1. The order shall govern the disposal of I.A. No.3, which is an application under Order 7 Rule 11 of C.P.C., wherein the respondent has challenged the tenability of the election petition and raised the preliminary objection.
2. The written statements though have been filed on 25.06.2014 prior to that, an application under Order 7 Rule 11 of C.P.C. was preferred to challenge the maintainability of the petition. Subsequent there to by an order dated 25.04.2014, the Court had directed for hearing of the application under Order 7 Rule 11 of C.P.C., pursuant there to, it has come up for hearing to adjudicate on maintainability of the petition as to whether cause of action arises for all the grounds pleaded in election petition.
3. Application under Order 7 Rule 11 of C.P.C. is preferred by the respondent No.1, the returned candidate. Perusal of the election petition would show that initially 16 parties were added as a respondents, but subsequently, all the names have been deleted except respondent No.1. Though the respondents numbering upto 2 to 16 were deleted, the averments and the pleadings with respect to the said parties, still exits. This has led to complete contradiction and omissions of pleadings and submission led to complete confusion.
4. The challenge in the election petition is by the contesting candidate of Legislative Region No.48, Raipur Gramin Legislative Assembly, District Raipur, who contested the election under the Bhartiya Janta Party. The respondent No.1 is the returned candidate of the election held for the Region -48 of Raipur Gramin Legislative Assembly. The voting took place on 19.11.2013 and result was declared on 08.12.2013 and the respondent was declared as a elected member of legislative assembly. The respondent secured vote of 70,774 while the petitioner secured votes numbering into 68,931.
5. Dr. N.K. Shukla, Sr. Advocate with Mr. Aditya Tiwari, counsel appearing on behalf of the respondent would submit as under :-
i). The ground for declaring the election to be void finds place in Section 100 of Representation of People Act, 1951 (herein after referred to as 'the Act of 1951'). It is stated that the provision of sub-section 1 (d) (iv) mandates that in order to declare a election void, the non-compliance is to be within the provisions of Constitution or of this Act or in Rules or Act made under this Act . Therefore, would submit that in order to get a relief as has been pleaded and as alleged by the petitioner that the names of voter were inserted after the date of nomination, such ground would not be available as the word this Act necessarily refers to Act of 1951.
ii). He further made a reference to the Representation of People Act, 1950 (hereinafter referred to as the Act of 1950 ) and stated that one of the preamble of the Act is for preparation of electoral rolls manner of filing seats in council to be filed by the representatives and would submit that the preparation of electoral rolls is covered under Part-III of the Act of 1950.
iii). He further referred to Section 21 of the Act of 1950 which is for preparation and revision of electoral rolls. Section 22 is for correction of entries in electoral rolls. Section 23 is for inclusion of names in electoral rolls and Section 24 is for appeals. Therefore, submits that the entire procedure for inclusion and excluser of name are covered by the Act of 1950, which is a Code in itself, so the election petition would not lie on the ground of erroneous electoral list and such remedy is not available to the petitioner.
iv). He further referred to Section 30 of the Act of 1950 and would submit that the jurisdiction of Civil Court is barred under the Act of 1950 about preparation of electoral roll, and therefore, the finality has been given to such preparation of electoral rolls, which can not be a subject matter of election petition.
v). The learned counsel read out the averments of the election petition and would submit that the allegations about the deletion of name of voters have been made but it is not founded on any material facts.
vi). In the context, he referred to the case law reported in AIR 1963 SC 458 and would submit that since the Civil Court shall have no jurisdiction to question the legality of any action taken by or under the authority of Electoral Registration Officer it can be rectified only in the manner prescribed by law by preferring an appeal under Rule 27 of the Rules or by resorting to any other appropriate remedy. Therefore, it is contended that since the object of legislature was to give finality to the subject, it can not be questioned in this election petition.
vii). He also made a reference to AIR 1970 SC 340 and stated that the validity of such votes once casted can not be questioned by way of election petition and would submit that meaning thereby the election can not be challenged on the ground of wrong electoral rolls.
viii). It was further contended that the allegations have been leveled against the Returning Officer, who was initially made as a respondent No.16. He further stated that the petitioner has stated that the Collector has provided undue advantage to respondent No.1 and deleted the names of various voters, which has affected the result but pleadings are completely vague that how the Collector has worked under influence of respondent No.1, no particulars have been pleaded.
ix). He further submits that the materials are required to be pleaded in the election petition, therefore, the material pleadings should have been on record that how the Collector worked under the guidance of respondent No.1.
x). He further submits that honesty and dishonesty are abstract form, which can not be inferred specially in the election petition and can be accepted in absence of any material facts pleaded as to how the Collector/Returning Officer had supported the respondent.
xi). He further referred to Para 20, 21 and 23 and read out the allegations and would submit that without disclosing any fact the allegations have been made and even the fraud has been stated which can only be inferred from the conduct and such conduct also requires a pleading. Therefore, if such facts, the particulars are not pleaded, the election petition can not stand as it would be too vague for want of material particulars.
xii). Learned counsel further referred to Para-31 and would submit that the allegation of false assurance has been levelled in the election petition. He further referred to the Act of 1951 and would submit that corrupt practice is defined under Section 123 of the Act of 1951. The reference was further made to Section 100 (1) (b) of the Act of 1951 and stated that corrupt practice should have been committed either by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent. Therefore, in order to bring home the corrupt practice, involvement of either of four persons are necessary. It is stated that no pleadings in the subsequent para has been made that whether it was done by election agent or by the person with the consent of returned candidate or the election agent.
xiii). He further submits that no materials have been pleaded that on which time, the bribe was extended, what is the time, which is the place etc. He also submits that in Para-29 and 30, undue influence has been pleaded for one Dr. Shakil and it is so vague that can not be accepted. He placed his reliance in AIR 2012 SC 913 and would submit that according to Section 83, the petition should have contained concise statement of the material facts on which the election petitioner relies and therefore, in absence of any material facts, the petition is liable to be dismissed.
xiv). Lastly it is contended that the corrupt practice have been alleged in the petition, but in the affidavit, the same has not been averred. According to Section 83, the concise statement of material facts should have been averred. It is further submitted that bare reading of affidavit would reflect that it is not in conformity to the Rule 94A and Form-25 of the Conduct of Election Rules, 1961, therefore, it was contended that the petition is liable to be dismissed at threshold.
6. Per contra Mr. Goutam Khetrapal, learned counsel appearing on behalf of the petitioner would submit that challenge to the election is on the basis of defective electoral rolls would fall under Section 100 (d) (iii) of the Act of 1951. He would submit that the last date of filing of nomination was on 03.11.2013, therefore, completion of voter list should have been before such date but in the instant case the voter list was issued on 17.11.2013 i.e. two days before election held. Therefore, the inclusion of name of 1375 voters would amount to improper reception, which is void ab-initio as the date had expired on 02.11.2013. He further referred to Subsection 3 of Section 23 of the Act of 1950 and would submit that no amendments, transposition or deletion or any entry should have been made in the electoral roll after the last date for making nominations. He placed his reliance in the case law reported in AIR 1970 SC 314 and stated that if after the date of nomination name of voters are included and such newly added voter had altered the result then then it will be covered under Section 100 (1) (d) (iii) of the Act of 1951. It was further contended that if the Electoral Officer/Registration Officer has illegally accepted the votes casted by voters then in such case, it will amount to wrong casting of vote which is otherwise void. Therefore, the acceptance of such vote will be void.
7. He further submits that the petitioner has pleaded all the material facts, in support of the case, which can not be equated to as evidence and therefore, it can not be urged that the material facts have not been pleaded. He placed his reliance on 2004 (7) SCC 181 and 2003 (8) SCC 498, and would submit that the election petition under these circumstances can not be dismissed at threshold.
8. On the basis of the submissions made by the parties as a preliminary objection after reading the election petition, it would go to show that election is challenged predominantly on the following grounds :-
i). The name of the voters were accepted/deleted after prescribed date of filing nomination of 02.11.2013, therefore, it is in contravention of Section 23 (3) of the Act of 1950 and as such acceptance of the vote would amount to improper reception of the vote casted, consequently, the election is void.
ii). The EVM machines used during election were changed, which resulted into the defeat of the respondent No.1. Consequently, undue pressure were created and false assurance were extended by the respondent and illegal votes were casted in the polling booth.
iii). Son of the respondent, Pankaj had made gifts like cloths to woman, undergarment to man and liquor and blanket to the various voters, thereby corrupt practice and false tactics were adopted by the respondent No.1 which had affected the result of the election in favour of respondent.
9. One of the main objection raised by the respondent that once the electoral roll is prepared and the votes are casted then in such case, the election can not be subject of challenge in a proceeding challenging validity of election. The reliance was placed in the case law reported in AIR 1963 SC 458 and AIR 1970 SC 340.
10. In the context, it would be relevant to quote the dates, which are relevant.
i). The date of election was notified on : 25.10.2013.
ii). The last date of filing of nomination : 3rd November, 2013.
iii). Date of scrutiny and to take back the names: 4th November, 2013.
iv). Date of election was : 19th November, 2013.
v). The results were declared : 08.12.2013.
11. It was the case of the petitioner that after last date of making of nomination i.e. 2nd November, 2013, the names of the voters were included again in the voter list on 17.11.2013, therefore, if the names were included after the last date of nomination there would have been contravention of Section 23 (3) of the Act of 1950. Consequently, the vote accepted after that will amount to improper reception of the vote, which would make election void. Having regard to the submission made, and with reference to the case law reported in AIR 1963 SC 458, B.M. Ramaswamy V. B.M. Krishnamurthy, and relied by the respondent may not have a direct application in the case in hand. In that case, supra their Lordship decided the issue on the premises when it was a common case that the name of the appellant was included in the electoral roll of the Mysore Legislative Assembly before the date prescribed for filing nomination papers of assembly election and election under challenge in such case was of panchayat constituency. Their Lordship, therefore, referred to the Section 30 of the Act of 1950 had held that Civil Court shall have no jurisdiction to question the legality of any action taken by or under the authority of Electoral Registration Officer. It was further held that the terms of electoral roll though legally can not be questioned in Civil Court, but can be rectified only in the manner prescribed by law by preferring an appeal under Rule 27 of the Rules or by resorting to any other appropriate remedy. Herein the instant case, the inclusion of name of some voters itself is under challenge on the allegation of inclusion of names for the legislative assembly itself after the date of nominations. Therefore, in the facts of this case the cases relied on by the respondent (supra) can not have a direct application in the present facts.
12. The other case law reported in AIR 1970 SC 340, Kabul Singh Vs. Kundan Singh and others, was relied on by the respondent. In such case it was categorically held that inclusion of name in the electoral roll after the prescribed date is prohibited whether the application for inclusion was made before or after that date. Therefore, the ratio rather support the petitioner.
13. Further, their Lordship in the case of Kabul Singh Vs. Kundan Singh and others, (supra) endorsed the finding arrived at by the Full Bench that if the name is included in the electoral roll after the last date of making nomination for election in that constituency, it would be void. Their Lordship at para-9 has held as under:-
The right to vote being purely a statutory right, the validity of any vote has to be examined on the basis of the provisions of the Act. We cannot travel outside those provisions to find out whether a particular vote was a valid vote or not. In view of Section 30 of the 1950 Act, Civil Courts have no jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the electoral registration officer or any decision given by any authority appointed under that Act for the revision of any such roll. Part III of the 1950 Act deals with the preparation of rolls in a constituency. The provisions contained therein prescribe the qualifications for being registered as a voter (Section 19), disqualifications which disentitle a person from being registered as a voter (Section 16), revision of the rolls (Section 21), correction of entries in the electoral rolls (Section 22), inclusion of the names in the electoral rolls (Sec. 23), appeals against orders passed by the concerned authorities under Section 22 and 23 (Section 24). Section 14 to 24 of the 1950 Act are integrated provisions. They form a complete code by themselves in the matter of preparation and maintenance of electoral rolls. It is clear from those provisions that the entries found in the electoral roll are final and they are not open to challenge either before a Civil Court or before a Tribunal which considers the validity of any election. In B.M. Ramaswamy V. B.M. Krishnamurthy, 1963-3 SCR 479 = (AIR 1963 SC 458), this Court came to the conclusion that the finality of the electoral roll can not be challenged in a proceeding challenging the validity of the election.
Analysis of the aforesaid case law would go to show that it was mainly on the premises of the validity of the electoral roll, which reaches its finality by affect of Section 30 of the Act of 1950.
14. Further the Hon'ble Supreme Court in the case of Wopansao Vs. N.L. Odyuo and others, reported in AIR 1971 SC 2123 considering the law laid down in AIR 1963 SC 458 has held that finality of the electoral roll is governed by the provisions of Section 14 to 24 of the Act of 1950, which are complete Code in the matter of preparation and maintenance of electoral. The Court further held that under Section 100 (1) (d) (iii) of the Act of 1951, if the result of the election in so far it concerned the returned candidate has been materially affected by improper reception, refusal or rejection of any vote which is void, the Court would have jurisdiction to declaration such election void. Para-8 of the said judgment are reproduced herein below :-
8. The other ground on which the qualification of the service personnel to be registered as voters in the Wokha Constituency was questioned was that they were not Indian citizens. Article 326 of the Constitution confers voting rights on citizens of India. Section 16 of the 1950 Act disqualifies a person for registration as a voter if he is not a citizen of India. Section 62 of the Representation of the People Act, 1951 called the 1951 Act prohibits a person from voting at an election in any constituency if he is subject to any disqualifications mentioned in Section 16 of the 1950 Act. Under Section 100 (1) (d) (iii) of the 1951 Act if the result of the election in so far it concerned the returned candidate has been materially affected by the improper reception, refusal or rejection of any vote or reception of vote which is void, the Court would have jurisdiction to declare such an election void. Therefore, if the allegation that the personnel of the 12th Battalion Assam Rifles were not Indian citizens was established, it was submitted that the election would be declared void.
15. Consequently, the argument, which is advanced by the learned counsel for the respondent that election petition is not tenable on the ground under Section 100 (1) (d) as grounds are not available U/s.100 (1) (d) (iv) of the Act of 1951, can not be sustained. It is different case that if the petitioner has failed to prove the other necessary ingredients as required under the Act of 1951. The petitioner has alleged about the inclusion and exclusion of the names of the voters list from para 8 to 24. The pleadings though have been made about inclusion and deletion of names in voter list but the same pleadings also would be subject to Section 83 of the Act of 1951 as to whether pleadings have disclosed material facts. In this regard reference of relevant section of the Act of 1951 would be relevant which are reproduced herein below.
16. Section 83 (1) (a) of the Act of 1951 reads as under :-
Section 83. Contents of petition. (1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies.
17. Similarly Order VI, Rule 2 of CPC, to the extent it is relevant, reads as under:-
O.- VI, Rule -2. Pleading to State material facts and not evidence. - (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
(2) xxx xxx xxxx
(3) xxx xxx xxx
18. At para-8, the petitioner has alleged that under the direction and supervision of respondent No.12, who is Election Commission of India, the voter list was prepared and published in the month of June, 2013, copy of which is filed as Annexure P/3 alongwith the petition. It was pleaded that initially about 222000 voters were listed. Perusal of Annexure P/3, which have been formed the part of para-8, shows a date of document is of 08.12.2013, wherein numbers of voters were shown as 228638. Admittedly by reading of para-8, it do not describe the contents of Annexure P/3. Therefore, reading the Annexure P/3, alongwith Para-8 of the election petition, I am unable to synchronize the same as to how such document is related to the allegation as made in para-8. If the document was of 08.12.2013, then it was of the date of declaration of result. So even if the numbers of voters shows a different figure then in what circumstances, the allegations are attributed to the respondent of manipulations it is completely silent. Neither any reasons have been pleaded nor any pleading exists as to how the figure shown was prejudicial to the petitioner. There can not be any presumption to draw any inference of acceptance of invalid votes in absence of material particulars.
19. Para -9 of the petition speaks about the final list of voters, which were numbered as 246047. In such averments allegations have been levelled on respondent No.16. Admittedly, the respondent No.16 stands deleted as on date. Para -10 speaks about the respondent No.16, Returning Officer (though deleted), under the guidance and supervision of respondent No.1, published the voter list. The voter list is filed as Annexure P/4. The Annexure P/4 further do not contain any seal or signature of Returning Officer. Further at para-11, it is alleged that the name of 18000 voters were deleted from final voter list at the time of polling and only 228638 voters were present in the list of voters. Though the pleading to this effect that the voter list was made at the guidance and the supervision of respondent No.1, but no material particulars have been stated in the pleadings and has pleaded any single name of any voter. The pleading is completely silent that how such voters have influenced the decision of the election which eventually led to defeat the petitioner.
20. Para-12 further states that the respondent No.16 to provide undue advantage to the respondent No.1, has deleted name of various voters from the electoral list. This allegation also appears to be too vague and devoid of any material facts and only vague averments have been made that few of the voters were deleted. Para-14 speaks about some complaints, which were made to respondent No.12 to 15 and the cognizance were taken thereafter. It would be again relevant to repeat that respondent No.12 to 15 also stands deleted before this Court, therefore, to what extent the pleading would go to help the petitioner is uncertain.
21. Para-15 further speaks that about 1375 voters were added after 17.11.2013. No further particulars have been provided as to who were the voters, whether they casted votes in favour of the petitioner or respondent and where they casted votes in which polling booths they were added is also silent. The allegations further have been made at para-16 that respondent No.12 to 16, who are the Election Commission of India and Electoral Officer have not conducted the election in transparent and fair manner. So what was the nature of unfair-manner or nontransparent manner is missing. Further nature of the allegation, how the officer conducted themselves in the election is also completely silent. Only vague allegations have been leveled with the expectation of a roving enquiry. Again it is stated at para-17 that Returning Officer has provided advantage to the respondent No.1, the returned candidate, which is under the category of mal practice. This is also silent as to what kind of advantage was provided by the Returning Officer to the returning officer.
22. Para-18 speaks about the enquiry ordered by the Election Commission to enquire the voter list. Only shady averments have been made. At Para-19, it is pleaded that list were prepared, wherein the voters were shown to be age of 113 years but they were actually age of 20 to 40 years and reference is made to Annexure P/7. The pleading is silent to the effect that how it has affected the result and whether any votes were casted or not again on enquiry by this Court is expected so as to find out what is the actual grievance and if any grievance exists to follow it by further enquiry. Further at Para-21 mal practice have been pleaded that respondent No.1 is elected by mal practice and no particulars have been pleaded.
23. At Para - 22 and 23 of the petition, it is pleaded that the respondent No.3, Gautam Buddha Agrawal (name stands deleted from petition), was deleted from the voter list, though his name was initially mentioned in the final voter list prepared on 02.11.2013. So how such deletion of name of one candidate the right of petitioner was affected and was advantageous to the return candidate is completely absent in pleading. At para-23, it is also stated that the respondent No.16, the Returning Officer, provided undue advantage, but what kind of undue advantage was provided is missing. At para-24, it is stated that immediately after the election, another list was prepared and published on 31.12.2013 by the SDO, whereby the name of 20033 voters were added. It is alleged by the petitioner that the name of voters were deleted and few of names were further added and allegation of undue influence was clamped over the Returning Officer so how it caused prejudice to respondent is difficult to assume in absence of particular.
24. The petitioner herein has not placed any material facts to show at least few name of voters who were added or deleted after the prescribed date. The annexure attached with the petition is completely vague which leads to form an opinion that again enquiry has to be conducted at the behest of the petitioner to find out what pleading suggest followed by enquiry. It appears that pleading made in the petition are contrary to the annexure which is attached alongwith the petition. No electoral roll has been placed alongwith the petition, wherein such allegation can be substantiated or compared. The allegations, if are compared with the annexure leads to form an uncertain opinion and leads to ambiguity. Undue influence and support to the respondent, returned candidate has been alleged but what kind of undue influence or any kind of act which tantamount to undue influence have not been pleaded and what was the compulsion on the voters to cast the votes is also neither pleaded nor any materials have been placed.
25. No pleading of material fact exists to show that a voter choice was arrested. Freedom in exercise of judgment which engulfs a voter's right, a free choice, in selecting the candidate whom he believes to be best fitted to represent the constituency should be shown to have been eclipsed by the pleadings. The casting of votes at an election depends upon a variety of factors and it is not possible for anyone to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognized that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100 (1) (c) and hold without pleading of material facts that the duty has been discharged. Should be the petitioner fail to plead material facts to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.
26. By close reading of the pleading it shows that petitioner has failed to plead the material facts that names were added after preparation of electoral roll on 17.11.2013. Reading with respect to the electoral roll and further reading it with the annexures, this Court is unable to form its opinion to know as to what exactly the pleadings have been made with respect to the electoral roll without giving any particulars to the nature of allegations, the election petition can not therefore, simply raise the allegation of defect in electoral roll and get away with it.
27. Further at Para-37, the ground is raised under Section 101 (a) and (b) and 101 (d) repeating the earlier averments that after publication of electoral roll, inclusion and deletion was made by the respondent No.16. The respondent No.16 stands deleted. Now it is further alleged that by deletion of such name, 1300 voters were disabled to cast their votes. Again it is stated that 246046 voters were shown by respondent No.16 and only 228638 voters were permitted, thereby addition and deletion of names were made. Further the pleading is made as per direction or approval of respondent No.1, after 17.11.2013, few persons i.e. ....... have casted their valuable votes in violation of Section 23 of the Act of 1950. Reading of the para would reflect that after word i.e. blank space is left. In absence of such material particulars it allows the court to form an opinion that petitioner himself is unaware about the number of votes. In this case, the main allegation is referred against the respondent No.16, the Returning Officer. The cause title of the petition would show that the respondent No.16 stands deleted. Further more, no further particulars have been given and not a single name was given which shows that the names were deleted and the names were added. Where and who have casted votes thereby affected the election, the entire pleading is so vague and by reading of which, it is difficult to understand that what is the actual ground, the petitioner wanted to make out. The allegations have been made on respondent No.16 that he under the influence of the respondent No.1, the returned candidate has changed the electoral roll but at least one incident should have been pleaded, which are the material facts to establish that what were done. What commission and omission has been made by the respondent No.1, by making allegation that the respondent No.1 has influenced the Returning Officer, it can not be accepted to be a material fact.
28. Therefore, as has been observed in forgoing paragraphs, examining the aforesaid pleading in light of the statutory requirements and the principle laid down in the various decision referred to above, this Court is of the opinion that no triable cause of action is made out so far as allegation of corrupt practice from paras 25 to 31, 36 and 37. Consequently, the petitioner is not entitled for any relief, as the averments made in these paras do not require the petition to be entertained for the grounds enumerated and pleaded therein for want of material facts.
29. Reading of the pleading would show that no extra care has been taken by the election petitioner to leave a room of doubt while making such averments and allegations of undue influence and indulgence of the Returning Officer alongwith respondent No.1.
30. Therefore, in view of the reading of the pleading and after consideration of annexures with reference to the law laid down, it would be quite vivid that the election petitioner has failed to plead precise fact constituting the fact of change of electoral roll and undue influence namely the nature of such inference, the persons on whom it was exercised and time and place of it in the pleading as no details of the undue influence or direct or indirect interference by the returned candidate or his agent has been raised and the affidavit also is silent about the same. Therefore, in absence of the pleadings I am of the view that the election petitioner has failed to raise triable issue with respect to inclusion and exclusion of voters in the voter list after date of nomination from para 8 to 24 and as such failed to disclose the triable cause of action under Section 100 (1) (d) (iii) of the Act of 1951, therefore, the grounds raised for declaring the election void under Section 100 (1) would not be available to the petitioner as in absence of cause of action.
31. Further reading of Para-25 of the election petition, allegations have been leveled against respondent No.14, 15 and 16, that with the help of respondent No.1, they have changed the EVM machines of 37 public booths. The respondents No.14, 15 and 16 stands deleted at the time of adjudication of this application, therefore, it is completely vague as to how it has happened.
32. Para-26 also continues with the allegations of change of EVM machine that the EVM machines were changed which was kept in the strong room and it was done to provide advantage to the respondent No.1. Para-27 also speaks that because of change of EVM machines, the petitioner lost by 1800 votes and from different EVM machines, the figures are quoted. At para -28 again the allegation is leveled against respondent No.16, who has been deleted. The facts therefore, has lead to discrepancy in the pleading. The petitioner further at para 29 of the election petition has pleaded that the respondent, returned candidate has created pressure over the petitioner and abused the agent of the petitioner but what kind of pressure was used is completely silent.
33. Reading from paras 25 to 29 would go to show that, no material particulars have been disclosed as to how the EVM machine was changed, where it was changed, under which manner it was done, the simple allegation have been leveled that the EVM machines have changed and therefore, the petitioner has lost. It is apparent that in these paras complete absence of material facts presence, which renders cause of action in the election petition is absent for the aforesaid allegations.
34. At Para-30, it is averred that one Dr. Shakil informed to the petitioner that due to undue pressure created on him by respondent No.1, he had not canvassed and he was also abused by the respondent. It is also stated that the said Dr. Shakil had sustained grievous injuries also in the earlier election. The allegation at para-31 is that the respondent No.1 adopted tactics of false assurance and without any sanction, distributed and published the pamphlets of various false assurance. Only general allegations have been made without any material facts.
35. At para-35, the petitioner again has stated that undue influence was done upon the voters and by using false tactics, the election was won by respondent No.1. The pleading is completely vague as to what kind of undue influence was exerted upon the voters, a single name has not been disclosed on him such undue influence was exerted. Further what was the false tactics was used, is completely silent.
36. At para-36, it is again repeated that election was conducted under the supervision of the returned candidate, respondent No.1. Meaning thereby, instead of returning officer, the respondent No.1 had conducted the election but the manner in which it was done is completely absent. Therefore, the pleading lacks of the material particulars as to how such supervision ultimate control was done by the respondent No.1, no instances have been stated in such paras and only general allegations have been made.
37. When Section 83 of the Act, 1951 is read, it shows that substantive part of Section 83 consists of three important elements namely the election petition should contain concise statement of material facts which the election petitioner relied upon. The emphasis is on the material facts which should be stated in the concise form. The Hon'ble Supreme Court in the case of Charan Lal Sahu Vs. Giani Jail Singh and another, reported in (1984) 1 SCC 390 while considering the undue influence as enumerated in Section 18 (1), emphasizing the need of precise, specific and unambiguous pleading of corrupt practice particularly with reference to undue influence stated as under :-
35. The gravamen of this section is that there must be interference or attempted interference with the free exercise of any electoral right/ Electoral right is defined by Section 171-A(b) to mean the right of a person to stand, or not to stand as, or to withdraw from being, a candidate or to vote or refrain from voting at an election. In so far as is relevant for our purpose, the election petition must show that Shri Beg interfered with the free exercise of the voters' right to vote at the Presidential election. The petition does not allege or show that Shri Beg interfered in any manner with the free exercise of the right of the voters to vote according to their choice or conscience........
In the later part, their Lordship further held :-
Therefore, in order that the offence of undue influence can be said to have been made out within the meaning of Section 171-C of the Penal Code, something more than the mere act of canvassing for a candidate must be shown to have been done by the offender. That something more may, for example, be in the nature of a threat of an injury to a candidate or a voter as stated in sub-section (2) (a) of Section 171-C of the Penal Code or, it may consist of inducing a belief of Divine displeasure in the mind of a candidate or a voter as stated in subsection (2) (b). The act alleged as constituting undue influence must be in the nature of a pressure or tyranny on the mind of the candidate or the voter. It is not possible to enumerate exhaustively the diverse categories of acts which fall within the definition of undue influence. It is enough for our purpose to say, that of one thing there can be no doubt: The mere act of canvassing for a candidate cannot amount to undue influence within the meaning of Section 171-C of the Penal Code.
38. Reading of these paras from 25 to 31, 36, and 37 which has leveled the allegations of addition would reveal that the petitioner has failed to state concise statement of material facts, as has been held in case of Naresh Kumar Patel Vs. Shri Nand Kumar Patel and others, reported in 2006 (2) C.G.L.J. 470, which reads as under :-
28. In the matters of Samant N. Balakrishnan Vs. George Fernandez, it has been held that first, Section 83 of the Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. Second, omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of persons with the date, time and place. Fifth, material facts 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. Sixth, in stating the material facts it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Seventh, an election petition without the material facts relating to a corrupt practice is no election petition at all.
39. The law as it stands would require a strict pleading and proof of the factors enumerated in Section 100 of the Act of 1951 for a obtaining a declaration that the election was void one. Such declaration can only be made upon consideration of material brought on record. The Election Tribunal will have jurisdiction to issue such direction only in the event one or the other factors enumerated in the sub-clause contained sub-section (1) of Section 100 of the Act of 1951 are fulfilled and not otherwise.
40. Now coming back to para -32 of the petition, the petitioner has alleged about illegal voting at polling booth Boriyakala was done by the respondent No.1 with the help of his son and illegal votes were casted, for which a police report was made by Annexure P/14. It is also pleaded that the said illegal voting was objected by the petitioner alongwith Evaj Dewangan and Vinod Tiwari but the but they were abused by the son of the respondent No.1.
41. Further in para 33, it is alleged that the respondent No.1 with the help of his son, Pankaj distributed cloths to woman, undergarment to man and liquor and blanket to the villagers and the agent of the petitioner had caught them while the goods were being distributed. It is also pleaded that one Ganesh Ram Verma, was also caught raid handed by the police, while transporting the illegal liquor, who is the agent of the respondent No.1 and a case was registered consequently a report was made by Annexure P/15.
42. Both the reading of the aforesaid para would reflect that vague allegations have been made. The particulars of corrupt practice, in the manner it was made is not clear, simply allegations have been leveled that son of the respondent had distributed goods to the voters, not a single name is disclosed to whom it was given, what was time it was done and only vague allegation have been leveled. The pleading would reflect that election petitioner has failed to come forward with the definite plea of allegation what corrupt practice is supported by the legally acceptable material evidence without any iota of doubt.
43. Further in case law reported in (2009) 9 SCC 310, between Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, the Hon'ble Supreme Court has reiterated the view observed in case of Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi, which reads as under :-
44. When we revert to the Indian cases, we find that our courts have accepted the principle laid down by the English cases. We would like to refer to some of them. In Manubhai Nandlal Amorsey v. Popatlal Manilal Joshi this Court observed as under : (SCC p. 374, para 5).
5. The first question is whether the trial Judge should have allowed the amendment. Section 83 (1) (b) provides that 'An election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of names of the parties alleged to have committed such corrupt and the date and place of the commission of each such practice'. The section is mandatory.
44. Further the Hon'ble Supreme Court in case of Anil Vasudev Salgaonkar (supra) has reiterated the view observed in case of Hardwari Lal V. Kanwal Singh, which reads as under :-
46. In Hardwari Lal v. Kanwal Singh, a three -Judge Bench of this Court observed as under: (SCC p.221, para 22)
22...............The gravamen of the charge of corrupt practice within the meaning of Section 123 (7) of the Act is obtaining of 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.
45. Again the Hon'ble Supreme Court in case of Anil Vasudev Salgaonkar (supra) in para 57 has held as under :-
57. It is settled legal position that all material facts must be pleaded by the party in support of the case set up by him within the period of limitation. 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 can not be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must contain a concise statement of material facts on which the petitioner relies.
46. The material facts in respect of the election petition, was considered by their Lordship in case of Jitu Patnaik Vs. Sanatan Mohakud and Ors. reported in AIR 2012 SC 913 in para 32 and 33, which is quoted as under :-
32. A bare perusal of the above provisions would show that the first part of Order VI, Rule 2, CPC is similar to clause 1(a) of Section 83 of the 1951 Act. It is imperative for an election petition to contain a concise statement of the material facts on which the election petitioner relies. What are material facts? 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 for the allegations made in the election petition. The meaning of 'material 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.
33. In Virender Nath Gautam, this Court referred to the leading cases of Philipps Vs. philipps and others subsequent decision in Bruce v. Odhams Press Limited that referred to Philipps and observed in paragraphs 34 and 35 (Pg.629) of the Report as follows :-
34. A distinction between material facts and particulars , however, must not be overlooked. Material facts 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. Particulars , 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.
Particulars thus ensure conduct of fair trial and would not take the opposite party by surprise.
35. All material facts 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.
47. Recently, the Supreme Court in a case law reported in (2014) 10 SCC 547, C.P. John Vs. Babu M. Palissery and others has held in Para 18 as under:
18. When we read Section 83, the substantive part of Section 83(1) consists of three important elements, namely, that an election petition should contain a concise statement of material facts which an election petitioner relies upon. The emphasis is on the material facts which should be stated in a concise form. Under Section 83(1)(b) it is stipulated that the election petition should set forth full particulars of any corrupt practice which is alleged by the petitioner. A reading of the said Section 83(1)(b) is to the effect that such particulars should be complete in every respect and when it relates to an allegation of corrupt practice it should specifically state the names of the parties who alleged to have committed such corrupt practice and also the date and place where such corrupt practice was committed. In other words, the particulars relating to corrupt practice should not be lacking in any respect. One who reads the averments relating to corrupt practice should be in a position to gather every minute detail about the alleged corrupt practice such as names of the persons, the nature of the alleged corrupt practice indulged in by such person or persons, the place, the date, the time and every other detail relating to the alleged corrupt practice.
48. As has been laid down by their Lordship in case of C.P. John (supra) that when a election petition is taken up for consideration, the Court which deals with such election petition should be in a position to know the exactitude as to what is the corrupt practice alleged without giving any room for doubt as to the nature of such allegation, the parties involved, the date, time and the place, etc. so that the party against whom such allegation is made is in a position to explain. The election petitioner can not simply raise any allegation for corrupt practice and get away with it. Since the successful candidates in an election has got the support of the majority of the voters who cast their votes in his favour, the success gained by a candidate in a public election cannot be allowed to be called in question by any unsuccessful candidate by making frivolous or baseless allegations and thereby unnecessarily drag the successful candidate to the court proceedings.
49. It is settled proposition that the person who has contested the election and after loosing, while challenging, the election petition has to be seriously construct. The reading of the pleading would show that vague allegations have been leveled both with respect to addition/deletion of the name of the voters alongwith the corrupt practice.
50. The reading of the entire pleading, the proof of commission of corrupt practice appears to be absent, so as to give an opportunity to the petitioner to prove such commission of corrupt practice. The election petition being a different nature, the pleading can not be made vague as has been observed and followed by the Supreme Court repeatedly. The degree of pleading is different unlike the normal civil suit in the background of the fact that the election petitioner has contested a election who will represent the mass of people. In the instant case, the parties on whom the allegations are leveled except respondent No.1, the other parties who were initially made as many as 16 in number, the other 15 have been deleted, but the petition contains the allegation against the Returning Officer and others. The purpose of Section 81 (3) of Act of 1951 is to put the returned candidate on notice of various allegations made against him in order to enable him to defend himself effectively in the election petition. The allegation of corrupt practice have been made against the returning officer, who stands deleted, which has further added disqualification about the addition of parties.
51. On the basis of the aforesaid observation, it is held that the election petitioner has failed to disclose the material facts as is mandatory requirements enjoined by Section 83 of the Act of 1951. Therefore, in view of the same, the presumption can not be drawn in absence of particular pleading of disclosure appears to the fatal consequently in exercise of power under the Code of Civil Procedure, as mandatory requirements of material facts are not pleaded, the instant petition, is liable to be dismissed and accordingly the same is dismissed.