Bombay High Court
Dr.Madhavrao vs 2 The Election Commission Of India on 18 October, 2012
Bench: R. M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
ELECTION PETITION NO.11 OF 2009
Dr.Madhavrao s/o Bhujangrao Kinhalkar,
age: 51 years, Occ: Medical Practitioner,
R/o 'Saphalya', Waman Nagar,
Purna Road, Nanded, Taluka and
District Nanded. Petitioner
Versus
1 Ashok s/o Shankarrao Chavan,
age: 50 years, the Hon'ble Chief
Minister of the State of Maharashtra,
R/o Shivaji Nagar, Nanded,
Taluka and District Nanded,
presently residing at 'Varsha',
Malbar Hills, Mumbai.
2 The Election Commission of India, }
Nirvachan Sadan, Ashoka Road, }
New Delhi - 110 001, through }
its Secretary. }
} Respondent Nos.2 and
3 The Returning Officer, } 3 deleted vide Court's
85, Bhokar Legislative Assembly } order dated 14.03.2011.
Constitutency & District Collector, }
Nanded, having his office at }
Collectorate, Nanded, Taluka }
and District Nanded. }
4 Bapurao s/o Nagorao Gajbhare,
age: 41 years, R/o Krushnai Niwas,
Hingoli Gate, Nanded, Taluka
and District Nanded.
5 Bhimrao s/o Mariba Kshirsagar,
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age: 40 years, R/o Village Kolha,
Taluka Mukhed, District Nanded.
6 Kishanrao s/o Vithoba Hulgunde,
age: 60 years, R/o Village Elegaon,
Taluka Bhokar, District Nanded.
7 Vishnu s/o Maroti Jadhav,
age: 36 years, R/o Rama Mata
Ambedkar Nagar, Nanded,
Taluka and District Nanded.
8 Narayan Suryawanshi,
age: 64 years, R/o House No.
11-10-716, HUDCO, Nanded,
Taluka and District Nanded.
9 Pathan Jafar Ali Khan,
age: 64 years, R/o House No.
9-4-1064, Near Municipal
School, Madina Nagar,
Nanded, Taluka and District
Nanded.
10 Vijaykumar s/o Shripatappa Patil,
age: 58 years, R/o Usha Heights,
Usha Nagar, Malegaon Road,
Nanded, Taluka and District Nanded.
11 Balaji s/o Digambar Kshirsagar,
age: 40 years, R/o at village Belsar,
Post; Lon, Taluka Ardapur,
District Nanded. Respondents
Mr.R.S.Deshmukh, advocate for the petitioner.
Mr.P.M.Shah, Senior Counsel i/by Shri A.P.Bhakkad, advocate for
Respondent No.1.
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Mr. R.L.Kute, advocate for Respondent No.11.
CORAM : R.M.BORDE, J.
Reserved on : 08th October, 2012.
Pronounced on: 18th October, 2012.
JUDGMENT:
1 The petitioner is challenging the election of Respondent
No.1 who is a returned candidate from 85-Bhokar Legislative
Assembly Constituency.
2 The general elections to the Legislative Assembly of the
State of Maharashtra were held and results came to be declared on
22.10.2009. The petitioner was also one of the contesting
candidates at the election. The petitioner contested election as an
independent candidate, whereas Respondent No.1 was set up as a
candidate by Indian National Congress Party. Respondent No.1 got
elected by a margin of more than one lac votes. He polled 79.65%
of the votes, whereas, petitioner could secure 8.79% of the votes
polled. The challenge raised by petitioner to the election of
Respondent No.1 is mainly based on corrupt practice within the
meaning of Section 123 of the Representation of People Act, 1951.
3 Respondent No.1 has presented written statement and
has controverted the contentions raised by petitioner in the
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election petition. In the written statement presented by
Respondent No.1 as well as in the application presented at
Exhibit-17, Respondent No.1 has raised preliminary objection in
respect of maintainability of the petition. Respondent No.1 has
requested to dismiss the petition summarily on the ground that it
does not satisfy requirements of Section 81(3) as well as Section 83
of the Representation of the People Act, 1951. According to
Respondent No.1, the election petition does not disclose accrual of
cause of action and as such, same is required to be dismissed at
the threshold.
4 Considering the request made by Respondent No.1,
parties were called upon to address on the preliminary objection
set out by Respondent No.1 in the written statement as well as in
the application at Exhibit-17.
5 The petitioner as well as Respondents have addressed
on the preliminary objections and arguments were heard on
03.10.2012, 04.10.2012 and 08.10.2012.
6 The petitioner has confined his challenge in the
election petition mainly to two aspects, first one in respect of
corruptibility/vulnerability of Electronic Voting Machines (EVMs) to
tampering and or manipulation; and secondly, in respect of excess
expenditure incurred by Respondent No.1 over and above the
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permissible limits.
The allegation in respect of excess expenditure can be
gathered from the contentions raised in paragraph nos.22 and 23
of the petition wherein it is stated that there was unprecedented
Media coverage given to Respondent No.1 during the election
campaign. There were publications in Newspapers, which,
according to the petitioner, are in the nature of "paid news".
THE CORRUPTIBILITY / VULNERABILITY OF ELECTRONIC
VOTING MACHINES FOR MANIPULATION AND/OR RIGGING
AND/OR TAMPERING.
7 In paragraph no.7 of the petition, it is contended by
the petitioner that Respondent No.1 has secured 79.65% of actual
votes while petitioner could secure 8.79% of actual votes.
Respondent No.1 got elected by a margin of more than one lacs,
which, according to the petitioner, was impossible thing to happen,
as there are several areas in Bhokar Assembly Constituency where
performance of petitioner was estimated by independent experts to
be extremely good. According to the petitioner, Respondent No.1
has secured exceptionally high votes whereas, petitioner polled
extremely low percentage of votes in his stronghold areas, which
according to the petitioner, is shocking. The returned candidate
i.e. Respondent No.1 received 1,20,849 votes while petitioner has
secured only 13,346 votes.
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(i) In paragraph no.8 of the petition, petitioner has given
percentage-wise votes at various booths in Bhokar Legislative
Assembly Constituency. It is stated that at 42 booths, Respondent
No.1 secured 90 to 92.99% of votes, whereas, at 171 booths, he
polled 70 to 90% of votes, while at 41 booths, Respondent No.1
secured 52 to 70% of votes. According to the petitioner, extremely
high percentage of votes polled to Respondent No.1 is due to the
fact that EVMs could be rigged and tampered with. It is stated
that petitioner has undertaken a careful study and he, in his
representation dated 24.10.2009 to the Returning Officer, has
expressed apprehension about manipulation in EVMs by the
Returning Officer to 85-Bhokar Assembly Constituency. The
petitioner further states that apprehensions of illegal and corrupt
practices of Respondent No.1 with the help of favourable Returning
Officer and supporting staff of every polling booth were also
conveyed.
(ii) In paragraph 9 of the petition, it is submitted by the
petitioner that EVMs are not tamper-proof at all. It is also stated
in the said paragraph that internal testing of the machine is done
by an employee of the manufacturing company and, therefore, if
one is able to exert some influence on the said employee, then at
that stage itself, scope for manipulation can be inserted (sic
ensured).
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(iii) In paragraph no.10 of the petition, it is alleged that
non observance of the rules and orders by the Returning Officer
has materially affected validity of concerned election. There are
several other defaults committed by or at the instance of
Respondent No.1 which also render entire election bad in law and
consequently liable to be interfered with.
(iv) In paragraph no.11, it is stated by the petitioner that
on declaration of results, he and his supporters were completely
stunned and shocked since petitioner received extremely low
percentage of votes. It is stated that disparity in votes polled in
favour of Respondent No.1 and petitioner is even more shocking.
(v) In paragraph no.12 of the petition, petitioner states
that he had received information about unreliability of the EVMs
used at the elections. The petitioner had strong apprehensions
about the possibility of tampering with EVMs. It is further stated
that during the election process, prior to the date of voting, the
EVMs were not properly kept by Respondent No.3- the Returning
Officer leaving huge scope for manipulation and tampering of
EVMs. It is also stated that Respondent No.3 has not conducted
mock poll, etc. and has not adhered to the prescription of law as
regards safety and security of EVMs. A doubt is expressed that
this has been done with a deliberate and mala fide intention to
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assist a particular candidate in manipulating EVMs.
(vi) In paragraph no.13 of the petition, it is stated that on
the basis of information gathered by petitioner, he has to say that
insofar as the EVMs are concerned, there is every possibility that
these machines can be rigged and/or manipulated and/or
tampered with and if it is done by skillful hand, it can be, within
shortest possible time, tampered with. The petitioner has relied
upon the data collected from newspapers as well as on Internet to
support his doubts.
(vii) In paragraph no.14 of the petition, it is stated that
petitioner has acquired knowledge that by using Microsoft
Windows on a Compact P.C., EVMs could be simulated and
programmed to add votes to a certain candidate, no matter who
has been voted. The petitioner has stated in the said paragraph
that there are inherent risks in employing EVMs at the elections
and that the machines could be programmed in such a manner
that even if a voter punches the candidate of his choice, the vote
would keep on adding in favour of the programmed winner. The
petitioner has further stated that there is a possibility to rig the
EVMs in this fashion even by using a remote control. The
petitioner has also alleged that the EVMs could be programmed in
such a fashion so that it could transfer more than 45% votes of five
lowest candidates to a favoured candidate. There is a further
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possibility that by using electro-magnetic pule generator near
EVMs, its memory could also be erased. In the opinion of the
petitioner, all electronic circuits are susceptible to electro-magnetic
interference and as such, even in the Strong Room, the EVMs are
not safe, since an expert, who knows the resonance frequency of
the circuit, could remotely send signals from a distance away. The
petitioner has also expressed possibility, in the natural course of
handling of the EVMs and their transportation from one place to
another, that its components could be reset.
(viii) In paragraph no.15 of the petition, it is stated that in
United States of America also, there is a move again use of EVMs
without safeguards like "Paper Trail". According to the petitioner,
considering the strong possibility of tampering of machines and
non reliability thereof, there is an emphasis on what is known as
"Paper Trail". According to the petitioner, the EVMs are open to
manipulation and/or tampering.
(ix) In paragraph nos. 16, 17 and 18 of the petition,
petitioner has reiterated his contentions in respect of corruptibility
of EVMs.
(x) In paragraph no.18 of the petition, it is further alleged
by the petitioner that EVMs were not kept properly in safe custody
as required by relevant provisions. However, the Rooms, in which
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machines were kept by Respondent No.3- Returning Officer were
"Strong Rooms" only for the namesake. It is alleged that mock poll
was never conducted by Respondent No.2. According to the
petitioner, there is a clear breach of statutory and mandatory
provisions of law which has materially affected purity and fairness
of the election process.
(xi) In paragraph no.19 of the petition, it is alleged by
petitioner that the procedure prescribed in Chapter XII of the Hand
Book for Returning Officers in respect of process of preparation of
voting machines has not been adhered to by the Returning Officer.
(xii) In paragraph 20 of the petition, it is alleged that there
is every possibility that the personnel of the machine
manufacturing company may have acted under the influence of
Respondent No.1 and at his instance and for his benefit. They
could easily have programmed the machines in such a fashion so
as to benefit Respondent No.1. It is further alleged that there are
several indications that tampering of the machines has been done
at this level at the instance of Respondent No.1, who is a returned
candidate. It is alleged that Respondent No.3 - Returning Officer
did not follow the mandatory rules and orders during the election
process which has materially affected validity of election and as
such, results are liable to be set aside.
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ELECTION EXPENSES:
8 The allegations in respect of election expenses incurred
by Respondent No.1 to be more than the prescribed limit are found
in paragraph nos.22 and 23 of the petition. It is alleged that
Respondent No.1 has received unprecedented Media coverage
during the election campaign. There were 50 full news paper
pages devoted exclusively on Respondent No.1, his leadership, his
party and Government. The material was published in National
Dailys having highest circulation. According to the petitioner,
Respondent No.1 has spent not less than Rs.7 lacs during the
election campaign and spending limit imposed on the contestants
is Rs.10 lacs. According to the petitioner, Respondent No.1 has
received in fact astonishing media coverage during the election
campaign and the news papers, carrying many full pages on him,
no where marked them as advertisement. According to the
petitioner, those were in the format of advertisements in the
newspapers, for which crores of Rupees were spent.
In paragraph no.23, the petitioner has named two
news papers namely minor daily 'Satyaprabha' in Nanded district
and 'Daily Lokmat', fourth largest Daily in the Country and widely
circulated in Maharashtra. According to the petitioner, the media
coverage appearing in the newspapers is definitely a "paid news" at
the instance of Respondent No.1 worth crores of Rupees.
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9 Thus, according to the petitioner, results of the election
are materially affected due to:
(a) Corruptibility / tampering of EVMs; and
(b) Due to excess expenditure than permissible
limits incurred by Respondent No.1.
10 According to Respondent No.1, the petition contains
only allegations and there are no pleadings of material facts
disclosing the basic and supporting facts in context of Section
123(8) or Section 123(6) of the Representation of the People Act.
On perusal of the allegations contained in the petition in respect of
use of EVMs, it is contended that,
(a) There are no pleadings as to how, when and in
what manner the plan to manipulate the EVMs was
hatched;
(b) There are no pleadings as to how, when and in
what manner, such plan was executed;
(c) No definite, concrete and positive role has been
alleged against Respondent No.1;
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(d) There are haphazard and vague allegations made
against Respondent No.1 in respect of manipulation of
EVMs at different stages i.e.
(i) at pre-poll stage itself the circuit design is
tampered;
(ii) during the process of poll; and
(iii) also during post-poll period i.e. tampering of
EVMs kept in Strong Room through Remote Control.
(e) There is no pleading as to how EVMs used at
260 booths at the entire Bhokar Assembly
Constituency were tampered, moreover when it is a
multi-candidate contest having ten contesting
candidates in the field.
(f) There is no specific pleading as to how the
intelligence itself was corrupted, whether in respect of
all booths or only some of the booths? Which was the
software used.
(g) There is no pleading as to how and by which
mechanism the EVMs were tampered.
(h) The only allegation that the staff connived with
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Respondent No.1 is based on the fact that Respondent
No.1 was the then Chief Minister, beyond which, there
is no pleading about specific instance of abuse of
power in influencing the staff.
(i) There is no pleading about exact electoral mal-
practices committed by Respondent No.1 attributing
specific positive role against Respondent No.1 in
hatching the plan and execution thereof. There is no
pleading as to what is the nexus or co-relation between
Respondent No.1 and alleged tampering.
(j) There is no pleading as to the identity of the
persons, technicians involved in actual tampering of
EVMs. There is no pleading as regards place and time
when suspected mischief was in fact committed. If the
intelligence of the EVMs is corrupted so as to get a
programmed winner i.e. pre-poll stage, or at the stage of
manufacturing, there is no logic in suggesting
tampering of EVMs subsequently by using Remote
Control in Strong Room i.e. post poll stage.
(k) In the affidavit, the source of knowledge of
allegations made in the petition is individual personal
knowledge of the petitioner. However, petitioner
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nowhere states that petitioner is an eye witness to any
tampering or corrupt practice / rigging of EVMs. On
the face of it, the allegations appear to be unbelievable
and it is impossible that in presence of rival candidate,
a plan to commit electoral malpractice could be
hatched and implemented. There is total absence of
material facts and only wild and imaginary allegations
are made against Respondent No.1 in the petition.
There are no pleadings of the fact of internal
tampering or rigging of EVMs, in any manner by
Respondent No.1.
(l) The law does not contemplate filing of incomplete
petition.
11 It is contended that none of the averments made in the
petition spell out any "corrupt practice" qua Respondent No.1 as
defined in Section 123 of the Representation of the People Act.
Since there is no ground made out under Section 100 of the
Representation of the People Act to set aside the impugned
election, the election petition is liable to be dismissed at threshold.
EXCESS EXPENDITURE:
12 It is contended that the allegations made about excess
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expenditure are extremely vague, as:
(a) The text and context of the actual publications is
not pleaded. It is not possible to ascertain as to
whether the publications relate to general party
propaganda seeking support for the party and the
candidates set up by the party in general and without
reference to any particular candidate or group of
candidates.
(b) There is no pleading as to whether the
publication is directly seeking support and or vote for
any particular candidate or group of candidates.
(c) There is no pleading as to whether the
publications are pertaining to merely announcement of
the date, time and place or other particulars of election
meeting.
(d) The most vital deficiency is that the documents,
on which petitioner is placing reliance, are not annexed
with the petition at all.
(e) There is absolutely no material to show existence
of cause of action or any material about alleged
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publications.
(f) The actual dates of publications have not been
pleaded to verify whether those are pre or post
presentation to the nomination.
(g) There are no pleadings stating names of all the
news papers, the date of publication and contents
thereof.
(h) It is not stated whether the publications reflect
personal views of the Editor or Journalist or whether
the publications were based on the prior Government
Publications or the manifesto of the party or whether
the publications were at the instance of Respondent
No.1.
(i) There is absolutely nothing to demonstrate
nexus between Respondent No.1 and alleged
publications.
(j) There is no pleading in respect of date and place
of the publications as well as particulars of the
publications.
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13 Section 80 of the Representation of the People Act,
1951, provides that no election shall be called in question except by
an Election Petition presented in accordance with provisions of this
Chapter (Chapter II). Section 81 of the Act deals with presentation
of petitions, whereas, Section 82 provides for parties to the
petition. Section 83 of the Act provides for contents of the petition,
which reads thus:
83 Contents of petition- (1) An election
petition-
(a) shall contain a concise statement of the
material facts on which the petitioner relies;
(b) shall set forth full particulars of any
corrupt practice that the petitioner alleges,
including as full a statement as possible of the
names of the parties alleged to have committed
such corrupt practice and the date and place of
the commission of each such practice; and
(c) shall be signed by the petitioner and
verified in the manner laid down in the Code of
Civil Procedure, 1908 (5 of 1908) for the
verification of pleadings:
Provided that where the petitioner alleges
any corrupt practice, the petition shall also be
accompanied by an affidavit in the prescribed
form in support of the allegation of such
corrupt practice and the particulars thereof.
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(2) Any schedule or annexure to the petition
shall also be signed by the petitioner and
verified in the same manner as the petition.
Section 86(1) of the Act provides that the High Court
shall dismiss an election petition which does not comply with the
provisions of Section 81 or Section 82 or Section 117.
14 In the instant matter, it is urged that since the election
petition does not conform to the requirements of Section 83 (1)(a)
and (b), same is liable to the dismissed. Section 83(1)(a) provides
that petition shall contain a concise statement of material facts on
which the petitioner relies; and (b) shall set forth full particulars of
any corrupt practice that the petitioner alleges, including as full a
statement as possible of the names of the parties alleged to have
committed such corrupt practice and the date and place of
commission of each such practice. According to Respondent No.1,
the petition does not contain the material facts on which petitioner
relies, including no full particulars of any corrupt practice, are
stated in the petition.
15 Section 123 of the Act defines corrupt practice. In the
instant matter, considering the allegations levelled in the petition,
Section 123 (6) and (8) can be stated to be attracted.
THE PLEADINGS IN RESPECT OF CORRUPTIBILITY /
TAMPERABILITY OF EVMs.
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16 The mode of voting through an apparatus or machine
i.e. Electronic Voting Machine (EVM) is sanctioned by law vide
Section 61-A of the Representation of the People Act, 1951, with
effect from 15.03.1989 and in the General Elections for the years
2004 and 2009, casting of votes through EVM was put to
application. So far as the allegations contained in petition are
concerned, those are merely in the nature of apprehension
expressed by the petitioner. The actual malfunctioning of the
EVMs is a question to be decided, based on appreciation of facts.
Unless petition contains proper pleadings with material particulars
in respect of intentional tampering and malfunctioning of EVMs,
the vague allegations made by petitioner in the petition cannot be
considered. It is not open for this Court to draw a conclusion only
on the basis of expert opinion or on the basis of surmises or
conjectures as regards tamperability or corruptibility of the EVMs.
There are absolutely no pleadings to the effect that malfunctioning
of EVMs is at the instance of Respondent No.1 and further that
result of the elections is vitiated on account of such tampering
which would amount to corrupt practice within the meaning of
Section 123 of the Act. Unless and until it is pleaded that
someone had access to the EVMs and that those machines were
tampered and such tampering was at the instance of Respondent
No.1 or with a view to gain advantage at the elections to
Respondent No.1, the vague allegations made in the petition,
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in that behalf, cannot sustain. The petition does not set out
material facts. It is no where pleaded in specific terms that-
(a) The returned candidate or his agents, in any
manner, have done acts of rigging or manipulation
with the EVMs, consequently the result of election is
materially affected as far as the returned candidate is
concerned.
(b)
Due to any fault or interference in the EVMs, the
result of election has been materially affected so far as
returned candidate is concerned.
17 All the allegations relating to tampering of EVMs are
based on possibility imagined by the petitioner. Mere imaginary
allegation of such possibility of occurrence of mal-functioning or
irregularity is no ground to challenge the election. All the
allegations in this behalf are described in the petition as, "could
be", "apprehension of manipulation", "scope for manipulation",
"huge scope for doubts", "possible to rig", "could contain several
flaws". Such "ifs" and "buts" are suspicions, howsoever strong,
cannot take place of material facts constituting cause of action.
The pleadings must disclose complete cause of action. There are
no pleadings of material facts-
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(a) which can afford basis of allegations made in it.
(b) which are necessary to constitute complete
cause of action.
(c) to constitute any "corrupt practice", specific
description of one of the corrupt practices enumerated
in Section 123.
Thus, there is no issue of fact amounting to corrupt
practice which would be framed. There is no triable issue which
can call for any further investigation and even if evidence is allowed
to be led, it cannot be taken into consideration in the absence of
pleadings. The petition, which does not comply with the
requirements of Section 83(1)(a) and (b) can be dismissed at the
threshold.
18 Since the Code of Civil Procedure applies to the trial of
an election petition by virtue of Section 87 of the Act, the Court
trying the election petition, can exercise powers of the Code
including Order 6 Rule 16 and Order 7 Rule 11(a) of the Code of
Civil Procedure. The fact that Section 83 does not find place in
Section 86 of the Act does not mean that powers under the Code of
Civil Procedure cannot be exercised. A reference can be made to a
judgment of the Supreme Court in the matter of Azhar Hussain
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Vs. Rajiv Gandhi, reported in 1986 (Supp) SCC 315. The point for
consideration, which arose in the matter, was-
"(a) Since the Act does not provide for dismissal of
an election petition on the ground that material
particulars necessary to be supplied in the election
petition, as enjoined by Section 83 of the Act, are not
incorporated in the election petition, inasmuch as
Section 86 of the Act which provides for summary
dismissal of the petition does not advert to Section 83
of the Act there is no power in the Court trying
election petitions to dismiss the petition even in
exercise of powers under the Code of Civil Procedure".
While dealing with the issue, the Apex Court, in
paragraph nos.10 and 11 of the judgment, has observed thus:
"10 There is thus no substance in this point
which is already concluded against the
appellant in Hardwari Lal v. Kanwal Singh
wherein this Court has in terms negatived this
very plea in the context of the situation that
material facts and particulars relating to the
corrupt practice alleged by the election
petitioner were not incorporated in the election
petition as well as evident from the following
passage extracted from the judgment of
A.N.Ray, J. who spoke for the three-judge
Bench: (SCC p.221, paras 22 and 23)
The allegations in paragraph 16 of the
election petition do not amount to any
statement of material fact of corrupt
practice. It is not stated as to what kind
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or form of assistance was obtained or
procured or attempted to obtain or
procure. It is not stated from whom the
particular type of assistance was
obtained or procured or attempted to
obtain or procure. It is not stated in
what manner the assistance was for the
furtherance of the prospects of the
election. The gravamen of the charge of
corrupt practice within the meaning of
Section 123(7) of the Act is obtaining or
procuring or abetting or attempting to
obtain or procure any assistance other
than the giving of vote. In the absence of
any suggestion as to what that assistance
was the election petition is lacking in the
most vital and essential material fact to
furnish a cause of action.
Counsel on behalf of the
respondent submitted that an election
petition could not be dismissed by reason
of want of material facts because Section
86 of the Act conferred power on the High
Court to dismiss the election petition
which did not comply with the provisions
of Section 81, or Section 82 or Section
117 of the Act. It was emphasized that
Section 83 did not find place in Section
86. Under Section 87 of the Act every
election petition shall be tried by the High
Court as nearly as may be in accordance
with the procedure applicable under the
Code of Civil Procedure, 1908 to the trial
of the suits. A suit which does not
furnish cause of action can be dismissed.
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11 In view of this pronouncement there is no
escape from the conclusion that an election
petition can be summarily dismissed if it does
not furnish cause of action in exercise of the
powers under the Code of Civil Procedure. So
also it emerges from the aforesaid decision that
appropriate orders in exercise of powers under
the Code of Civil Procedure can be passed if the
mandatory requirements enjoined by Section
83 of the Act to incorporate the material facts
in the election petition are not complied with.
This Court in Samant case has expressed itself
in no unclear terms that the omission of a
single material fact would lead to an incomplete
cause of action and that an election petition
without the material facts relating to a corrupt
practice is not an election petition at all. So
also in Udhav Singh case the law has been
enunciated that all the primary facts which
must be proved by a party to establish a cause
of action or his defence are material facts. In
the context of a charge of corrupt practice it
would mean that the basic facts which
constitute the ingredients of the particular
corrupt practice alleged by the petitioner must
be specified in order to succeed on the charge.
Whether in an election petition a particular fact
is material or not and as such required to be
pleaded is dependent on the nature of the
charge levelled and the circumstances of the
case. All the facts which are essential to clothe
the petition with complete cause of action must
be pleaded and failure to plead even a single
material fact would amount to disobedience of
the mandate of Section 83(1)(a). An election
petition therefore can be and must be
dismissed if it suffers from any such vice. The
first ground of challenge must therefore fail."
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19 In the matter of Anil Vasudev Salgaonkar Vs. Naresh
Kushali Shigaonkar, reported in (2009) 9 SCC 310, the Supreme
Court has observed that the position is settled that an election
petition can be summarily dismissed if it does not furnish cause of
action, in exercise of powers under the Code of Civil Procedure.
Appropriate orders in exercise of powers under the Code can be
passed if mandatory requirements enjoined by Section 83 of the
Act to incorporate material facts in election petition are not
complied with. In paragraph nos.51, 52 and 53 of the judgment, it
is observed thus:
"51 This Court in Samant N. Balkrishna case
has expressed itself in no uncertain terms that
the omission of a single material fact would
lead to an incomplete cause of action and that
an election petition without the material facts
relating to a corrupt practice is not an election
petition at all. In Udhav Singh Vs. Madhav Rao
Scindia the law has been enunciated that all
the primary facts which must be proved by a
party to establish a cause of action or his
defence are material facts. In the context of a
charge of corrupt practice it would mean that
the basic facts which constitute the ingredients
of the particular corrupt practice alleged by the
petitioner must be specified in order to succeed
on the charge. Whether in an election petition
a particular fact is material or not and as such
required to be pleaded is dependent on the
nature of the charge levelled and the
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circumstances of the case. All the facts which
are essential to clothe the petition with
complete cause of action must be pleaded and
failure to plead even a single material fact
would amount to disobedience of the mandate
of Section 83(1)(a). An election petition
therefore can be and must be dismissed if it
suffers from any such vice. The first ground of
challenge must therefore fail.
52 In V. Narayanaswamy vs. C.P.
Thirunavukkarasu this Court reiterated the
legal position that an election petition is liable
to be dismissed if it lacks in material facts. In
L.R.Shivaramagowda vs. T.M.Chandrashekar
this Court again considered the importance of
pleadings in an election petition alleging
corrupt practice falling within the scope of
Section 123 of the Act and observed as under;
(SCC p. 677, para 11)
"11 This Court has repeatedly stressed
the importance of pleadings in an
election petition and pointed out the
difference between 'material facts' and
'material particulars'. While the failure
to plead material facts is fatal to the
election petition and no amendment of
the pleading could be allowed to
introduce such material facts after the
time-limit prescribed for filing the
election petition, the absence of material
particulars can be cured at a later stage
by an appropriate amendment".
53 In Udhav Singh case this Court observed
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as under: (SCC pp. 522-23, para 41)
"41 Like the Code of Civil Procedure,
this section also envisages a distinction
between 'material facts' and 'material
particulars'. Clause (a) of sub-section (1)
corresponds to Order 6 Rule 2, while
clause (b) is analogous to Order 6 Rules 4
and 6 of the Code. The distinction
between 'material facts' and 'material
particulars' is important because
different consequences may flow from a
deficiency of such facts or 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 Order 6 Rule 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."
20 The Supreme Court, in the matter of Jitu Patnaik Vs.
Sanatan Mohakud & Others, reported in AIR 2012 SC 913, has
observed in paragraph no.32 of the judgment, that:
"32 ... All basic and primary facts which must
be proved at the trial by a party to establish the
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existence of cause of action or defence are
material facts. The bare allegations are never
treated as material facts. The material facts are
such facts which afford a basis of the
allegations made in the election petition. The
meaning of 'material facts' has been explained
by this Court on more than one occasion.
Without multiplying the authorities, reference
to one of the later decisions of this Court in
Virender Nath Gautam Vs. Satpal Singh and
others shall suffice."
21 In the instant matter, it is found that there are merely
apprehensions expressed by the petitioner in respect of
corruptibility / tamperability of EVMs. There are no material facts
stated so as to establish nexus between alleged tampering or
corrupting of EVMs with that of Respondent No.1 and that the
result of election was materially affected due to acts of
manipulation of EVMs. Mere apprehension expressed in the
petition in respect of corruptibility of the EVMs do not constitute
material facts. In the aforesaid judgment, it has been observed by
the Supreme Court, in paragraphs 34 and 35, thus:
"34 A distinction between "material facts" and
"particulars", however, must not be overlooked.
"Material facts" are primary or basic facts which
must be pleaded by the plaintiff or by the
defendant in support of the case set up by him
either to prove his cause of action or defence.
"Particulars", on the other hand, are details in
support of material facts pleaded by the party.
They amplify, refine and embellish material
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facts by giving distinctive touch to the basic
contours of a picture already drawn so as to
make it full, more clear and more informative.
"Particulars" thus ensure conduct of fair trial
and would not take the oppose party by
surprise.
35 All "material facts" must be pleaded by
the party in support of the case set up by him.
Since the object and purpose is to enable the
opposite party to know the case he has to meet
with, in the absence of pleading, a party cannot
be allowed to lead evidence. Failure to state
even a single material fact, hence, will entail
dismissal of the suit or petition. Particulars, on
the other hand, are the details of the case
which is in the nature of evidence a party would
be leading at the time of trial."
As has been stated above, on careful scrutiny of the
contentions raised in the petition, it is evident that the petition
does not disclose any material fact so as to set forth triable issues.
22 A reference can be made to a judgment in the matter of
Gajanan Krishnaji Bapat Vs. Dattaji Raghobaji Meghe, reported
in (1995) 5 SCC 347. In paragraphs 16 & 18 of the judgment, it is
observed by the Apex Court, thus:
"16 The election law insists that to unseat a
returned candidate, the corrupt practice must
be specifically alleged and strictly proved to
have been committed by the returned candidate
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himself or by his election agent or by any other
person with the consent of the returned
candidate or by his election agent. Suspicion,
however strong, cannot take the place of proof,
whether the allegations are sought to be
established by direct evidence or by
circumstantial evidence. Since pleadings play
an important role in an election petition, the
legislature has provided that the allegations of
corrupt practice must be properly alleged and
both the material facts and particulars
provided in the petition itself so as to disclose a
complete cause of action.
A petition levelling a charge of corrupt
practice is required, by law, to be supported by
an affidavit and the election petitioner is also
obliged to disclose his source of information in
respect of the commission of the corrupt
practice. This becomes necessary to bind the
election petitioner to the charge levelled by him
and to prevent any fishing or roving enquiry
and to prevent the returned candidate from
being taken by a surprise."
23 An election petition shall disclose all material facts on
which the petitioner relies to establish existence of cause of action.
Material facts essentially refer to all the relevant facts on which the
petitioner relies for purposes of drawing inferences in his favour
during the course of trial. The absence of material facts and
insufficient cause of action would inevitably lead to dismissal of
election petition. In the matter of Samant Vs. George Fernandez,
reported in AIR 1969 SC 1201, it is observed as below:
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"The word `material' shows that the facts
necessary to formulate a complete cause of
action must be stated. Omission of a single
material facts leads to an incomplete cause of
action and the statement of claim becomes bad.
The function of particulars is to present as full a
picture of the cause of action with such further
information in detail as to make the opposite
party understand the case he will have to meet.
There may be some overlapping between material
facts and particulars but the two are quite
distinct. Thus the material facts will mention
that a statement of fact (which must be set out)
was made and material facts will mention that a
statement of fact (which must be set out) was
made and it must be alleged that it refers to the
character and conduct of the candidate that it is
false or which the returned candidate believes to
be false or does not believe to be true and that it
is calculated to prejudice the chances of the
appellant. In the particulars the name of the
person making the statement, with the date, time
and place will be mentioned. The material facts
thus will show the ground of corrupt practice
and the complete cause of action and the
particulars will give the necessary information to
present a full picture of the cause of action. In
stating the material facts it will not do merely to
quote the words of the section because then the
efficacy of the words `material facts' will be lost.
The fact which constitutes the corrupt practice
must be stated and the fact must be correlated to
one of the heads of corrupt practice. Just as a
plaint without disclosing a proper cause of action
cannot be said to be a good plaint, so also an
election petition without the material facts
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relating to a corrupt practice is no election
petition at all. A petition which merely cites the
sections cannot be said to disclose a cause of
action where the allegation is the making of a
false statement.
In the case of Virender Nath Goutam Vs.
Satpal Singh and Ors [(2007) SCC 617, the Apex
Court explained:-
All material facts, therefore, in accordance
with the provisions of the Act, have to be set out
in the election petition. If the material facts are
not stated in a petition, it is liable to be
dismissed on that ground as the case would be
covered by Clause (a) of Sub-section (1) of
Section 83 of the Act read with clause (a) of Rule
11 of Order VII of the Code. The expression
'material facts' has neither been defined in the
Act nor in the Code. According to the dictionary
meaning, `material' means `fundamental', `vital',
`basic', `cardinal', `central', `crucial', `decisive',
`essential', `pivotal', `indispensable', `elementary'
or `primary'. (Burton's Legal Thesaurus, (Third
edn.); p.349]. The phrase `material facts',
therefore, may be said to be those facts upon
which a party relies for his claim or defence. In
other words, `material facts' are facts upon
which the plaintiff's cause of action or the
defendant's defence depends. What particulars
could be said to be `material facts' would depend
upon the facts of each case and no rule of
universal application can be laid down. It is,
however, absolutely essential that all basic and
primary facts which must be proved at the trial
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by the party to establish the existence of a cause
of action or defence are material facts and must
be stated in the pleading by the party.
In the case of Hari Shankar Jain Vs.
Sonia Gandhi, reported in AIR 2001 SC 3689, it
was held:
"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 would afford a basis
for the allegations made in the petition and
would constitute the cause of action as
understood in the Code of Civil Procedure, 1908.
The expression `cause of action' has been
compendiously defined to mean every fact which
it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the
judgment of the Court. Omission of a single
material fact leads to an incomplete cause of
action and the statement of claim becomes bad.
The function of the party is to present as full a
picture of the cause of action with such further
information in detail as to make the opposite
party understand the case he will have to meet."
24 The petition is based on assumptions and
presumptions, apprehensions, suspicions and innate desires sans
reality. Mere allegations and suspicion, by itself, cannot be a
substitute of pleading of material facts. The petition is vague and
it does not involve triable issue. It does not disclose any cause of
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action. The entire petition is structured on the lines of fallibility of
EVMs emphasizing that EVMs are not fully-tamper proof as ever.
The use of EVMs by the Election Commission cannot be a corrupt
practice committed by Respondent No.1. The petition does not
contain the fact of occurrence of mischief but the possibility of
occurrence of manipulation of EVMs is the basis for challenge in
the petition. Such challenge is unsustainable and misconceived.
The actual mischief or intentional tampering or consequential
malfunctioning of EVMS is a question of fact, which is required to
be pleaded with material particulars. Instant petition does not
disclose material fact of tampering of EVMs by Respondent No.1 or
at the instance of Respondent No.1 so as to draw an inference that
the elections have been materially affected because of such
tampering or manipulation of EVMs.
25 There are allegations in the petition in respect of
breach of instructions contained in the "Hand Book for Returning
Officers" issued by the Election Commission of India, relating to
operation of EVMs. Chapter II of the Conduct of Election Rules,
1961 deals with voting by Electronic Voting Machines. The
allegations in the petition do not relate to breach of rules. The
petitioner contends that the rules are not followed in respect of
procedural part, inasmuch as failure of the Returning Officer to
hold mock poll, omission to carry out random checking, failure to
provide Strong Room, etc. In this context, reference can be made
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to a judgment in the matter of Jitu Patnaik Vs. Sanatan
Mohakud & Others, reported in AIR 2012 SC 913, wherein the
Apex Court has held that instructions in the Handbook are merely
guidelines with no statutory force. However, non observance of
such instructions, would not, by itself, render the EVMs defective
so as to call for invalidation of entire election.
26 The petitioner has placed reliance on the judgment in
the matter of Virender Nath Goutam Vs. Satpal Singh & others,
reported in (2007) 3 SCC 617 and it is contended that
consideration of correctness of allegations and evidence in support
of averments by entering into merits of the case would be
permissible only at the stage of trial of the election petition and not
at the stage of consideration as to whether the election petition is
maintainable. The law does not require material particulars even
in respect of allegations of corrupt practice, but full particulars
and if they are lacking, the petition can be permitted to be
amended or amplified under Section 86 of the Act.
In the reported matter, the election of the returned
candidate was challenged on the ground of improper and illegal
receipt and acceptance of votes and not on the ground of corrupt
practice. The petitioner therein was, therefore, required to set
material facts in the election petition under Section 81(1) of the
Act. It was, however, necessary to set forth full particulars, which
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is the requirement of Section 83(1)(b) of the Act in respect of any
corrupt practice. The Court, therefore, observed that the law does
not require material particulars even in respect of allegations of
corrupt practice, but only full particulars and if they are lacking,
the petition can be permitted to be amended or amplified under
Section 86 of the Act.
27 In the instant matter, however, it is found that the
petition is lacking in material facts. As has been observed by the
Apex Court, there is a distinction between facta probanda (the facts
required to be proved i.e. material facts) and facta probantia (the
facts by means of which they are proved, i.e. particulars of
evidence). It is settled law that pleadings must contain only facta
probanda and not fact probantia. The material facts on which the
party relies for his claim are called facta probanda and they must
be stated in the pleadings. But the fact or facts by means of which
facta probanda (material facts) are proved and which are in the
nature of facta probantia (particulars or evidence) need not be set
out in the pleadings. They are not facts in issue, but only relevant
facts required to be proved at the trial in order to establish the fact
in issue.
Similar proposition has been propounded in the matter
of Ashwani Kumar Sharma Vs. Yaduvanshsingh, reported in
(1998) 1 SCC 416.
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EXCESS EXPENDITURE (Paid News):
28 The allegations made in respect of excess expenditure
incurred by Respondent No.1 are found in paragraph nos.22 and
23 of the petition. The allegations made in respect of excess
expenditure are extremely vague. It is not clear as to whether
Respondent No.1 or his election agent or any other person at the
instance of Respondent No.1 has incurred excess expenditure. The
alleged publications, to which petitioner makes reference in
paragraph nos.22 and 23 of the petition, are not made part of the
petition. It is neither pleaded as to whether the publications were
prior to presentation of nomination by Respondent No.1 or
thereafter. It is not pleaded as to what are the contents of
publications, whether it relates to Respondent No.1 or are in the
nature of general party propaganda. It is to be noted that
Respondent No.1 was a star campaigner of Indian National
Congress Party, which had set up 171 candidates in the State. It is
not known as to whether the publications relate to constituency of
Respondent No.1 or it is in the nature of party propaganda. It is
also not clear as to whether the alleged publications reflect
personal views of the Editor/Journalist or whether the
publications were based on the prior Government publications or
the manifesto of the party, or the publications are at the instance
of Respondent No.1. There is absolutely no pleading in respect of
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all these vital requirements. It is not possible to draw any
inference regarding nexus between Respondent No.1 and alleged
publications. In this context, reliance can be placed on the
judgment in the matter of Kamalnath Vs. Sudesh Verma,
reported in (2002) 2 SCC 410, wherein it is held thus:
"Mere non-disclosure of the expenditure
will not be a corrupt practice but it is incurring
of expenditure in excess of the prescribed
amount which would be held to be a corrupt
practice. On a combined reading of Section 77
and Section 123(6) of the Act, it is explicitly
clear that the excess expenditure must be
incurred by the candidate or by any person
authorised by the candidate or his election
agent. In other words, an expenditure incurred
by a third person, who is not authorised by a
candidate or who is not an election agent of the
candidate, will not be a corrupt practice within
the ambit of Section 123(6) of the Act. It would,
therefore, be necessary to establish a corrupt
practice, as contemplated under Section 123(6)
of the Act to plead requisite facts showing
authorisation or undertaking of reimbursement
by the candidate or his election agent."
29 In the matter of Dhartipakar Madan Lal Agarwal Vs.
Rajiv Gandhi, reported in 1987 (Supp) SCC 93, the Supreme
Court has held that:
"In order to constitute a corrupt practice
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as contemplated by Section 77 and 123(6), it is
necessary to plead requisite facts showing
authorisation, or undertaking of
reimbursement by the candidate or his election
agent. Only that expenditure, which is
incurred by the candidate himself or
authorised by him is material for the purpose
of Section 77. A mere vague and general
statement that the candidate and his workers
with his consent spent money in election in
excess of the permissible ceiling would not be
sufficient to constitute corrupt practice. Unless
the allegations are specific that the candidate
or his election agent authorised the expenses
before the money was actually spent and that
the candidate or his election agent reimbursed
or undertook to reimburse the same the
necessary ingredient of corrupt practice would
not be complete and it would provide no cause
of action to plead corrupt practice. Any
voluntary expense incurred by a political party,
well-wishers, sympathisers or association of
persons does not fall within the mischief of
Section 123(6) of the Act.
30 On consideration of pleadings contained in paragraph
nos.22 and 23 of the petition, it is not evident as to what are the
dates of publications and whether the publications are prior to
presentation of nomination paper by Respondent No.1 or
thereafter. In view of Section 79(b) of the Representation of the
People Act, "candidate" means a person who has been or claims to
have been duly nominated as a candidate at any election.
Respondent No.1 shall be treated as "candidate" only after
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presentation of his nomination paper. It is not made clear
anywhere in the petition as to whether the alleged publications
were prior to presentation of nomination paper by Respondent No.1
or thereafter. The pleading in respect of excess expenditure/paid
news contained in paragraph nos.22 and 23 is as vague as it could
be.
31 In the entire body of the petition, the petitioner has
stated nothing except raising suspicion in respect of possible
mischief/tamperability of EVMs. As has been aptly observed by
the Supreme Court in the matter of Chanda Singh Vs. Choudhary
Shiv Ram Verma and others, reported in (1975) 4 SCC 393,
"suspicion of possible mischief in the process of likely errors in
counting always linger in the mind of the defeated candidate when
he is shocked by an unexpected result". At more than one places,
the petitioner has stated in the petition that, "the results of the
election were unexpected and he was shocked on revelation that he
has received merely 8.79% votes, whereas, the returned candidate -
Respondent No.1 has secured 79.65% votes".
32 Respondent No.1 has also questioned maintainability
of the petition on the ground that the petition has not been verified
in the manner required by Section 83(1) proviso of the Act.
According to Respondent No.1, it is not only the form of affidavit
matters but the substance that matters. It is contended that the
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petition suffers from absence of statutory affidavit, in its entirety.
It is contended that petition does not satisfy any of the statutory
requirements of Section 83(1) proviso of the Act and Rule 94-A of
the Conduct of Election Rules, 1961 read with Form 25. The
affidavit is not an affidavit at all in the eye of law.
33 The objection raised by Respondent No.1 does not
deserve consideration in view of judgment of the Supreme Court in
the matter of Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy
and others, reported in (2012) 7 SCC 788. A reference can be
made to paragraph nos.22 and 26 of the judgment, which read
thus:
"22 Even otherwise the question whether
non-compliance with the proviso to Section
83(1) of the Act is fatal to the election petition is
no longer res integra in the light of a three-
Judge Bench decision of this Court in Sardar
Harcharan Singh Brar V. Sukh Darshan Singh.
In that case a plea based on a defective affidavit
was raised before the High Court resulting in
the dismissal of the election petition. In appeal
against the said order, this Court held that
non-compliance with the proviso to Section 83
of the Act did not attract an order of dismissal
of an election petition in terms of Section 86
thereof. Section 86 of the Act does not provide
for dismissal of an election petition on the
ground that the same does not comply with the
provisions of Section 83 of the Act. It sanctions
dismissal of an election petition for non-
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compliance with Sections 81, 82 and 117 of the
Act only. Such being the position, the defect if
any in the verification of the affidavit filed in
support of the petition was not fatal, no matter
the proviso to Section 83(1) was couched in a
mandatory form.
26 We may also refer to a Constitution
bench decision of this Court in Murarka
Radhey Shyam Ram Kumar Vs. Roop Singh
Rathore where this Court held that a defective
affidavit is not a sufficient ground for summary
dismissal of an election petition as the
provisions of Section 83 of the Act are not
mandatorily to be complied with nor did the
same make a petition invalid as an affidavit can
be allowed to be filed at a later stage or so.
Relying upon the decision of a three-Judge
Bench of this Court, in T. Phungzathang Vs.
Hangkhanlian, this Court held that non-
compliance with Section 83 is not a ground for
dismissal of an election petition under Section
86 and the defect, if any, is curable as has been
held by a three-Judge Bench of this Court in
Manohar Joshi Vs. Nitin Bhaurao Patil and
H.D.Revanna Vs. G. Puttaswamy Gowda."
34 As has been held by the Supreme Court, the petition,
that raises triable issues, need not be dismissed simply because
affidavit filed by the petitioner is not in a given format no matter
the deficiency in the format has not caused any prejudice to the
successful candidate and can be cured by the election petitioner by
filing a proper affidavit. In the instant matter, since the petition
does not disclose material facts, same is required to be dismissed
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on that count.
35 There are no triable issues in the petition. It is not
necessary that full-fledged trial must be conducted although
ultimate result would be dismissal of election petition. The petition
does not disclose material facts. The same is, therefore, liable to
be dismissed.
36 Election Petition stands dismissed with costs.
In view of dismissal of Election Petition, pending
interim applications, if any, stand disposed of.
R.M.BORDE
JUDGE
adb/ep1109j
