Bombay High Court
Ravindra Dattaram Waikar vs Amol Gajanan Kirtikar And 19 Ors on 19 December, 2024
2024:BHC-OS:21107
k 3 EP 06.24 J os.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPLICATION (LODGING) NO.29930 OF 2024
WITH
APPLICATION (LODGING) NO.29880 OF 2024
WITH
ELECTION PETITION NO.6 OF 2024
Ravindra Dattaram Waikar .... Applicant
In the matter of
Amol Gajanan Kirtikar and Others ....Petitioners
-Versus-
Ravindra Dattaram Waikar and Others ....Respondents
_________
Mr. Pradeep M. Patil, with Mr. Parvinchand B. Gole and Mr. Nimish S.
Parakh i/b Mr. Amit A. Karande, for the Petitioners.
Mr. Anil Y. Sakhare, Senior Advocate with Mr. Utsav Trivedi,
Mr.Shyamsunder Jadhav, Ms. Kavita Dhanuka, Mr. Vishal Acharya, Mr.
Rohan Mirpurey, Ms. Savita Suryavanshi and Bhavya Shah i/b Mr.
Chirag Shah, for Respondent No.1.
Adv. Deepti Thorat i/b Ashwini Jadhav, for Respondent No.5.
Mr. Jayant Gohil with Mr. Sunil Humbre, for Respondent No.7.
Mr. Surindar Mohan Arora, Respondent No.7 present-in-person.
Mr. Rohan Satone, Respondent No.8 present-in-person.
Mr. Bharat Khimji Shah, Respondent No.13 present-in-person.
Mr. Santosh Manik Rayban, Respondent No.20 present-in-person.
__________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 11 DECEMBER 2024.
PRONOUNCED ON : 19 DECEMBER 2024.
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J U D G M E N T:
1) Respondent No.1 in the Election Petition, who is the Returned
Candidate, has filed Application (L) No. 29930 of 2024 seeking rejection of
the Election Petition under provisions of Order VII Rule 11 of the Code of
Civil Procedure, 1908 (Code). Respondent No.1 has also filed Application
(L) No.29880 of 2024 for striking of various paragraphs pleaded by the
Petitioner in the Election Petition under Order VI Rule 16 of the Code.
2) The Election Petition seeks declaration of election of
Respondent No.1 to the 18th Lok Sabha from 27 Mumbai North-West
Constituency as void under provisions of Section 100(1)(d)(iii) and (iv) of
Representation of People Act, 1951 (RP Act). The Election Petition further
seeks a declaration that the Petitioner is duly elected to the 18 th Lok Sabha
from 27 Mumbai North-West Constituency under Section 84 read with
Section 101(a) of the RP Act.
3) Brief facts leading to filing of the Election Petition are that the
Election Commission announced the schedule for 2024 General Elections
to the 18th Lok Sabha on 16 March 2024, which were to be conducted in
seven phases. So far as election for 27-Mumbai North-West Constituency is
concerned, the same was to be held in the fifth phase. The Election
Schedule for fifth phase for 27-Mumbai North-West Lok Sabha
Constituency was announced by the Election Commission as follows:
SR PARTICULARS DATE
1. Announcement & issue of Press Note 16.03.2024
2. Issue of Notification 26.04.2024
3. Last date for filing of Nominations 03.05.2024
4. Scrutiny of Nominations 04.05.2024
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5. Last date for withdrawal of Candidature 06.05.2024
6. Date of Poll 20.05.2024
7. Date of counting of votes 04.06.2024
8. Date before which election shall be completed 06.06.2024
4) Total of 21 candidates were in the fray for election from the
Constituency, which included interalia the Petitioner from Shiv Sena
(Uddhav Balasaheb Thackeray) Party and Respondent No.1 from Shiv
Sena Party. The voting in pursuance to the election to the said
Constituency was held on 20 May 2024. The counting of votes was
conducted on 4 June 2024 and the final result was declared in Form-20, in
which Petitioner secured 4,52,596 votes whereas Respondent No.1 secured
4,52,644 votes. Petitioner has given the details of votes polled by him and
Respondent No.1 through Electronic Voting Machine (EVM) and Postal
Votes in paragraph 7 of the Election Petition as under:
SR CANDIDATE PARTY EVM POSTAL TOTAL
VOTES VOTES VOTES
1. Ravindra Dattaram Shiv Sena 451094 1550 452644
Waikar
2. Amol Gajanan Shiv Sena (Uddhav 451095 1501 452596
Kirtikar Balasaheb Thackeray)
5) This is how Respondent No.1 was declared as a Returned
Candidate by a narrow margin of 48 votes over the Petitioner. According to
the Petitioner, he had secured one vote more than the Returned Candidate
after counting of EVM votes. However, Returned Candidate secured 49
votes more in the postal ballot and accordingly he was declared elected by
48 votes.
6) Petitioner has accordingly filed the Election Petition
challenging the election of Respondent No.1 on following broad grounds:
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(i) Counting agents appointed by the Election Petitioner not
permitted to sit at the ARO/RO Table, despite being a
statutory requirement.
(ii) Form 17-C (Part II) not given in any of the 563 polling booths
of 2 Assembly Segments (158-Jogeshwari and 164-Versova)
and 276 polling booths of another Assembly Segment (163-
Goregaon).
(iii) No reasonable opportunity given to make application
requesting re-count of votes and turning down the written
request subsequently made.
(iv) Usage of Mobile Phones unauthorizedly inside the counting
area.
(v) Impersonation of electors resulting in 333 votes being cast as
‘Tendered Votes’ which went uncounted.
(vi) Discrepancy in the number of ‘Tendered Votes’ recorded in
‘Form 17-C (Part-I) – Account of Votes Recorded’ by the
Presiding Officer and ‘Form 20 – Part – II – Final Result
Sheet’ recorded by the Returning Officer.
7) Summons were issued to the Respondents by order dated 29
July 2024. Summons are served on all the Respondents. Written
Statements are filed by Respondent No.1 and Respondent No.7. In addition
to filing Written Statement, Respondent No.1 has filed Application (L)
No.29930 of 2024 seeking rejection of Election Petition under Order VII
Rule 11 of the Code. Respondent No.1 has also filed Application (L)
No.29880 of 2024 for striking of various paragraphs pleaded by the
Petitioner in the Election Petition under Order VI Rule 16 of the Code.
Petitioner has filed his Replies to both the Applications. Accordingly,
Application (L) No.29930 of 2024 filed for rejection of the Election Petition
under Order VII Rule 11 of the Code is called out for hearing.
8) Mr. Sakhare, the learned Senior Advocate appearing for
Respondent No.1 would submit that the Election Petition is liable to be
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rejected as the same does not contain concise statement of material facts as
required under provisions of Section 83(1)(a) of the RP Act. He would
submit that the Election Petition does not disclose any cause of action.
That the Petition does not set out any material fact in support of the
allegations. That breach of clauses of handbook cannot be a ground to set
aside election of democratically elected candidate under Section 100(1)(d)
(iii) or (iv) of RP Act. That clause 1.2 of the handbook itself makes it clear
that it is issued solely to give information and guidance for optimal
functioning of Returning Officer and that the same is not a substitute
reference for various provisions of Election Law for conduct of election.
That for setting aside the election, it is incumbent for the Petitioner to
plead non-compliance with provisions of either Constitution of India or of
the RP Act or of any rules or orders made under the Act. That Election
Petition, not being an action at common law or in equity, in absence of
pleading about contravention of provisions of Constitution, RP Act or rules
or orders under the Act, the Election Petition cannot be entertained. That
the RP Act has been held to be a complete and self-contained Code. In
support, he would rely upon judgment of the Apex Court in Jyoti Basu
and others Versus. Debi Ghosal and others1.
9) Mr. Sakhare would further submit that the Election Petition is
full of vague allegations. That so far as allegation of not permitting
Petitioner’s counting agent to sit on the table during counting of votes on 4
June 2024, the Election Petition lacks material particulars about the
names of counting agents who were allegedly not allowed to sit at the
counting table. That the contention is also contradictory as other
averments in the Election Petition demonstrating that the agents of the
Petitioner were present in the counting booths. That Petitioner has not
discharged his onus of proving appointment of his counting agent as per
1 (1982) 1 SCC 691
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Rule 47 of the Conduct of Election Rules, 1961 (Rules 1961). Similarly, the
allegation of non-supply of Form 17C (Part-II) to the counting agents as
per Clause 15.16.2 of the handbook are again totally vague and lack
material pleadings. That in any case, Petitioner must plead that result of
the election of the Returned Candidate has been materially affected by the
alleged non-observance of the guidelines in the handbook.
10) So far as the allegation of non-acceptance of demand for
recounting of votes by the Returning Officer/Assistant Returning Officer is
concerned, Mr. Sakhare would submit that the application for recounting of
votes was submitted at 8.06 p.m. on 4 June 2024 after the result of the
elections was declared at 7.54 p.m. and has rightly been rejected by the
Returning Officer by citing the said reason. That even pleadings with
regard to rejection of request for recounting of votes are vague not
disclosing any cause of action for filing of the Election Petition.
11) Mr. Sakhare would further submit that the allegation with
regard to use of mobile phone in the counting center is not only vague but
is raised only for the purpose of raising doubt or suspicion without making
any specific assertion as to how the alleged use of mobile phone in the
counting center has materially affected the election of the Returned
Candidate. So far as allegation of alleged mismatch between total number
of tendered votes reflected as per the Form 17C (Part-I) and tendered votes
declared in Form-20, Mr. Sakhare would submit that the said allegation is
again aimed at mere creation of suspicion in absence of any pleading that
the allegation, if found to be correct, would materially affect the election of
Returned Candidate. That Petitioner himself is not sure whether he is
aggrieved by counting of tendered votes or whether he merely seeks create
a suspicion on account of mismatch in the tendered votes. That no objection
was raised with regard to the alleged mismatch in the tendered votes until
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15 July 2024. By application dated 15 July 2024 Petitioner sought
information and applied for certified copy of Form 17B (List of Tendered
Votes) and immediately filed the Election Petition on l6 July 2024. That in
absence of any concrete material with him, Petitioner has not pleaded the
exact effect of the alleged mismatch in the tendered votes. That thus there
is no pleading in the entire Petition as to how counting or acceptance of
213 tendered votes is illegal or violates provisions of Section 101(1)(d)(iii)
of RP Act.
12) Mr. Sakhare would submit that the sine qua non for maintenance of
Election Petition and to take the same to trial is demonstration through
pleading as to how the allegations, if taken to be true, would materially
affect the election of the returned candidate. He would submit that if there
are no pleadings demonstrating that the result of the election is materially
affected, the Court must reject the Election Petition by exercising
jurisdiction under Order VII Rule 11 of the Code. In support of this
contention, he would rely upon judgments of the Apex Court in Mangani
Lal Mandal Versus. Bishnu Deo Bhandari 2, Shambhu Prasad
Sharma Versus. Charandas Mahant and others 3 and Mairembam
Prithviraj alias Prithviraj Singh Versus. Pukhrem Sharatchandra
Singh4.
13) Mr. Sakhare would rely upon judgment of the Apex Court in
Kanimozhi Karunanidhi Versus. A. Santhana Kumar and others 5 to
demonstrate the principles summarized for maintenance of a valid
Election Petition and also in support of his contention that omission of a
single material fact leads to incomplete cause of action and the Election
2 (2012) 3 SCC 314
3 (2012) 11 SCC 390
4 (2017) 2 SCC 487
5 2023 SCC OnLine SC 573
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Petition in such case must be dismissed under Order VII Rule 11 of the
Code. That the said principles have been reiterated by the Apex Court in
Karim Uddin Barbhuiya Versus. Aminul Haque Laskar and others 6.
He would also rely upon judgment of the Apex Court in Karikho Kri
Versus. Nuney Tayang and another7 in support of his contention that a
small irregularity does not affect election of democratically elected
candidate in absence of pleadings that any irregularities has materially
affected election of the Returned Candidate. He would also rely upon
judgment of this Court in Mahendra Tulshiram Bhingardive Versus.
Anil Yeshwant Desai and others8. Mr. Sakhare would accordingly pray
for rejection of the Election Petition under provisions of Order VII Rule 11
of the Code.
14) The Application is opposed by Mr. Patil the learned counsel
appearing for the Election Petitioner. He would submit that specific concise
pleadings in support of grounds for setting aside election of Respondent
No.1 under provisions of Section 100(1)(d)(iii) and (iv) of the RP Act are
raised in the Election Petition. That the Election Petition conforms to the
requirement under Section 83(1)(a) of the RP Act. That Election Petition
clearly discloses cause of action. That therefore the Petition cannot be
rejected under provisions of Order VII Rule 11 of the Code. He would rely
upon judgment of the Apex Court in Liverpool & London S.P. and I
Association Ltd. vs. M.V. Sea Success I and another 9 in support of his
contention that if the illegalities demonstrated the Election Petition are
held to be correct, election of Respondent No.1 would most certainly be
declared as void and that therefore Election Petition contains material
averments as required under Section 83(1)(a) of the RP Act. He would rely
6 2024 SCC OnLine SC 509
7 2024 SCC OnLine SC 519
8 Application (Lodging) No.29382 of 2024 in Election Petition No. 1 of 2024 decided on 15 October
2024.
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upon judgment of the Apex Court in Ashraf Kokkur Versus. K.V. Abdul
Khader and others10 in support of his contention that only cause of action
is required to be disclosed and not a complete cause of action. That the
expression ‘material facts’ plainly means facts pertaining to the subject
matter and which are relied upon by the Election Petitioner. That Courts
cannot insist for mechanical reproduction of the exact words of statute and
it has to read the entire plaint as a whole for the purpose of examining
whether the cause of action is disclosed or not. That so long as some cause
of action is disclosed, the Election Petition cannot be rejected by having
recourse to provisions of Order VII Rule 11 of the Code. He would also rely
upon the judgment of the Apex Court in Madiraju Venkata Ramana
Raju Versus. Peddireddigari Ramchandra Reddy and others 11 in
support of his contention that Election Petition cannot be dissected
sentence-wise or paragraph-wise for ruling that the same did not disclose
cause of action. He would take me through the Reply filed opposing the
Application to demonstrate as to how averments made in various
paragraphs of the Election Petition disclose clear cause of action necessary
for grant of relief prayed for in the Election Petition.
15) Mr. Patil would then submit that there are necessary
averments in the Election Petition in support of all the illegalities relating
to non-permission for counting agent to sit at the table of ARO/RO, non-
supply of Form 17C (Part-II) to the counting agent, illegal rejection of
demand for recounting of votes, unauthorized use of mobile phone in the
counting center and improper reception of tendered votes. He would submit
that the illegality highlighted by the Petitioner relating to mismatch in
number of total tendered votes reflected in Form 20 (Part-II) as compared
to the number reflected in Form 17C (Part-I) goes to the root of a matter
and since Respondent No.1 is declared elected by narrow margin of 48
10 (2015) 1 SCC 129
11 (2018) 14 SCC 1
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votes, improper reception of tendered votes after completion of counting of
EVM votes would definitely affect the result of returned candidate. That
even qua counting of EVM votes, clear discrepancy has occurred in that
Petitioner had secured 650 votes more than Respondent No.1 after 26
rounds of counting whereas the Returning Officer declared that Petitioner
had secured only one vote more than Respondent No.1. That perfect case
for recounting of EVM votes was made out by the Petitioner. That all these
allegations are clearly spelt-up through specific pleadings in the Election
Petition. He would therefore submit that in the light of availability of
sufficient pleadings coupled with disclosure of cause of action, the
Application filed by Respondent No.1 under Order VII Rule 11 of the Code
deserves to be rejected.
16) Mr. Patil would further submit that the instructions contained
in the handbook have statutory force and are binding in nature and in
support he would rely upon judgment of Apex Court in Arikala Narsana
Reddy Versus. Venkata Ram Reddy Reddygari and another12,
Uttamrao Shivdas Jankar Versus. Ranjitsinh Vijaysinh Mohite
Patil13, Ram Sukh Versus. Dinesh Aggarwal14 and Rakesh Kumar
Versus. Sunil Kumar15.
17) Mr. Patil would rely upon judgment of the Apex Court in
Sardar Harcharan Singh Brar Versus. Sukh Darshan Singh and
others16, in support of his contention that the Election Petition is not liable
to be dismissed in limine under Section 86 of the RP Act for alleged non-
compliance of provisions of Section 83(1) or (2) of the RP Act. He would
also rely upon judgment of the Apex Court in Umesh Challiyill Versus.
12 (2014) 5 SCC 312
13 (2009) 13 SCC 131
14 (2009) 10 SCC 541
15 (1999) 2 SCC 489
16 (2004) 11 SCC 196
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K.P. Rajendran17, Ponnala Lakshmaiah Versus. Kommuri Pratap
Reddy and others18, G.M. Siddeshwar Versus. Prasanna Kumar19, B.
Sundara Rami Reddy Versus. Election Commissioner of India and
others20 and Mohd. Akbar Versus. Ashok Shahu and others21 in
support of the same contentions.
18) On above broad submissions Mr. Patil would submit that the
Petitioner must be permitted to prove the allegations levelled in the
Election Petition by leading evidence. That therefore the Election Petition
deserves to be taken for trial and cannot be rejected at the threshold by
having recourse to powers under Order VII Rule 11 of the Code. He would
pray for rejection of the Application.
19) Rival contentions of the parties now fall for my consideration.
20) Petitioner has challenged election of Respondent No.1 under
provisions of Section 100(1)(d)(iii) and (iv) of the RP Act and sought his
own election from 27-Mumbai North-West Constituency. The prayers in the
Election Petition read thus:
PRAYER
63. In view of the material facts and particulars of the present case and
the grounds urged in support thereof, it is most respectfully prayed that
this Hon’ble Court may be pleased to :
a. allow the Election Petition and declare as void the election of the
Respondent No.1 i.e. Shri Ravindra Dattaram Waikar dtd.
04.06.224, published in Form 20 on 06.06.2024, to the 18 th Lok
Sabha from the Mumbai North-West Constituency as void under
Section 100(1)(d)(iii) and (iv) of the R.P.Act, 1951; and
b. declare the Election Petitioner, Shri Amol Gajanan Kirtikar, as duly
elected to the 18th Lok Sabha from the 27 Mumbai North-West
17 (2008) 11 SCC 740
18 (2012) 7 SCC 788
19 (2013) 4 SCC 776
20 1991 Supp(2) SCC 624
21 (2015) 14 SCC 519
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Constituency in terms of Section 84 r/w Section 101(a) of the
R.P.Act, 1951; and;
c. Pass such other order and direction as this Hon’ble Court may deem
fit in the facts of the present case.
21) Section 100 of the RP Act provides for grounds for declaring
election to be void and provides thus:
100. Grounds for declaring election to be void.–
(1) Subject to the provisions of sub-section (2) if the High court is of
opinion–
(a) that on the date of his election a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat under the
Constitution or this Act [or the Government of Union Territories Act,
1963 (20 of 1963)]; or
(b) that any corrupt practice has been committed by a returned
candidate or his election agent or by any other person with the consent
of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned
candidate, has been materially affected–
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the
returned candidate [by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the
reception of any vote which is void, or
(iv) 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.
(2) If in the opinion of the High Court, a returned candidate has been
guilty by an agent, other than his election agent, of any corrupt practice
but the High Court is satisfied–
(a) that no such corrupt practice was committed at the election by
the candidate or his election agent, and every such corrupt practice
was committed contrary to the orders, and without the consent, of
the candidate or his election agent;
(c) that the candidate and his election agent took all reasonable
means for preventing the commission of corrupt practices at the
election; and
(d) that in all other respects the election was free from any corrupt
practice on the part of the candidate or any of his agents,
Then the High Court may decide that the election of the returned
candidate is not void.
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k 3 EP 06.24 J os.doc 22) For invoking the grounds enumerated under Section 100(1)(d)
(iii) of the RP Act it is necessary for the Election Petitioner to plead in the
Petition that the result of the election of Returned Candidate has been
materially affected by improper reception, refusal or rejection of any vote or
the reception of any vote which is void. Similarly for invoking the ground
under Section 100(1)(d)(iv) of the RP Act, it is incumbent for the Election
Petitioner to plead in his Election Petition that the result of election of the
Returned Candidate has been materially affected by non-compliance with
the provisions of the Constitution or the provisions of RP Act or of any
Rules or orders made thereunder.
23) Section 83 of the RP Act deals with contents of Election
Petition and provides 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.
(2) Any schedule or annexure to the petition shall also be signed by the
petitioner and verified in the same manner as the petition.
24) Thus, it is mandatory under provisions of Section 83(1)(a) of
the RP Act that an Election Petition must contain a concise statement of
all material facts on which the Petitioner relies. When provisions of
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k 3 EP 06.24 J os.docSection 100(1)(d)(iii) and (iv) of the RP Act, what emerges is that the
Election Petition must contain a concise statement of material facts to
demonstrate the ground of improper reception, refusal or rejection of any
vote or reception of any vote which is void or a concise statement of
material fact to demonstrate non-compliance with provisions of the
Constitution or of the Act or Rules or orders made thereunder.
25) The necessary corollary of conjunctive reading of provisions of
Section 83(1)(a) and Section 100(1)(d) (iii) and (iv) of the RP Act is that an
Election Petition which does not disclose pleading of material facts
demonstrating grounds under sub-clauses (iii) or (iv) of the clause (d) of
sub-section (1) of Section 100 of the RP Act will have to be rejected by
invoking powers under Order VII Rule 11 of the Code.
26) Before proceeding ahead with the examination as to whether
the Election Petition filed by the Petitioner discloses concise statement of
material facts demonstrating grounds under Section 100(1)(d)(iii) and (iv)
of the RP Act, it would be necessary to take stock of few judgments dealing
with the necessity for pleading of material facts for maintenance of an
Election Petition. By now it is well settled position of law that Election
Petition is a statutory remedy and not an action in equity or a remedy in
common law. It is also equally well settled position that RP Act is a
complete and self-contained Code. Therefore, strict compliance with the
provisions of the RP Act is mandatory requirement for exercising the
statutory remedy under the RP Act. Reference in this regard can be made
to the judgment of the Apex Court in Jyoti Basu (supra) wherein the Apex
Court has held in paragraph 8 as under:
8. A right to elect, fundamental though it is to democracy, is, anomalously
enough, neither a fundamental right nor a common law right. It is pure
and simple, a statutory right. So is the right to be elected. So is the right
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k 3 EP 06.24 J os.docto be elected and no right to dispute an election. Statutory creations they
are, and therefore, subject to statutory limitation. An election petition is
not an action at common law, nor in equity. It is a statutory
proceeding to which neither the common law nor the principles of
equity apply but only those rules which the statute makes and
applies. It is a special jurisdiction, and a special jurisdiction has
always to be exercised in accordance with the statute creating it.
Concepts familiar to common law and equity must remain strangers to
election law unless statutorily embodied. A court has no right to resort to
them on considerations of alleged policy because policy in such matters as
those, relating to the trial of election disputes, is what the statute lays
down. In the trial of election disputes, court is put in a strait-jacket. Thus
the entire election process commencing from the issuance of the
notification calling upon a constituency to elect a member or members
right up to the final resolution of the dispute, if any, concerning the
election is regulated by the Representation of the People Act, 1951,
different stages of the process being dealt with by different provisions of
the Act. There can be no election to Parliament or the State Legislature
except as provided by the Representation of the People Act, 1951 and
again, no such election may be questioned except in the manner provided
by the Representation of the People Act. So the Representation of the
People Act has been held to be a complete and self-contained code
within which must be found any rights claimed in relation to an
election or an election dispute. We are concerned with an election
dispute. The question is who are parties to an election dispute and who
may be impleaded as parties to an election petition. We have already
referred to the scheme of the Act. We have noticed the necessity to rid
ourselves of notions based on common law or equity. We see that we must
seek an answer to the question within the four corners of the statute.
What does the Act say?
(emphasis added)
27) In Dharmin Bai Kashyap Versus. Babli Sahu and
others22, the Apex Court has reiterated the position that where a right or a
liability is created by a statute, which gives a special remedy for enforcing
it, the remedy provided by the statute must be availed of in accordance
with the statute and that if a statute provides for doing a thing in a
particular manner it has to be done in that matter alone and in no other
manner. The Apex Court has held in paragraph 17 as under:
17. There is hardly any need to reiterate the trite position of law
that when it comes to the interpretation of statutory provisions
relating to election law, jurisprudence on the subject mandates
22 (2023) 10 SCC 461
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strict construction of the provisions [Laxmi Singh v. Rekha Singh,
(2020) 6 SCC 812]. Election contest is not an action at law or a suit
in equity but purely a statutory proceeding, provision for which
has to be strictly construed. The petitioner having failed to make any
application in writing for re-counting of votes as required under Section 80
of the Nirvachan Niyam, 1995, and having failed to seek relief of
declarations as required under Rule 6 of the 1995 Rules, the election
petition filed by the petitioner before the Sub-Divisional Officer (R) seeking
relief of re-counting of votes alone was not maintainable.
(emphasis added)
28) Having held that strict compliance with provisions of RP Act is
mandatory requirement for exercise of statutory remedy, it would be
appropriate to discuss the relevant case law on the subject dealing with the
nature of pleadings that are required for maintainability of a valid Election
Petition. In Mangani Lal Mandal (supra), the Apex Court held that the
sine qua non for declaring an election of returned candidate to be void
under Section 100(1)(d)(iv) of the RP Act is further proof of the fact that
such breach or non-observance results in materially affecting the result of
returned candidate. It is further held that mere violation or breach or non-
observance of the provisions of Constitution, the Act, Rules or orders made
thereunder would not ipso facto render the election of returned candidate
void. The Apex Court held in paragraphs 10, 11 and 12 as under:
10. A reading of the above provision with Section 83 of the 1951 Act leaves
no manner of doubt that where a returned candidate is alleged to be guilty
of non-compliance with the provisions of the Constitution or the 1951 Act
or any rules or orders made thereunder and his election is sought to be
declared void on such ground, it is essential for the election petitioner
to aver by pleading material facts that the result of the election
insofar as it concerned the returned candidate has been
materially affected by such breach or non-observance. If the
election petition goes to trial then the election petitioner has also to prove
the charge of breach or non-compliance as well as establish that the result
of the election has been materially affected. It is only on the basis of such
pleading and proof that the Court may be in a position to form opinion and
record a finding that breach or non-compliance with the provisions of the
Constitution or the 1951 Act or any rules or orders made thereunder has
materially affected the result of the election before the election of the
returned candidate could be declared void.
11. A mere non-compliance or breach of the Constitution or the
statutory provisions noticed above, by itself, does not result in
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k 3 EP 06.24 J os.doc100(1)(d)(iv). The sine qua non for declaring the election of a
returned candidate to be void on the ground under clause (iv) of
Section 100(1)(d) is further proof of the fact that such breach or
non-observance has resulted in materially affecting the result of
the returned candidate. In other words, the violation or breach or non-
observation or non-compliance with the provisions of the Constitution or
the 1951 Act or the rules or the orders made thereunder, by itself, does not
render the election of a returned candidate void Section 100(1)(d)(iv). For
the election petitioner to succeed on such ground viz. Section 100(1)(d)(iv),
he has not only to plead and prove the ground but also that the result of
the election insofar as it concerned the returned candidate has been
materially affected. The view that we have taken finds support from the
three decisions of this Court in: (1) Jabar Singh v. Genda Lal [AIR 1964
SC 1200 : (1964) 6 SCR 54] ; (2) L.R. Shivaramagowda v. T.M.
Chandrashekar [(1999) 1 SCC 666];and (3) Uma Ballav
Rath v. Maheshwar Mohanty [(1999) 3 SCC 357] .
12. Although the impugned judgment runs into 30 pages, but
unfortunately it does not reflect any consideration on the most vital aspect
as to whether the non-disclosure of the information concerning the
appellant’s first wife and the dependent children born from that wedlock
and their assets and liabilities has materially affected the result of the
election insofar as it concerned the returned candidate. As a matter of fact,
in the entire election petition there is no pleading at all that the
suppression of the information by the returned candidate in the affidavit
filed along with the nomination papers with regard to his first wife and
dependent children from her and non-disclosure of their assets and
liabilities has materially affected the result of the election. There is no
issue framed in this regard nor is there any evidence let in by the election
petitioner. The High Court has also not formed any opinion on this aspect.
(emphasis added)
29) In Shambhu Prasad Sharan (supra) the Apex Court dealt
with an Appeal arising out of order passed by the High Court dismissing
the Election Petition on the ground that the same did not make concise
statement of material facts and did not disclose of cause of action.
Upholding the rejection of Petition under provisions of Order VII Rule 11
of the Code, the Apex Court held in paragraphs 15, 18 and 20 as under:
15. Suffice it to say that the case pleaded by the appellant was not one of
complete failure of the requirement of filing an affidavit in terms of the
judgment of this Court and the instructions given by the Election
Commission but a case where even according to the appellant the
affidavits were not in the required format. What is significant is that the
election petition did not make any averment leave alone disclose material
facts in that regard suggesting that there were indeed any outstanding
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k 3 EP 06.24 J os.docreturned candidate or any other candidate whose nomination papers were
accepted. The objection raised by the appellant was thus in the nature of
an objection to form rather than substance of the affidavit, especially
because it was not disputed that the affidavits filed by the candidates
showed the outstandings to be nil.
18. From the above it is evident that the form of the nomination papers is
not considered sacrosanct. What is to be seen is whether there is a
substantial compliance with the requirement as to form. Every departure
from the prescribed format cannot, therefore, be made a ground for
rejection of the nomination paper.
20. Coming to the allegation that other candidates had also not submitted
affidavits in proper format, rendering the acceptance of their nomination
papers improper, we need to point out that the appellant was
required to not only allege material facts relevant to such
improper acceptance, but further assert that the election of the
returned candidate had been materially affected by such
acceptance. There is no such assertion in the election petition.
Mere improper acceptance assuming that any such improper acceptance
was supported by assertion of material facts by the appellant-petitioner,
would not disclose a cause of action to call for trial of the election petition
on merit unless the same is alleged to have materially affected the result
of the returned candidate.
(emphasis added)
30) In Mairembam Prithviraj alias Prithviraj Singh (supra) the
Apex Court has relied upon its judgment in Durai Muthuswami Versus.
N Nachiappan23, and held in paragraphs 22 and 23 as under:
22. The facts, in brief, of Durai Muthuswami [Durai Muthuswami v. N.
Nachiappan, (1973) 2 SCC 45] are that the petitioner in the election petition
contested in the election to the Tamil Nadu Legislative Assembly from
Sankarapuram constituency. He challenged the election of the first respondent on
the grounds of improper acceptance of nomination of the returned candidate,
rejection of 101 postal ballot papers, ineligible persons permitted to vote, voting
in the name of dead persons and double voting. The High Court dismissed the
election petition by holding that the petitioner failed to allege and prove that the
result of the election was materially affected by the improper acceptance of the
nomination of the first respondent as required by Section 100(1)(d) of the Act. The
civil appeal filed by the petitioner therein was allowed by this Court in Durai
Muthuswami [Durai Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] in
which it was held as follows : (SCC pp. 48-49, para 3)
“3. Before dealing with the question whether the learned Judge was right
in holding that he could not go into the question whether the 1st
respondent’s nomination has been improperly accepted because there was
no allegation in the election petition that the election had been materially
affected as a result of such improper acceptance, we may look into the
relevant provisions of law. Under Section 81 of the Representation of the
People Act, 1951 an election petition calling in question any election may23 (1973) 2 SCC 45
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k 3 EP 06.24 J os.docbe presented on one or more of the grounds specified in sub-section (1) of
Section 100 and Section 101. It is not necessary to refer to the rest of the
section. Under Section 83(1)(a), insofar as it is necessary for the purpose of
this case, an election petition shall contain a concise statement of the
material facts on which the petitioner relies. Under Section 100(1) if the
High Court is of opinion–
(a) that on the date of his election a returned candidate was not
qualified, or was disqualified, to be chosen to fill the seat under the
Constitution or this Act….
(b)-(c) * * *
(d) that the result of the election, insofar as it concerns a
returned candidate, has been materially affected–
(i) by the improper acceptance of any nomination, or
(ii)-(iii) * * *
the High Court shall declare the election of the returned candidate to be void.
Therefore, what Section 100 requires is that the High Court before it declares the
election of a returned candidate is void should be of opinion that the result of the
election insofar as it concerns a returned candidate has been materially affected
by the improper acceptance of any nomination. Under Section 83 all that was
necessary was a concise statement of the material facts on which the petitioner
relies. That the appellant in this case has done. He has also stated that the
election is void because of the improper acceptance of the 1st respondent’s
nomination and the facts given showed that the 1st respondent was suffering
from a disqualification which will fall under Section 9-A. That was why it was
called improper acceptance. We do not consider that in the circumstances of this
case it was necessary for the petitioner to have also further alleged that the result of
the election insofar as it concerns the returned candidate has been materially
affected by the improper acceptance of the 1st respondent’s nomination. That is the
obvious conclusion to be drawn from the circumstances of this case. There was only
one seat to be filled and there were only two contesting candidates. If the allegation
that the 1st respondent’s nomination has been improperly accepted is accepted the
conclusion that would follow is that the appellant would have been elected as he
was the only candidate validly nominated. There can be, therefore, no dispute that
the result of the election insofar as it concerns the returned candidate has been
materially affected by the improper acceptance of his nomination because but for
such improper acceptance he would not have been able to stand for the election or
be declared to be elected. The petitioner had also alleged that the election was void
because of the improper acceptance of the 1st respondent’s nomination. In the case
of election to a single-member constituency if there are more than two candidates
and the nomination of one of the defeated candidates had been improperly accepted
the question might arise as to whether the result of the election of the returned
candidate had been materially affected by such improper reception. In such a case
the question would arise as to what would have happened to the votes which had
been cast in favour of the defeated candidate whose nomination had been
improperly accepted if it had not been accepted. In that case it would be necessary
for the person challenging the election not merely to allege but also to prove that
the result of the election had been materially affected by the improper acceptance
of the nomination of the other defeated candidate. Unless he succeeds in proving
that if the votes cast in favour of the candidate whose nomination had been
improperly accepted would have gone in the petitioner’s favour and he would have
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got a majority he cannot succeed in his election petition. Section 100(1)(d)(i) deals
with such a contingency. It is not intended to provide a convenient technical plea
in a case like this where there can be no dispute at all about the election being
materially affected by the acceptance of the improper nomination. “Materially
affected” is not a formula that has got to be specified but it is an essential
requirement that is contemplated in this section. Law does not contemplate a
mere repetition of a formula. The learned Judge has failed to notice the
distinction between a ground on which an election can be declared to be void and
the allegations that are necessary in an election petition in respect of such a
ground. The petitioner had stated the ground on which the 1st respondent’s
election should be declared to be void. He had also given the material facts as
required under Section 83(1)(a). We are, therefore, of opinion that the learned
Judge erred in holding that it was not competent for him to go into the question
whether the 1st respondent’s nomination had been improperly accepted.”
(emphasis supplied)
23. It is clear from the above judgment in Durai Muthuswami [Durai
Muthuswami v. N. Nachiappan, (1973) 2 SCC 45] that there is a difference
between the improper acceptance of a nomination of a returned candidate and the
improper acceptance of nomination of any other candidate. There is also a
difference between cases where there are only two candidates in the fray and a
situation where there are more than two candidates contesting the election. If the
nomination of a candidate other than the returned candidate is found to have
been improperly accepted, it is essential that the election petitioner has to plead
and prove that the votes polled in favour of such candidate would have been
polled in his favour. On the other hand, if the improper acceptance of nomination
is of the returned candidate, there is no necessity of proof that the election has
been materially affected as the returned candidate would not have been able to
contest the election if his nomination was not accepted. It is not necessary for the
respondent to prove that result of the election insofar as it concerns the returned
candidate has been materially affected by the improper acceptance of his
nomination as there were only two candidates contesting the election and if the
appellant’s nomination is declared to have been improperly accepted, his election
would have to be set aside without any further enquiry and the only candidate
left in the fray is entitled to be declared elected.
31) The conspectus of the above discussion is that for maintaining
an Election Petition and for taking it to the stage of trial, it is necessary
that there is strict compliance with the provisions of Section 83(1)(a) of the
RP Act. The concise statement of material facts must constitute a complete
cause of action. Failure on the part of the Election Petitioner to raise
necessary pleadings to make out a case of existence of ground under
Section 100(1)(d)(iii) or (iv) of the RP Act would necessarily result in
dismissal of Election Petition by invoking powers under Order VII Rule 11
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of the Code. The Apex Court has summed up the legal position in this
regard after taking stock of various judgments rendered in the past in
Kanimozhi Karunanidhi (supra) in paragraph 28 as under:
28. The legal position enunciated in afore-stated cases may be summed up as
under:–
i. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall
contain a concise statement of material facts on which the petitioner
relies. If material facts are not stated in an Election petition, the same is
liable to be dismissed on that ground alone, as the case would be covered
by Clause (a) of Rule 11 of Order 7 of the Code.
ii. The material facts must be such facts as would afford a basis for the
allegations made in the petition and would constitute the cause of action,
that is every fact which it would be necessary for the plaintiff/petitioner to
prove, if traversed in order to support his right to the judgment of court.
Omission of a single material fact would lead to an incomplete
cause of action and the statement of plaint would become bad.
iii. Material facts mean the entire bundle of facts which would constitute a
complete cause of action. Material facts would include positive
statement of facts as also positive averment of a negative fact, if
necessary.
iv. In order to get an election declared as void under Section 100(1)(d)(iv) of
the RP Act, the Election petitioner must aver that on account of non-
compliance with the provisions of the Constitution or of the Act or any
rules or orders made under the Act, the result of the election, in so far as it
concerned the returned candidate, was materially affected.
v. The Election petition is a serious matter and it cannot be treated lightly
or in a fanciful manner nor is it given to a person who uses it as a handle
for vexatious purpose.
vi. An Election petition can be summarily dismissed on the
omission of a single material fact leading to an incomplete cause
of action, or omission to contain a concise statement of material
facts on which the petitioner relies for establishing a cause of
action, in exercise of the powers under Clause (a) of Rule 11 of
Order VII CPC read with the mandatory requirements enjoined by
Section 83 of the RP Act.
(emphasis and underlining added)
32) The above principles are reiterated in subsequent judgment in
Karim Uddin Barbhuiya (supra), in which it is held in paragraphs 13,
14, 15, 22, 24 and 30 as under:
13. It hardly needs to be reiterated that in an Election Petition,
pleadings have to be precise, specific and unambiguous, and if thekatkam Page No. 21 of 42
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k 3 EP 06.24 J os.docElection Petition does not disclose a cause of action, it is liable to
be dismissed in limine. It may also be noted that the cause of action in
questioning the validity of election must relate to the grounds specified in
Section 100 of the RP Act. As held in Bhagwati Prasad Dixit
‘Ghorewala’ v. Rajeev Gandhi4 and in Dhartipakar Madan Lal
5
Agarwal v. Rajiv Gandhi , if the allegations contained in the petition
do not set out the grounds as contemplated by Section 100 and do
not conform to the requirement of Section 81 and 83 of the Act, the
pleadings are liable to be struck off and the Election Petition is
liable to be rejected under Order VII, Rule 11 CPC.
14. A beneficial reference of the decision in case of Laxmi Narayan
Nayak v. Ramratan Chaturvedi6 be also made, wherein this Court upon
review of the earlier decisions, laid down following principles applicable to
election cases involving corrupt practices:–
“5. This Court in a catena of decisions has laid down the principles
as to the nature of pleadings in election cases, the sum and
substance of which being:
(1) The pleadings of the election petitioner in his petition should be
absolutely precise and clear containing all necessary details and
particulars as required by law vide Dhartipakar Madan Lal
Agarwal v. Rajiv Gandhi [1987 Supp SCC 93] and Kona
Prabhakara Rao v. M. Seshagiri Rao [(1982) 1 SCC 442].
(2) The allegations in the election petition should not be vague,
general in nature or lacking of materials or frivolous or vexatious
because the court is empowered at any stage of the proceedings to
strike down or delete pleadings which are suffering from such vices
as not raising any triable issue vide Manphul Singh v. Surinder
Singh [(1973) 2 SCC 599 : (1974) 1 SCR 52], Kona Prabhakara
Rao v. M. Seshagiri Rao [(1982) 1 SCC 442] and Dhartipakar
Madan Lal Agarwal v. Rajiv Gandhi [1987 Supp SCC 93].
(3) The evidence adduced in support of the pleadings should be of
such nature leading to an irresistible conclusion or unimpeachable
result that the allegations made, have been committed rendering
the election void under Section 100 vide Jumuna Prasad
Mukhariya v. Lachhi Ram [(1954) 2 SCC 306 : (1955) 1 SCR
608 : AIR 1954 SC 686] and Rahim Khan v. Khurshid
Ahmed [(1974) 2 SCC 660].
(4) The evidence produced before the court in support of the
pleadings must be clear, cogent, satisfactory, credible and positive
and also should stand the test of strict and scrupulous scrutiny
vide Ram Sharan Yadav v. Thakur Muneshwar Nath Singh [(1984)
4 SCC 649].
(5) It is unsafe in an election case to accept oral evidence at its face
value without looking for assurances for some surer circumstances
or unimpeachable documents vide Rahim Khan v. Khurshid
Ahmed [(1974) 2 SCC 660], M. Narayana Rao v. G. Venkata
Reddy [(1977) 1 SCC 771 : (1977) 1 SCR 490], Lakshmi Raman
Acharya v. Chandan Singh [(1977) 1 SCC 423 : (1977) 2 SCR 412]
and Ramji Prasad Singh v. Ram Bilas Jha [(1977) 1 SCC 260].
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(6) The onus of proof of the allegations made in the election petition
is undoubtedly on the person who assails an election which has
been concluded vide Rahim Khan v. Khurshid Ahmed [(1974) 2
SCC 660], Mohan Singh v. Bhanwarlal [(1964) 5 SCR 12 : AIR 1964
SC 1366] and Ramji Prasad Singh v. Ram Bilas Jha [(1977) 1 SCC
260].”
15. The legal position with regard to the non-compliance of the
requirement of Section 83(1)(a) of the RP Act and the rejection of Election
Petition under Order VII Rule 11, CPC has also been regurgitated recently
by this Court in case of Kanimozhi Karunanidhi v. A. Santhana
Kumar (supra):–
xxx
22. So far as the ground contained in clause (d) of Section 100(1) of the
Act, with regard to improper acceptance of the nomination of the
Appellant is concerned, there is not a single averment made in the
Election Petition as to how the result of the election, in so far as the
appellant was concerned, was materially affected by improper acceptance
of his nomination, so as to constitute a cause of action under Section
100(1)(d)(i) of the Act. Though it is true that the Election Petitioner is not
required to state as to how corrupt practice had materially affected the
result of the election, nonetheless it is mandatory to state when the clause
(d)(i) of Section 100(1) is invoked as to how the result of election was
materially affected by improper acceptance of the nomination form of the
Appellant.
24. As stated earlier, in Election Petition, the pleadings have to be precise,
specific and unambiguous. If the allegations contained in Election Petition
do not set out grounds as contemplated in Section 100 and do not conform
to the requirement of Section 81 and 83 of the Act, the Election Petition is
liable to be rejected under Order VII, Rule 11 of CPC. An omission of a
single material fact leading to an incomplete cause of action or omission to
contain a concise statement of material facts on which the Election
petitioner relies for establishing a cause of action, would entail rejection of
Election Petition under Order VII Rule 11 read with Section 83 and 87 of
the RP Act.
(emphasis added)
33) The Apex Court in Karikho Kri (supra) held in paragraphs 40
and 41 as under:
40. Having considered the issue, we are of the firm view that every
defect in the nomination cannot straightaway be termed to be of
such character as to render its acceptance improper and each case
would have to turn on its own individual facts, insofar as that
aspect is concerned. The case law on the subject also manifests that this
Court has always drawn a distinction between non-disclosure of
substantial issues as opposed to insubstantial issues, which may not
impact one’s candidature or the result of an election. The very fact that
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k 3 EP 06.24 J os.docrejecting a nomination unless he is of the opinion that the defect is of a
substantial nature demonstrates that this distinction must always be kept
in mind and there is no absolute mandate that every non-disclosure,
irrespective of its gravity and impact, would automatically amount to a
defect of substantial nature, thereby materially affecting the result of the
election or amounting to ‘undue influence’ so as to qualify as a corrupt
practice.
41. The decision of this Court in Kisan Shankar Kathore (supra), also
demonstrates this principle, as this Court undertook examination of
several individual defects in the nomination of the returned candidate and
found that some of them were actually insubstantial in character. This
Court noted that two facets required consideration – Whether there is
substantial compliance in disclosing requisite information in the affidavits
filed along with the nomination and whether non-disclosure of information
on identified aspects materially affected the result of the election. This
Court observed, on facts, that non-disclosure of the electricity dues in that
case was not a serious lapse, despite the fact that there were dues
outstanding, as there was a bonafide dispute about the same. Similar was
the observation in relation to non-disclosure of municipal dues, where
there was a genuine dispute as to re-valuation and re-assessment for the
purpose of tax assessment. Earlier, in Sambhu Prasad
Sharma v. Charandas Mahant, this Court observed that the form of the
nomination paper is not considered sacrosanct and what is to be seen is
whether there is substantial compliance with the requirement as to form
and every departure from the prescribed format cannot, therefore, be made
a ground for the rejection of the nomination paper.
34) Having broadly set out the statutory scheme as well as the
principles enunciated by various judgments of the Supreme Court on
requirement for setting up concise statement of material facts disclosing
cause of action, I now proceed to examine whether the Election Petitioner
has pleaded material facts necessary for demonstrating grounds under
sub-clauses (iii) and/or (iv) of clause (d) of sub-section 1 of Section 100 of
the RP Act in his Election Petition.
35) Petitioner has pleaded in the Election Petition that there is a
violation of statutory Rules/Orders stipulating the procedure to be followed
during the counting process. His first grouse is about the Returning Officer
not permitting his counting agents to sit at the counting table in violation
of statutory requirement. He has placed reliance on provisions of Section
64 of the RP Act providing for right in favour of contesting candidate, his
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election and his counting agents to be present at the time of counting. He
has also referred to the provisions of Section 47 relating to appointment of
counting agents and Rules 52 and 53 of the Rules of 1961. Additionally, he
has relied upon Clause 15.3 of handbook of Returning Officers 2023
providing for allowing the counting agent to sit on the counting table. He
has also referred to various other clauses of the handbook in support of his
ground of refusal to permit his counting agent sit at the ARO/RO table.
However, after setting out the provisions of the RP Act, Rules and
handbook, the only averments in the Election Petition relating to the
allegations of non-permission for his counting agent to sit at the counting
table, to be found in paragraphs 23 and 24 of the Petition are as follows:
23. It is submitted that despite the categorical stipulation in Clause
15.3.22 of the Handbook noted above, neither the candidate, nor his
election agent nor any of his counting agents were permitted to sit at the
tables and computer on which the computation and compilation of data
from each table is done in ENCORE at the conclusion of each round.
24. This, it is submitted, has caused serious prejudice to the Election
Petitioner in as much as on account of his unavailability as well as that of
his election agent or any of his counting agents at the A.R.O./R.O. table, is
not only a breach of Clause 15.3.22 of the Handbook but has led to further
breach of Clause 15.16.5 noted above, which makes it mandatory upon
the Returning Officer to show the Form 17 received at the R.O./A.R.O.
table to the candidates/their election agents/ counting agents sitting there,
to enable them to note down the results of each candidate for each polling
station.
36) Thus, there are no pleadings as to which persons were
appointed as Petitioner’s counting agents under Section 47 of the RP Act
and at which particular tables or computers they were not permitted to sit.
The allegations are thus clearly vague and do not really disclose a cause of
action for making out a ground under Section 100(1)(d)(iii) or (iv) of the RP
Act. Most importantly, there is no positive statement that non-grant of
permission to Petitioner’s counting agent at the ARO/RO table has
materially affected the result of election of returned candidate.
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k 3 EP 06.24 J os.doc 37) The next ground pleaded in the Election Petition is about non-
supply of Form 17C (Part-II) to the counting agents of the Petitioner at the
counting tables in respect of three out of six assembly segments. The
relevant pleadings in support of this ground are to be found in paragraphs
25 to 29 of the Election Petition which read thus:
Non-supply of Form 17-C (Part-II) to the Counting Agents of the Petitioner
at the Counting Tables in respect of 3 out of 6 assembly segments.
25. It is submitted that the aforementioned breach by the Election Officials gets
further compounded because of the total non- supply of Form 17-C (Part II) –
Result of Counting, in the following Assembly Segments:
S Assembly Segment Nos. Polling Form 17-C Form 17-C (Part II)
R Booth (Part II) Received Not Received
1. 158-Jogeshwari 270 0 270
2. 164-Versova 293 0 293
3. 163-Goregaon 354 78 276
26. In so far as 163, Goregaon Assembly segment is concerned, out of 354 polling
booths, Form 17-C (part II) has been received for 78 booths. However, the
following are the 276 polling booths in respect of which Form 17-C (Part II) has
not been supplied: 10, 12, 17, 24, 29, 31-33, 37-41, 45, 46, 49, 52, 54, 59, 64, 66,
68, 73, 80, 82, 87, 92-94, 96-102, 104-110, 112, 113, 115, 116, 118-124, 126, 127,
129, 130, 132-141, 143, 144, 146-155, 157, 158, 160-354.
27. This breach i.e. non-supply of copies of Form 17-C (Part II) to the Petitioner’s
counting agents is in the teeth of Clause 15.16.2 of the Handbook quoted above.
It is submitted that the non- supply of the Form 17-C (Part II) in the said
Assembly segments can clearly be discerned from the video recordings / CCTV
footage on the Counting Hall, as such it is incumbent to summon the same from
the D.E.O. in whose custody the said footage has been kept. In fact the Petitioner
has vide application dtd. 15.07.2024 demanded inspection of Form 17-C (Part-II)
as well as supply of certified copies thereof. Hereto annexed and marked as
Exhibit – “B” is the true copy of the Application dated 15.07.2024 demanding
Form 17-C (Part II).
28. It is submitted that the cumulative effect of the aforesaid breaches is that, on
the one hand nobody from the Election Petitioner’s side was present to note the
numbers from the original Form 17-C (Part II), from which the data from each
table was being compiled and tabulated in ENCORE system at the conclusion of
each round, so that the final results declared could be tallied at the counting
centre itself, with the numbers noted by the Election Petitioner, his election agent
or his counting agent sitting at the A.R.O’S/R.O.’s table. On the other hand, the
failure to hand over Form 17-C (Part II) in respect of the three Assembly
segments i.e. mentioned above has resulted in completely denying the Election
Petitioner an opportunity to cross verify the final results as well.
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29. It is submitted that a perusal of the video recording / CCTV footage of the
counting hall would clearly reveal that no one from the Petitioner’s side was
allowed to sit at the RO./ A.R.O.’s table. As such it is incumbent to summon the
same from the D.E.O. in whose custody the said footage has been kept.
38) Again, in support of the ground of non-supply of Form 17C (Part-II)
to the counting agents, there is no averment that the same would
materially affect the result of the returned candidate. In fact, the
allegation in this regard is vague and the same does not even lead to any
logical conclusion to demonstrate any specific ground under Section 100 of
the RP Act. The fact that the Petitioner filed an application one day before
filing of the Election Petition demanding inspection of Form 17C (Part-II)
as well as supply of certified copies thereof indicates his mere belief that
may be in a position to make out a ground for questioning election of
Respondent No.1 after going through the Form 17C (Part-II). The Election
Petition is filed after 41 days of declaration of result. Petitioner had
sufficient time to secure and collate the information for making out any
specific ground of setting aside the election under Section 100(1)(d) (iii) or
(iv) of the RP Act. He ought to have completed the exercise of conducting
inspection of relevant Form 17C (Part-II) and then raised a specific
pleading relating to the exact illegality or irregularity which non-supply of
the said Forms has really resulted in. Petitioner has thus sought mere
roving inquiry in absence of any material pleading demonstrating any
specific ground for setting aside election of Respondent No.1 arising out of
allegation of non-supply of Form-17C (Part II). In fact, the averment in the
Petition that failure to supply Form-17C (Part II) has denied to the
Election Petitioner “an opportunity to cross-verify the final results” again
indicates that the Petitioner himself is not sure whether any illegality or
irregularity has indeed occurred in the matter of counting of votes or not.
Thus, the ground of non-supply of Form 17C (Part-II) is not well supported
by the requisite pleadings.
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k 3 EP 06.24 J os.doc 39) The next ground pleaded by the Petitioner is about rejection of
his demand for recounting of votes. The relevant pleadings in this regard
are to be found in paragraphs 30 to 39 of the Election Petition which read
thus:
Demand for Re-Count rejected hastily and in completely ignorance of
Statutory instructions in that regard
30. More importantly, as per the numbers recorded by the counting agents of the
Election Petitioner at the counting tables, the Election Petitioner got more than
650 votes than the Returned Candidate after the 26 rounds of counting. However,
it was announced by the R.O. that the Election Petitioner got only 1 vote more
than the Returned Candidate at the end of all 26 rounds, based on the entries
made in Form 20.
31. Immediately thereafter, as required under Clause 15.19, the election agent of
the Petitioner sought for re-count, since as per the Form – 20 announcements the
Petitioner had a lead by 1 vote only, but according to the numbers noted by the
counting agents of the Petitioner at the tables, the Petitioner was leading by more
than 650 votes. However, his request was turned down by the R.O. and even after
the election agent insisted on making the application for re-count in writing, the
R.O. flatly refused saying that she will treat any such application as having been
made only after the result sheet has been signed and declared.
32. In any event, an application on behalf of the Election Petitioner was made
then and there demanding a recount on the ground that there was a large
discrepancy in votes announced vis-à-vis the votes recorded / noted by the
counting agents of the Election Petitioner at the counting tables. It is submitted
that the R.O. rejected the request and noted in the application that “Result
declared at 7:54 seven fifty four pm. Objection received at 8:06 pm”. Hereto
annexed and marked as Exhibit – “C” is the true copy of the application for
recount dated 04.06.2024 made by the Election Petitioner and Hereto annexed
and marked as Exhibit – “C-1” is the translated copy of the application for
recount dated 04.06.2024 made by the Election Petitioner.
33. This it is submitted is a total mockery of the Statutory Rules / Instructions in
respect of demand of recount and consideration thereof. The procedure for recount
has been provided in detail in Clause 15.19 of the Handbook and reads as follows:
“15.19 RECOUNT:
15.19.2 When the counting is complete and the Final Result Sheet in
Form 20 has been prepared, RO should announce the total number of
votes polled by each candidate as entered in Form 20. Then RO should
pause for a minute or two. If during this period any candidate or, in his
absence, his election agent or any of the counting agents, asks for a
recount, RO should ascertain from him the time required for making an
application for recount in writing. However, in the case, where the
counting places are in different locations, application for re-count in
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k 3 EP 06.24 J os.docin that Assembly Segment. The concerned ARO may deal with application
for re-count with the approval of the RO as it would be difficult for
candidates/agents located in other counting locations to reach the RO’s
location in time to make application for re-count. A candidate has option to
make request for recount of polled ballot papers and/or polled EVMs of all
or some of the polling stations.
15.19.3 If RO consider that the time applied for is reasonable, he
shall allow it and announce the exact hour and minute up to,
which RO will wait for receiving the written application for
recount. RO must not sign the Final Result Sheet in Form 20 until
after the expiry of the time so announced. If RO receives an
application for recount, he should consider the grounds urged and
decide the matter judiciously. RO may allow the application in whole
or in part if it is reasonable or may reject it if it appears to be frivolous or
unreasonable. But the right of a candidate to demand a recount under
Rule 63 does not mean that recount can be granted for the mere asking.
The party demanding recount has to make out a, prima facie case, which
the counting was not accurate and recount is necessary in the interest of
justice. In every case, RO should record a brief statement of reasons for the
decision and should give a speaking order. ROs decision will be final.
15.19.5 After the total number of votes polled by each candidate after
recount has been announced by RO, complete and sign the Result Sheet.
No candidate has a right to demand a recount after RO have completed
and signed the Final Result Sheet. Reject any demand for any recount of
votes after RO have completed and signed the Final Result Sheet. Entire
process shall have to be video- recorded carefully.
15.19.6 A candidate has right to file request for 2nd recount. It
would be unreasonable to demand second recount if the first recount
showed only minor variations from the first recount and at the same time
showed a very substantial majority in favour of one candidate. On the
contrary, it would be reasonable to demand further recount where
the margin between first two candidates is close and where
previous recount has shown differing results.” (emphasis added)
34. As can be seen from the above, once an election agent demands a recount, he
ought to be given a reasonable opportunity to make his application in writing. In
the present case, the difference in votes was only 1 and in fact it was the Election
Petitioner who had got that 1 extra vote and whose election agent demanded a re-
count. However, instead of giving him an opportunity to make the application in
writing, the R.O. went on to hastily sign and declare the results in Form 20 and
when the election petitioner moved an application immediately thereafter, she
rejected it taking a specious excuse that the results were declared 10 mins back.
35. Be that as it may, the high-handed hastiness and palpable arbitrariness on
the part of the R.O. can also be seen from the fact that she completely ignored
Clause 15.19.6 of the 2023 Handbook noted above, which provides for a
candidate’s right to file for a second re-count, particularly when the margin
between the first two candidates is narrow. In the present case there could not
have been a narrower margin than 1 vote.
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36. It is submitted that all of this has been video recorded as stipulated under
Clause 15.19.5 of the 2023 Handbook and the impropriety which has materially
affected the result of the election can be assessed by summoning the same from
the D.E.O. in whose custody the same has been stored in terms of Clause 19.10
of the 2023 Handbook.
37. It is submitted that the Petitioner has made several representations to the
R.O. as well as the D.E.O. seeking supply of the video recording of the entire
process of counting. the D.E.O. vide communication dtd. 14.06.2024 has rejected
the same, in complete breach of Clause 19.10 of the 2023 Handbook which
unambiguously states that copies of the said video recordings shall be provided
upon payment of fees. Hereto annexed and marked as Exhibit – “D” is the true
copy of the application dated 06.06.2024 made by the Petitioner to the R.O and
Hereto annexed and marked as Exhibit – “D-1” is the translated copy of the
application dated 06.06.2024 made by the Petitioner to the R.O. Hereto annexed
and marked as Exhibit – “E” is the true copy of the application dated 11.06.2024
made by the Petitioner to the D.E.O and Hereto annexed and marked as Exhibit
“E-1” is the translated copy of the application dated 11.06.2024 made by the
Petitioner to the D.E.O. Hereto annexed and marked as Exhibit “F” is the true
copy of the reply dated 14.06.2024 of the D.E.O and Hereto annexed and marked
as Exhibit – “F-1” is the translated copy of the reply dated 14.06.2024 of the
D.E.O. Hereto annexed and marked as Exhibit -“G” is the true copy of the letter
dated 18.06.2024 sent by the by the Petitioner to the D.E.O. Hereto annexed and
marked as Exhibit “H” is the true copy of the application dated 15.07.2024 filed
by the Petitioner.
38. The Election Petitioner craves liberty of this Hon’ble Court to summon the
video recordings of the entire counting process at the time of trial.
39. As such it is submitted that there has been absolute breach by the Election
Officials during the counting process which has materially affected the result of
the Election and therefore clearly attracts Section 100(1)(d)(iv) of the R.P. Act,
1951, on the basis of which the election of the Returned Candidate has to be set
aside.
40) Petitioner has thus contended that the Election Officer
declared that Petitioner had lead by one vote, whereas as per the numbers
noted by his counting agents, he was leading by more than 650 votes and
therefore application for recount was made to the Returning Officer.
However, perusal of the recount application made by the Petitioner on 4
June 2024 indicates that the Returning Officer has made an endorsement
thereon that the result was declared at 7.54 p.m. whereas the objection
was received at 8.06 p.m. Rule 63 of the Rules 1961 deals with recount of
votes and provides thus:
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63. Re-count of votes.--
(1) After the completion of the counting, the returning officer shall record
in the result sheet in Form 20 the total number of votes polled by each
candidate and announce the same.
[(2) After such announcement has been made, a candidate or, in his
absence, his election agent or any of his counting agents may apply in
writing to the returning officer to re-count the votes either wholly or in
part stating the grounds on which the demands such re-count.]
(3) On such an application being made the returning officer shall decide
the matter and may allow the application in whole or in part or may reject
it in toto if it appears to him to be frivolous or unreasonable.
(4) Every decision of the returning officer under sub-rule (3) shall be in
writing and contain the reasons therefor.
[(5) If the returning officer decides under sub-rule (3) to allow a re-count of
the votes either wholly or in part, he shall–
(a) do the re-counting in accordance with [rule 54A,] rule 56 or rule
56A, as the case may be;
(b) amend the result sheet in Form 20 to the extent necessary after
such re-count; and
(c) announce the amendments so made by him.]
(6) After the total number of votes polled by each candidate has been
announced under sub-rule (1) or sub-rule (5), the returning officer shall
complete and sign the result sheet in Form 20 and no application for a re-
count shall be entertained thereafter:
Provided that no step under this sub-rule shall be taken on the completion
of the counting until the candidates and election agents present at the
completion thereof have been given a reasonable opportunity to exercise
the right conferred by sub-rule (2).
41) Rule 64 of the Rules 1961 thereafter deals with declaration of
result of election and return of election and provides thus:
64. Declaration of result of election and return of election.–
The returning officer shall, subject to the provisions of section 65 if and so
far as they apply to any particular case, then–
(a) declare in Form 21C or Form 21D, as may be appropriate, the
candidate to whom the largest number of valid votes have been
given, to be elected under section 66 and send signed copies thereof
to the appropriate authority, the Election Commission and the chief
electoral officer; and
(b) Complete and certify the return of election in Form 21E, and
send signed copies thereof to the Election Commission and the chief
electoral officer.
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k 3 EP 06.24 J os.doc 42) Thus, under provisions of Rule 63 of the Rules 1961, the
Returning Officer has to record the total number of votes polled by each
candidate in the result sheet in Form-20 and announce the same.
Immediately after such announcement and before declaration of result of
election is made under Rule 64 of the Rules 1961, a candidate or his
election agent or counting agent can apply in writing to the Returning
Officer to recount the votes stating the grounds on which he demands such
recounting. Thus, the application for recount of votes must be made during
the time gap between announcement made by the Returning Officer under
Rule 63 and declaration of result of election under Rule 64 of the Rules,
1961. In the present case however, Petitioner thought of filing application
for recount only after result of the election was declared. Application for
recount of votes was submitted at 8.06 p.m. after declaration of the result
at 7.54 p.m. Thus, the pleadings in support of the ground of improper
rejection of demand for recount does not disclose any valid cause of action
in support of ground under Section 100(1)(d) (iii) or (iv) of the RP Act.
Again, there is no positive statement in the Petition that rejection of
demand for recount of votes has materially affected result of the election of
the Returned Candidate.
43) The next ground pleaded by the Petitioner in his Election
Petition is about unauthorized use of mobile phone in the counting
center/hall. The relevant pleadings in this regard are to be found in
paragraphs 40 to 46 of the Election Petition which read thus:
Unauthorized use of Mobile Phone in the Counting Centre/Hall
40. The Petitioner submits that the voting results of each round are put up on a
screen at the counting centre. It is submitted that the aforesaid process of
counting, announcement and screen display was done upto the 19th round.
Thereafter, from the 20th to 25th rounds, the votes were not announced or
displayed and nearing the end of the counting, the votes in respect of 20 th to 26th
rounds came to be announced. It is also pertinent to note that the CCTV footage
would show that between 19th to 26th rounds, the Returning Officer continuously
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off stage and seemed to be continuously interacting on her mobile phone. The
same will be clear form the CCTV footage / Video Recordings of the counting hall
and as such it is incumbent to summon the said recordings.
41. The usage of the phone is also in the teeth of the Instructions contained in
Clause 15.4.5 and 15.4.6. of the 2023 Handbook, which stipulates that the mobile
phones have to be kept in silent mode. The necessary instructions in this regard
are as follows:
“15.4 OFFICIAL COMMUNICATION ROOM, MEDIA CENTER AND
PUBLIC COMMUNICATION ROOM:
15.4.5 No person other than the Commission’s Observer is allowed to carry
a mobile phone inside the Counting Halls. In addition to the Observer, the
Returning Officer or Assistant Returning Officer or the Counting
Supervisor, whose mobile phone is linked to ETPBS, is also authorized to
carry mobile phone, but in silent mode to receive One- Time Password
(OTP) for the purpose of pre-counting of ETPBS.
15.4.6 The mobile handset will be switched ON only to receive ‘OTP’ and
be switched off once the ETPBS system is logged in and be kept by the
Observer/RO/ARO till counting is over. A declaration shall be signed by all
users separately about DOs and DON’Ts for mobile usage.”
42. However, as stated above, the mobile phone was being used by the R.O. in
complete breach of the stipulations contained hereinabove.
43. It is further perplexing to note that one of the ENCORE operators namely,
Mr. Dinesh Gurav, whose mobile phone was authorized to be carried into the
counting centre, lent his phone to one Mr. Mangesh Padilkar, who is a relative of
the Returned Candidate, and the latter in turn was using the same illegally at
the counting place. This was observed by two independent candidates namely, Mr.
Surendra Mohan Arora and Mr. Bharat Khimji Shah on whose complaint action
was taken and FIR lodged almost 10 days later on 13.06.2024, only after huge
media outcry. Hereto annexed and marked as Exhibit – “I” is the true copy of the
FIR No. 201 dated 13.06.2024 and Hereto annexed and marked as Exhibit – “I-1”
is the translated copy of the FIR No. 201 dated 13.06.2024.
44. As can be seen from the copy of the FIR the said mobile phone was linked to
both the ETPBMS as well as the ENCORE system and was required to be used
merely to obtain OTP. However, the same was being used in a completely
unauthorized and illegal manner and would have continued to be used so had not
the independent candidates made a hue and cry about it.
45. All of this clearly shows that the Statutory Rules / Instructions were being
breached with brazen impunity to somehow assist the Respondent No. 1 win the
elections.
46. It is therefore submitted that the election of the Returned Candidate deserves
to be set aside on the ground enumerated in Section 100(1)(d) (iv) of the R.P, Act,
1951, in addition and independently of other grounds detailed in the present
Election Petition.
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k 3 EP 06.24 J os.doc 44) Apart from the fact that the allegations are vague, there is no
positive statement in the Election Petition that use of mobile phone by the
Encore Operator Mr. Dinesh Gurav has materially affected result of
election of the Returned Candidate.
45) The last ground urged in the Election Petition and on which
Mr. Patil has led strenuous reliance is improper reception of votes cast by
impersonators resulting in 333 genuine electors being forced to cast
tendered votes. The relevant pleadings in this regard are to be found at
paragraphs 47 to 53 of the Election Petition, which read thus:
Improper reception of votes cast by impersonators resulting in 333
genuine electors being forced to cast Tendered Votes has also materially
affected the result of the election
47. It is submitted that there were as many as 333 impersonators who have cast
votes in the EVMs in different polling booths as per Form 17-C (Part -I),
received by the Election Petitioner’s agents.
48. It is however, astounding to note that while according to Form 17-C (Part-1)
there are 333 Tendered Votes, the Form 20 – Final Result sheet signed by the
R.O, which is supposed to record the number of ‘tendered votes’ based on Form
17-C (Part I) only records 213 ‘Tendered Votes’. A Comparative Chart containing
details of the polling booth in different assembly segments (total 174 polling
booths) where tendered votes were cast as seen from Form 17-C (Part I) vis-à-vis
the details recorded by the R.O. in Form 20-Final Result Sheet is as follows:
Sr Assembly Total Booths Tender Votes As Tender Votes In Form
per 17C 20-Part 2
1. 158- Jogeshwari 14 19 21
2. 159 – Dindoshi 34 63 53
3. 163 – Goregaon 28 73 36
4. 164-Versova 28 35 11
5. 165-Andheri W 40 70 60
6. 166-Andheri E 30 73 32
Total 174 333 213Hereto annexed and marked as Exhibit “J” is the true copy of the detailed list of
polling booth wise tendered votes east in each Assembly segment. Hereto annexed
and marked as Exhibit – “K” are the true copies of Form 17-C (Part – 1) in respect
of 174 polling booths in all the Assembly.
49. These impersonators have snatched the valuable rights of genuine voters who
despite proving their identity have been left with no choice but to cast their votes
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as ‘Tendered Votes’ in terms of Rule 49-P, instead of casting their votes in the
EVM machines.
50. It is submitted that the multiple breaches / lapses that have been pleaded
herein above, clearly go on to show that a systematic effort has been made to
defeat the Election Petitioner, who despite all odds, has secured 1 vote more than
the Returned Candidate at the end of the counting of EVM votes, while the
Tendered votes according to Form 17-C (Part I) number 333. This apart from the
fact that as per the noting / records made by the Election Petitioner’s counting
agents, the Petitioner has secured more than 650 votes in comparison to the votes
secured by the Returned Candidate after completion of the EVM counting.
51. It is submitted that the Petitioner has also requested vide application dtd.
15.07.2024 [vide which he has sought for Form 17-C (Part II)] for supply of
certified copy of Form 17-B : List of Tendered Votes, in respect of all Assembly
Segments, which would further show the correct numbers.
52. In view of the aforesaid it is submitted that the scrutiny and counting of the
tendered votes is absolutely necessary in this case, considering the fact that the
Election Petitioner has got 1 vote more than the Returned Candidate after the
counting of the EVM votes and the fact that there are 333 tendered votes.
53. It is submitted that in the past ‘Tendered Votes’ have been counted in similar
circumstances and in the present case the non- counting of such votes has
materially affected the result of the election, insofar as it concerns the
respondent, by the improper reception of votes originally polled by impersonators
other than the genuine electors who were constrained to tender their votes.
46) In support of this ground, there is a specific averment in
paragraph 53 that “the non-counting of such votes has materially affected
the result of election”. However, what is the exact illegality or irregularity
that results out of this ground has not been pleaded by the Petitioner in
paragraph 48 of the Election Petition. Petitioner has merely highlighted
mismatch between the total number of tender votes as per Form 17C (Part-
I) as compared to the tender votes reflected in Form-20 (Part-II). It is
contended that only 213 tender votes are counted whereas the total tender
votes reflected in Form 17C (Part-I) are 333. It is therefore sought to be
suggested that there are missing 120 tender votes. By making an attempt
to indicate missing 120 votes, an impression is created as if non-counting of
those 120 tender votes has resulted in erroneous election of Respondent
No.1 and non-election of the Petitioner. However, in ‘Concise Statement of
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Facts’ filed alongwith the Election Petition, Petitioner has made following
averments:
The Election Petitioner is aggrieved on account of improper reception of
void votes cast by 333 impersonators in place of genuine electors,
along with breach of rules/orders, pertaining to the counting process, by
ECI officials, which has materially affected the outcome of the election
results leading to Election Petitioner’s defeat by a narrow margin of forty-
eight (48) votes.
(emphasis and underlining added)
47) Thus in ‘Concise Statement of Facts’, Petitioner has pleaded
that 333 tender votes were itself ‘void’ and that there is improper
‘reception’ thereof by the Returning Officer. Thus, there is apparent
contradiction in the stand adopted by the Petitioner. In one breath he
suggests irregularity in non-counting of 120 missing tender votes and in
the next breath, he contends that all the 333 tendered votes are void and
could not have been received. The Petitioner thus is not sure as to whether
the tendered votes ought to be counted or not. He has merely raised a
surmise by highlighting mismatch between the total number of tender
votes as per Form 17C (Part-I) as compared to Form-20 (Part-II). The said
surmise however is not taken to its logical end by raising a pleading that
non-counting of missing 120 tender votes has materially affected result of
election of Respondent No.1.
48) In paragraph 49 of the Election Petition, Petitioner has
pleaded that the impersonators in respect of 333 tender votes have
snatched valuable right of genuine voters despite proving their identity
who were left with no alternative but to cast their vote as tendered votes
under Rule 49P of Rules 1961 instead of casting their votes in EVM.
However, while pleading so Petitioner has not demonstrated as to how the
alleged violation of right of 333 voters in casting vote through tendered
mode instead of through EVM has affected any of the right of the
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Petitioner as such. Upon being queried as to whether Petitioner wants to
take a position that it is impermissible to receive or count tendered votes,
Mr. Patil has fairly conceded to the position that Rule 49P of the Rules
1961 permits voting through ballot paper in the event another person has
already voted in place of a genuine voter. Rule 49P of the Rules 1961
provides thus:
49P. Tendered votes.–
(1) If a person representing himself to be a particular elector seeks to vote
after another person has already voted as such elector, he shall, on
satisfactorily answering such questions relating to his identity as the
presiding officer may ask, be, instead of being allowed to vote through the
balloting unit, supplied with a tendered ballot paper which shall be of
such design, and the particulars of which shall be in such language or
languages as the Election Commission may specify.
(2) Every such elector shall before being supplied with tendered ballot
paper write his name against the entry relating to him in Form 17B.
(3) On receiving the ballot paper he shall forthwith–
(a) proceed to the voting compartment;
(b) record there his vote on the ballot paper by placing a cross mark
`X’ with the instrument or article supplied for the purpose on or
near the symbol of the candidate for whom he intends to vote;
(c) fold the ballot paper so as to conceal his vote;
(d) show to the presiding officer, if required, the distinguishing
mark on the ballot paper;
(e) give it to the presiding officer who shall place it in a cover
specially kept for the purpose; and
(f) leave the polling station.
(4) If owing to blindness or physical infirmities, such elector is unable to
record his vote without assistance; the presiding officer shall permit him
to take with him a companion, subject to the same conditions and after
following the same procedure as laid down in rule 49N for recording the
vote in accordance with his wishes.
49) The Petitioner thus cannot raise objection about reception and
counting of tendered votes and has rightly not pleaded in the Election
Petition that the Returning Officer could not have counted the tendered
votes. Thus as conceded by Petitioner, there is no illegality or irregularity
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k 3 EP 06.24 J os.docin reception of tendered votes. Therefore, his allegation of improper
reception of 333 tendered votes materially affecting outcome of election
results lacks foundational pleading to demonstrate a cause of action for
filing the Election Petition.
50) The Petitioner himself does not appear to be sure about the
exact outcome of the surmise that he has sought to be created by pleading
data of missing 120 tendered votes, which is clear from the fact that one
day prior to the lodging of the Election Petition he filed an application on
15 July 2024 seeking supply of certified copy of Form 17B (List of Tendered
Votes) in respect of all assembly segments. The averment in paragraph 51
that “which would further show the correct numbers” itself shows that
Petitioner himself is not aware about the exact numbers nor has made any
specific pleading about the manner in which the result of the returned
candidate has materially affected by reception of 333 tendered votes.
51) The conspectus of the above discussion is that Petitioner has
thoroughly failed to raise necessary pleadings disclosing cause of action,
setting aside election of Respondent No.1 under any of the grounds
enumerated in Section 100 of the RP Act. The Election Petition lacks
concise statement of material facts on which grounds under Section 100(1)
(d)(iii) or (iv) of the RP Act are sought to be made out. In absence of
necessary pleadings, the Election Petition is liable to be rejected under
Order VII Rule 11 of the Code.
52) What remains now is to deal with various judgments relied
upon by Mr. Patil:
i) Judgment in Liverpool & London S.P. & I Association Ltd.
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k 3 EP 06.24 J os.docis bundle of facts which are required to be pleaded and proved for the
purpose of obtaining relief claimed in the suit. The Apex Court has held in
paragraphs 139, 140, 141, 146 and 147 as under:
Rejection of plaint
139. Whether a plaint discloses a cause of action or not is essentially a question of
fact. But whether it does or does not must be found out from reading the plaint
itself. For the said purpose the averments made in the plaint in their entirety
must be held to be correct. The test is as to whether if the averments made in the
plaint are taken to be correct in their entirety, a decree would be passed.
Cause of action
140. A cause of action is a bundle of facts which are required to be pleaded and
proved for the purpose of obtaining relief claimed in the suit. For the
aforementioned purpose, the material facts are required to be stated but not the
evidence except in certain cases where the pleading relies on any
misrepresentation, fraud, breach of trust, wilful default, or undue influence.
141. Order 7 Rule 14 of the Code of Civil Procedure provides as follows:
“14. Production of document on which plaintiff sues or relies.–(1) Where a
plaintiff sues upon a document or relies upon document in his possession
or power in support of his claim, he shall enter such documents in a list,
and shall produce it in court when the plaint is presented by him and
shall, at the same time deliver the document and a copy thereof, to be filed
with the plaint.
(2) Where any such document is not in the possession or power of the
plaintiff, he shall, wherever possible, state in whose possession or power it
is.
(3) Where a document or a copy thereof is not filed with the plaint under
this rule, it shall not be allowed to be received in evidence on behalf of the
plaintiff at the hearing of the suit.
(4) Nothing in this rule shall apply to document produced for the cross-
examination of the plaintiff’s witnesses, or, handed over to a witness
merely to refresh his memory.”
146. It may be true that Order 7 Rule 11(a) although authorises the court to
reject a plaint on failure on the part of the plaintiff to disclose a cause of action
but the same would not mean that the averments made therein or a document
upon which reliance has been placed although discloses a cause of action, the
plaint would be rejected on the ground that such averments are not sufficient to
prove the facts stated therein for the purpose of obtaining reliefs claimed in the
suit. The approach adopted by the High Court, in this behalf, in our opinion, is
not correct.
147. In D. Ramachandran v. R.V. Janakiraman [(1999) 3 SCC 267] this Court
held : (SCC p. 271, para 8)
“It is well settled that in all cases of preliminary objection, the test is to
see whether any of the reliefs prayed for could be granted to the appellant
if the averments made in the petition are proved to be true. For the
purpose of considering a preliminary objection, the averments in the
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petition should be assumed to be true and the court has to find out
whether those averments disclose a cause of action or a triable issue as
such. The court cannot probe into the facts on the basis of the controversy
raised in the counter.”
However, even after holistic consideration of the whole of pleadings raised
by the Petitioner in his Election Petition, it cannot be stated that the
Petition discloses a cause of action for making out any of the grounds
enumerated under Section 100 of the RP Act.
ii) The judgments in Ashraf Kokkur (supra) and Madiraju Venkata
Ramana Raju (supra) are relied upon by Mr. Patil in support of his
contention that the Election Petition will have to be read as a whole and
cannot be dissected sentence-wise or paragraph-wise for finding out
disclosure of cause of action. There can be no dispute about the proposition
that the Election Petition is required to be read as a whole. However, even
after reading of all the averments in the Election Petition in their entirety,
the Petitioner has failed to make out a cause of action in support of any of
the grounds enumerated under Section 100 of the RP Act.
iii) The judgment in B. Sundera Rami Reddy (supra) deals with the
issue of joinder of parties and is wholly irrelevant to the issue involved in
the present case.
(iv) The judgment in Mohd. Akbar (supra) deals with the issue of
expeditious decision of Election Petition and has no relevancy to the issue
at hand.
v) The judgments in Arikala Narasana Reddy (supra), Uttamrao
Shivdas Jankar (supra), Ram Sukh Versus. Dinesh Aggarwal (supra)
and Rakesh Kumar (supra) deal with the issue of binding nature of
instructions issued by Election Commission of India. The judgments are
essentially relied upon to deal with the contentions raised by Mr. Sakhare
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that handbook issued by the Election Commission cannot be treated on
same pedestal of that of Rules or Orders under the Act. In my view, even if
the instructions contained in the handbook are treated as binding for the
purpose of attracting provisions of Section 100(1)(d)(iv) of the RP Act, the
pleadings raised by Petitioner do not disclose a cause of action for making
out a ground for setting aside the election of returned candidate.
vi) The judgment in Sardar Harcharan Singh Brar (supra) the
Apex Court has dealt with the issue of defect in the Affidavit filed in
support of Election Petition alleging corrupt practice by the winning
candidate. The judgment does not deal with disclosure of cause of action
for rejection of Election Petition under Order VII Rule 11 of the Code and
therefore the same has no application in the present case.
vii) The judgment in Umesh Challiyill (supra) follows the ratio of the
judgment in Sardar Harcharan Singh Brar (supra) and for the reasons
indicated above, this judgment again would have no application to the
issue at hand.
viii) The judgment in Ponnala Lakshmaiah (supra) deals with the
issue of defect in the verification of the Affidavit and has relied upon ratio
of the judgment in Sardar Harcharan Singh Brar (supra) and would
therefore have no application to the issue at hand.
ix) The judgment in G.M. Siddeshwar (supra) has dealt with the issue
of non-compliance with provisions of Section 83(1) of the RP Act for
rejection of Election Petition under provisions of Section 86 of the RP Act.
In the present case, Respondent No.1 has not sought rejection of Election
Petition under provisions of Section 86 of the RP Act but has sought its
rejection under provisions of Order VII Rule 11 of the Code.
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53) I am therefore of the view that Petitioner has failed to ensure
strict compliance with the requirements of statutory provisions. There is
non-compliance with provisions of Section 83(1) (a) of the RP Act.
Therefore, following the mandate under various judgments of the Apex
Court, particularly in Kanimozhi Karunanidhi (supra) and Karim
Uddin Barbhuiya (supra), even a singular omission of statutory
requirement must entail dismissal of the Election Petition by having
recourse to provisions of Order VII Rule 11 of the Code. In my view, the
Election Petition does not disclose cause of action for making out any of the
ground under Section 100(1)(d)(iii) or (iv) of the RP Act and therefore
Election Petition cannot be taken to trial and is liable to be rejected by
having recourse to the provisions of Order VII Rule 11 of the Code.
54) I accordingly proceed to pass the following order:
i) Application (L) No. 29930 of 2024 is allowed and accordingly the
Election Petition is rejected under provisions of Order 7 Rule 11 of the
Code.
ii) Election Petition No.6 of 2024 shall accordingly stand dismissed.
iii) In view of dismissal of the Election Petition, nothing would survive
in the Application (Lodging) No.29880 of 2024 and the same is also
disposed of.
(SANDEEP V. MARNE, J.)
Digitally signed
by SUDARSHAN
SUDARSHAN RAJALINGAM
RAJALINGAM KATKAM
KATKAM Date:
2024.12.19
17:24:28 +0530katkam Page No. 42 of 42
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