paper trail followed in United State of America.
In paragraph 21, it is stated that his election agent had approached Respondent No.2 – Returning Officer to seek the inspection of 46 the records as provided for under Rule 93 of the Conduct of Election Rules and according to guidelines, when the request was made for urgent inspection, then the inspection ought to have been given on very same day, the request is made. He states that inspite of lapse of substantial time, no such inspection was given to the petitioner and on one pretext or another, giving of inspection was avoided. It is stated that on behalf of the petitioner, the issue of inspection was followed with Respondent No.2 every now and then but request did not materialise despite repeated efforts. Only a pretense was made of the desire to give inspection but the representative of the petitioner was made to run from one office to another. Again from this also, the petitioner has drawn a conclusion that inspection was avoided to cover up the defaults committed during election process. The petitioner has then stated that considering the nexus of Respondent No.1 and Respondent No.2, this was done with a view to help Respondent No.1. Then in paragraph 22, it is stated that manipulation was apparently done at the instance of Respondent No.1 and circumstances narrated by him lead to no other conclusion. The petitioner states that the testing of EVMs used in these elections by an independent 47 body of experts is extremely important. In paragraph 23, the petitioner thereafter states that voting pattern of elections also supports his contention. In villages where he has spent several lakhs of rupees for development work, he got negligible votes and in certain such villages, he failed to secure in a single vote. In some villages, he got only 1 or 2 votes. The petitioner states that it is impossible looking to his reputation and genuine development works. The petitioner states that his supporters in these areas have sworn on oath that they have tendered their votes in his favour and the petitioner therefore states that the EVMs were tampered with.
In paragraph 24, the same conclusion of large scale manipulation and tampering has been reiterated and it is stated that there was total non observance of statutory provisions. It is contended that genuineness of election has been materially affected by non observance of rules on the part of Respondent No.2 – Returning Officer. As the election process itself is vitiated, the petitioner contends that results are equally vitiated. It is stated that the petitioner has, therefore, approached this Court. 48 Paragraph 25, is formal paragraph dealing with the cause of action and it is mentioned that it arose on 16.10.2004 when Respondent No.1 was declared elected. Paragraph 26 deals with filing of documents as per list. Paragraph 27 deals with territorial jurisdiction. In paragraph 28, it is stated that the petitioner has deposited prescribed fee and paragraph 29 contains a declaration that the petitioner has not approached the High Court or any other Court including the Hon'ble Apex Court in this respect. Then, there is prayer clause.
Thus, the entire pleadings, therefore, reveal that the loss in election and margin of 60000 by which the petitioner stood defeated is the reason which prompted the petitioner to make enquiries. The petitioner is of the opinion that because of his reputation and good development works done by him, he was bound to win and he has stated that there were certain villagers who have sworn before him that they have voted in his favour. He has been made to enquire into the matter because of doubt created in his mind by his so called constituents of his own, no such need was felt. The details of these enquiries are not given. 49 He has relied upon some articles and opinions of experts to point out that EVMs can be rigged or tampered. However, apart from expressing this possibility, he has not anywhere pleaded any definite tampering or rigging of any Electronic Voting Machine. As already stated above, he faced the polls with knowledge which he has disclosed about such possibility and having lost, he has come up with this story.
He has also stated that because wife of Respondent No.2 was serving in Engineering College of Respondent No.1, Respondent No.1 could have tampered or manipulated the EVMs. But apart from expressing possibility or doubt, he has not cited any concrete example in this respect. He has not disclosed the names of constituents which told him about the possibility of tampering with Electronic Voting Machine. It is clear that these constituents have also not given any specific instance of any tampering and the petitioner has not disclosed necessary details also. The contention of the petitioner that several villagers have voluntarily come forward and sworn on oath that they have tendered their votes in his favour is totally irrelevant and is not admissible. The entire effort of the petitioner in present matter is only to show that because certain procedure was not followed and certain rules 50 have not been implemented, the EVMs could have been tampered with.
However, in the absence of any concrete and factual data in this respect, mere possibility of such tampering is not sufficient to hold that Respondent No.1 or any of his agents has indulged in any corrupt practice as contemplated by Section 100 or Section 123(7) of Representation of People Act. In the absence of pleadings, the alleged irregularities or violations or apprehensions expressed cannot be made the basis for such Election Petition and even if these allegations are presumed to be correct, it is difficult to connect them with respondent No.1. Case of petitioner under section 100(1)(d)(iv) of Representation of People Act, 1951, is definitely not supported by these pleadings.
The provisions of pleading in this respect are very clear and the petitioner has to prove corrupt practice and not merely a possibility of corrupt practice. Here, it is to be noticed that the petitioner has failed even to make out a case of possibility of corrupt practice as he has not even disclosed the names of constituents and other relevant details of such tampering or manipulation. As already considered above, the 51 verification in support of election petition is also defective and the affidavit is not in form No.25.
In these circumstances, it is clear that the petitioner has failed to plead material facts also in relation to any corrupt practice and there are no material particulars in support of any such manipulation or tampering. His entire grievance in Election Petition is hypothetical and is imaginary. In the absence of any concrete material on record, such story and theory of the petitioner cannot be accepted. Election Petition, therefore, does not contain material fact sufficient to constitute any cause of action to enable the petitioner to maintain such Election Petition. It is also apparent that in view of the state of affairs of pleadings on record, petitioner cannot place any positive material on record to make out a case warranting interference under Section 100(1)(d)(iv) of Representation of People Act, 1951. It is clear that there is no cause of action and Respondent No.1 cannot be called upon to face such trial. The preliminary objection raised by Respondent No.1 in this respect, therefore, deserves to be upheld. 52
Operative part
Thus, though not on account of other preliminary objections raised by Respondent No.1 and discussed above but on account of last objection in this respect, the Election Petition is found to be deficient in meeting the requirement of pleadings and therefore not maintainable. Hence, Civil Application is allowed and Election Petition is dismissed. JUDGE
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: Hence, Civil Application is allowed and Election Petition is dismissed
Which statutory provisions did this judgment involve?
Representation of the People Act, 1951 — ss. 81(3), 83, 83(1), 83(1)(a), 86, 100, 100(1)(d)(iv), 123(7); Civil Procedure Act; Code of Civil Procedure, 1908 — ss. 139, 139(c); Oaths Act, 1969 — s. 3; Indian Oaths Act; Constitution of India.
Which court decided this case, and when?
Bombay High Court, on 10 Aug 2006. The bench was B P DHARMADHIKARI.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.