IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7591 OF 2012
(Arising out of S.L.P. (C) No.28143 of 2010)
Ashok …Appellant
Versus
Rajendra Bhausaheb Mulak …Respondent
With
CIVIL APPEAL NO. 7592 OF 2012
(Arising out of S.L.P. (C) No.28333 of 2010
O R D E R
In view of conflicting views expressed by us, we refer this matter
to a three Judge Bench for resolving the conflict. The Registry shall
place the record before Hon'ble the Chief Justice of India for
constituting an appopriate Bench.
……………………………….………J.
(T.S. THAKUR)
……………………………….………J.
(GYAN SUDHA MISRA)
New Delhi
October 18, 2012
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7591 OF 2012
(Arising out of S.L.P. (C) No.28143 of 2010)
Ashok …Appellant
Versus
Rajendra Bhausaheb Mulak …Respondent
With
CIVIL APPEAL NO. 7592 OF 2012
(Arising out of S.L.P. (C) No.28333 of 2010
J U D G M E N T
T.S. THAKUR, J.
1. High Court of Judicature at Bombay, Nagpur Bench has dismissed
Election Petitions No.1 and 2 of 2010 filed by the appellants-
petitioners in these appeals. The High Court has taken the view that
although the election petitions did not allege the commission of any
corrupt practice against the returned candidate (respondent herein)
and although the petitions sufficiently established the authenticity
of the documents relied upon by the petitioners yet the petitions were
deficient inasmuch as the same did not disclose as to how the election
of the returned candidate was materially affected by the alleged
improper reception of the votes polled in the election. The hallmark
of the order passed by the High Court is a copious reference to the
decisions of this Court no matter some if not most of them had no or
little relevance or application to the facts of the case before it, in
the process adding to the bulk of the order under challenge. At the
heart of the conclusion arrived at by the High Court is the argument
that even when the election petitions contain specific averments
alleging improper reception of 14 votes with the names of those who
cast those votes, the same do not go further to state as to in whose
favour the said votes were actually polled. This, according to the
High Court, was an essential requirement for disclosure of a cause of
action inasmuch as in the absence of a statement that the improperly
received votes were polled and counted in favour of the returned
candidate, neither the election petitions disclosed a cause of action
nor was it possible to say that the result of the election was
materially affected by the narrow margin of the victory
notwithstanding. We cannot do better than extract from the judgment of
the High Court the passages from which the reasoning underlying the
conclusion drawn by the High Court can be deduced albeit with some
amount of difficulty. The High Court observed:
“The Election Petitioners here only point out a possibility of result
of election being different if 14 or 5 votes can be excluded. It is
not their case that said votes when displayed revealed that they were
in favour of Rajendra or not in favour of Ashok. The Polling Agent of
Petitioner at Kamptee is not being quoted or relied upon by Shri Ashok
Mankar. Here, there are only two contestants and difference between
them is of 4 votes only. The objection is about receipt of 14 or 5
votes. Several questions having bearing on result of said election
being materially affected in so far as returned candidate is
concerned, arise. The Petitioners have not pointed out the
beneficiary of those 14 or 5 votes. It is not their plea that all
those voters cast their vote in favour of Returned Candidate or did
not vote in favour of defeated candidate. There is no plea about
their political affinities either to associate or dis-associate them
with BJP or National Congress (I) political parties. The said votes
now can not be traced out & segregated. Hence when “displayed” what
was seen & the vote was cast in whose favour ought to have been
pleaded.
Election Petitioners can not seek rejection of 14 votes or 5 votes
which according to them can be identified and ask for recount without
even asserting that those votes or any number out of it has gone to
Returned Candidate. These votes may have been excluded only if they
were cancelled before they were inserted in ballot box as per Rule 39
of 1961 Rules. Otherwise, those votes can then be subjected only to
Rule 56. If any violations or breaches of their duties by staff at
Polling Station at Kamptee is to be alleged, it is apparent that
adequate pleadings are must for said purpose. Timely protest by agent
of Ashok would have been one such fact. If any thing was displayed
and it was adverse to Ashok’s interest, why objection was not lodged
then & there is again an important factor. It is the result of
election in so far as it concerns the returned candidate which is
required to be proved as materially affected. Only possibility of
election getting affected is not sufficient to un-sit the elected
candidate.
Section 100 (1)(d)(iii) & (iv) requires pleading of illegalities as
also irregularities and also of facts indicating material effect
thereof on the election of the returned candidate. Only after these
pleadings, evidence in relation thereto can come on record & not
otherwise. Opinion of High Court contemplated by S.100(1) is possible
only after due opportunity to returned candidate. Hence pleading of
this material fact of link between the victory & lacunae/omissions is
pre-requisite to formation of this opinion. A “triable issue” cannot
be said to arise till then as no cause of action surfaces. Election
Petitions cannot in its absence demonstrate how the result of election
in so far as it concerns returned candidate is materially affected.
Respondent’s success with slender margin, in the absence of specific
plea of any connection between it & alleged irregularities or
illegalities and facts showing that connection, by itself cannot be
the material fact. Pleading such link or connection cannot be
pleading a material particular. The Election Petitions cannot be said
to be “complete” without any whisper of such connection.
Both Election Petitioners have avoided to plead vital link between the
alleged breaches and the success of Returned Candidate. This omission
cannot be allowed to be cured by amendment as limitation for filing
Election petition has long expired and “material facts” cannot be now
permitted to be added.”
2. When these special leave petitions came up for hearing before this
Court on 3rd April, 2012, Mr. V.A. Bobde, learned senior counsel for
the respondents, raised a preliminary objection to the maintainability
of the petitions. It was contended by Mr. Bobde that the impugned
judgment and order of the High Court dismissing the election petitions
filed by the petitioners being appealable under Section 116A of the
Representation of People Act, 1950, the petitioners could not maintain
the special leave petitions under Article 136 of the Constitution
which deserves dismissal on that ground alone. Reliance in support
was placed by Mr. Bobde upon a decision of this Court in Dipak Chandra
Ruhidas v. Chandan Kumar Sarkar (2003) 7 SCC 66.
3. Section 116A of the Representation of the People Act, 1951 provides
for appeals to this Court both on facts as also on questions of law
from every order made by the High Court under Section 98 or 99 of the
Act. Sub-section (2) of Section 116A prescribes a period of 30 days
for filing of such appeals while proviso to sub-section (2) empowers
this Court to entertain an appeal even after the expiry of the said
period if the appellant shows sufficient cause for not preferring the
appeal within such period.
4. Section 98 of the Act provides for the orders that the High Court
shall make at the conclusion of the trial in an election petition.
These orders could be in the nature of dismissal of an election
petition or declaring the election of all or any of the returned
candidates to be void or declaring the election of all or any of the
returned candidates to be void and the petitioner or any other
candidate to have been declared elected. Section 86 of the Act deals
with the trial of election petitions and, inter alia, provides that
the High Court shall dismiss an election petition which does not
comply with the provisions of Sections 81 or 82 or Section 117 of the
Act. Any such dismissal may come after the parties go to trial or
even at the threshold. An election petition which does not call for
dismissal on the ground that the same violates any one of the three
provisions, namely, Section 81 or 82 or 117 may still be dismissed
summarily and without the parties going to trial on the merits of the
controversy under Order VII Rule 11 of CPC. Any such order if may not
be qualifying for a challenge before this Court under Section 116A as
an appeal is under that provision limited to only such orders as are
passed under Section 98 of the Act at the conclusion of the trial of
election petition. Strictly speaking, it could well be said that an
order which does not fall within the four corners of Section 98
inasmuch as the same is not passed at the conclusion of the trial of
an election petition may not qualify for being challenged in appeal
under Section 116A including an order dismissing the petitions
summarily under Section 86 of the Act for non-compliance of the
provisions of the Sections 81, 82 and 117. What is important and what
makes a difference is the presence of an explanation under Section
86(1) that by a legal fiction makes an order passed under Section 86
of the Act to be an order under Section 98 thereof explanation reads :
“Explanation to Section 86: An order of the High Court dismissing an
election petition under this sub-section shall be deemed to be an
order made under clause (a) of Section 98.”
5. The fiction is, however, limited to orders passed under Section
86(1) alone namely to cases where dismissal is for non-compliance with
the provisions of Sections 81, 82 and 117 of the Act. It does not
extend to dismissal under Order VII Rule 11 of the CPC for non-
compliance with the provisions of Section 83 of the Act. In other
words, if a petition does not state the material facts on which the
petitioner relies as required under Section 83(1)(a) and thereby fails
to disclose any cause of action and is consequently dismissed by the
Court in exercise of its powers under Order VII, Rule 11 CPC, such an
order of rejection of the petition is not in terms of Explanation to
Section 86 treated as an order made under Section 98 so as to be
appealable under Section 116A of the Act. Mr. Prasad was, therefore,
perfectly justified in arguing that since the High Court has, in the
instant case, dismissed the election petitions not under Section 86 to
which the Explanation appearing thereunder is attracted but under
Order VII Rule 11 for the alleged failure of the petitioners to state
the material facts on which they relied, the order passed by the High
Court was not appealable under Section 116A. The only difficulty which
was encountered by us in holding that the special leave petitions were
maintainable is a decision of this Court in Dipak Chandra Ruhidas case
(supra) where this Court has taken the view that Section 116A must be
interpreted liberally and an order dismissing the election petition on
the ground that the averments do not state material facts would be
appealable under Section 116A. With utmost respect to the Hon’ble
Judges comprising the Bench, we find that conclusion to be contrary to
the scheme of the Act. We were, therefore, inclined to make a
reference to a larger Bench for re-consideration of that view, for the
same, in our opinion, extends the fiction created under the
Explanation to Section 86 even to case where the Court does not invoke
Section 86 while passing an order of dismissal but exercises its power
of rejection of the plaint/petition under Order VII Rule 11 CPC. It
is noteworthy that an order under Order VII Rule 11 CPC by reason of
Section 2(2) of the CPC is a decree hence appealable under Section 96
of the Code. Since, however, the right of appeal under the
Representation of the People Act is regulated by Section 116A, the
fact that an order rejecting a plaint under Order VII Rule 11 CPC
would have been in the ordinary course appealable before the higher
Court hearing such appeals would not make any difference. Inasmuch as
the right of appeal is a creature of the statute, and Section 116A
does not provide for an appeal against an order passed under Order VII
Rule 11 CPC read with Section 83 of the Representation of the People
Act, 1951 no resort can be taken to that provision by a process of
interpretation of the Explanation to Section 86 or an artificial
extension of the legal fiction beyond the said provision. Mr. Prasad
was not, however, very keen to pursue his argument to its logical end
for obvious reasons. A reference to a larger bench would inevitably
delay the disposal of these appeals and even the election petitions.
Mr. Prasad, therefore, chose the alternative course available to him
and sought permission of this Court to convert the SLPs into appeals
under Section 116A of the Act. Two applications, one seeking
permission to convert the petitions into an appeal under Section 116A
and the other seeking condonation of delay in the filing of the
appeals were accordingly made by the petitioner. Having heard learned
counsel for the parties at some length we are inclined to allow both
these applications in both the special leave petitions. Whether or not
an appeal was maintainable against the impugned order was and
continues to be a highly debatable issue as seen in the foregoing
paragraphs. The petitioners appear to have been advised that the
orders could be challenged only by way of SLPs. That advice cannot in
the circumstances of the case, be said to be a reckless piece of
advice nor can the petitioners be accused of lack of diligence in the
matter when the SLPs were admittedly filed within the period of
limitation stipulated for the purpose. The decision of this Court in
Deputy Collector, Northern Sub-Division Panaji v. Comunidade of
Bambolim (1995) 5 SCC 333, recognizes a bonafide mistake on the part
of the counsel in pursuing a remedy as a good ground for condonation
of delay in approaching the right forum in the right kind of
proceedings. The limitation prescribed for filing an appeal under
Section 116A is just about 30 days from the date of the order. There
is, therefore, a delay of nearly 20 days in the filing of the appeal
which deserves to be condoned. We accordingly allow the applications
for conversion and for condonation of delay in both the special leave
petitions and direct that the SLPs shall be treated as appeals filed
under Section 116A of the Representation of the People Act.
6. That brings us to the merits of the controversy in the election
petitions filed by the appellants. The election petitions specifically
alleged improper reception of votes which had according to the
appellant materially affected the result of the election. It is
common ground that there were only two contestants namely the
appellant-Ashok and the respondent-Rajendra Bhausaheb Mulak. The
election was to the Maharashtra State Legislative Council from Nagpur
Local Authorities Constituency. Result of the election declared on
21st January, 2010 showed that the appellant-Ashok had polled 198
ballots as against 202 votes polled in favour of the respondent-
Rajendra Bhausaheb Mulak. The respondent thus won by a margin of only
four votes. The election-petitioners’ case as set out in the election
petition was that the election was materially affected by the improper
reception of as many as 14 votes out of a total of 400 votes in the
course of elections. Specific averments, in regard to the votes so
cast, were made in the election petition including averments based on
the CD recording at each polling station obtained officially by the
election-petitioner from the concerned authorities under the Right to
Information Act, 2005. In para 11 to 17 of the election petition,
the petitioner made specific averments regarding violation of the
provisions of the Act and the Rules and improper reception of as many
as 14 votes by voters who were named in these paragraphs. In para 17,
the petitioner had further asserted that the improper reception of the
14 votes had materially affected the result of the election. Para 11
to 17 may at this stage be reproduced for ready reference:
“11.……….. On going through the said CD relating to Kamptee Polling
Station, that was supplied by the Office of the Collector-cum-District
Election Officer, Nagpur it was found that a voter namely, Mrs. Begum
Shehnaz Begum Akhtar entered the polling station along with another
voter Shri Abdul Shakoor Usman Gani @ Shakoor Nagani who had
accompanied her to the Polling booth in utter breach of the Election
Rules and Handbook of the Returning Officer issued by the Election
Commission of India under Art. 324 of the Constitution of India. Shri
Abdul Shakoor Usman Gani @ Shakoor Nagani marked the ballot paper that
had been issued to Mrs. Begum Shehnaz Begum Akhtar and thereafter
displayed the said ballot paper to those present in the room where the
ballot box had been kept and thereafter put the ballot paper in the
ballot box. This act is visible from the CD that has been supplied to
the petitioner by the Office of the Collector-cum-District election
Officer, Nagpur. In accordance with Rule 39(4) of the Election Rules,
no other voter can be allowed to enter a voting compartment when
another elector is inside it. Thus, there has been violation of Rule
39 (4) of the Election Rules as one voter Ms. Begum Shehnaz Begum
Akhtar was accompanied by another voter Shri AbdulShakoor Usman Gani @
Shakir Nagani and both voters entered the voting compartment together.
Thus, there has also been a breach of Rule 39(5) to 39(8) of the
Election Rules where there is breach of secrecy by display of the
ballot paper, the vote in question is required to be cancelled by
making an endorsement to that effect on the reverse of the ballot
paper. However, the Returning Officer failed in his boundened duty in
cancelling the said vote though its secrecy was blatantly violated in
his very presence and permitted the same to be put in the ballot box.
The petitioner submits that from the CD supplied by the Office of the
respondent No.2 he has taken still photographs. The copies of the
aforesaid photographs are filed along with the Election Petition as
Document No.17.
12. The petitioner further submits that from the said CD, it
was further revealed that another lady voter Ms.Rashida Khatoon
Mohammed Tahir entered the polling booth at Kamptee Police Station
accompanied by one Shri Niraj yadav, another voter at the said
election. Both Ms.Rashida Khatoon Mohammed Tahir and Shri Niraj Yadav
together went to the voting compartment along with the ballot paper
that had been issued to Ms.Rashida Khatoon Mohammed Tahir. This act
of two voters going together in the voting compartment at the same
time was in violation of rule 39(4) of the Election Rules. There Shri
Niraj Yadav marked the ballot paper that had been issued to Ms.Rashida
Khatoon Mohammed Tahir. Thereafter, Shri Niraj Yadav displayed the
marked ballot paper to others who were present in the polling booth
and thereafter put the ballot paper in the ballot box. Thus, there
was, again breach of secrecy of the vote polled on behalf of
Ms.Rashida Khatoon Mohammed Tahir. As per the guidelines mentioned in
the Handbook of the Returning Officer, it was the duty of the
Presiding Officer, it was the duty of the Presiding officer to cancel
the said ballot paper on account of violation of its secrecy, the same
having been displayed to others and the voter being accompanied by
another voter. Though the Presiding Office was very much present in
the said room where this entire exercise took place, he remained
merely a mute witness and failed to cancel the aforesaid vote as being
void. Thus, the vote cast by Ms.Rashida Khatoon Mohammed Tahir was
required to be cancelled and could not be taken into consideration.
Thus, there has been a breach of Rule 39(5) to 39(8) of the Election
Rules. The petitioner submits that from the CD supplied by the Office
of the respondent No.2 he has taken still photographs. The copies of
the aforesaid photographs are filed along with the Election Petition
as Document No.18.
13. The petitioner further submits that it is clear from the CD
relating to Kamptee Poling Station that another voter Shri Abdul
Shakoor Usman Gani @ Shakoor Nagani, thereafter, exercised his
franchise by marking the ballot paper issued to him. He, thereafter,
came out of the voting compartment without folding the ballot paper in
violation of rule 39(2)(c) of the Election Rules and, on the contrary,
displayed the marked ballot paper to the Presiding Officer and others
present there. Again, the Presiding Officer failed to act in
accordance with the provisions of Rule 39(5) to 39(8) of the Election
Rules as well as the guidelines prescribed in the Handbook of the
Returning Officer issued by the Election Commission of India and
failed to cancel the aforesaid vote on account of breach of its
secrecy. On the contrary, the Presiding Officer allowed said Shri
Abdul Shakoor Usman Gani @ Shakoor Nagani to put his vote in the
ballot box. On account of breach of its secrecy the aforesaid vote of
Shri Abdul Shakoor Usman Gani @ Shakoor Nagani could not have been
taken into consideration as a valid vote. The petitioner submits that
from the CD supplied by the Office of the respondent No.2 he has taken
still photographs. The copies of the aforesaid photographs are filed
along with the Election Petition as Document No.19.
14. The petitioner submits that after viewing the CD supplied
from the Office of the Collector-cum-District Election Officer,
Nagpur, it can be seen that another voter Shri Niraj Yadav took his
ballot paper to the voting compartment and after marking the same,
came out of the voting compartment without folding the ballot paper.
This action was in breach of Rule 39(2) (c) of the Election Rules.
The said Shri Niraj Yadav displayed his marked ballot paper to the
Presiding Officer and others present in the polling booth, thereby
violating the secrecy of voting. The Presiding Officer was very much
present in the said room but, instead of cancelling the said vote on
account of breach of its secrecy, permitted the said voter to put the
said vote in the ballot box. Therefore, on account of violation of
secrecy of the vote cast by Shri Niraj Yadav the same was required t
be cancelled and it could not have been enlisted as a valid vote.
There was, thus, breach of Rule 39(5) to 39(8) of the Election Rules.
The petitioner submits that from the CD supplied by the Office of the
respondent No.2 he has taken still photographs. The copies of the
aforesaid photographs are filed along with the Election Petition as
Document No.20.
15. The petitioner further submits that after viewing the CD
supplied by the Office of the Collector-cum-District Election Officer,
Nagpur, it is seen that another voter Shri Mushtaq Ahmed Abdul Shakoor
exercised his franchise by marking his ballot paper. However before
coming out of the voting compartment, said Shri Mushtaq Ahmed Abdul
Shakoor did not fold the ballot paper as required by Rule 39(2)(c) of
the Election Rules; but, on the contrary, he displayed the marked
ballot paper to the Presiding officer and others who were present in
the said room. The Presiding Officer was required to have cancelled
the aforesaid vote on account of breach of its secrecy as required by
rule 39(5) to 39(8) of the Election Rules and the guidelines mentioned
in the Handbook of the Returning Officer issued by the Election
Commission of India. However, instead of cancelling the aforesaid
vote as invalid, the Presiding Officer permitted Shri Mushtaq Ahmed
Abdul Shakoor to put the said ballot paper in the ballot box in
violation of the laid down voting procedure and in violation of Rule
39(2)(c) of the Election Rules. Therefore, the vote cast by Shri
Mushtaq Ahmed Abdul Shakoor could not have been enlisted as a valid
vote as there was breach of secrecy during the actual polling. The
petitioner submits that from the CD supplied by the Office of the
respondent no.2 he has taken still photographs. The copies of the
aforesaid photographs were filed along with the Election Petition as
Document No.21.
16.The petitioner submits that a perusal of the CD supplied from the
offie of the Collector-cum-District Election Officer, Nagpur
pertaining to Kamptee Polling Station, it can be seen that various
voters were carrying a spy pen with in-built camera along with them.
The said voters as can be identified from the CD are Smt. Savita
Sharma, S/shri Siddartha Rangari, Moreshwar Patil, Dilip Bandebuche,
Prashant Nagarkar, Mukund Yadav, Mohammed Arshad Mohd. Altaf, Ukesh
Lehandas and Smt. Pratibha Meshram. The aforesaid voters carried
articles other than those that were permitted to be carried in the
voting compartment in violation of the voting procedure and rules
framed thereunder. In this regard, it is submitted that Rule 39(2)(b)
read with Rule 70 of the Election Rules require an elector to record
his vote on the ballot paper with the article supplied by the
authorities for the said purpose. Under Rule 73(2)(e), a ballot paper
marked by an elector otherwise supplied for the said purpose becomes
invalid. It is submitted that each elector was supplied with a marked
pen so as to mark the ballot paper. The above-mentioned voters carried
a additional camera as can be seen from the CD referred to above. The
spy pen is quite distinct from an ordinary pen on account of its size,
colour and design, so much so that it can easily be differentiated
from an ordinary pen. Thus, it is submitted that the Election Rules
especially Rule 39 (2)(b), Rule 70 & Rule 73(2)(e) were violated
during the course of polling at Kamptee Polling Station. The
petitioner submits that from the CD supplied by the Office of the
respondent No.2 he has taken still photographs. The copies of the
aforesaid photographs are filed along with the Election Petition as
Document No.22.
17.The petitioner submits that the votes that were cast by Mrs. Begum
Shehaz Begum Akhtar and Ms. Rashida Khatoon Mohammed Tahit at the
Kamptee Polling Station with the aid of other voters, namely, Shri
Abdul Shakoor usman Gani @ Shakoor Nagani and Shri Niraj Yadav
respectively, were in violation of the provisions of Rule 39(4) of the
Election Rules. It is submitted that the said two voters, namely,
Mrs. Begum Shehnaz Begum Akhtar and Ms.Rashida Khatoon Mohammed Tahir
were neither illiterate, blind or infirm so as to take the aid of any
companion. The report on the election submitted by the Returning
Officer under paragraph 3 of Chapter XV of the said Act, especially
Item No.16, indicates that there was no such voter who was illiterate,
blind or infirm who had voted with the help of a companion. In any
event, a companion cannot be another voter and Rule 39(4) of the
Election Rules specifically prohibits one elector from entering the
voting compartment when another elector is inside it. Therefore the
said two votes polled by Mrs. Begum Shehnaz Begum Akhtar and Ms.
Rashida Khatoon Mohammed Tahir cannot be taken into consideration as
valid voters. Similarly, insofar as the votes polled by Shri Abdul
Shakoor Usman Gani @ Shakoor Nagani, Niraj Yadav and Shri Mushtaq
Ahmed Abdul Shakoor are concerned, they are also required to be
excluded from consideration inasmuch as the said voters have displayed
the marked ballot paper before putting the same in the ballot box.
Rule 39(2)(c) requires the voter to fold the ballot paper so as to
conceal his vote after he has marked the ballot paper. There being
breach of aforesaid rule, the secrecy of voting has been violated.
Similarly, there is breach of provision of Rules 39(5) to 39(8) of the
Election Rules. Therefore, the said votes are required to be excluded
from being considered as valid votes. It is further submitted that as
many as nine voters, namely Smt. Savita Sharma, S/shri Siddartha
Rangari, Moreshwar Patil, Dilip Bandebuche, Prashant Nagarkar, Mukund
Yadav, Mohammed Arshad Mohd. Altaf, Ukesh Lehandas and Smt. Pratibha
Meshram having carried an article other than that which was
permissible to be carried in the voting compartment, have breached the
provisions of Rule 39(2)(b) of said rules and there being breach of
provisions of Rules 39(5) to 39(8) of the Election Rules, the votes
polled by aforesaid nine voters also deserved to be excluded from
being considered as valid votes. Similarly, the vote of Smt. Nirmala
Rahul Gajbe that was polled at Narkhed Polling Station, where she was
found carrying a spy-pen fitted with camera also deserved to be
excluded form being considered as a valid vote, there being breach of
provisions of Rule 39(2)(b) read with Rule 39(5) to 39(8) of the
Election Rules. Therefore in all, said 14 votes are required to be
excluded from being considered as valid votes. The result of the
election has been materially affected. Therefore, the election of the
returned candidate is required to be declared as void under Section
100 (1)(d) (iii) and (iv) of the said Act and it further needs to be
declared that the petitioner is validly elected in place of the
returned candidate under section 100 (a) of the said Act, the
petitioner having received majority of the valid votes. The copy of
the Handbook for Returning Officer issued by the Election Commission
of India and supplied to the petitioner from the Officer of respondent
No.2 is filed along with the Election Petition and Marked as Document
No.23.”
7. The High Court has noticed the above averments and recorded a
finding that the same satisfied the requirement of Section 83 of the
Act inasmuch as the material facts in regard to the alleged improper
reception of votes had been stated by the petitioner. The High Court
has said:
“In pleadings itself, authenticity of all these document is prima-
facie sufficiently established. Essential facts to prove breaches of
Rules with relevant legal provisions are sufficiently brought on
record by him.
“xxxxxxxxx”
Here, in both Petitions case of wrongful receipt of invalid or void
votes sufficient in number to change the result is already pleaded.
As held in Laxmi Kant Bajpayi vs. Haji Yaqoob, supra, where election
petition was under Section 83 read with Section 100 (1) (d)(iii) &
(iv) of 1951 Act, & the pleadings in election Petitioner reveal a
clear complete picture of the circumstances and disclose a definite
cause of action, the election petition cannot be summarily dismissed.”
8. The High Court all the same found the election petition deficient
on account of the absence of a specific averment to the effect that
the votes that were improperly received were cast in favour of the
successful candidate. We find that reason to be unsustainable. The
averments made in the election petition, in our opinion, sufficiently
disclosed a cause of action inasmuch as the essential, the pivotal and
the basic facts relevant to the charge levelled by the appellants had
been stated with sufficient clarity by the petitioners in their
respective election petitions. The question whether the votes
improperly received were polled in favour of one or the other
candidate was not an essential or material fact the absence whereof
could possibly result in the summary dismissal of the election
petitions. We draw support for that view from the decision of this
Court in Virender Nath Gautam v. Satpal Singh and Ors. (2007) 3 SCC
617. That was also a case where the election-petitioner had been
defeated by a narrow margin of 51 votes only. The challenge to the
election was founded on the plea that as many as 188 votes had been
wrongly counted n spite of the fact that all those votes were invalid
votes and that since the margin was only 51 votes, wrong counting of
188 invalid votes materially affected the result of the election. It
was further alleged that 37 votes of dead persons had been cast and
they were thus void and could not, therefore, have been counted. The
petitioner gave names of all the 37 voters and annexed death
certificates of 36 of such persons. So also there were allegations
that there was double voting by 60 voters in violation of Section
62(4) of the Act. Another 19 votes were challenged on the ground of
being void as the voters had exercised their right to vote in two
constituencies. In addition there were allegations of material
irregularities in counting of postal ballot papers. The High Court had
despite such assertions dismissed the election petition holding that
there was nothing to show as to how many votes of dead persons had
been cast in favour of the returned candidate. The High Court also
held that the election petition did not disclose as to how the
petitioner came to know about dead persons casting their votes nor was
it indicated as to how the petitioner came to know about the persons
listed having voted in two different constituencies. Reversing the
view taken by the High Court, this Court observed that the election
petition stated all the requisite material facts and that the High
Court committed an error in examining the correctness of the
allegations at an intermediary stage which could be done only at the
time of trial. As to whether the election-petitioner was required to
make a statement that the void votes were polled in favour of the
returned candidates this Court held that the same was not a material
fact to be stated in the petition. This Court observed:
“49. On the basis of our conclusions and reasoning in respect of paras
8(i) to (iii), the finding of the High Court on para 8(iv) also cannot
be said to be in consonance with law. Whether or not six persons had
been issued voting papers twice and whether or not those voters had
polled in favour of the returned candidate cannot be said to be a
material fact to be stated in the election petition. What are required
to be stated in the petition are material facts to maintain the
petition.”
9. The High Court has in support of its conclusion drawn support from
the decisions of this Court in Shiv Charan Singh S/o Angad Singh v.
Chandra Bhan Singh S/o Mahavir Singh and Ors. (1988) 2 SCC 12 and
T.H. Musthaffa v. M.P. Varghese (1999) 8 SCC 692 to hold that in order
to succeed, the election-petitioners have to prove by adducing
evidence, that the result of the election was materially affected by
the improper reception of votes. There can be no quarrel with this
proposition that in order to succeed the election petitioners have not
only to prove by leading requisite evidence that votes were improperly
received but also that such improper reception materially affected the
result of the election in so far as the returned candidate was
concerned. The question is whether an election petition could be
dismissed summarily on the ground that production of any such evidence
was not possible. In Shiv Charan Singh’s case (supra), this Court was
dealing with an appeal under Section 116A of the Act after the High
Court had tried the election petition on merits and held the election
of the returned candidate to be void with a direction to the election
commission to hold a fresh election. In that case, the margin of
victory of the returned candidate was no more than 4497, over Roshan
Lal, the candidate who polled the 2nd highest number of votes.
Kanhaya Lal, the candidate who had polled 17841 votes was held
ineligible to contest being less than 25 years of age. The High Court
was of the view that since the number of votes polled by Kanhaya Lal
whose nomination papers were wrongly accepted were far more than the
margin of victory the election of the retuned candidate was materially
affected by the improper acceptance of the nomination paper of Kanhaya
Lal. This Court did not agree with that reasoning. Relying upon the
decision of this Court in Vashist Narain Sharma v. Dev Chandra AIR
1954 SC 513, this Court held that the margin of victory being less
than the votes polled by an improperly nominated candidate did not by
itself mean that the result of the election was materially affected.
The election petitioner, observed this Court is required to lead
evidence to prove as a fact that the result of the election was indeed
materially affected, no matter it may be difficult and even impossible
for the election petitioner to adduce, any such proof. This Court
observed:
“The result of the election can be affected only on the proof that the
votes polled by the candidate whose nomination paper had wrongly been
accepted would have been distributed in such a manner amongst the
remaining candidates that some other candidate (other than the
returned candidate) would have polled the highest number of valid
votes. In other words the result of the election of the candidate
cannot be held to have been materially affected unless it is proved
that in the absence of the candidate whose nomination paper was
wrongly accepted in the election contest, any other candidate (other
than the returned candidate) would have polled the majority of valid
votes. In the absence of any such proof the result cannot be held to
have been materially affected. The burden to prove this material
effect is difficult and many times it is almost impossible to produce
the requisite proof. But the difficulty in proving this fact does not
alter the position of law. The legislative intent is clear that unless
the burden howsoever difficult it may be, is discharged, the election
cannot be declared void. The difficulty of proving the material effect
was expressly noted by this Court in Vashist Narain Sharma and Paokai
Haokip cases and the court observed that the difficulty could be
resolved by the legislature and not by the courts. Since then the Act
has been amended several times, but Parliament has not altered the
burden of proof placed on the election petitioner under Section
100(1)(d) of the Act. Therefore the law laid in the aforesaid
decisions still holds the field. It is not permissible in law to avoid
the election of the returned candidate on speculations or conjectures
relating to the manner in which the wasted votes would have been
distributed amongst the remaining validly nominated candidates.
Legislative intent is apparent that the harsh and difficult burden of
proving material effect on the result of the election has to be
discharged by the person challenging the election and the courts
cannot speculate on the question. In the absence of positive proof of
material effect on the result of the election of the returned
candidate, the election must be allowed to stand and the court should
not interfere with the election on speculation and conjectures.”
10. There are two dimensions to the above observations. The
first is that the election petition had been allowed by the High Court
after a full fledged trial. It was not a case of summary dismissal of
an election petition on the ground that no evidence can be produced to
prove that the result of the election in so far as the returned
candidate was materially affected by improper reception of any vote as
is the position in the case at hand. The High Court in the case at
hand failed to notice that difference and hastened to conclude that
the election petition could not be tried with whatever chances the
petitioner may have had to avoid the election in question.
11. The second dimension is that although the legal position
emerging from the decisions is of vintage value, it may have the
effect of obliterating Section 100(1)(d)(i) and (iii) of the Act. We
say it with utmost respect for the Judges who delivered the decisions
in the two cases referred to above that the decisions require the
election petitioners to produce evidence in what would be a totally
hypothetical situation defying any attempt to show that the votes
polled by a candidate whose nomination was improperly accepted would
have been polled in his absence in a fashion that would have
materially affected the result of the election so far as the elected
candidate is concerned. So also it would be near impossible to
satisfactorily prove in a given case that the improperly received
votes would have gone to one or the other candidate. The question is
whether an election petitioner can be asked to prove something that is
not amenable to proof and whether by doing so a ground that is
recognised by the statute as a valid ground for declaring the election
to be void can be rendered otiose or sterile. What is noteworthy is
that the difficulty which would arise in giving effect to Section
100(1)d(i) and (iii) has been noticed by this Court in Vashist Narain
Sharma’s case (supra) but instead of finding an answer to the same the
Court has left the issue to be resolved by the legislature, in the
following words:
“It is impossible to accept the ipse dixit of witnesses coming from
one side or the other to say that all or some of the votes would have
gone to one or the other on some supposed or imaginary ground. The
question is one of fact and has to be proved by positive evidence. If
the petitioner is unable to adduce evidence in a case such as the
present, the only inescapable conclusion to which the Tribunal can
come is that the burden is not discharged and that the election must
stand. Such result may operate harshly upon the petitioner seeking to
set aside the election on the ground of improper acceptance of a
nomination paper, but neither the Tribunal, nor this Court is
concerned with the inconvenience resulting from the operation of the
law. How this state of things can be remedied is a matter entirely for
the legislature to consider.”
12. In Swantraj and Ors. v. State of Maharashtra (1975) 3 SCC
322, this Court said that every legislation is a social document and
judicial construction seeks to decipher the statutory mission,
language permitting, taking cue from the rule in Heydon’s case (1584)
76 E.R. 637, of suppressing the evil and advancing the remedy. This
Court held that what must tilt the balance is the purpose of the
statute, its potential frustration and judicial avoidance of the
mischief by a construction whereby the licensing meets the ends of
ensuring pure and potent remedies for the people. This Court placed
much reliance upon the following passage from Maxwell on the
Interpretation of Statutes:
“There is no doubt that ‘the office of the Judge is, to make such
construction as will suppress the mischief, and advance the remedy,
and to suppress all evasions for the continuance of the mischief. To
carry out effectively the object of a statute, it must be so construed
as to defeat all attempts to do, or avoid doing, in an indirect or
circuitous manner that which it has prohibited or enjoined: quando
aliquid prohibetur, prohibetur et omne pe quod devenitur ad illud.
This manner of construction has two aspects. One is that the courts,
mindful of the mischief rule, will not be astute to narrow the
language of a statute so as to allow persons within its purview to
escape its net. The other is that the statute may be applied to the
substance rather than the mere form of transactions, thus defeating
any shifts and contrivances which parties may have devised in the hope
of thereby falling outside the Act. When the courts find an attempt at
concealment, they will, in the words of Wilmot, C.J. ‘brush away the
cobweb varnish, and shew the transactions in their true light’.”
13. Reference may also be made to the decision of this Court in
Kanwar Singh v. Delhi Administration (AIR 1965 SC 871), where this
Court observed:
“It is the duty of the court in construing a statute to give effect to
the intention of the legislature. If, therefore, giving a literal
meaning to a word used by the draftsman, particularly in a penal
statute, would defeat the object of the legislature, which is to
suppress a mischief, the court can depart from the dictionary meaning
or even the popular meaning of the word and instead give it a meaning
which will ‘advance the remedy and suppress the mischief’.”
14. In State of Tamil Nadu v. N.K. Kandaswami (1974) 4 SCC 745,
this Court held that while interpreting a penal provision which is
also remedial in nature a construction that would defeat its purpose
or have the effect of obliterating it from the statute book should be
eschewed and that if more than one constructions are possible the
Court ought to choose a construction that would preserve the
workability and efficacy of the statute rather than an interpretation
that would render the law otiose or sterile. This Court relied upon
the following passage from the Seaford Court Estates Ltd. v. Asher
[1949] 2 All E.R. 155 wherein Lord Denning, L.J. observed:
“The English language is not an instrument of mathematical precision.
Our literature would be much poorer if it were. This is where the
draftsmen of Acts of Parliament have often been unfairly criticised. A
judge, believing himself to be fettered by the supposed rule that he
must look to the language and nothing else, laments that the draftsmen
have not provided for this or that, or have been guilty of some or
other ambiguity. It would certainly save the judges trouble if Acts of
Parliament were drafted with divine prescience and perfect clarity. In
the absence of it, when a defect appears a judge cannot simply fold
his hands and blame the draftsman. He must set to work on the
constructive task of finding the intention of Parliament, and he must
do this not only from the language of the statute, but also from a
consideration of the social conditions which gave rise to it and of
the mischief which it was passed to remedy, and then he must
supplement the written word so as to give ‘force and life’ to the
intention of the legislature. ... A judge should ask himself the
question how, if the makers of the Act had themselves come across this
ruck in the texture of it, they would have straightened it out? He
must then do so as they would have done. A judge must not alter the
material of which the Act is woven, but he can and should iron out the
creases.”
15. The interpretation of Section 100(1)(d) and in particular
the true import of the expression “the result of the election in so
far as it concerns a returned candidate has been materially affected”
is a serious issue, which may arise for consideration but only after
the election petition is tried by the High Court and after the parties
have adduced whatever evidence may be available to them. All that we
need to say for the present is that the decision of this Court in
Vashist Narain Sharma’s case (supra) and Samant N. Balakrishna and
Anr. v. George Fernandez and Ors. (1969) 3 SCC 238, and Inayatullah
v. Divanchand Mahajan 15 ELR 210, requiring positive proof of the
adverse effect of the improper acceptance of a nomination paper or
improper reception of votes, on the result of the election qua the
returned candidate have been considered and explained by a three-Judge
Bench of this Court in Cheedi Ram v. Jhilmit Ram and Ors. (1984) 2 SCC
281. That was a case where the margin of victory was just about 373
votes, while the votes polled by the candidate whose nomination papers
were improperly accepted were many times more. There was no evidence,
as indeed there could be none, to show as to how those votes would
have got distributed among the remaining candidates if the nomination
papers had not been improperly accepted. This Court held that a Court
cannot lay down an impossible standard of proof and hold that the fact
required to be proved was not proved on that standard. This Court
further held that in the facts of a given case, a Court could hold a
fact as proved if a reasonable probability supported that conclusion.
Applying that test this Court held that the improper acceptance of the
nomination papers of Moti Ram, one of the candidates, had materially
affected the election of the returned candidate. Chinnappa Reddy J.
speaking for the Court conceptualised three situations that would
arise in such cases in the following words:
“….True, the burden of establishing that the result of the election
has been materially affected as a result of the improper acceptance of
a nomination is on the person impeaching the election. The burden is
readily discharged if the nomination which has been improperly
accepted was that of the successful candidate himself. On the other
hand, the burden is wholly incapable of being discharged if the
candidate whose nomination was improperly accepted obtained a less
number of votes than the difference between the number of votes
secured by the successful candidate and the number of votes secured by
the candidate who got the next highest number of votes. In both these
situations, the answers are obvious. The complication arises only in
cases where the candidate, whose nomination was improperly accepted,
has secured a larger number of votes than the difference between the
number of votes secured by the successful candidate and the number of
votes got by the candidate securing the next highest number of
votes….”
16. The Court then dealt with the third situation out of the
three mentioned above and held:
“…..In this situation, the answer to the question whether the result
of the election could be said to have been materially affected must
depend on the facts, circumstances and reasonable probabilities of the
case, particularly on the difference between the number of votes
secured by the successful candidate and the candidate securing the
next highest number of votes, as compared with the number of votes
secured by the candidate whose nomination was improperly accepted and
the proportion which the number of wasted votes (the votes secured by
the candidate whose nomination was improperly accepted) bears to the
number of votes secured by the successful candidate. If the number of
votes secured by the candidate whose nomination was rejected is not
disproportionately large as compared with the difference between the
number of votes secured by the successful candidate and the candidate
securing the next highest number of votes, it would be next to
impossible to conclude that the result of the election has been
materially affected. But, on the other hand, if the number of votes
secured by the candidate whose nomination was improperly accepted is
disproportionately large as compared with the difference between the
votes secured by the successful candidate and the candidate securing
the next highest number of votes and if the votes secured by the
candidate whose nomination was improperly accepted bears a fairly high
proportion to the votes secured by the successful candidate, the
reasonable probability is that the result of the election has been
materially affected and one may venture to hold the fact as proved.
Under the Indian Evidence Act, a fact is said to be proved when after
considering the matters before it, the court either believes it to
exist or considers its existence so probable that a prudent man ought,
under the circumstances of the particular case, to act upon the
supposition that it exists. If having regard to the facts and
circumstances of a case, the reasonable probability is all one way, a
court must not lay down an impossible standard of proof and hold a
fact as not proved. In the present case, the candidate whose
nomination was improperly accepted had obtained 6710 votes, that is,
almost 20 times the difference between the number of votes secured by
the successful candidate and the candidate securing the next highest
number of votes. Not merely that. The number of votes secured by the
candidate whose nomination was improperly accepted bore a fairly high
proportion to the number of votes secured by the successful candidate
— it was a little over one-third. Surely, in that situation, the
result of the election may safely be said to have been affected.”
17. We find ourselves in respectful agreement with the above
reasoning. There can indeed be fact situations where the Court may
legitimately hold even in the absence of affirmative evidence, that
the result of the election was materially affected by improper
acceptance of the nomination paper or the improper reception of votes.
Beyond that we do not wish to say anything on this aspect at this
stage.
18. In T.H. Musthaffa’s case (supra) relied upon by the High
Court, also the election petition was tried on merits and on the basis
of evidence adduced by the parties, the Court had eventually dismissed
the same. In an appeal against the said order under Section 116 A of
the Act, this Court noted that the allegations made in the course of
the petition regarding acceptance of invalid votes was deficient
inasmuch as the number of votes that were liable to be rejected was
not stated. This Court also noted that there was no indication as to
how many of such votes had been polled in favour of the returned
candidates to enable it to determine whether the same had materially
affected the result of the election. In the absence of any such plea,
the High Court could not have, declared this Court, granted the relief
of recount and the refusal of the High Court to do so was justified.
There is nothing in that decision which advances the case of the
respondent-returned candidate before us. Apart from the fact that the
averments made in the election petitions in the present case are
specific and the individuals who have cast their votes have been named
and reason given why the votes cast by them were improperly received,
the petitioner has alleged that exclusion of five votes cast by the
persons named in the petition would materially affect the result of
the election. Suffice it to say that the question whether any votes
were improperly received and if so, whether such reception had
materially affected the result of the election are matters to be
examined at the trial after the parties have adduced evidence in
support of their respective cases. Dismissal of the election
petitions at the threshold was in the facts and circumstances not
justified. In the result, we allow these appeals, set aside the
judgment and order passed by the High Court and restore the election
petitions to be tried by the High Court on merits in accordance with
law. No costs.
……………………………….………J.
(T.S. THAKUR)
New Delhi
October 18, 2012
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO._7591 OF 2012
(Arising out of SLP (C) 28143 of 2010)
Ashok
..Appellant
Verus
Rajendra Bhausaheb Mulak
..Respondent
WITH
CIVIL APPEAL NO. 7592 OF 2012
(Arising out of SLP (C ) No. 28333/2010
J U D G E M E N T
GYAN SUDHA MISRA, J.
1. Having deliberated over the arguments and counter arguments
advanced on behalf of the appellant and the respondent in the light of
the ratio of a catena of decisions as to what would constitute
‘material facts’ and ‘material particulars’ which could be held to be
materially affecting the result of the election so as to entertain an
election petition challenging the same, as also the reasonings
assigned in the impugned judgment and order of the High Court, I have
not been able to persuade myself to take a view that the judgment and
order dismissing the election petition of the appellant is fit to be
set aside.
2. The petitioner had filed an election petition challenging
the election of the respondent not on the ground of indulgence in
corrupt practice in any manner but on the plea of breach of the
Conduct of Election Rules, 1961 at the instance of a few voters and
inaction of the Presiding Officer at the polling station by failing to
mark them as invalid votes. It has been alleged by the petitioner
that at least 5 out of 14 votes had been cast by such voters who were
accompanied by another person to the voting compartment at the time of
actual casting of vote in the election which was in breach of Rule 39
(5) to 39 (8) of the Election Rules and hence reception of such votes
by including them at the time of counting of votes ought to be
declared as illegal. It is for this purpose that he filed an election
petition which has been dismissed on the ground that it failed to
declare material particulars which could be held to have materially
affecting the election result.
3. Thus, this matter does not relate to a case where the
respondent returned candidate is alleged to have indulged in corrupt
practice but it is based specifically on the ground of breach of the
Election Rules. But even in cases where the election petition is
filed on the ground of corrupt practice, this Court time and again has
held that “the electoral process in a democracy undoubtedly is too
sacrosanct to be permitted or allowed to be polluted by corrupt
practice and if the court records a finding of commission of
corrupt practice by a returned candidate or his election agent or by
any other person with the consent of returned candidate or his
election agent, then the election of the returned candidate shall be
declared to be void and in that event challenge to such election
obviously would be entertained.” But at the same time it cannot be
overlooked as was observed by the Supreme Court in the case of R.P.
Moidutty vs. P.T. Kunju Mohammad & Anr., 2000 (1) SCC 481 and a series
of authorities too numerous to mention, that it is basic to the law
of election and election petition, that in a democracy, the mandate of
the people expressed in the form of their ballot, must prevail and be
respected by the Court and that is why the election of a successful
candidate is not to be set aside lightly since the consequences
flowing from the allegation of corrupt practice or alleged breach of
any Rule affecting the election of a returned candidate is far more
serious and hence the Supreme Court time and again has held that
utmost care and caution are required to be applied while dealing with
the allegation of indulgence in corrupt practices at the instance of
the defeated candidate as in the process, misappreciation of
evidence and hence error of judgment in coming to a definite
conclusion cannot be ruled out.
4. It is in this backdrop that the preliminary question as to
whether the election petition filed by the respondent is fit to be
dismissed on the ground of lack of material facts with material
particulars which materially affects the result of the election
assumes great significance and hence are fit to be taken care of at
the stage when the election petitions are entertained. In this
context, it is further apt to remember that this Court in the case of
Kalyan Kumar Gagoi Vs. Ashutosh Agnihotri, 2011 (1) SCALE 516 has held
– “that the election of the returned candidate should not normally be
allowed to be set aside unless there are cogent and convincing
reasons. The success of a winning candidate at an election cannot be
lightly interfered with. This is all the more so when the election of
a successful candidate is sought to be set aside for no fault of his
but of someone else”. That is why the scheme of Section 100 of the
Representation of People Act, 1961 especially clause (d) of sub-
section (1) thereof clearly prescribes that in spite of the
availability of grounds contemplated by sub-clauses (i) to (iv) of
clause (d), the election of a returned candidate cannot be voided
unless and until it is proved that the result of the election in so
far as it concerns a returned candidate is materially affected. It is
no doubt true that such material facts and material particulars
depend upon the facts of each case and no rule of universal
application can be applied to test the correctness of the allegation
that material facts clearly affect the result of the election and it
is the fact of each case which will be relevant for determination
as to whether the election petition was fit to be rejected on the
plea of lack of material facts and material particulars or it was fit
to be entertained if the same disclosed a cause of action for
consideration by the court so as to entertain the election petition.
But the language of Section 100 (1) (c) of the Representation of
People Act, 1951 is too clear for any speculation about possibility.
5. Fortunately, for the respondent/returned candidate, the
basis of the election petition filed by the appellant in the instant
matter is not on the allegation of indulgence in corrupt practice but
breach of the rule of secrecy of the ballot by the voters and inaction
on the part of the Presiding Officer to mark them as invalid votes as
the specific allegation is improper reception and acceptance of at
least 5 votes out of the 14 votes which according to the appellant has
materially affected the result of the election due to which he had
filed election petition challenging the election of the respondent who
has won the election by a thin margin of 4 votes.
6. Admittedly, the common ground is that there were mainly
two contestants, namely, the appellant –Ashok and the respondent
Rajendra Bhausaheb Mulak for the election to the Maharashtra State
Legislative Council from Nagpur Local Authorities Constituency. The
result of the election which was declared on 21.1.2010 admittedly
showed that the appellant Ashok had been polled 198 votes as against
202 votes polled in favour of the respondent-Rajendra Bhausaheb Mulak.
The respondent thus has won by a thin margin of 4 votes. The
election petitioner’s case as set out in the election petition
admittedly was that the election was materially affected by the
improper reception of votes and as many as 14 votes out of a total of
400 votes were invalid which were polled in the course of the election
by voters who were accompanied by another person to the voting
compartment which was a breach of the election rules to the
Representation of People Act, 1951. Specific averments in regard to
such polling of votes is that the voter namely Mrs. Begam Shehaz
Begum Akhtar entered the polling station along with another voter
Abdul Shakoor Usman Gani @ Shakoor Nagani who had accompanied her to
the voting compartment in utter breach of the election rules and
hand book of the returning officer issued by the Election Commission
of India under Article 324 of the Constitution of India. Similarly,
another lady voter Ms. Rashida Khatoon Mohammed Tahir was alleged to
have entered the polling booth at Kamptee Polling Station
accompanied by one Shri Niraj Yadav, yet another voter at the said
election was accompanied by Shri Niraj Yadav who went to the voting
compartment along with the ballot paper which had been issued to Ms.
Rashida Khatoon Mohammed Tahir. Further, two other voters namely
Abdul Shakoor and Usman Gani were alleged to have voted and by showing
their ballot to others on the polling booth and in all 14 votes polled
by 14 voters were thus alleged as to have been polled by the voters in
breach of Rule 39(5) to 39(8) of the Election Rules, 1951 as the
Presiding Officer did not cancel the said votes although the
irregularities were clear and apparent which happened in front of him.
The petitioner/appellant thus took the categorical plea that “if 5
votes are treated as cancelled and excluded from consideration then it
can be said with certainty that the petitioner had received majority
of the valid votes and therefore, petitioner deserved to be declared
as elected. The petitioner thus wanted the Court to assume that the
said disputed votes were cast in favour of the respondent No.1,
without specifically pleading this vital and material fact.
7. However, learned counsel for the petitioner conveniently
ignored and overlooked that it is not the case of the petitioner-
appellant that all the 14 votes which were alleged to have been polled
in breach of the Rules were polled in favour of the respondent. In
absence of this vital ‘material particular’, the plea of the
petitioner that inclusion of all such votes in which the voter had
been accompanied by another person had materially affected the
result of the election, does not disclose a cause of action which
would lead to the irresistible conclusion that it has materially
affected the result of the election. The petitioner however sought to
fill in this material lacuna by raising pleas in this regard at a much
later stage.
8. There is yet another important aspect of the matter
regarding breach of the Rules admittedly, neither the petitioner nor
any of his representative had raised any objection at the time of
polling that the voter was accompanied by another person while casting
his vote or that the secrecy of the votes were breached. The
petitioner has taken this plea in the election petition for the first
time that he had seen such accompaniment in the CD which he procured
at a later stage after declaration of the election result completely
overlooking that if no such plea or objection had been raised at the
time of actual polling, then after declaration of the result,
breach of such rules viz. Rules 39 (5) to 39 (8) could not have
been allowed to be raised straightaway by way of an election petition
for the first time as that clearly amounts to absence of ingredients
of such breach and absence of material particulars in regard to the
polling, relying merely on the CD which he claims to have procured
later rendering the entire plea of materially affecting the result of
the election to be speculative in nature and hence fit to be rejected
outright.
9. It is relevant in this context to refer to Rule 39 of The
Conduct of Election Rules, 1961. Relevant extracts of the said Rule
is quoted hereinbefore for facility of reference.
39. Maintenance of secrecy of voting by electors within polling
station and voting procedure. – (1) Every elector to whom a ballot
paper has been issued under rule 38 or under any other provision of
these rules, shall maintain secrecy of voting within the polling
station and for that purpose observe the voting procedure hereinafter
laid down.
(2) The elector on receiving the ballot paper shall forthwith –
(a) proceed to one of the voting compartments;
(b) there make a mark on the ballot paper with the instrument
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;
(4) No elector shall be allowed to enter a voting compartment when
another elector is inside it.
(5) If an elector to whom a ballot paper has been issued, refuses,
after warning given by the Presiding Officer, to observe the procedure
as laid down in sub-rule (2), the ballot paper issued to him shall,
whether he has recorded his vote thereon or not, be taken back from
him by the Presiding Officer or a polling officer under the direction
of the Presiding Officer.
(6) After the ballot paper has been taken back, the Presiding Officer
shall record on its back the words “Cancelled : voting procedure
violated” and put his signature below those words.
(7) All the ballot papers on which the words “Cancelled : voting
procedure violated” are recorded, shall be kept in a separate cover
which shall bear on its face the words “Ballot papers : voting
procedure violated”.
(8) Without prejudice to any other penalty to which an elector, from
whom a ballot paper has been taken back under sub-rule (5), may be
liable, the vote, if any, recorded on such ballot paper shall not be
counted.
10. It is clear on perusal of the aforesaid Rules that
the procedure for casting of votes clearly envisages that if the
voting procedure has been violated, an objection should have been
raised by the candidate or his representative as the Presiding Officer
under Rule 6 was required to mark “Cancelled: voting procedure
violated” and put his signature below those words. Thereafter, all
the ballot papers on which the words “Cancelled: voting procedure
violated” are recorded is required to be kept in separate cover which
shall bear on its face the words “Ballot papers: voting procedure
violated”.
11. In continuation, Rule 8 further lays down that
without prejudice to any other penalty to which an elector, from whom
a ballot paper has been taken back under sub-rule (5), may be liable,
the vote, if any, recorded on such ballot paper shall not be counted.
Thus, this Rule although does not envisage a penalty to the voter, it
is clearly laid down that such ballot paper shall not be counted for
the purpose of election. An inference can clearly be drawn from this
Rule that the candidate or his representative is expected to raise
objection at the time of actual polling regarding violation of Rules
5, 6, 7 and 8 of Section 39 so that the votes which were alleged to
have been polled in breach of the aforesaid Rules could be cancelled
by the Presiding Officer. The election petitioner admittedly has not
lodged any complaint anywhere regarding the inaction of the Presiding
Officer by writing on the back of the ballot paper – “Cancelled :
voting procedure violated” and put his signature below those words.
If the Presiding Officer violates to discharge his duty in this regard
obviously it must be construed that a complaint ought to have been
registered somewhere for cancellation of such ballot papers and if the
said action has been taken by the petitioner, then it was open for him
to challenge the same by way of an election petition at the
appropriate stage. But the admitted position in the matter is that
the petitioner or his representative or anyone else connected to the
polling had nowhere complained of any such violation of the voting
procedure and at later stage that he saw such violation on the CD
which he had later procured from the Collector. But in absence of any
complaint by the candidate at the time of polling, is not capable of
establishing as to how these rules could be alleged to have been
violated expecting the Presiding Officer to cancel the votes on
account of violation of the procedures and keep them in a separate
packet so as to prevent them from counting. The CD on which the
petitioner was relied to prove violation of Rules 39 (5) to 39 (8)
cannot possibly establish absence of any protest lodged by the
candidate or his agent regarding violation of the procedure as the
very basis of challenge alleging violation of Rule 39 is based on
allegation but not supported by material particulars so as to
establish violation of Rule 39 of The Election Rules, 1961.
12. It is further to be taken note that there was total
non-compliance of the provisions of Section 81 (3) of the RP Act, 1951
as the original CD which formed an integral part of the Election
Petition, was not produced along with the Election Petition and what
was produced as Document No.11 was merely a truncated, doctored and an
edited copy thereof. Thus in absence of the original CD containing
full video recording of the polling, there was non-compliance of
Section 81 (3) thereby making the petition liable to be dismissed. In
the case of Mulayam Singh Yadav Vs. Dharampal Yadav reported in (2001)
SCC 98 this Hon’ble Court in a similar circumstance has held as
follows:
“7. The principal question, therefore, that we have to decide is
whether Schedule 14 and the video cassette therein referred to are an
integral part of the Election Petition and whether the failure to file
the Original thereof in the court along with the Election Petition
attracts Section 81 and therefore, Section 86 (1) of the RP Act, 1951.
“11. Whether or not schedule 14 is an integral part of the
Election Petition does not depend on whether or not the draftsman of
the Election Petition has so averred. It has to be decided
objectively, taking into account all relevant facts and circumstances.
Schedule 14 is one of 25 schedules which is, as a matter of fact,
part of the bound Election Petition,… Clearly, the video cassette
mentioned and verified in schedule 14 is as much an integral part of
the Election Petition as the papers and documents mentioned and
verified in the other schedules… Further, that the video cassette
mentioned and verified in Schedule 14 is a part of the Election
Petition and was intended to be such is evident from the affidavit of
the first respondent verifying the allegation of corrupt practice made
in the Election Petitioner. Therein, the first respondent has
verified the correctness of what is stated in para 83 of the election
petition, which refers to schedule 14 and which has been quoted above
and to schedule 14 itself. Yet again, that the video cassette
mentioned and verified in schedule 14 is and was intended to be a part
of the Election Petition is shown by the fact that 15 video cassettes
which were copies of the video cassettes mentioned and verified in
schedule 14 were filed in the High Court along with the Election
Petition for being served upon the respondents.”
“13. We are, therefore, satisfied that the video cassettes mentioned
and verified in schedule 14 is an integral part of the Election
Petition and that it should have been filed in Court along with copies
thereof for service upon the respondents to the Election Petition.
Whereas 15 copies thereof were filed for serving upon the respondents,
the video cassette itself was not filed. The Election Petition as
filed was, therefore, not complete.”
13. It is further to be noted that in order to make out
a cause of action for challenging the election under Section 100 (1)
(d) (iii) (iv) all the material facts have to be pleaded which are
necessary to show that the election of the returned candidate was
‘materially affected’ by the improper reception of votes or improper
reception of any vote which is void or by non-compliance of the
provisions of the Constitution or of the Act or of the rules or orders
made under the Act. In the present case, petitioner’s only allegation
is that certain votes were improperly accepted because of non-
observance of the election rules. According to the petitioner, these
disputed votes which are more than the margin of votes between the
returned candidate and the petitioner are required to be excluded from
being considered as valid votes. If these disputed votes, are treated
as cancelled and excluded from consideration then according to the
petitioner he receives majority of the valid votes and deserves to be
declared as elected. These allegations, as has been rightly held by
the High Court, are not sufficient to demonstrate as to how the result
of the election in so far it concerned the returned candidate is
‘materially affected’. The High Court, in my opinion, has rightly
held that The Election Petitioners only point out a possibility of the
result of election being different if 14 or 5 votes can be excluded.
It is not their case that the said votes when displayed revealed that
they were in favour of Rajendra and not in favour of Ashok. The
petitioners have not pointed out the beneficiary of those 14 or 5
votes. It is not their plea that all those voters cast their vote in
favour of returned candidate or did not cast in favour of defeated
candidate. There is no plea about their political affinities either
to associate or disassociate with any political party. The said
votes now cannot be traced out or segregated. Hence when ‘displayed’
what was seen and the vote was cast in whose favour ought to have been
pleaded which is missing. Thus, link between the victory and
lacunae/omissions is pre-requisites to formation of this opinion. A
triable issue cannot be said to arise till then as no cause of action
surfaces.
14. In absence of any allegation that the disputed
votes were cast in favour of the returned candidate, the petitioner
failed to make out a case that the election was ‘materially affected’
merely on the ground of alleged improper acceptance of the said votes.
The material fact which ought to have been pleaded in the Election
Petition was not only that the disputed votes ought not to have been
accepted, but those votes were cast in favour of respondent No.1 and
if they were not so accepted, then the result of the election would be
materially affected. These facts become material in the present case
especially because the petitioner had not alleged any corrupt practice
against the respondent No.1 and the petitioner himself had come up
with a case that the ballot papers were displayed to those present in
the room were the ballot box had been kept. Pleading these material
facts for the first time at the stage in the SLP is impermissible and
cannot be taken cognizance of. Thus, the contention of the respondent
that the material facts so as to make out a cause of action have not
been pleaded stands vindicated.
15. The present SLP is devoid of merits and substance
also in view of the recent judgment of Kalyan Kumar Gagoi Vs. Ashutosh
Agnihotri reported in 2011 (1) SCALE 516 wherein it was held as
follows :
“14. It may be mentioned here that in this case non-compliance to
the provisions of Representation of People Act, 1951 and the Election
Rules of 1961 was by the officers, who were in charge of the conduct
of the election and not by the elected candidate. It is true that if
clause (iv) is read in isolation, then one may be tempted to come to
the conclusion that any non-compliance with the provisions of the
Constitution or of the Act of 1951 or any Rules of 1961, Rules or
Orders made under the Act would render the election of the returned
candidate void. But one cannot forget the important fact that clause
(d) begins with a rider, namely, that the result of the election in so
far it concerns a returned candidate must have been materially
affected. This means that if it is not proved to the satisfaction of
the court that the result of the election in so far as it concerned a
returned candidate has been materially affected, the election of the
returned candidate would not be liable to be declared void
notwithstanding non-compliance with the provisions of the Constitution
or of any Rules of 1961, Rules or Orders made thereunder. It is well
to remember that this Court has laid down in several reported
decisions that the election of the returned candidate should not
normally be set aside unless there are cogent and convincing reasons.
The success of a winning candidate at an election cannot be lightly
interfered with. This is all the more so when the election of a
successful candidate is sought to be set aside for no fault of his but
of someone else. That is why the scheme of Section 100 of the Act
especially clause (d) of sub-section (1) thereof clearly prescribes
that in spite of the availability of grounds contemplated by sub-
clauses (i) to (iv) of clause (d), the election of a returned
candidate cannot be voided unless and until it is proved that the
result of the election in so far as it concerns a returned candidate
is materially affected.”
16. It is further worthwhile to take note of the legal
position reflected in the decision of the Court in the matter of
Vashisht Narain Sharma Vs. Dev Chandra and others, AIR 1954 S.C. 513
wherein this Court observed as follows:
“It is not permissible in law to avoid the election of the returned
candidate on speculation or conjectures relating to the manner in
which the wasted votes would have been distributed amongst the
remaining validly nominated candidates ……………… In the absence of
positive proof of material effect on the result of the election of the
returned candidate, the election must be allowed to stand and the
Court should not interfere with the election on speculation and
conjectures.”
When the case of the petitioner/appellant is examined on the anvil of
the aforesaid position and on the prevailing facts, it is apparent
that the petitioner/appellant is indulging in a process which amounts
to speculation and conjecture in absence of material particulars; for
instance, if it were the specific plea of the petitioner that all 14
votes or at least 4 votes which were cast in which the voters were
alleged to have been accompanied by another person were in fact
polled in favour of the respondent so as to influence the election
result, the plea of the petitioner could be held as amounting to
materially affecting the election result. But in absence of this
candid relevant and factual detail, the election petition obviously
is based only on such averment, which will have to be held speculative
and conjectural in nature and can hardly be held to be disclosing
‘material facts with material particulars’ so as to conclude that it
materially affected the result of the election. Even assuming that
the election petition were to be allowed in spite of absence of such
material particulars, the net result would be the recounting of the
votes by declaring 14 votes as invalid which were alleged to have been
polled in breach of the election rules but could hardly be
identified or deciphered. To clarify it further, it may be stated
that even if the election petition were to be allowed by declaring the
14 votes as invalid, it is inconceivable as to how those 14 votes
which were alleged to have been polled by those voters who had been
accompanied by another person could be identified so as to hold that
the alleged invalid votes materially affected the result of the
election.
17. What is sought to be emphasized is that in the
absence of any identification mark of those votes which are alleged
to have been polled by voters accompanied by another person and is
alleged to be in breach of the Rules cannot possibly be identified so
as to treat them as invalid votes and if that is so, the election
petition is clearly based on vague material and hence would be unjust
to allow the election to be questioned by entertaining the election
petition where the losing candidate/the petitioner had himself not
alleged any corrupt practice in holding the election but merely a
breach of the election rule in regard to which he had not complained
at all at the time of election or even thereafter but straightway
filed the election petition challenging the election on the basis of
an alleged CD after the election result was declared. Thus, the
entertainment of an election petition on such speculative material can
hardly be held to be disclosing material facts with material
particular which would justify the challenge to an election by
entertaining an election petition as the same does not spell out
material particulars which would affect the election result.
18. It is well settled legal position that no evidence
can be led on a matter unless there is a pleading thereon. Therefore,
unless it was pleaded that the invalid votes were cast in favour of
the returned candidate, no evidence can be led to that effect. In a
petition seeking to challenge an election on the ground stated in
Section 100 (1) (d) (iii) and (iv), it was imperative for the
petitioner to plead the most crucial and vitally material fact that
the invalid votes were cast in favour of the returned candidate
because then alone could it be pleaded and proved that “the result of
the election, in so far as it concerns a returned candidate, has been
materially affected” within the meaning of Section 100 (1) (d). The
words “in so far as it concerns a returned candidate” and “has been
materially affected” read with clauses (iii) and (iv) clearly show the
legislative intent to place the burden of pleading and proving that
the improper reception of votes or violation of law in regard to
casting of votes benefited the returned candidate and materially
affected his election as a returned candidate. It is not enough to
show mere improper reception of votes or reception of votes or non-
compliance with law. In addition it has to be pleaded and proved that
this materially affected the election in so far as it concerns the
returned candidate. The language of Section 100 (1) (d) (iii) and
(iv) itself clearly indicates the requirement of pleading the vitally
material fact that the votes were improperly or unlawfully cast in
favour of the returned candidate. In the present case, lack of
pleading that the votes were cast in favour of the respondent leads to
absence of cause of action for the petition for invalidating the
election under Section 100 (1) (d) (iii) and (iv).
19. Thus, merely because the margin of difference
between the winner and the loser was four votes and five votes were
disputed by the petitioner would not give rise to any valid cause of
action. The petitioner’s contention in this regard is unsustainable
in law. Thus, the ratio of the judgment in the case of Mayar (HK) Ltd
Vs. Owners & Parties, (2006) 3 SCC 100 is of no assistance to the
petitioner as it is settled legal position that merely because the
wasted votes or accepted or rejected votes are more than the margin,
it cannot be said that the election has been materially affected.
20. Since the petitioner had failed to plead material
facts as contemplated under Section 83 (1) (a) of the RP Act, which
alone could give cause of action for claiming that the election of the
respondent was materially affected within the meaning of Section 100
(1) (d) (iii) and (iv), the petition was rightly dismissed. In the
matter of T.H. Musthaffa Vs. M.P. Varghese (Supra), this Court relying
upon the ratio of this Court in Jabar Singh Vs. Genda Lal, (1964) SCR
54, it was held that the scope of the enquiry in a case under Section
100 (1) (d) (iii) is to determine whether any votes had been
improperly cast in favour of the returned candidate or any votes had
been improperly refused or rejected in regard to any other candidate.
These are the only two matters which would be relevant for deciding
whether the election of a returned candidate had been materially
affected or not. But, in view of the facts of this case where the
petitioner has failed to disclose as to whether the alleged improper
reception of 14 or 5 votes were cast in favour of which candidate, it
is clear that the election petition failed to disclose material
particulars in this regard so as to give rise to a cause of action
apart from the fact that no objection was raised at the time of actual
polling.
21. I thus find substance in the view taken by the High
Court in the impugned judgment, that the election petitioner herein
has only pointed out a possibility of result of election being
different if 14 or 5 votes were to be excluded from counting. The
High Court appears to be correct in my view while stating that the
case of the petitioner is not that the said votes reveal that they
were in favour of respondent - Rajendra or not in favour of
petitioner - Ashok. But the objection is only that those votes
ought not to have been taken into consideration while counting the
votes. As already stated in absence of identification of those votes
which are alleged to have been cast by the voters in the company of
another person, it would be difficult to identify them so as to infer
as to which are the votes which ought not to have been reckoned for
counting by declaring them invalid. In that event even if the
petitioner’s election petition were to be allowed, the entire trial
would result into an exercise in futility leading the controversy
nowhere. It is in view of this inevitable consequence that I hold
that the election petition filed by the petitioner indicates absence
of ‘material particulars’ which materially affected the result of the
election so as to entertain a challenge to the same. To contend that
the alleged breach of secrecy would render the entire election result
as void so as to order for a repoll in spite of absence of any
objection by the defeated candidates or his representative in this
regard at the time of polling would be an outrageous contention in my
view which is fit to rejected outright. Fortunately, this is not even
the contention of the petitioner and rightly so, as he has confined
his challenge only to the extent of challenging the validity of 5 or
14 votes alleging breach of secrecy, which materially affected the
election result. This contention is extremely fragile and hence has
no force for the reasoning recorded hereinbefore.
22. I am, therefore, conclusively of the view that the impugned
judgment and order of the High Court is not required to be interfered
with and the election petition was rightly held to be fit for
rejection for want of material facts and material particulars which
could materially affect the result of the election.
……………………………..J.
(Gyan Sudha Misra)
New Delhi
October 18, 2012
ITEM NO.1A COURT NO.10 SECTION XVII
[FOR JUDGMENT]
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
C.A. No. 7591 of 2012 @
Petition(s) for Special Leave to Appeal (Civil) No(s).28143/2010
(From the judgement and order dated 02/08/2010 in EP No.1/2010 of The HIGH
COURT OF BOMBAY AT NAGPUR)
ASHOK Petitioner(s)
VERSUS
RAJENDRA BHAUSAHEB MULAK Respondent(s)
WITH
C.A. No. 7592 of 2012 @
SLP(C) NO. 28333 of 2010
Date: 18/10/2012 This Petition was called on for JUDGMENT today.
COUSEL FOR THE APPEARING PARTIES:
Mr. S.S. Shamshery,Adv.
Mr. Bharat Sood,Adv.
Mr. R.C. Kohli,Adv.
Mrs.Shally Bhasin Maheshwari
Mr. Shivaji M. Jadhav,Adv.
The Court made the following
O R D E R
Hon'ble Mr. Justice T.S. Thakur and Hon'ble Mrs. Justice Gyan Sudha
Misra pronounced separate judgments expressing their conflicting views in
the matter.
Leave granted.
The Hon'ble Court referred this matter to a three Judge Bench for
resolving the conflict. The Registry shall place the record before Hon'ble
the Chief Justice of India for constituting an appopriate Bench.The matters
are referred to a larger Bench.
|(N.K. Goel) | |(Veena Khera) |
|Court Master | |Court Master |
(Signed Reportable Judgments and consent order are
placed on the file)
