Shri Rajaram Tripathi vs Ganesh Singh
2022 Latest Caselaw 5602 MP

 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
    BEFORE : HON'BLE SHRI JUSTICE VIVEK AGARWAL


             DATE PF HEARING : 23.2.2022
              DATE OF ORDER : 19.4.2022




          ELECTION PETITION No. 48 of 2019
 Between:-
 SHRI RAJARAM TRIPATHI S/O LATE SUNDERLAL TRIPATHI,
 AGED ABOUT 66 YEARS, R/O 526-K, J.R. BIRLA ROAD, SATNA
 (MADHYA PRADESH)
                                            .....PETITIONER


    (SHRI SANJAY AGRAWAL, ADVOCATE FOR PETITIONER)



                              AND



 GANESH SINGH S/O KAMALBHAN SINGH, AGED ABOUT 26
 YEARS, R/O FRIENDS COLONY WARD NO. 13, SATNA POST
 OFFICE, BIRLA VIKASH SATNA, TEHSIL RAGHURAJNAGAR,
 DISTT. SATNA (M.P.) (MADHYA PRADESH)
                                          .....RESPONDENT

  (SHRI SANJAY K AGRAWAL, ADVOCATE FOR RESPONDENT
   SHRI SIDDHARTH SETH, ADVOCATE FOR INTERVENOR



This election petition is taken up for hearing and the Court

                  has passed following:

                         ORDER

Heard on I.A.No.12449/2019 filed by the respondent

under Order VII Rule 11 of the Code of Civil Procedure,

1908 (for brevity "C.P.C").

Shri Sanjay K Agrawal, learned counsel for the respondent

submits that the petitioner has filed Election Petition under

Section 80 of the Representation of People Act, 1951 (for brevity

"Act of 1951") calling in question the election of the answering

respondent from Satna Parliamentary Constituency No.9. The

election of the answering respondent is questioned on the ground

as specified under Section 100(1)(d)(iv) of the Act of 1951,

which provides that if in the opinion of the High Court, the result

of the election insofar as it concerns a returned candidate has

been materially affected by any non-compliance with the

provisions of the Constitution or of this Act or of any Rules or

Orders made under this Act, the High Court shall declare the

election of the returned candidate to be void. The petitioner has

alleged that the returning officer did not follow the instructions

issued by the Election Commission for mandatory counting &

matching results of the Voter Verifiable Paper Audit Trail Slip

(for short "VVPATs") & Control Units (for short "CUs") from

randomly selected polling station to audit & test if any Electronic

Voting Machine (for short "EVM") recorded votes consistently or

differently vis a vis the slips printed by the corresponding

VVPATs attached to it. It is also alleged that the mock poll from

the control units was not deleted so also the mock poll slips from

VVPATs were not removed and, therefore, the said data has

become a data of the entire election, which has materially

affected the result of Satna Parliamentary Constituency No.9.

Shri Sanjay K Agrawal, learned counsel for the respondent

submits that mere non-compliance of the Instructions/Circulars

issued by the Election Commission of India does not constitute a

ground to challenge the result of the election. It also does not

disclose a trivial issue or cause of action & on this ground also

dismissal of the election petition is sought. It is also submitted

that the petitioner has statutory remedy of raising an objection

either at the time of drawl of lots or about VVPAT in accordance

with Rule 63(2) of the Act of 1951 but the said discretion was not

exercised by the petitioner or his agent and, therefore, such issue

cannot be raised now in an election petition. It is further

submitted that the margin of win for the respondent was

2,30,000/- votes, therefore, the hairline error, if any, here or there

cannot be said to have any material effect on the outcome of the

result, therefore, the ground mentioned in Section 100(1)(d)(iv)

of the Act of 1951 is not made out.

Shri Sanjay K Agrawal, learned counsel for the respondent

places reliance on Paragraph No.14 of the judgment of the

Supreme Court in Ramesh Rout versus Rabindra Nath Rout

(2012) 1 SCC 762 wherein it is held that the Returning Officer

plays an important role in the election management and to ensure

that there is no scope left for any complaint, the Commission has

issued a handbook for Returning Officers. The handbook has

been designed to give to the Returning Officer the information

and guidance which they may need in performance of his

functions; to acquaint them with up-to-date rules and procedures

prescribed for the conduct of elections and to ensure that there is

no scope for complaint of partiality on the part of any official

involved in the election management. The handbook does not

have statutory character and is in the nature of guidance to the

Returning Officer. Any violation of any clause of the handbook

will not give rise to a cause to file an election petition.

Reliance is placed by Shri Sanjay K Agrawal, learned

counsel for the respondent on Paragraph No.8 of the judgment of

the Supreme Court in R.K.Roja versus U.S.Rayudu & Another

(2016) 14 SCC 275 wherein it is held that without disposing of

an application under Order VII Rule 11 of the C.P.C, the Court

cannot proceed with the trial and the Court must dispose of such

application before proceeding with the trial.

Reliance is placed by Shri Sanjay K Agrawal, learned

counsel for the respondent on Paragraph Nos.37, 38, 39 of the

judgment of the Supreme Court in Jitu Patnaik versus Sanatan

Mohakud & Others (2012) 4 SCC 194 wherein it is held that

the instructions in the handbook are in the nature of guidelines

and they have no statutory force.

Reliance is placed by Shri Sanjay K Agrawal, learned

counsel for the respondent on the judgment of the Supreme Court

in Azhar Hussain versus Rajiv Gandhi 1986 (Supp) SCC 315

wherein it is held that in case of petitioner's failure to furnish any

of the material facts and particulars in violation of Section 83 of

the Act of 1951, then only 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.

Reliance is also placed by Shri Sanjay K Agrawal, learned

counsel for the respondent on the Single Bench Order of the High

Court of Madhya Pradesh in Election Petition No.17/2019

(Smt.Seema Singh versus Girish Gautam & Others) decided

on 4.11.2019 wherein it is held that if no grounds are made under

Section 100(1)(d)(iv) of the Act of 1951 then the election petition

is liable to be dismissed and an application under Order VII Rule

11 of the C.P.C needs to be allowed.

Placing reliance on the aforesaid pronouncements of law, it

is submitted by Sanjay K Agrawal, learned counsel for the

respondent that as there is no disclosure of trivial issue and the

election is not challenged on any of the grounds given in Section

100 of the Act of 1951, therefore, this election petition is liable to

be dismissed.

Shri Siddharth Seth, learned counsel for the

intervenor/Election Commission of India in his turn submits that

the election for the Lok Sabha in the State of Madhya pradesh

was conducted by the election Commission in pursuance of the

Notification issued on 10.4.2019 and the election process was

concluded on 27.5.2019. Nineteen election petitions have been

filed before the High Court challenging the elections in different

Parliamentary Constituencies raising irrelevant, improper and

vague issue pertaining to Electronic Voting Machines. As far as

Satna Parliamentary Constituency No.9 is concerned, the Officer

of the Election Commission i.e. Returning Officer had followed

due process of law and complied with all the instructions of the

Election Commission of India. Five random selection of VVPATs

were conducted by draw of lots in 8 Assembly Constituencies,

which constitutes Satna Parliamentary Constituency No.9. These

40 VVPATs Machines were subjected to mock test as per the

results drawn and are enclosed as Annexure A/2 to the

intervention application. Shri Siddharth Seth submits that since

other elections are also coming up, therefore, it may be declared

that EVMs & VVPATs stored in view of the present election

petition are no longer required for the purpose of the present

election petition and consequently they be released for use in the

forthcoming election(s).

Shri Sanjay Agrawal, learned counsel for the election

petitioner in his turn submits that the application under Order VII

Rule 11 of the C.P.C is irrelevant inasmuch the election petitioner

has specifically pleaded non-compliance of the orders issued by

the Election Commission of India and the mandatory provisions

of the Act and Rules. He submits that none of the grounds

provided in Clause-a to Clause-f of Order VII Rule 11 of the

C.P.C are attracted in the present case.

Reliance is placed by Shri Sanjay Agrawal, learned counsel

for the election petitioner on the judgment of the Supreme Court

in Saleem Bhai & Others versus State of Maharashtra &

Others (2003) 1 SCC 557, wherein it is held that germane facts

for deciding an application under Order VII Rule 11 of the C.P.C

are averments in the plaint and not the pleas taken in the written

statement. It is also held that the pleadings in the election petition

are to be looked into and not the averments made by the

respondent.

Reliance is placed by Shri Sanjay Agrawal, learned

counsel for the election petitioner on Paragraph Nos.34, 39, 40,

41, 124, 125 of the judgment of the Supreme Court in Mohinder

Singh Gill & Another versus The Chief Election

Commissioner, New Delhi & Others AIR 1978 SC 851,

wherein it is held that the framers of the Constitution have by

implications postponed all election disputes to Election Petitions

and Tribunals. In harmony with the Scheme, Section 100 of the

Act of 1951 has been designedly drafted to embrace all

conceivable infirmities which may be urged. To make the project

fool-proof, Section 100(1)(d)(iv) of the Act of 1951 has been

added to absolve everything left over. The Court has in earlier

rulings pointed out that Section 100 of the Act of 1951 is

exhaustive of all grievances regarding an election. In Paragraph

No.39, it is held by the Supreme Court that even so, situations

may arise which enacted law has not provided for. The

Legislators are not prophets but pragmatists. So it is that the

Constitution has made comprehensive provision in Article 324 of

the Constitution of India to take care of surprise situations.

Article 324 of the Constitution of India, in our view, operates in

areas left unoccupied by legislation and the words

'superintendence' 'direction' and 'control' as well as 'conduct of

all elections' are the broadest terms. It is also held by the

Supreme Court that Article 324 of the Constitution of India is a

plenary power which enabled the Commission to act even in

absence of specific legislation though not contrary to valid

legislation. Thus, if there is any illegality in exercise of the power

under Article 324 of the Constitution of India or any provision of

the Act then Section 100(1)(d)(iv) of the Act of 1951 will be

attracted to it.

Reliance is placed by Shri Sanjay Agrawal, learned

counsel for the election petitioner on Paragraph No.16 of the

judgment of the Supreme Court in Kanhiya Lal Omar versus

R.K.Trivedi & Others AIR 1986 SC 111, wherein it is held that

any of the provisions contained in the Symbols Order are not

traceable to the Act or the Rules. The power of the Commission

under Article 324(1) of the Constitution of India, which is

plenary in character, can encompass all such provisions. Article

324 of the Constitution of India operates in areas left unoccupied

by legislation and the words 'superintendence' 'direction' and

'control' as well as 'conduct of all elections' are the broadest

terms, which would include the power to make all such

provisions.

Reliance is placed by Shri Sanjay Agrawal, learned

counsel for the election petitioner on Paragraph Nos.26, 27, 28 of

the judgment of the Supreme Court in Common Cause (A

Registered Society) versus Union of India & Others (1996) 2

SCC 752, to contend that 'superintendence' and 'control' over

the conduct of elections by the Election Commission include the

scrutiny of all expenses incurred by a political party, a candidate

or any other association or body of persons or by any individual

in the course of the election. The expression "conduct of

election" is wide enough to include in its sweep. The power of

the Election Commission to issue in the process of conduct of an

election-the direction to the effect that the political party shall

submit to the Commission for its scrutiny, details of the

expenditure incurred or authorized by the parties in connection

with the election of their respective candidates.

Reliance is placed by Shri Sanjay Agrawal, learned counsel

for the election petitioner on Paragraph No.29 of the judgment of

the Supreme Court in Election Commission of India Through

Secretary versus Ashok Kumar & Others (2000) 8 SCC 216,

wherein it is held that Section 100 of the Representation of the

People Act, 1951 needs to be read with Article 329(b) of the

Constitution of India, the former being a product of the latter. The

sweep of Section 100 spelling out the legislative intent would

assist us in determining the span of Article 329(b) of the

Constitution of India though the fact remains that any legislative

enactment cannot curtail or override the operation of a provision

contained in the Constitution. Section 100 is the only provision

within the scope of which an attack on the validity of the election

must fall so as to be a ground available for avoiding an election

and depriving the successful candidate of his victory at the polls.

Reliance is placed by Shri Sanjay Agrawal, learned

counsel for the election petitioner on Paragraph Nos.23, 56, 58,

59 of the judgment of the Supreme Court in Union of India

versus Association for Democratic Reforms & Another with

Peoples Union for Civil Liberties & Another versus Union of

India & Another AIR 2002 SC 2112, wherein it is held that the

words 'superintendence, direction and control' as well as

'conduct of all elections' are the broadest terms. The silence of

statute has no exclusionary effect except where it flows from

necessary implication. It is pointed out that Article 19(1)(a) of the

Constitution of India provides for freedom of speech and

expression. The voter's speech or expression in case of election

would include casting of votes, that is to say, the voter speaks out

or expresses by casting vote. It is also pointed out that since the

jurisdiction of the Election Commission is wide enough to

include all powers necessary for smooth conduct of elections, and

none of the grounds on which the election is questioned are

available as specified under Section 100(1)(d)(iv) of the Act of

1951, therefore, the application filed under Order VII Rule 11 of

the C.P.C is liable to be dismissed. In the alternative, Shri Sanjay

Agrawal, learned counsel submits that since the provisions as

contained in Article 324 of the Constitution of India provide wide

amplitude of powers and functions to be exercised by the

Election Commission including the powers to cancel poll in the

entire Constituency, therefore, the election petitioner, having

been made a case for violation of the sanctity of the election, is

entitled to get the election set aside.

After hearing learned counsel for the parties and taking into

consideration the aforesaid pronouncement of law, it is evident

that it is a matter of evidence as to whether the grounds raised by

election petitioner will fall within the requirement of the

provisions of Section 100(1)(d)(iv) of the Act of 1951 or not.

Without taking evidence, this particular issue cannot be decided

at the threshold.

The law in this regard is crystal clear that for deciding an

application under Order VII Rule 11 of the C.P.C, only averments

in the plaint are to be taken into consideration and not the plea

taken in the written statements and, therefore, having regard to

the amplitude of the provisions as contained in Article 324 of the

Constitution of India and Section 100 of the Representation of

People Act, 1951, I am of the opinion that since the election

petitioner has raised certain issues, which may subject to the

evidence led in this behalf, form the backdrop for deciding

whether any cause of action arises to challenge the election or

not, and also having regard to the law laid down by the Supreme

Court in Dahiben Vs. Arvindbhai Kalayanji Bhanusali

(Gajra) dead, (2020) 7 SCC 366, wherein it is held that the

Court has to determine whether plaint prima facie discloses cause

of action and plaint can be rejected when from averments in

plaint the suit appears to be barred by any law.

I.A.No.12449/2019 filed by the respondent under Order VII Rule

11 of the C.P.C is not maintainable for the present and is

accordingly dismissed.

Since this election petition challenges the election on the

ground that random checking of five polling booths in one

Assembly Constituency with VVPAT was not done with Control

Unit so as to verify whether the paper slip of VVPAT matches

with total number of voters recorded in Control Unit and also on

the ground that the results of mock poll were not removed from

the Control Unit, which resulted in counting of mock poll votes

with the final result, materially altering the elections, it will not

be proper to release all the machines for the present.

Fifteen days' time is granted for filing written statement.

Put up on 4.5.2022.

(VIVEK AGARWAL) JUDGE amit

AMIT Digitally signed by AMIT JAIN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=fb7acc8fa9459a372c91f97c42dcd1f41 0fc14ca1f709973d88cd85760a0e0c7,

JAIN pseudonym=60DB6303DA38CA5D8E4BFC099 E76F8F8FD7E86DA, serialNumber=3EBC4D14FC9CDC94F7007F3E C434B08F461F95C568403DF614DCAF5AD1CC 7099, cn=AMIT JAIN Date: 2022.04.21 14:28:01 +05'30'