1. With the help of an election petition, made under Sections 80 and 80A read with Section 81 of the Representation of the People Act, 1951, (in short, the âROP Act), the opposite party herein, as election petitioner, has called in question the election of the present applicant (who, stands, now, impleaded, in the election petition, as respondent No.1) to the Arunachal Pradesh Legislative Assembly from 49 Bordumsa-Diyun (General) Legislative Assembly Constituency, the election petition having given rise to Election Petition No.4/2009.
2. It is in this election petition that the present Miscellaneous Application has been made, under Order VI Rule 16 read with Order VII Rule 11 of the Code of Civil Procedure, seeking striking out of the pleadings in the election petition and rejecting, thereafter, the election petition itself.
3. In the election petition, the election petitioner, i.e., the opposite party herein, has prayed for:
â(i) Order for recounting of the votes recorded in EVMs used in the impugned election.
(ii) On recounting, if the results are in favour of the Election Petitioner, be further pleased to
(iii) Declare the election of the respondent No. 2, the returned candidate from Bordumsa-Diyun Legislative Assembly Constituency to be void under the mandate of the Representation of Peoples Act, 1951 and the Conduct of Election Rules, 1961.â
4. Before coming to the grounds seeking striking out of the pleadings and rejection of the election petition, it is pertinent to point out that Sections 80 and 80A of the ROP Act provide for presentation of the election petitions, Section 82 of the ROP Act provides for parties to the election petition and Section 83 of the ROP Act provides for the contents of the election petition. Section 83, being material, is reproduced below:
â83. Contents of petition.- (1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings;
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.â
5. A bare perusal of Section 83 will clearly show that an election petition shall contain a concise statement of the material facts on which the petitioner relies. Section 83 also provides that an election petition shall be signed by the election petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, (in short, âthe Code) for the verification of pleadings. Section 83 further provides that any Schedule or Annexure to the election petition shall also be signed by the election petitioner and verified in the same manner as the election petition.
6. Coupled with the above, the proviso to Section 83 makes it clear that where the election petitioner alleges any corrupt practice, the election 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. Since there are no allegations of corrupt practice, the applicant refrains from dealing with proviso to Section 83 of the ROP Act.
7. Chapter III of the ROP Act embodies provisions for trial of election petitions. As regards trial of election petitions, Section 87 provides that subject to the provisions of the ROP Act and the Rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with procedure applicable, under the Code, to the trial of suits.
8. The provisions, indicated above, clearly show that the Code applies to the proceedings of election petitions. Section 83 of the ROP Act specifically provides that the verification of an election petition shall be in the manner as laid down in the Code.
9. In context of application of the Code to an election petition, Order VI Rule 15, being relevant, is reproduced below:
âOrder VI Rule 15. Verification of Pleading.- (1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.â
10. The provisions, contained in Order VI Rule 15, clearly show that the person, verifying pleadings, shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believe to be true. Order VI Rule 15 (4) of the Code provides that the persons, verifying the pleadings, shall also furnish an affidavit in support of his pleadings.
11. Order VI Rule 16 of the Code provides for striking out of pleadings. Since the provisions, embodied in Order VI Rule 16 are relevant in the present case, Order VI Rule 16 is quoted below:
âOrder VI Rule16. Striking out pleadings- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-
(a) Which may be unnecessary, scandalous, frivolous or vexatious, or
(b) Which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) Which is otherwise an abuse of the process of the Court.â
12. A perusal of the provisions, embodied in Order VI Rule 16, show that the Court may, at any stage of the proceedings, order striking out of any pleading. The grounds, on which the pleadings can be struck off, are that if the pleading is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass, or delay fair trial of the case or which is, otherwise, an abuse of the process of the Court.
13. Order VII Rule 11 of the Code provides for rejection of plaint and, in the present case, since Order VII Rule 11 is also relevant, Order VII Rule 11 is quoted below:
âOrder VII Rule 11. Rejection of Plaint - The plaint shall be rejected in the following cases:-
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law;
(e) Where it is not filed in duplicate;
(f) Where the plaintiff fails to comply with the provisions of rule 9 ;
Provided that the time fixed by the Court for correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.â
14. A perusal of the provisions, contained in Order VII Rule 11, shows that an election petition can be rejected if it does not show a cause of action or where it appears from the statements, made in the election petition, that the election petition is barred by any law. The rest of the grounds, referred to in Order VII Rule 11 of the Code, are not relevant for the purpose of deciding the present Miscellaneous Application and, hence, are not being dealt with in this order.
15. Let me, first, deal with the question as to whether the expression, âcause of action means and conveys.
16. Coming to the question as to what 'cause of action' means, it may be pointed out that 'cause of action' implies a right to sue. Cause of action is not defined in any statute. It has, however, been judicially interpreted, inter alia, to mean every fact, which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Thus, the material facts, which are imperative for the suitor to allege and prove, constitute the cause of action. Negatively put, it would mean that everything, which, if not proved, gives the defendant an immediate right to judgment, would form part of cause of action. [Kusum Ingots and Alloys Ltd. Vs. Union of India, reported in (2004) 6 SCC 254)].
17. The 'cause of action' has no relation whatever to the defence, which may be set up by the defendant, nor does it depend upon the character of the reliefs prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. [Chand Kour Vs. Partap Singh, reported in (1887-88) 15 JA 1566].
18. What becomes transparent from the above discussion is that the expression 'cause of action' means a bundle of facts, which, if traversed, a plaintiff must prove to entitle him to receive a judgment in his favour. The cause of action bears no relation to the defence, which may be set up by the defendant, nor does it depend upon the character of the relief (s) sought for. The cause of action is nothing, but the media upon which the plaintiff or the petitioner seeks the Court to arrive at a conclusion in his favour. For determining, therefore, the question as to whether a plaint or election petition discloses a 'cause of action', the Court must take into account all the facts pleaded in support of the cause of action without, however, embarking upon an enquiry as to the correctness or otherwise of the facts pleaded.
CAN AN ELECTION PETITION BE REJECTED UNDER ORDER VII RULE 11 AND, IF SO, WHEN ?
19. In the backdrop of the provisions of Section 87 of ROP Act, which makes the procedural provisions, contained in the Code, applicable to election petitions, it clearly follows that in terms of Order VII Rule 11, an election petition can be rejected if the pleadings, amongst others, do not disclose cause of action.
20. The Supreme Court has clarified, at Para 24 of Hari Shanker Jain Vs. Sonia Gandhi, reported in (2001) 8 SCC 233, that the duty is cast on the Court to examine the election petition irrespective of written statement or denial and reject the election petition if it does not disclose cause of action and, further, in order to decide whether an election petition needs rejection, the Court has to only look at the plaint, i. e., the election petition and nothing else. It has also been pointed out, in Sonia Gandhi's case (supra), that the Court has always frowned upon vague pleadings, which will leave a wide scope to adduce evidence. The relevant observations read as under:
"24. It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings. " (Emphasis is added)
21. The observations, made in para 24 of Sonia Gandhi's case (supra), leave no room for doubt that a duty is cast on the Court to examine the plaint or election petition irrespective of the fact as to whether written statement has or has not been filed or a particular averment made in the election petition is or is not denied and determine if the election petition contains material facts and if the absence of material facts leads to an incomplete cause of action, the Court is duty bound to reject the plaint or the election petition on the ground that the election petition does not disclose a cause of action. For the purpose of determining as to whether a plaint or the election petition does or does not disclose a cause of action, the Court shall look into the plaint (election petition) only and nothing else.
22. The observations, made in para 24, in Sonia Gandhi's case (supra), thus, reaffirm the law that it is primarily for the Court to determine as to whether a pleading needs to be strike out so as to enable a Court to dispose of a suit or an election petition effectively and in accordance with law. Similarly, it is the duty of the Court to determine whether the pleadings, in a plaint or election petition, discloses 'cause of action' or not. If the plaint (election petition) does not disclose 'cause of action', the plaint or the election petition, as the case may be, must be rejected.
23. The observations, made in para 24, in Sonia Gandhi's case (supra), thus, reaffirm the law that it is primarily for the Court to determine as to whether a pleading needs to be strike out so as to enable a Court to dispose of a suit or an election petition effectively and in accordance with law. Similarly, it is the duty of the Court to determine whether the pleadings, in a plaint or election petition, discloses 'cause of action' or not. If the plaint (election petition) does not disclose 'cause of action', the plaint or the election petition, as the case may be, must be rejected.
MEANING OF MATERIAL FACT
24. Since an election petition must contain a concise statement of material facts on which an election petitioner relies in order to get the election of the returned candidate declared void, one has to necessarily understand, in correct perspective, what the expression, ' material fact', means and how can one distinguish ' material fact' from ' material particular' ?
25. In the case at hand, as the election petitioner does not challenge, admittedly, the election of the returned candidate on the ground of 'corrupt practice', we are more concerned with the meaning of the expression âmaterial fact than the meaning of the expression, material particular, though the distinction between the two is, at times, difficult to notice.
26. Let me point out as to what the expression, âmaterial fact, conveys. In this regard, it may be noted that the expression, 'material fact', has been explained in many of the decisions in the realm of 'corrupt practice'. However, the meaning of the expression, 'material fact', does not depend upon the question as to whether the result of an election is challenged on the ground of 'corrupt practice' or on some other grounds as permitted in the RP Act, 1951. In other words, the meaning of the expression, 'material fact', remains the same irrespective of the fact as to whether one faces challenge to the result of an election on the ground of 'corrupt practice' or on any other statutory ground.
27. In Hari Shanker Jain Vs. Sonia Gandhi, reported in (2001) 8 SCC 233, the Supreme Court has pointed out that by a series of decisions of the Court, it is well settled that the 'material 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 is understood in the Code. In short, thus, 'material facts' mean those facts, which support the allegations made by an election petitioner, or those basic facts on which rest the allegations made in the election petition.
28. The Supreme Court has also pointed out, in Sonia Gandhi's case (supra), that 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. (See also Samant N. Balkrishna Vs. George Fernandez, reported in 1969 (2) SCC 433, and Jitendra Bahadur Singh Vs. Krishna Behari, reported in 1969 (3) SCC 283 ).
29. All the primary facts, which must be proved, at the trial, by a party, to establish the existence of a cause of action or his defence, are âmaterial facts'. [see Udhav Singh Vs. Madhav Rao Scindia, reported in (1977) 1 SCC 511]
30. In V. S. Achuthanandan Vs. P. J. Francis and Anr. , reported in (1999) 3 SCC 737, the Supreme Court has held, on a conspectus of a series of its decisions, that 'material facts' are such preliminary facts, which must be proved, at the trial, by a party to establish existence of a 'cause of action' and failure to plead 'material facts' is fatal to the election petition.
31. Whether in an election petition, a particular fact is material or not, and as such, required to be pleaded or not is a question, which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts, which are essential to clothe the petitioner with a complete 'cause of action', are âmaterial facts', which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83 (1) (a ). (See Azhar Hussain Vs. Rajiv Gandhi (AIR 1986 SC 1253 ).
32. The Supreme Court has further pointed out, in Azhar Hussain's case (supra), that all the primary facts, which must be proved by a party to establish a 'cause of action' or his 'defence', are 'material facts'.
MATERIAL PARTICULAR
33. One may also point out that 'particulars', on the other hand, as laid down in Azhar Hussain (supra), are "the details of the case set up by the party". 'material particulars' would, therefore, mean all the details, which are necessary to amplify, refine and embellish the 'material facts' already pleaded in the petition in compliance with the requirements of clause (a) of Section 83 (1) of the RP Act, 1951. particulars' serve the purpose of giving finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative.
DISTINCTION BETWEEN MATERIAL FACT AND MATERIAL PARTICULAR
34. The distinction between 'material facts' and 'material particulars' was brought out by Scott, L. J. in Bruce Vs. Odhams Press Ltd. (1936) 1 KB 697, in the following passage:
"The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete cause of action; and if anyone "material" statement is omitted, the statement of claim is bad; it is "demurrable" in the old phraseology, and in the new is liable to be "struck out" under R. S. C. Order XXV, Rule 4 (see Philipps v. Philipps ( (1878) 4 QBD 127)); or "a further and better statement of claim" may be ordered under Rule 7. The function of "particulars" under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial". (Emphasis is added)
35. The dictum of Scott, L. J. , in Bruce's case (supra), has been quoted with approval by the Supreme Court in Samant N. Balkrishna Vs. George Fernandez, reported in (1969 (3) SCC 238), and, having approved the aforesaid dictum, the Supreme Court has observed:
"Section 83 requires that the petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particular of the corrupt practice alleged. 'material facts' and 'particulars' may overlap but the word 'material' shows that the ground of corrupt practice and the facts necessary to formulate a complete cause of action must be stated. The function of the particulars is to present as full a picture of the cause of action as to make the opposite party understand the case he will have to meet. "
36. In short, thus, the word 'material' means necessary for the purpose of formulating a complete 'cause of action'; and even if one 'material' statement is omitted, the statement of claim becomes bad; whereas the purpose of "material particulars" is in the context of the need to give the opponent sufficient details of the charge set up against him and to give him a reasonable opportunity to effectively respond.
37. In the light of what the expression âcause of action means, let me try and determine (i) if the Election Petition, at hand, does or does not disclose any âcause of action and, if the Election Petition does disclose the âcause of action and (ii) whether in the face of the fact that no written statement has been filed by the respondents disputing or denying any of the facts averred in the Election Petition, the Election Petition, if read and considered as a whole, would entitle the election petitioner to the relief(s), which he seeks to obtain ?
38. Before, however, proceeding further, let me also point out, in brief, as to what the case of the election petitioner is:
(i) By a notification, issued on 18.09.2009, a Schedule, as regards conduct of elections to the Legislative Assembly, in the State of Arunachal Pradesh, in respect of each of the constituencies, was notified. In terms of the notification, dated 18.09.2009, aforementioned. While the last date of making of nomination was 25.09.2009, the date of scrutiny of nomination was 26.09.2009 and the last date of withdrawal of candidature was 29.09.2009. In terms of the notification, dated 18.09.2009, aforementioned, the date of polling was 30.10.2009 and the elections were required to be completed before 25.10.2009.
(ii) The election petitioner, being eligible to contest the election, offered his candidature from 49 Bordumsa-Diyun (General) Legislative Assembly Constituency. For election to the legislative assembly from 49 Bordumsa-Diyun (General) Legislative Assembly Constituency, altogether three persons, including the election petitioner, filed their nomination papers as candidates. While the election petitioner filed his nomination paper as an approved candidate of Nationalist Congress Party (NCP), the respondent No.1, Sri C.C. Singpho, (applicant in the present Miscellaneous Application), filed his nomination as a candidate of the Indian National Congress (INC) and the present respondent No.2, namely, Sri Siraiong Singpho, filed his nomination as a candidate for Bharatiya Janata Party (BJP).
(iii) Upon scrutiny of the nomination papers, candidature of all the three candidates aforementioned were found to be valid. Since none of the three candidates sought to withdraw their candidature, the Returning Officer, on 29.09.2009, published a list of all the three nominees aforementioned as the contesting candidates for election to the Arunachal Pradesh Legislative Assembly from 49 Bordumsa-Diyun (General) Legislative Assembly Constituency.
(iv) While the petitioner was allotted the symbol of âclock, respondent No.1 (i.e., the applicant in the present Miscellaneous Application), was allotted, as a candidate of INC, the symbol of âhand; whereas respondent No.2, as the nominated candidate of BJP, was allotted the symbol of âlotus. A list of contesting candidates was accordingly published.
(v) In the election, in question, voting was to be done through Electronic Voting Machine (EVM). The Returning Officer, in compliance with the provisions of Rule 49B of the Conduct of Election Rules, 1961 (in short, the 1961 Rules) had made a number of EVMs ready for the purpose of registering votes of the electorates of 49 Bordumsa-Diyun (General) Legislative Assembly Constituency cast in the said election. A list of EVMs, which had been made ready for being used in the election of the said Assembly Constituency, was accordingly published by the District Election Officer, Changlang district. As per the list, so published, two EVMs were made ready for use at each Polling Station.
(vi) In terms of Section 70 of the ROP Act, the petitioner appointed Sri C.S. Singhpho as his election agent and, accordingly, informed, in the prescribed manner, the Returning Officer. The appointment of election agent, so made by the election petitioner, was duly approved by the Returning Officer and since, thereafter, the election petitioners said election agent had supervised the electoral process along with the election petitioner. Apart from appointing election agent, the election petitioner also appointed polling agents and the list of polling agents, too, was duly approved by the Returning Officer as per requirement of Section 46 of the ROP Act. On the polling day, polling was conducted in all the 38 Polling Stations of the Assembly Constituency aforementioned between 7-00 AM and 3-00 PM.
(vii) On the day of polling, at Polling Station No.5, which was located at Mohong Mura Middle School, EVM, bearing CU Number 15744, Unique Serial No.49/CU/0009 and BU No.17612, was used; but the said EVM, upon recording 79 votes, stopped functioning. Immediately thereafter, another EVM, bearing CU Number 16974, Unique Serial No.49/CU/0010 and BU No.16301, which had been kept reserved at the said polling station, was brought. The earlier EVM, which had been used since commencement of the voting, was, thus, replaced by the newly brought EVM. However, this EVM, too, malfunctioned and the Sector Magistrate, on being informed about malfunctioning of the EVM, brought another EVM, bearing CU Number 16735 and BU No.15200. Thereafter, polling was resumed and completed.
(viii) At the end of the scheduled time of polling, all the EVMs were brought to the office of the Deputy Commissioner, Changlang, for storage and safe custody. After conclusion of the polling, on 13.10.2009, the election petitioner submitted, in terms of Section 47 of the ROP Act, a list of persons for appointment as his counting agents and the Returning Officer gave requisite permission. In terms of the Schedule, fixed for counting, counting started, on 22.10.2009, at the appointed place, namely, DIET Auditorium, Changlang, in presence of the counting agents appointed by the election petitioner and other candidates.
(ix) The petitioners election agent and his counting agents were present at the place of counting and participated in the process of counting from beginning till end of the counting.
(x) Before, however, counting commenced, the Returning Officer informed the candidates that for counting of votes, as many as 12 numbers of counting tables had been set up and 36, out of 38 EVMs, would be taken up for counting in the first three rounds and the counting of votes, recorded in the remaining two EVMs, would be taken up in the fourth round. The counting process, as already indicated above, commenced at the scheduled time, i.e., 7 am, at the said auditorium.
(xi) When counting commenced, on 22.10.2009, counting of postal ballots was taken up first and when the counting of postal ballots was over, counting of votes, registered in the EVMs, was taken up. When first round of counting of votes, involving 12 numbers of EVMs, was over, the total number of votes, received by each of the candidates, was projected on a screen through a LCD Projector, which had been set up, in the counting room, by the Returning Officer. In this manner, total number of votes, registered in 36 EVMs, were counted. In the first three rounds of counting, all the votes, received by each candidate, were projected on the screen in the counting room as described above. The fourth round of counting began and when the counting of votes of all polling stations, other than Polling Station No.5, came to end, it was about 11 am. Polling Station No.5, located at Mohong Mura Middle School, was the one, wherein defective EVM, bearing CU Number 15744 and BU No.17612, was used. So far as the EVM, used at Polling Station No.5 was concerned, the technicians of the Election Commission could not operate the same and the 79 votes, registered in the said EVM, could not be counted.
(xii) In the final tally, projected on the screen, set up in the counting room, as described above, the election petitioner was declared and shown to have a lead over his nearest rival, the candidate of the INC, Sri C.C. Singhpho (i.e., the applicant in the present Miscellaneous Applicant), by a margin of 428 votes. As the total number of votes, polled at Mohong Mura Middle School, could not be counted, where there were only 79 votes, the victory of the election petitioner was a certainty.
(xiii) The final tally of votes, polled by the candidates, were also announced over âpublic address system, which had been set up at DIET Auditorium, Changlang, by the Returning Officer.
(xiv) Though the election petitioner, his election agents as well as counting agents were eagerly waiting for the final declaration of the result, no declaration was made. Finding no other alternative, the petitioners election agent, i.e., Sri C.S. Singpho, went to meet the Returning Officer for issuance of the prescribed final result sheet in Form 20 and also demanded the records of the counting process; more particularly, Part II of Form 17C as prescribed by Rule 66A (56-C) of the 1961 Rules and, in reply to this request, the petitioners election agent was informed by the Returning Officer that as the decision, concerning counting of votes, at Mohong Mura Middle School, would have to be confirmed by the authorities concerned at Itanagar, some time would be needed to give the aforementioned certificate.
(xv) The election petitioner has further averred, in his election petition, that the election petitioner, accompanied by his election agent, Sri C. S. Singpho, and his counting agents, Joleswar Gogoi, Pronomika Bora, Sanku Bora, Indenla Singpho and Pollung Mossang, met the Returning Officer, Dr. S. Deepak Kumar, who assured that the issue of prescribed final sheet, in Form 20, was a mere formality as the total number of unaccounted votes, in Mohong Mura Middle School, was only 79 and as the lead, established by the election petitioner, was by 428 votes over his nearest rival, there was no possibility of any reversal of result even if all the unaccounted 79 votes were cast against him (i.e., the election petitioner)
39. In view of the fact that the above averments, made in the election petition, have not been denied, disputed or controverted by the respondents, what clearly surfaces is that these averments, having not been denied or disputed by the present applicant (i.e., respondent No.1 in the election petition), have to be assumed, at this stage, to be true and correct and this Court, on the basis of such assumption, is required to decide if the election petition, in the face of these uncontroverted facts, be said to disclose cause of action calling for interference by this Court.
40. With regard to the above, it is of immense importance to note that the election petitioner does not, in any way, challenge the election, in question, up to the stage of counting of votes, which had been polled. What has been contended is that the final result of the election, in question, has not been in tune with the result of the counting of votes. It is the undisputed and uncontroverted statement of the election petitioner that counting of votes was held, on 22.10.2009, at DIET Auditorium, Changlang, where, besides the petitioner, petitioners counting agents and election agent were present and they observed, participated and followed the counting process from beginning to end.
41. Bearing in mind the fact that the averments, pointed out above, are not questioned and have remained unassailed, when I proceed further with the election petition, I notice, in the face of the verified statements made in the election petition, that before commencement of the counting, the Returning Officer had informed the candidates that for counting of votes, as many as 12 numbers of counting tables had been set up and 36, out of 38 EVMs, would be taken up for counting in the first three rounds of counting and that counting of votes, recorded in the remaining two EVMs, would be taken up in the fourth round of counting. The counting process, as already indicated above, had, according to the petitioner, commenced at 7.00 am.
42. In the light of the averments made in the election petition, it is also the case of the election petitioner, that, at first, counting of postal ballots was taken up and when the counting of postal ballots was over, counting of votes, registered in the EVMs, was taken up. When first round of counting of votes, involving 12 numbers of EVMs, was over, the total number of votes, received by each of the candidates, was projected on a screen, which had been set up inside the counting room, through a LCD Projector and that in this manner, total number of votes, registered in 36 EVMs, were counted. These averments, if I may point out, once again, have remained unquestioned and undisputed till this stage.
43. The election petitioners further undisputed case is that in the fourth round of counting, the votes, registered in the remaining two EVMs, were to be counted and, out of the said two remaining EVMs, while votes, registered in one of the two EVMs, were recorded, the votes, registered in the defective EVM, which had been used at Polling Station No.5, located at Mohong Mura Middle School, could not be counted inasmuch as the technicians of the Election Commission could not operate the same. In short, thus, the 79 votes, registered in the said defective EVM, could not be counted.
44. What is, now, extremely important to note is that according to the uncontroverted averments of the election petitioner, made in para 20 (which has been verified to be true according to the knowledge of the election petitioner), in the final tally, projected on the screen, set up in the counting room by the officials concerned, the election petitioner was declared and shown to have a lead over his nearest rival, i.e., the INC candidate, Sri C.C. Singhpho, by a margin of 428 votes and as the total number of votes, polled at Mohong Mura Middle School, could not be counted, which were only 79, the victory of the election petitioner was a certainty and that the final tally of the votes, so polled by the candidates, was even announced over public address system set up at DIET Auditorium, Changlang, by the Returning Officer.
45. We may pause here to point out that it is not in dispute, at this stage, that the screen, set up in the counting hall through LCD Projector by the officials concerned, showed and declared the election petitioner as having a lead over his nearest rival, i.e., the INC candidate, Sri C.C. Singhpho, by a margin of 428 votes and, as the total number of votes, in the Mohong Mura School, which could not be counted, were only 79, the victory of the election petitioner was a certainty. In this regard, it is equally important to note that the undisputed statement of the election petitioner, at para 20, is that the final tally of votes, polled by the candidates, was also announced over âpublic address system set up by the Returning Officer.
46. In absence of any denial of any of the averments, which have been made in the election petition, what I gather, for the present, is that in terms of the projection, displayed on the screen, set up in the counting room through LCD, it was shown and, in effect, declared that the election petitioner had a lead over his nearest rival, (who is the present Miscellaneous applicant), by a margin of 428 votes. This apart, at Mohong Mura School, since the votes, registered in the EVM, was barely 79, it logically followed that even if the said 79 votes were not counted, the election petitioners victory was a certainty.
47. In the backdrop of the above undisputed facts, the further case of the election petitioner, in terms of the averments, made by election petitioner, in his election petition, is to the effect that while the election petitioner, his election agent as well as counting agents were eagerly waiting for the final declaration of result, no declaration was made and, finding no other alternative, the petitioners election agent, i.e., Sri C.S. Singpho, went to meet the Returning Officer for issuance of the prescribed final result sheet in Form 20 and also demanded the records of the counting process, more particularly, Part II of Form 17C as prescribed by Rule 66A (56-C) of the 1961 Rules and, in response to this request, the petitioners election agent was informed by the Returning Officer that as the decision, concerning counting of votes, in Mohong Mura Middle School, would have to be confirmed by the authorities concerned at Itanagar, some time would be required to give the aforementioned certificate.. The election petitioner has further averred that the election petitioner, accompanied by his election agent, Sri C. S. Singpho, and his counting agents, Joleswar Gogoi, Pronomika Bora, Sanku Bora, Indenla Singpho and Pollung Mossang met the Returning Officer, Dr. S. Deepak Kumar, who assured them that the issue of prescribed final sheet, in Form 20, was a mere formality, because the total number of uncounted votes, in Mohong Mura Middle School, were only 79; whereas the lead, established by the election petitioner, was by 428 votes over his nearest rival and, hence, there was no possibility of any reversal of result even if all the unaccounted 79 votes were found to have been cast against him.
48. It has also remained undisputed averment, made in the election petition, that the Returning Officer gave, in presence of the election petitioner, his election agent and counting agents, the information, mentioned above, to the representative of Doordarshan, who had been covering the counting of votes, and the Doordarshan, immediately, started broadcasting the result of 49 Bordumsa-Diyun (General) Legislative Assembly Constituency showing the election petitioner to have won from 49 Bordumsa-Diyun (General) Legislative Assembly Constituency. The further unquestioned and verified averments of the election petitioner, made in this election petition, are to the effect that the election petitioner has, in his possession, the Audio Visual CD of the telecast made by Doordarshan and the same would be produced before this Court as and when ordered by the Court.
49. It is, thereafter, that the trouble, contends the election petitioner, started inasmuch as according to the averments, made in the election petition, though the election petitioner remained in constant touch with the Returning Officer and though all along the election petitioner was assured that the formality of issuance of the certificate would be completed as soon as consent of the concerned authority from Itanagar was received by the Returning Officer, the Returning Officer, to the utter surprise of the election petitioner, suddenly, became inaccessible from about 3 O clock in the afternoon and, smelling some foul play, the election petitioner, his election agent, his counting agents and his supporters, immediately, rushed to the office of the Returning Officer and, in the office of the Returning Officer, Mr. M. Roy, an official, working under the Returning Officer, handed over a copy of the result sheet, duly signed by the Returning Officer, in Form 20, to the election petitioner and to the surprise of the election petitioner and his election agent, counting agents and supporters, the result, so given, showed that the INC candidate, Sri C.C. Singhpho (applicant in the present Miscellaneous Application), had won the election by a margin of 955 votes.
50. The verified and undisputed statements of the election petitioner, made in the election petition, at para 27, show that the election petitioner, along with his election agent, counting agents and supporters, being aggrieved and not finding the Returning Officer, immediately, rushed to the residence of the Returning Officer and, on meeting him, they demanded recounting by submitting a written application, but no acknowledgement was given thereto by the Returning Officer; rather, to the utter surprise of the election petitioner, the Returning Officer took up the stand that with the announcement and declaration of the result in Form 20 and with issuance of the certificate in Form 22, the duty of the Returning Officer had come to an end and if at all the petitioner was aggrieved, then, he had to get his grievances redressed through an election petition.
51. It is the allegation of the election petitioner that due to anomalies and irregularities, mentioned above, coupled with the non-compliance of the election laws and/or gross violation of the provisions of the ROP Act and the 1961 Rules, the result of the election has been materially affected. The Returned Candidate, i.e., the petitioner in the present Misc. Case, is not entitled to the certificate in Form 22, which has been issued by the Returning Officer in violation of the law contained in that behalf.
52. In the face of the above case, which the election petitioner has set up and which has remained till date unquestioned, undisputed, unassailed and uncontroverted, it is not only difficult, but impossible to infer, far less hold, that the election petition does not disclose any cause of action calling for interference with the result of the election, in question.
53. At the time of hearing of the present Miscellaneous Application, what transpires is that the grievance of the present applicant is that so far as the averments, made at para 30 of the election petition, are concerned, the same, though relate to facts of the case, have not been verified and, in such circumstances, the averments, made in para 30, cannot be taken into consideration for the purpose of determining whether any cause of action has been made out by the election petitioner or not in order to seek interference with the result of the election.
54. It is, no doubt, true that the averments, made, at para 30, by the election petitioner, are to the effect that in respect of each candidate, Part II of Form 17C is required to be completed in all respects and has to be signed by counting supervisor and also by the candidates, their election agents and their counting agents; whereas, in the present case, none of the aforementioned provisions was adhered to and, in fact, these provisions were totally violated as no Part II of Form 17C was either shown nor signature of the election petitioner, his election agent or counting agents was taken thereto.
55. Considering the fact that since the averments, made, at para 30, by the election petitioner relate to, as rightly contended by the present applicant, matters of fact and since these facts have not been verified either true to knowledge or true to information, these facts cannot be taken into account for the purpose of determining the cause of action.
56. Notwithstanding, however, the fact that para 30 cannot, for the reasons, which I have pointed out above, be taken into account for the purpose of determining the cause of action, what needs to be noted is that the other relevant paragraphs of the election petition, which relate to matters of fact, have been verified either according to knowledge or according to information and, hence, with regard to the other paragraphs, contained in the election petition, all the necessary factual aspects stand verified in accordance with law. This position could not be disputed on behalf of the present applicant, who is the main contesting party in the election petition, he having been declared winner in the election, in question.
57. Unable to sustain the present Miscellaneous Application, whereby the Miscellaneous Applicant has sought for, as already indicated above, striking out of the pleadings and rejection of the election petition, Mr. K. Agarwal, learned counsel, and Mr. D. Mazumdar, learned counsel, appearing on behalf of the Miscellaneous Applicant, have, once again, drawn attention of this Court to para 30 of the election petition to show that the statements/averments, made at para 30 of the election petition, have not been verified. This contention is, undoubtedly, true. Necessary it is, therefore, to take note of what has been averred by the election petitioner at para 30. For the sake of clarity, the averments, made at para 30, in the election petition, are reproduced below:
âThe election petitioner humbly states that the procedure laid down in the above rule has not been followed. The number of such votes recorded separately in respect of each candidate in Part II of Form 17C have to be completed in all respects and have to be signed by the counting supervisor as also by the candidates, their agents or their counting agents. In this case, none of the aforementioned provisions were complied with and, in fact, the provisions were totally violated as no Part II of Form 17C were either shown nor the signatures of the Election Petitioner or his election agent or counting agents were taken.â
58. No doubt, since the averments, made in para 30, have not been verified by the election petitioner, the averments, made in para 30, cannot be taken into account. Even if, however, the averments, made in para 30, are kept excluded from the purview of our consideration, yet the facts, which have been disclosed by the election petitioner dehors the averments made in para 30, clearly make out, as discussed above, that contrary to the announcement of the result of the counting of votes, the certificate, in question, has been issued in favour of the present Miscellaneous applicant. If these facts are true and this Court has to assume, at this stage, that these facts are true and correct, then, there can be no escape from the conclusion, and I do hold and conclude, at this stage, that the election petition does disclose cause of action calling, in question, the declaration of the result made in favour of the respondent No.1 (i.e., the Miscellaneous applicant herein), particularly, when the election petitioner has also averred and this averment, too, has not been questioned that he has been in possession of the Audio Visual CD of the telecast done by the Doordarshan and the same would be produced before this Court as and when ordered.
59. When this Court is satisfied that the election petition, in question, does disclose cause of action, the election petition cannot be rejected and even if, in this regard, the averments, contained in the election petition, stating the position of law, is allowed to be struck down by keeping the factual averments intact, there can be no doubt, and I must conclude and do conclude, that the election petition does disclose cause of action warranting interference by this Court.
60. It has been submitted by Mr. Agarwal, learned counsel, that so far as the ROP Act read with the 1961 Rules are concerned, the incorrect declaration of result of an election cannot be called, in question, in the light of the provisions made in the legislations aforementioned and the Rules framed thereunder.
61. It may be pointed out, in this regard, that Section 100 of the ROP Act contains various provisions, whereunder the High Court is empowered to declare election of a returned candidate void and one of the conditions of Section 100(1), as envisaged by Sub-Clause (d), is when the High Court is of the opinion that by non-compliance of the provisions of the Constitution or of the Act or any Rules made under the Act, the result of the election, insofar as it concerns a returned candidate, has been materially affected.
62. Because of the non-compliance of the issuance of the certificate, in question, in terms of the result of the counting, one cannot help but hold that the result of the election, in the present case, must be held to have been materially affected or else, the resultant effect would be that if by any means, hook or crook, a person either manages to obtain, or accidentally or inadvertently happens to receive, a certificate of victory in his favour, his election would remain untouched. Such a proposition would be wholly irrational. The result of the election, in a case of present nature, cannot be interfered with treating issuance of certificate as violation of the constitutional guarantee of equality provided by Article
63. This apart, as rightly contended by Mr. S. Bhattacharjee, learned counsel, the averments, made in the election petition, would also, if true, constitute corrupt practice and, in this regard, the result of the election can be interfered with by taking resort to Section 123(7) of the ROP Act.
64. Otherwise also, there cannot be greater illegality and denial of constitutional guarantee of equal treatment than giving a certificate of victory to a candidate, who, in terms of the announcement of the result of the election, had secured lesser number of votes than the candidate, who had received larger number of votes.
65. Because of what have been discussed and pointed out above, I find no merit in this Miscellaneous Application and the same shall accordingly stand dismissed.