1 The petitioner is challenging the election of Respondent No.1 who is a returned candidate from 85-Bhokar Legislative Assembly Constituency.
2 The general elections to the Legislative Assembly of the State of Maharashtra were held and results came to be declared on 22.10.2009. The petitioner was also one of the contesting candidates at the election. The petitioner contested election as an independent candidate, whereas Respondent No.1 was set up as a candidate by Indian National Congress Party. Respondent No.1 got elected by a margin of more than one lac votes. He polled 79.65% of the votes, whereas, petitioner could secure 8.79% of the votes polled. The challenge raised by petitioner to the election of Respondent No.1 is mainly based on corrupt practice within the meaning of Section 123 of the Representation of People Act, 1951.
3 Respondent No.1 has presented written statement and has controverted the contentions raised by petitioner in the election petition. In the written statement presented by Respondent No.1 as well as in the application presented at Exhibit-17, Respondent No.1 has raised preliminary objection in respect of maintainability of the petition. Respondent No.1 has requested to dismiss the petition summarily on the ground that it does not satisfy requirements of Section 81(3) as well as Section 83 of the Representation of the People Act, 1951. According to Respondent No.1, the election petition does not disclose accrual of cause of action and as such, same is required to be dismissed at the threshold.
4 Considering the request made by Respondent No.1, parties were called upon to address on the preliminary objection set out by Respondent No.1 in the written statement as well as in the application at Exhibit-17.
5 The petitioner as well as Respondents have addressed on the preliminary objections and arguments were heard on 03.10.2012, 04.10.2012 and 08.10.2012.
6 The petitioner has confined his challenge in the election petition mainly to two aspects, first one in respect of corruptibility/vulnerability of Electronic Voting Machines (EVMs) to tampering and or manipulation; and secondly, in respect of excess expenditure incurred by Respondent No.1 over and above the permissible limits.
The allegation in respect of excess expenditure can be gathered from the contentions raised in paragraph nos.22 and 23 of the petition wherein it is stated that there was unprecedented Media coverage given to Respondent No.1 during the election campaign. There were publications in Newspapers, which, according to the petitioner, are in the nature of âpaid newsâ.
THE CORRUPTIBILITY / VULNERABILITY OF ELECTRONIC VOTING MACHINES FOR MANIPULATION AND/OR RIGGING AND/OR TAMPERING.
7 In paragraph no.7 of the petition, it is contended by the petitioner that Respondent No.1 has secured 79.65% of actual votes while petitioner could secure 8.79% of actual votes. Respondent No.1 got elected by a margin of more than one lacs, which, according to the petitioner, was impossible thing to happen, as there are several areas in Bhokar Assembly Constituency where performance of petitioner was estimated by independent experts to be extremely good. According to the petitioner, Respondent No.1 has secured exceptionally high votes whereas, petitioner polled extremely low percentage of votes in his stronghold areas, which according to the petitioner, is shocking. The returned candidate i.e. Respondent No.1 received 1,20,849 votes while petitioner has secured only 13,346 votes.
(i) In paragraph no.8 of the petition, petitioner has given percentage-wise votes at various booths in Bhokar Legislative Assembly Constituency. It is stated that at 42 booths, Respondent No.1 secured 90 to 92.99% of votes, whereas, at 171 booths, he polled 70 to 90% of votes, while at 41 booths, Respondent No.1 secured 52 to 70% of votes. According to the petitioner, extremely high percentage of votes polled to Respondent No.1 is due to the fact that EVMs could be rigged and tampered with. It is stated that petitioner has undertaken a careful study and he, in his representation dated 24.10.2009 to the Returning Officer, has expressed apprehension about manipulation in EVMs by the Returning Officer to 85-Bhokar Assembly Constituency. The petitioner further states that apprehensions of illegal and corrupt practices of Respondent No.1 with the help of favourable Returning Officer and supporting staff of every polling booth were also conveyed.
(ii) In paragraph 9 of the petition, it is submitted by the petitioner that EVMs are not tamperproof at all. It is also stated in the said paragraph that internal testing of the machine is done by an employee of the manufacturing company and, therefore, if one is able to exert some influence on the said employee, then at that stage itself, scope for manipulation can be inserted (sic ensured).
(iii) In paragraph no.10 of the petition, it is alleged that non observance of the rules and orders by the Returning Officer has materially affected validity of concerned election. There are several other defaults committed by or at the instance of Respondent No.1 which also render entire election bad in law and consequently liable to be interfered with.
(iv) In paragraph no.11, it is stated by the petitioner that on declaration of results, he and his supporters were completely stunned and shocked since petitioner received extremely low percentage of votes. It is stated that disparity in votes polled in favour of Respondent No.1 and petitioner is even more shocking.
(v) In paragraph no.12 of the petition, petitioner states that he had received information about unreliability of the EVMs used at the elections. The petitioner had strong apprehensions about the possibility of tampering with EVMs. It is further stated that during the election process, prior to the date of voting, the EVMs were not properly kept by Respondent No.3-the Returning Officer leaving huge scope for manipulation and tampering of EVMs. It is also stated that Respondent No.3 has not conducted mock poll, etc. and has not adhered to the prescription of law as regards safety and security of EVMs. A doubt is expressed that this has been done with a deliberate and mala fide intention to assist a particular candidate in manipulating EVMs.
(vi) In paragraph no.13 of the petition, it is stated that on the basis of information gathered by petitioner, he has to say that insofar as the EVMs are concerned, there is every possibility that these machines can be rigged and/or manipulated and/or tampered with and if it is done by skillful hand, it can be, within shortest possible time, tampered with. The petitioner has relied upon the data collected from newspapers as well as on Internet to support his doubts.
(vii) In paragraph no.14 of the petition, it is stated that petitioner has acquired knowledge that by using Microsoft Windows on a Compact P.C., EVMs could be simulated and programmed to add votes to a certain candidate, no matter who has been voted. The petitioner has stated in the said paragraph that there are inherent risks in employing EVMs at the elections and that the machines could be programmed in such a manner that even if a voter punches the candidate of his choice, the vote would keep on adding in favour of the programmed winner. The petitioner has further stated that there is a possibility to rig the EVMs in this fashion even by using a remote control. The petitioner has also alleged that the EVMs could be programmed in such a fashion so that it could transfer more than 45% votes of five lowest candidates to a favoured candidate. There is a further possibility that by using electromagnetic pule generator near EVMs, its memory could also be erased. In the opinion of the petitioner, all electronic circuits are susceptible to electromagnetic interference and as such, even in the Strong Room, the EVMs are not safe, since an expert, who knows the resonance frequency of the circuit, could remotely send signals from a distance away. The petitioner has also expressed possibility, in the natural course of handling of the EVMs and their transportation from one place to another, that its components could be reset.
(viii) In paragraph no.15 of the petition, it is stated that in United States of America also, there is a move again use of EVMs without safeguards like âPaper Trailâ. According to the petitioner, considering the strong possibility of tampering of machines and non reliability thereof, there is an emphasis on what is known as âPaper Trailâ. According to the petitioner, the EVMs are open to manipulation and/or tampering.
(ix) In paragraph nos. 16, 17 and 18 of the petition, petitioner has reiterated his contentions in respect of corruptibility of EVMs.
(x) In paragraph no.18 of the petition, it is further alleged by the petitioner that EVMs were not kept properly in safe custody as required by relevant provisions. However, the Rooms, in which machines were kept by Respondent No.3-Returning Officer were âStrong Roomsâ only for the namesake. It is alleged that mock poll was never conducted by Respondent No.2. According to the petitioner, there is a clear breach of statutory and mandatory provisions of law which has materially affected purity and fairness of the election process.
(xi) In paragraph no.19 of the petition, it is alleged by petitioner that the procedure prescribed in Chapter XII of the Hand Book for Returning Officers in respect of process of preparation of voting machines has not been adhered to by the Returning Officer.
(xii) In paragraph 20 of the petition, it is alleged that there is every possibility that the personnel of the machine manufacturing company may have acted under the influence of Respondent No.1 and at his instance and for his benefit. They could easily have programmed the machines in such a fashion so as to benefit Respondent No.1. It is further alleged that there are several indications that tampering of the machines has been done at this level at the instance of Respondent No.1, who is a returned candidate. It is alleged that Respondent No.3 â Returning Officer did not follow the mandatory rules and orders during the election process which has materially affected validity of election and as such, results are liable to be set aside.
ELECTION EXPENSES:
8 The allegations in respect of election expenses incurred by Respondent No.1 to be more than the prescribed limit are found in paragraph nos.22 and 23 of the petition. It is alleged that Respondent No.1 has received unprecedented Media coverage during the election campaign. There were 50 full news paper pages devoted exclusively on Respondent No.1, his leadership, his party and Government. The material was published in National Dailys having highest circulation. According to the petitioner, Respondent No.1 has spent not less than Rs.7 lacs during the election campaign and spending limit imposed on the contestants is Rs.10 lacs. According to the petitioner, Respondent No.1 has received in fact astonishing media coverage during the election campaign and the news papers, carrying many full pages on him, no where marked them as advertisement. According to the petitioner, those were in the format of advertisements in the newspapers, for which crores of Rupees were spent.
In paragraph no.23, the petitioner has named two news papers namely minor daily âSatyaprabha in Nanded district and âDaily Lokmat, fourth largest Daily in the Country and widely circulated in Maharashtra. According to the petitioner, the media coverage appearing in the newspapers is definitely a âpaid newsâ at the instance of Respondent No.1 worth crores of Rupees.
9 Thus, according to the petitioner, results of the election are materially affected due to:
(a) Corruptibility / tampering of EVMs; and
(b) Due to excess expenditure than permissible limits incurred by Respondent No.1.
10 According to Respondent No.1, the petition contains only allegations and there are no pleadings of material facts disclosing the basic and supporting facts in context of Section 123(8) or Section 123(6) of the Representation of the People Act.
On perusal of the allegations contained in the petition in respect of use of EVMs, it is contended that,
(a) There are no pleadings as to how, when and in what manner the plan to manipulate the EVMs was hatched;
(b) There are no pleadings as to how, when and in what manner, such plan was executed;
(c) No definite, concrete and positive role has been alleged against Respondent No.1;
(d) There are haphazard and vague allegations made against Respondent No.1 in respect of manipulation of EVMs at different stages i.e.
(i) at pre-poll stage itself the circuit design is tampered;
(ii) during the process of poll; and
(iii) also during post-poll period i.e. tampering of EVMs kept in Strong Room through Remote Control.
(e) There is no pleading as to how EVMs used at 260 booths at the entire Bhokar Assembly Constituency were tampered, moreover when it is a multi-candidate contest having ten contesting candidates in the field.
(f) There is no specific pleading as to how the intelligence itself was corrupted, whether in respect of all booths or only some of the booths? Which was the software used.
(g) There is no pleading as to how and by which mechanism the EVMs were tampered.
(h) The only allegation that the staff connived with Respondent No.1 is based on the fact that Respondent No.1 was the then Chief Minister, beyond which, there is no pleading about specific instance of abuse of power in influencing the staff.
(i) There is no pleading about exact electoral malpractices committed by Respondent No.1 attributing specific positive role against Respondent No.1 in hatching the plan and execution thereof. There is no pleading as to what is the nexus or co-relation between Respondent No.1 and alleged tampering.
(j) There is no pleading as to the identity of the persons, technicians involved in actual tampering of EVMs. There is no pleading as regards place and time when suspected mischief was in fact committed. If the intelligence of the EVMs is corrupted so as to get a programmed winner i.e. pre-poll stage, or at the stage of manufacturing, there is no logic in suggesting tampering of EVMs subsequently by using Remote Control in Strong Room i.e. post poll stage.
(k) In the affidavit, the source of knowledge of allegations made in the petition is individual personal knowledge of the petitioner. However, petitioner nowhere states that petitioner is an eye witness to any tampering or corrupt practice / rigging of EVMs. On the face of it, the allegations appear to be unbelievable and it is impossible that in presence of rival candidate, a plan to commit electoral malpractice could be hatched and implemented. There is total absence of material facts and only wild and imaginary allegations are made against Respondent No.1 in the petition. There are no pleadings of the fact of internal tampering or rigging of EVMs, in any manner by Respondent No.1.
(l) The law does not contemplate filing of incomplete petition.
11 It is contended that none of the averments made in the petition spell out any âcorrupt practiceâ qua Respondent No.1 as defined in Section 123 of the Representation of the People Act. Since there is no ground made out under Section 100 of the Representation of the People Act to set aside the impugned election, the election petition is liable to be dismissed at threshold.
EXCESS EXPENDITURE:
12 It is contended that the allegations made about excess expenditure are extremely vague, as:
(a) The text and context of the actual publications is not pleaded. It is not possible to ascertain as to whether the publications relate to general party propaganda seeking support for the party and the candidates set up by the party in general and without reference to any particular candidate or group of candidates.
(b) There is no pleading as to whether the publication is directly seeking support and or vote for any particular candidate or group of candidates.
(c) There is no pleading as to whether the publications are pertaining to merely announcement of the date, time and place or other particulars of election meeting.
(d) The most vital deficiency is that the documents, on which petitioner is placing reliance, are not annexed with the petition at all.
(e) There is absolutely no material to show existence of cause of action or any material about alleged publications.
(f) The actual dates of publications have not been pleaded to verify whether those are pre or post presentation to the nomination.
(g) There are no pleadings stating names of all the news papers, the date of publication and contents thereof.
(h) It is not stated whether the publications reflect personal views of the Editor or Journalist or whether the publications were based on the prior Government Publications or the manifesto of the party or whether the publications were at the instance of Respondent No.1.
(i) There is absolutely nothing to demonstrate nexus between Respondent No.1 and alleged publications.
(j) There is no pleading in respect of date and place of the publications as well as particulars of the publications.
13 Section 80 of the Representation of the People Act, 1951, provides that no election shall be called in question except by an Election Petition presented in accordance with provisions of this Chapter (Chapter II). Section 81 of the Act deals with presentation of petitions, whereas, Section 82 provides for parties to the petition. Section 83 of the Act provides for contents of the petition, which reads thus:
83 Contents of petition â
(1) An election petition -
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
Section 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.
14 In the instant matter, it is urged that since the election petition does not conform to the requirements of Section 83 (1)(a) and (b), same is liable to the dismissed. Section 83(1)(a) provides that petition shall contain a concise statement of material facts on which the petitioner relies; and (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such practice. According to Respondent No.1, the petition does not contain the material facts on which petitioner relies, including no full particulars of any corrupt practice, are stated in the petition.
15 Section 123 of the Act defines corrupt practice. In the instant matter, considering the allegations levelled in the petition, Section 123 (6) and (8) can be stated to be attracted.
THE PLEADINGS IN RESPECT OF CORRUPTIBILITY / TAMPERABILITY OF EVMs.
16 The mode of voting through an apparatus or machine i.e. Electronic Voting Machine (EVM) is sanctioned by law vide Section 61-A of the Representation of the People Act, 1951, with effect from 15.03.1989 and in the General Elections for the years 2004 and 2009, casting of votes through EVM was put to application. So far as the allegations contained in petition are concerned, those are merely in the nature of apprehension expressed by the petitioner. The actual malfunctioning of the EVMs is a question to be decided, based on appreciation of facts. Unless petition contains proper pleadings with material particulars in respect of intentional tampering and malfunctioning of EVMs, the vague allegations made by petitioner in the petition cannot be considered. It is not open for this Court to draw a conclusion only on the basis of expert opinion or on the basis of surmises or conjectures as regards tamperability or corruptibility of the EVMs. There are absolutely no pleadings to the effect that malfunctioning of EVMs is at the instance of Respondent No.1 and further that result of the elections is vitiated on account of such tampering which would amount to corrupt practice within the meaning of Section 123 of the Act. Unless and until it is pleaded that someone had access to the EVMs and that those machines were tampered and such tampering was at the instance of Respondent No.1 or with a view to gain advantage at the elections to Respondent No.1, the vague allegations made in the petition, in that behalf, cannot sustain. The petition does not set out material facts. It is no where pleaded in specific terms that â
(a) The returned candidate or his agents, in any manner, have done acts of rigging or manipulation with the EVMs, consequently the result of election is materially affected as far as the returned candidate is concerned.
(b) Due to any fault or interference in the EVMs, the result of election has been materially affected so far as returned candidate is concerned.
17 All the allegations relating to tampering of EVMs are based on possibility imagined by the petitioner. Mere imaginary allegation of such possibility of occurrence of malfunctioning or irregularity is no ground to challenge the election. All the allegations in this behalf are described in the petition as, âcould beâ, âapprehension of manipulationâ, âscope for manipulationâ, âhuge scope for doubtsâ, âpossible to rigâ, âcould contain several flawsâ. Such âifsâ and âbutsâ are suspicions, howsoever strong, cannot take place of material facts constituting cause of action. The pleadings must disclose complete cause of action. There are no pleadings of material facts -
(a) which can afford basis of allegations made in it.
(b) which are necessary to constitute complete cause of action.
(c) to constitute any âcorrupt practiceâ, specific description of one of the corrupt practices enumerated in Section 123.
Thus, there is no issue of fact amounting to corrupt practice which would be framed. There is no triable issue which can call for any further investigation and even if evidence is allowed to be led, it cannot be taken into consideration in the absence of pleadings. The petition, which does not comply with the requirements of Section 83(1)(a) and (b) can be dismissed at the threshold.
18 Since the Code of Civil Procedure applies to the trial of an election petition by virtue of Section 87 of the Act, the Court trying the election petition, can exercise powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a) of the Code of Civil Procedure. The fact that Section 83 does not find place in Section 86 of the Act does not mean that powers under the Code of Civil Procedure cannot be exercised. A reference can be made to a judgment of the Supreme Court in the matter of AzharHussain Vs. Rajiv Gandhi, reported in 1986 (Supp) SCC 315. The point for consideration, which arose in the matter, was â
â(a) Since the Act does not provide for dismissal of an election petition on the ground that material particulars necessary to be supplied in the election petition, as enjoined by Section 83 of the Act, are not incorporated in the election petition, inasmuch as Section 86 of the Act which provides for summary dismissal of the petition does not advert to Section 83 of the Act there is no power in the Court trying election petitions to dismiss the petition even in exercise of powers under the Code of Civil Procedureâ.
While dealing with the issue, the Apex Court, in paragraph nos.10 and 11 of the judgment, has observed thus:
â10 There is thus no substance in this point which is already concluded against the appellant in HardwariLal v. Kanwal Singh wherein this Court has in terms negatived this very plea in the context of the situation that material facts and particulars relating to the corrupt practice alleged by the election petitioner were not incorporated in the election petition as well as evident from the following passage extracted from the judgment of A.N.Ray, J. who spoke for the three-judge Bench: (SCC p.221, paras 22 and 23)
The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen of the charge of corrupt practice within the meaning of Section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.
Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. It was emphasized that Section 83 did not find place in Section 86. Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of the suits. A suit which does not furnish cause of action can be dismissed.
11 In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samantcase has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in UdhavSingh case the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.â
19 In the matter of Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, reported in (2009) 9 SCC 310, the Supreme Court has observed that the position is settled that an election petition can be summarily dismissed if it does not furnish cause of action, in exercise of powers under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if mandatory requirements enjoined by Section 83 of the Act to incorporate material facts in election petition are not complied with. In paragraph nos.51, 52 and 53 of the judgment, it is observed thus:
â51 This Court in SamantN. Balkrishna case has expressed itself in no uncertain terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. In UdhavSingh Vs. Madhav Rao Scindia the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice. The first ground of challenge must therefore fail.
52 In V. Narayanaswamy vs. C.P. Thirunavukkarasu this Court reiterated the legal position that an election petition is liable to be dismissed if it lacks in material facts. In L.R.Shivaramagowdavs. T.M.Chandrashekar this Court again considered the importance of pleadings in an election petition alleging corrupt practice falling within the scope of Section 123 of the Act and observed as under; (SCC p. 677, para 11)
â11 This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between âmaterial facts and âmaterial particulars. While the failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendmentâ.
53 In UdhavSingh case this Court observed as under: (SCC pp. 522-23, para 41)
â41 Like the Code of Civil Procedure, this section also envisages a distinction between âmaterial facts and âmaterial particulars. Clause (a) of sub-section (1) corresponds to Order 6 Rule 2, while clause (b) is analogous to Order 6 Rules 4 and 6 of the Code. The distinction between âmaterial facts and âmaterial particulars is important because different consequences may flow from a deficiency of such facts or particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off under Order 6 Rule 16, Code of Civil Procedure. If the petition is based solely on those allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of a cause of action. In the case of a petition suffering from a deficiency of material particulars, the Court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation.â
20 The Supreme Court, in the matter of JituPatnaik Vs. Sanatan Mohakud and Others, reported in AIR 2012 SC 913, has observed in paragraph no.32 of the judgment, that:
â32 ... All basic and primary facts which must be proved at the trial by a party to establish the existence of cause of action or defence are material facts. The bare allegations are never treated as material facts. The material facts are such facts which afford a basis of the allegations made in the election petition. The meaning of âmaterial facts has been explained by this Court on more than one occasion. Without multiplying the authorities, reference to one of the later decisions of this Court in Virender Nath Gautam Vs. Satpal Singh and others shall suffice.â
21 In the instant matter, it is found that there are merely apprehensions expressed by the petitioner in respect of corruptibility / tamperability of EVMs. There are no material facts stated so as to establish nexus between alleged tampering or corrupting of EVMs with that of Respondent No.1 and that the result of election was materially affected due to acts of manipulation of EVMs. Mere apprehension expressed in the petition in respect of corruptibility of the EVMs do not constitute material facts. In the aforesaid judgment, it has been observed by the Supreme Court, in paragraphs 34 and 35, thus:
â34 A distinction between âmaterial factsâ and âparticularsâ, however, must not be overlooked. âMaterial factsâ are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. âParticularsâ, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. âParticularsâ thus ensure conduct of fair trial and would not take the oppose party by surprise.
35 All âmaterial factsâ must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.â
As has been stated above, on careful scrutiny of the contentions raised in the petition, it is evident that the petition does not disclose any material fact so as to set forth triable issues.
22 A reference can be made to a judgment in the matter of GajananKrishnaji Bapat Vs. Dattaji Raghobaji Meghe, reported in (1995) 5 SCC 347. In paragraphs 16 and 18 of the judgment, it is observed by the Apex Court, thus:
â16 The election law insists that to unseat a returned candidate, the corrupt practice must be specifically alleged and strictly proved to have been committed by the returned candidate himself or by his election agent or by any other person with the consent of the returned candidate or by his election agent. Suspicion, however strong, cannot take the place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence. Since pleadings play an important role in an election petition, the legislature has provided that the allegations of corrupt practice must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action.
18 A petition levelling a charge of corrupt practice is required, by law, to be supported by an affidavit and the election petitioner is also obliged to disclose his source of information in respect of the commission of the corrupt practice. This becomes necessary to bind the election petitioner to the charge levelled by him and to prevent any fishing or roving enquiry and to prevent the returned candidate from being taken by a surprise.â
23 An election petition shall disclose all material facts on which the petitioner relies to establish existence of cause of action. Material facts essentially refer to all the relevant facts on which the petitioner relies for purposes of drawing inferences in his favour during the course of trial. The absence of material facts and insufficient cause of action would inevitably lead to dismissal of election petition. In the matter of SamantVs. George Fernandez, reported in AIR 1969 SC 1201, it is observed as below:
âThe word `material shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material facts leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set out) was made and material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the appellant. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words `material facts will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement.
In the case of VirenderNath Goutam Vs. Satpal Singh and Ors [(2007) SCC 617, the Apex Court explained:-
All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by Clause (a) of Sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order VII of the Code. The expression âmaterial facts has neither been defined in the Act nor in the Code. According to the dictionary meaning, `material means `fundamental, `vital, `basic, `cardinal, `central, `crucial, `decisive, `essential, `pivotal, `indispensable, `elementary or `primary. (Burtons Legal Thesaurus, (Third edn.); p.349]. The phrase `material facts, therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, `material facts are facts upon which the plaintiffs cause of action or the defendants defence depends. What particulars could be said to be `material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
In the case of HariShankar Jain Vs. Sonia Gandhi, reported in AIR 2001 SC 3689, it was held:
âMaterial facts required to be stated are those facts which can be considered as materials
supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression `cause of action has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.â
24 The petition is based on assumptions and presumptions, apprehensions, suspicions and innate desires sans reality. Mere allegations and suspicion, by itself, cannot be a substitute of pleading of material facts. The petition is vague and it does not involve triable issue. It does not disclose any cause of action. The entire petition is structured on the lines of fallibility of EVMs emphasizing that EVMs are not fully-tamper proof as ever. The use of EVMs by the Election Commission cannot be a corrupt practice committed by Respondent No.1. The petition does not contain the fact of occurrence of mischief but the possibility of occurrence of manipulation of EVMs is the basis for challenge in the petition. Such challenge is unsustainable and misconceived. The actual mischief or intentional tampering or consequential malfunctioning of EVMS is a question of fact, which is required to be pleaded with material particulars. Instant petition does not disclose material fact of tampering of EVMs by Respondent No.1 or at the instance of Respondent No.1 so as to draw an inference that the elections have been materially affected because of such tampering or manipulation of EVMs.
25 There are allegations in the petition in respect of breach of instructions contained in the âHand Book for Returning Officersâ issued by the Election Commission of India, relating to operation of EVMs. Chapter II of the Conduct of Election Rules, 1961 deals with voting by Electronic Voting Machines. The allegations in the petition do not relate to breach of rules. The petitioner contends that the rules are not followed in respect of procedural part, inasmuch as failure of the Returning Officer to hold mock poll, omission to carry out random checking, failure to provide Strong Room, etc. In this context, reference can be made to a judgment in the matter of JituPatnaik Vs. Sanatan Mohakud and Others, reported in AIR 2012 SC 913, wherein the Apex Court has held that instructions in the Handbook are merely guidelines with no statutory force. However, non observance of such instructions, would not, by itself, render the EVMs defective so as to call for invalidation of entire election.
26 The petitioner has placed reliance on the judgment in the matter of VirenderNath Goutam Vs. Satpal Singh and others, reported in (2007) 3 SCC 617 and it is contended that consideration of correctness of allegations and evidence in support of averments by entering into merits of the case would be permissible only at the stage of trial of the election petition and not at the stage of consideration as to whether the election petition is maintainable. The law does not require material particulars even in respect of allegations of corrupt practice, but full particulars and if they are lacking, the petition can be permitted to be amended or amplified under Section 86 of the Act. In the reported matter, the election of the returned candidate was challenged on the ground of improper and illegal receipt and acceptance of votes and not on the ground of corrupt practice. The petitioner therein was, therefore, required to set material facts in the election petition under Section 81(1) of the Act. It was, however, necessary to set forth full particulars, which is the requirement of Section 83(1)(b) of the Act in respect of any corrupt practice. The Court, therefore, observed that the law does not require material particulars even in respect of allegations of corrupt practice, but only full particulars and if they are lacking, the petition can be permitted to be amended or amplified under Section 86 of the Act.
27 In the instant matter, however, it is found that the petition is lacking in material facts. As has been observed by the Apex Court, there is a distinction between factaprobanda (the facts required to be proved i.e. material facts) and factaprobantia (the facts by means of which they are proved, i.e. particulars of evidence). It is settled law that pleadings must contain only factaprobanda and not fact probantia. The material facts on which the party relies for his claim are called factaprobanda and they must be stated in the pleadings. But the fact or facts by means of which factaprobanda (material facts) are proved and which are in the nature of factaprobantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.
Similar proposition has been propounded in the matter of AshwaniKumar Sharma Vs. Yaduvanshsingh, reported in (1998) 1 SCC 416.
EXCESS EXPENDITURE (Paid News):
28 The allegations made in respect of excess expenditure incurred by Respondent No.1 are found in paragraph nos.22 and 23 of the petition. The allegations made in respect of excess expenditure are extremely vague. It is not clear as to whether Respondent No.1 or his election agent or any other person at the instance of Respondent No.1 has incurred excess expenditure. The alleged publications, to which petitioner makes reference in paragraph nos.22 and 23 of the petition, are not made part of the petition. It is neither pleaded as to whether the publications were prior to presentation of nomination by Respondent No.1 or thereafter. It is not pleaded as to what are the contents of publications, whether it relates to Respondent No.1 or are in the nature of general party propaganda. It is to be noted that Respondent No.1 was a star campaigner of Indian National Congress Party, which had set up 171 candidates in the State. It is not known as to whether the publications relate to constituency of Respondent No.1 or it is in the nature of party propaganda. It is also not clear as to whether the alleged publications reflect personal views of the Editor/Journalist or whether the publications were based on the prior Government publications or the manifesto of the party, or the publications are at the instance of Respondent No.1. There is absolutely no pleading in respect of all these vital requirements. It is not possible to draw any inference regarding nexus between Respondent No.1 and alleged publications. In this context, reliance can be placed on the judgment in the matter of KamalnathVs. Sudesh Verma, reported in (2002) 2 SCC 410, wherein it is held thus:
âMere non-disclosure of the expenditure will not be a corrupt practice but it is incurring of expenditure in excess of the prescribed amount which would be held to be a corrupt practice. On a combined reading of Section 77 and Section 123(6) of the Act, it is explicitly clear that the excess expenditure must be incurred by the candidate or by any person authorised by the candidate or his election agent. In other words, an expenditure incurred by a third person, who is not authorised by a candidate or who is not an election agent of the candidate, will not be a corrupt practice within the ambit of Section 123(6) of the Act. It would, therefore, be necessary to establish a corrupt practice, as contemplated under Section 123(6) of the Act to plead requisite facts showing authorisation or undertaking of reimbursement by the candidate or his election agent.â
29 In the matter of DhartipakarMadan Lal Agarwal Vs. Rajiv Gandhi, reported in 1987 (Supp) SCC 93, the Supreme Court has held that:
âIn order to constitute a corrupt practice as contemplated by Section 77 and 123(6), it is necessary to plead requisite facts showing authorisation, or undertaking of reimbursement by the candidate or his election agent. Only that expenditure, which is incurred by the candidate himself or authorised by him is material for the purpose of Section 77. A mere vague and general statement that the candidate and his workers with his consent spent money in election in excess of the permissible ceiling would not be sufficient to constitute corrupt practice. Unless the allegations are specific that the candidate or his election agent authorised the expenses before the money was actually spent and that the candidate or his election agent reimbursed or undertook to reimburse the same the necessary ingredient of corrupt practice would not be complete and it would provide no cause of action to plead corrupt practice. Any voluntary expense incurred by a political party, well-wishers, sympathisers or association of persons does not fall within the mischief of Section 123(6) of the Act.
30 On consideration of pleadings contained in paragraph nos.22 and 23 of the petition, it is not evident as to what are the dates of publications and whether the publications are prior to presentation of nomination paper by Respondent No.1 or thereafter. In view of Section 79(b) of the Representation of the People Act, âcandidateâ means a person who has been or claims to have been duly nominated as a candidate at any election. Respondent No.1 shall be treated as âcandidateâ only after presentation of his nomination paper. It is not made clear anywhere in the petition as to whether the alleged publications were prior to presentation of nomination paper by Respondent No.1 or thereafter. The pleading in respect of excess expenditure/paid news contained in paragraph nos.22 and 23 is as vague as it could be.
31 In the entire body of the petition, the petitioner has stated nothing except raising suspicion in respect of possible mischief/tamperability of EVMs. As has been aptly observed by the Supreme Court in the matter of ChandaSingh Vs. Choudhary Shiv Ram Verma and others, reported in (1975) 4 SCC 393, âsuspicion of possible mischief in the process of likely errors in counting always linger in the mind of the defeated candidate when he is shocked by an unexpected resultâ. At more than one places, the petitioner has stated in the petition that, âthe results of the election were unexpected and he was shocked on revelation that he has received merely 8.79% votes, whereas, the returned candidate â Respondent No.1 has secured 79.65% votesâ.
32 Respondent No.1 has also questioned maintainability of the petition on the ground that the petition has not been verified in the manner required by Section 83(1) proviso of the Act. According to Respondent No.1, it is not only the form of affidavit matters but the substance that matters. It is contended that the petition suffers from absence of statutory affidavit, in its entirety. It is contended that petition does not satisfy any of the statutory requirements of Section 83(1) proviso of the Act and Rule 94A of the Conduct of Election Rules, 1961 read with Form 25. The affidavit is not an affidavit at all in the eye of law.
33 The objection raised by Respondent No.1 does not deserve consideration in view of judgment of the Supreme Court in the matter of PonnalaLakshmaiah Vs. Kommuri Pratap Reddy and others, reported in (2012) 7 SCC 788. A reference can be made to paragraph nos.22 and 26 of the judgment, which read thus:
â22 Even otherwise the question whether non-compliance with the proviso to Section 83(1) of the Act is fatal to the election petition is no longer res integra in the light of a three-Judge Bench decision of this Court in SardarHarcharan Singh Brar V. Sukh Darshan Singh. In that case a plea based on a defective affidavit was raised before the High Court resulting in the dismissal of the election petition. In appeal against the said order, this Court held that non-compliance with the proviso to Section 83 of the Act did not attract an order of dismissal of an election petition in terms of Section 86 thereof. Section 86 of the Act does not provide for dismissal of an election petition on the ground that the same does not comply with the provisions of Section 83 of the Act. It sanctions dismissal of an election petition for non-compliance with Sections 81, 82 and 117 of the Act only. Such being the position, the defect if any in the verification of the affidavit filed in support of the petition was not fatal, no matter the proviso to Section 83(1) was couched in a mandatory form.
26 We may also refer to a Constitution bench decision of this Court in MurarkaRadhey Shyam Ram Kumar Vs. Roop Singh Rathore where this Court held that a defective affidavit is not a sufficient ground for summary dismissal of an election petition as the provisions of Section 83 of the Act are not mandatorily to be complied with nor did the same make a petition invalid as an affidavit can be allowed to be filed at a later stage or so. Relying upon the decision of a three-Judge Bench of this Court, in T. Phungzathang Vs. Hangkhanlian, this Court held that non-compliance with Section 83 is not a ground for dismissal of an election petition under Section 86 and the defect, if any, is curable as has been held by a three-Judge Bench of this Court in ManoharJoshi Vs. Nitin Bhaurao Patil and H.D.RevannaVs. G. Puttaswamy Gowda.â
34 As has been held by the Supreme Court, the petition, that raises triable issues, need not be dismissed simply because affidavit filed by the petitioner is not in a given format no matter the deficiency in the format has not caused any prejudice to the successful candidate and can be cured by the election petitioner by filing a proper affidavit. In the instant matter, since the petition does not disclose material facts, same is required to be dismissed on that count.
35 There are no triable issues in the petition. It is not necessary that full-fledged trial must be conducted although ultimate result would be dismissal of election petition. The petition does not disclose material facts. The same is, therefore, liable to be dismissed.
36 Election Petition stands dismissed with costs.
In view of dismissal of Election Petition, pending interim applications, if any, stand disposed of.