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Friday, October 19, 2012

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. - 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. 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.




                         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)