Ram Lakhan Yadav vs Usha Rani & 8 Others
2015 Latest Caselaw 5591 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 

 
Case :- WRIT - C No. - 43917 of 2015
 

 
Petitioner :- Ram Lakhan Yadav
 
Respondent :- Usha Rani & 8 Others
 
Counsel for Petitioner :- N.K. Pandey,Piyush Shukla,Sudha Pandey
 
Counsel for Respondent :- D.B. Mukherjee
 

 
Hon'ble Suneet Kumar,J.

The elections to the post of President/Chairman Nagar Panchayat, Jhunsi Allahabad was held in accordance with the provisions of U.P. Municipalities Act 19161 read with U.P. Municipalities (Election of Members, Corporates, Chairman and Mayor) Rules 20102. The petitioner along with seven others contested the elections, and was declared elected on 7 July 2012. The first respondent assailed the election of the petitioner in a petition being Election Petition No. 1 of 2012 filed under Section 20 of the Act of 1916 before the Election Tribunal/District Judge, Allahabad.

Election was assailed on two grounds: (i) irregularities/illegality in preparation of electoral roll, (ii) improper reception and rejection of valid votes of the petitioner and the contesting respondents.

Petitioner contested the petition by filing written statement. In an application filed under Order 6 Rule 16 read with Order 7 Rule 11 of the Code of Civil Procedure, petitioner sought rejection of the plaint and the petition on the ground that the election petition does not disclose the material facts nor the cause of action. The election Tribunal by the impugned order dated 20 July 2015 rejected the application holding that the election petition is maintainable and discloses the cause of action. The impugned order is being assailed in writ jurisdiction.

It is submitted by the learned counsel for the petitioner that the election petition is not maintainable as the election petition is in contravention of Section 19(2)(a)(b) of the Act of 1916. The material fact as required under Section 20 has not been stated, rather the allegations made are vague for conducting roving and fishing enquiry to extract the material fact in respect of the allegations.

In rebuttal it is contended that this Court, at this stage of the proceedings, cannot go into the issue, further, the election Tribunal upon perusal of the pleadings has rightly concluded that the material facts has been disclosed and the assertions made in the plaint is sufficient for proceeding with the election petition.

Rival submissions fall for consideration.

Section 12(b) of Act of 1916 provides for preparation of electoral roll for every ward under the direction and control of the State Election Commission. Second Proviso to Sub-Rule (3) would provide that the electoral roll for such ward shall not include any amendment, alteration or correction made after the last date for making nomination for the election of such ward and before the completion of such elections. Section 12 provides for disqualification for registration in an electoral roll. Section 12 F provides for correction of electoral roll, Section 19 confers power to question the election by filing an election petition. The relevant extract for the purposes of this petition is follows:

19. Power to question municipal election by petition.- (1) The election of any person as a member of a [Municipality] may be questioned by an election petition on the ground

(a) that such person committed during or in respect of the election proceedings a corrupt practice as defined in Section 28;

(b) that such person was declared to be elected by reason of the improper rejection or admission of one or more votes, or any other reason was not duly election by a majority of lawful votes;

(c) ........................

(2) The election of any person as a member of a [Municipality] shall not be questioned,--

(a) on the ground that the name of any person qualified to vote has been omitted from, or the name of any person not qualified to vote has been inserted in the electoral roll or rolls;

(b) on the ground of any non-compliance with this Act or any rule, or of any mistake in the forms required thereby, or of any error, irregularity or informality on the part of the officer or officers charged with carrying out this Act or any rules, unless such non-compliance, mistake, error, irregularity or informality has materially affected the result of the election.

Section 20 provides for the form and presentation of the election petition. Sub-clause (1) provides that the election petition "shall specify the ground or grounds on which the election of the respondent is questioned and shall contain a concise statement of the material facts on which the petitioner relies and set for the full particulars of any corrupt practices that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practices and the dates and place of the commission of each such practice" and Sub-clause (2) requires that the petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings.

It is contended that Section 81, 82 and 83 of the Representation of Peoples Act 19503 is parimateria to the provisions of Section 20 of the Act of 1916, therefore, the law laid down by the Hon'ble Supreme Court on the issue under Act of 1950 would apply while interpreting the provisions of Section 20(1) of Act of 1916. This is not being disputed by the learned counsel for the respondents.

The Supreme Court in Shyamdeo Pd. Singh vs. Nawal Kishore Yadav4, held that inclusion of a person or persons in the electoral roll by an authority empowered in law to prepare the electoral rolls, though they were not qualified to be so enrolled, cannot be a ground for setting aside an election of a returned candidate under sub-clause (iii) or (iv) of clause (d) of sub-section (1) of Section 100 of the Representation of the People Act, 1951

The Constitution Bench in Hariprasad Mulshanker Trivedi vs. V.B. Raju5 held that finality of electoral roll cannot be challenged in an election petition even if certain irregularities had taken place in the preparation of the electoral roll or if subsequent disqualification had taken place and the electoral roll had on that score not been corrected before the last hour of making nominations. After that deadline the electoral roll of a constituency cannot be interfered with and no one can go behind the entries except for the purpose of considering disqualification under Section 16 of the 1950 Act.

The aforementioned judgments have been referred with approval by the Supreme Court in Laxmi Kant Bajpai vs. Haji Yaqoob6.

Division Bench of this Court in Modi vs. State Election Commissioner7 while considering the provisions of U.P. Panchayat Raj (Registration of Electors Rules) 1994 framed under the U.P. Panchayat Raj Act held that the provisions of the Act and the Rules, thus provide a complete safeguard against any wrong inclusion or wrong omission of name in the electoral roll. After publication of the final roll, the same is immune from any challenge at a subsequent stage. Once the process of election has begun they can neither be challenged by means of a writ petition under Article 226 of the Constitution nor in an election petition filed under Section 12-C of the U.P. Panchayat Raj Act.

The election petition would disclose that the last date for nomination was 6 June 2012, elections was to be held on 27 June 2017. The first respondent/election petitioner filed her objections on 20 June 2012 after the last date for filing objections to the Election Commission/District Election Officer regarding irregularities in the preparation of the electoral roles which required corrections prior to 27 June 2012, that is, before the date of casting of votes. It was alleged that 21 names were missing from the electoral list of ward no. 1, in electoral roll dated 10 April 2010 of ward no. 2, as per the objections of the Lekhpal, 14 names were wrongly deleted from the electoral roll. In ward no. 6 only one name was included of the five missing names, in ward no. 7, 35 hand written names were send only 8 were included, in ward no. 8 similar allegations were made and for ward no. 9 it was alleged that fake and forged names in large number were included against which a complaint was filed on 20 June 2012. The complaint and the postal receipts were made part of the petition. In this background it was alleged that the officials were in league with the petitioner, the electoral roll was prepared incorrectly at the behest of the returned candidate. The allegations taken even on their face value do not mention or indicate that any of the candidates were disqualified or unqualified as required under Section 12D for registration in the electoral roll. Merely, not effecting correction, alteration or amendment of the electoral roll after the last date of nomination would, in my opinion, based upon the authoritative pronouncement rendered by the Supreme Court, would not be a valid and lawful ground to assail the election of the returned candidate. Therefore, the impugned order to that extent lacks merit.

The second point pertains to the alleged irregularity committed in improper acceptance and rejection of votes, therefore, a prayer to recount the votes and to permit inspection of ballot papers. To justify an order for inspection of ballot papers, condition precedent would require "that the petition for setting aside the election contains an adequate statement of the material facts on which the petitioner rely in support of his cause" an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by "material facts" or to collect evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. But a mere allegations that there was an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. (Ram Sewak Yadav vs. Hussain Kamil Kidwai8)

The word "material" used in Section 20 of Act of 1916 in this context denotes the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact, it has been held, leads to an incomplete cause of action and the statement of the claim becomes bad. The entire and complete cause of action must be in the petition in the shape of material facts. (Samant N. Balakrishna vs. George Fernandez9). Therefore, a candidate who seeks to challenge an election on the ground that there has been improper reception, refusal or rejection of votes of acquainting himself with the manner in which the ballot papers were scrutinized and opened and the votes were counted. He would also have an opportunity of inspecting, rejected ballot papers, and of demanding of recount. It is in this light the provision requires that concise statement of the material facts on which the petitioner relies and to the opportunity which a defeated candidate had at the time of counting, of watching and of claiming a recount that the application for inspection must be considered.

The question arose again in Dr. Jagjeet Singh vs. Giani Kartar Singh10. The averment in the election petition was that a large number of votes purported to have been cast in favour of the appellant had been improperly rejected, and that materially affected the result of the election; assertion was also made that a large number of votes which were invalid were improperly accepted in favour of the respondent and the Returning Officer disclosed a partisan attitude, further, the counting and examine of votes was done in a very irregular manner. The Supreme Court took the view that the averments were very vague and general, the sole objection of the appellant in asking for inspection was to make a roving and fishing enquiry with a view to find out some material to support his case. There is striking similarity with the allegations made in the present election petition as appearing from paras 9 to 10 thereof.

In Jitendra Bahadur Singh vs. Krishna Behari11 allegations made therein was that only one counting agent was permitted at each table whereas three persons were doing the counting work simultaneously, therefore, it was impossible for one man to look into and detect the wrong acts of three persons at the same time; the bundles of votes of other candidates were neither properly made nor properly scrutinized; about 5,000/- votes of the Congress candidates were improperly rejected ignoring the protest of the election agent of the Congress nominee; invalid votes were counted in favour of the returned candidates. The votes of the Congress candidates were counted for the returned candidates. The Supreme Court emphasized the importance of maintaining secrecy of ballot papers and upon referring to Ram Sewak Yadav and Dr. Jagajit Singh (supra), with approval, laid down:-

"In the instant case apart from giving certain figures whether true or imaginary the petitioner has not disclosed in the petition the basis on which he arrived at those figures. His bald assertion that he got those figures from the counting agents of the congress nominee cannot afford the necessary basis. He did not say in the petition who those workers were and what is the basis of their information. It is not his case that they maintained any notes or that he examined their notes, if there were any. The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition. The facts stated in paras 13 and 14 of the election petition and in Schedule 'E' are mere allegations and are not material facts supporting those allegations. This Court in insisting that the election petitioner should state in the petition the material facts was referring to a point of substance and not of mere form.

In Arun Kumar Bose v. Mohd. Furkan Ansari12: reliance was placed on the pleadings in para 9(i) of the petition of that case and was to the following effect : --

"On table No. 1 booth No. 10 (Fukbandi Primary School) 74 ballot papers of the petitioner were wrongly rejected on the ground that they did not contain the signature of the Presiding Officer. Similarly 31 ballot papers of the petitioner were rejected on different tables on the ground that they do not contain the signature of the Presiding Officer. The aforesaid ballot papers were rejected by the Assistant Returning Officer in spite of the objections raised by the petitioner and his counting agents."

Supreme Court observed that the number of ballot papers alleged to have been wrongly rejected had been furnished, the counting table number was given, the booth number had also been disclosed and the ground for rejection was pleaded; this obviously was specific enough. The only specific detail which, the Supreme Court remarked, was wanting was the serial number of the 74 ballot papers. Upon evidence it was borne out that this particular was not available to the election petitioner in spite of attempts made on his behalf. It is in this background that their Lordships agreeing with the view expressed in Bhabhi vs. Shiv Govind13 felt inclined to think on the facts before them that the inspection had rightly been ordered.

The distinction between 'material facts' and 'material particulars' is important because different consequences may flow from a deficiency of such facts of particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under O. 6, R. 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.

All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are 'material facts'. In the context of a charge of corrupt practice, 'material facts' would mean all the basic fact constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on the charge. Whether in an election petition, a particular fact is material or not, and as such require to be pleaded is a question which depends on the question of charge leveled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are 'material facts' which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of section 83(1)(a).

'Particulars' on the other hand, are 'the details of the case set up by the party'. 'Material particulars' within the contemplation of clause (b) of Section 83(1) would therefore, mean all the 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). 'Particular' serve the purpose of finishing touches to the basic contours of the picture already drawn, to make it full, more detailed and more informative. (Vide: Vdhav Singh vs. Madhav Rao Scindia14)

The authoritative pronouncement would reflect that recount touches upon the secrecy of the ballot papers. The Court would not be justified to order recount or permit inspection of the ballot papers if all the material facts on which the allegations of irregularity or illegality in counting are founded are not pleaded adequately in the election petition. Where the allegation are general, vague based on suspicions or belief of the petitioner or not precise, the relief of recounting cannot be acceded merely on the possibility of their being an error.

In the light of the law stated, herein above, scrutinizing the averments of the election petition, wherein, it is alleged that the counting commenced on 7 July 2012 at 8 A.M. on three tables, the names of the nominees of the election petitioner on each table was stated; it was alleged that on all the three tables the valid votes polled in favour of the election petitioner was mixed with votes of the returned candidates, which was complained, but not heeded too. The valid votes were duly stamped but were declared invalid on the influence and pressure of the election agent of the returned candidate. It was further urged that 92 valid votes of the applicant was illegally declared invalid' and some of the valid votes were wrongly included in the valid votes of the returned candidate. Similar allegations have been made for the second round of counting and for the fourth round, thus alleging that 135 valid votes were declared invalid as a result of which the election petitioner lost by 61 votes. It is noticeable that the averments from paragraphs 1 to 21 of the election petition has been sworn and verified on personal knowledge. The difficulty faced by the agent during counting of votes in not taking notes and the numbers on the ballot paper were not mentioned, which of the agent informed the applicant/election petitioner of the irregularities and whether any complaint was made during the counting process which continued for over several hours. Paragraphs of the election petition vaguely recite that on many occasions the ballot papers of the election petitioner was mixed with the ballot papers of the returned candidates, but details are missing, the petition does not disclose that this was specifically the point of objection. Thus it is evident that except vague and general allegations nothing specific was stated. The allegations taken on their face value would necessarily not be an adequate statement of material facts on which the petitioner relies in support of the cause of action. Therefore, an order for inspection of ballot papers cannot be granted to support vague pleas made in the election petition.

The petition, accordingly, succeeds. The impugned order dated 20 July 2015 passed by Election Tribunal/Additional District Judge, Court No. 1, Allahabad is quashed. The application under Rule 11 of Order VII of the Code of Civil Procedure is allowed, the election petition is, accordingly, rejected.

The petition is allowed with cost.

Order Date :- 21/12/2015

S.Prakash