1. E.A. No. 582 of 2011 is filed by the first respondent/Returning candidate in the election petition to strike out all the averments of paragraphs 6,7,8,9,13,14 and 17 apart from other averments of election petition which are frivolous, scandalous and vexatious.
2. Whereas, E.A. No. 583 of 2011 is filed by the first respondent/Returning candidate to reject the election petition on the ground that it does not disclose cause of action.
3. Virtually the prayers sought for in both the applications are one and the same, though two separate applications have been filed by the first respondent.
4. The question to be determined being one and the same between the election petitioner and the first respondent, they are disposed of by the following common order.
5. I have heard Sri D.V.Seetharama Murthy, learned senior counsel appearing for the applicants and Sri D.Sudershan Reddy, learned senior counsel appearing for the first respondent/election petitioner.
6. Challenge to the contents in paragraphs 6,7,8,9,13,14 and 17 being on the ground that they are frivolous, scandalous, vexatious and do not disclose any cause of action, I would like to briefly state the averments in the aforesaid paragraphs of the main election petition.
7. The election impugned is one held for the Member of the Legislative Council of Andhra Pradesh from Chittoor Local Authorities Constituency. It was sought to be set aside by the election petitioner as illegal, null and void and to declare that the election petitioner was duly elected. The first respondent had won the election by a thin margin of one vote.
8. It is alleged in para 6 of the election petition that at Table No. 1 counting agent of the election petitioner Mr. N. Reddinagulu made a request to the fifth respondent/Returning Officer to validate the ballot paper wherein the first preference is clearly expressed by the voter in the box opposite to the name of the petitioner, which is meant for expressing the preference of the voter, but, the fifth respondent rejected the said ballot paper on the ground that the mark on it is not the first preference but it appears as ‘’ The counting agent of the petitioner requested the first respondent to treat one of the doubtful ballot paper as invalid as the preference exercised by the voter in favour of the first respondent is not the first preference, but it appeared as ‘|’, but the fifth respondent instead of rejecting the same, treated it as valid in favour of the first respondent.
9. It has been alleged in para 7 of the election petition that while the first respondent was verifying the doubtful ballot papers at table No.2, the election agent of the election petitioner brought to the notice of the first respondent that the voter expressed his first preference of vote in favour of the petitioner in the box opposite to the name of the petitioner, but the same was rejected by the first respondent on the ground that some mark is there below the name of the petitioner and in view of the same the elector can be identified. It is further alleged that the first respondent validated one doubtful ballot paper in favour of the first respondent though no first preference was expressed by the voter in the box opposite to the name of the first respondent, but the voter clearly struck off the name of the first respondent on the ballot paper by ‘/’ (slash) with 40 degrees slope. According to the election petitioner, the said ballot could not have been validated, but was validated by the first respondent despite objection raised by the election agent.
10. In para 8 of the election petition, it has been alleged that at Table No.3, the counting agent of the election petitioner brought to the notice of the first respondent that in one of the doubtful ballot paper the preference expressed by the elector in the box opposite to the name of the first respondent is not at all the first preference, but the said mark is in the reverse shape of the capital letter ‘L’ i.e. ( ). But, the first respondent without considering the said objection validated the said vote which is contrary to the Rule 73 of the Rules., the same is illegal and arbitrary, it has been further alleged that the fifth respondent also validated two votes in favour of the first respondent though the first preference is not expressed by the elector in favour of the first respondent except a ‘/’ (slash) with about 45 decrees slope. It has been further alleged that the first respondent also validated another two ballot papers in favour of the first respondent though the ballot papers contain not only the first preference in favour of the first respondent, but there is a horizontal line in the box opposite to the name of the respondent No.2.
11. In para 9 of the election petition, it has been alleged that the fifth respondent/.Returning Officer adopted different yardsticks between the petitioner and the first respondent while considering the doubtful ballot papers for the purpose of rejecting and invalidating the votes in favour of the first respondent and the election petitioner. The conduct of the first respondent is said to be illegal, arbitrary and is in utter violation of Rule 73 of the Conduct of Election Rules, 1961.
12. It has been contended in para 13 of the election petition that in two ballot papers, the second preference of vote has been clearly and properly marked by the voter in favour of the election petitioner in the box opposite to the name of the petitioner. The election petitioner personally brought the same to the notice of the fifth respondent/Returning Officer and requested him to count the second preference in his favour. It is submitted that in one of the ballot papers the second preference is clearly expressed by the elector by marking roman form of ‘two’ in the box opposite to the name of the petitioner, the first respondent who was also present at the fifth respondent table opposed for treating the said ballot paper as valid on the ground that it is not Roman form of two but it is international form of Indian numeral ‘eleven’. As against this, the petitioner reported before the first respondent that it is nothing but Roman form of ‘two’, and it cannot be treated as Indian numeral ‘eleven’ at all. The petitioner also brought to the notice of the first respondent, the relevant rules under the Conduct of Election Rules, 1961 and also the guidelines in the Hand Book for Candidates (at elections to the A.P. Legislative Council) (Reprinted in February, 2011), but the fifth respondent brushed aside the representations made by the election petitioner, treated the said ballot paper as exhausted which according to the election petitioner is illegal and arbitrary.
13. In para 14 of the election petition, as regards the other ballot paper, it is submitted that the elector expressed the second preference in the box meant for expressing the preference opposite to the name of the petitioner in the international form of Indian numeral ‘two’, but the same was rejected by the first respondent that two is not clearly written. As to this also in spite of the election petitioner showing the relevant provisions under the Conduct of Election Rules and Chapter XIII i.e. counting process in the Legislative Council Elections General Instructions particularly Instruction No. 12 i.e. other grounds on which ballot papers are not rejected, from the Hand Book for Candidates (at Election to Andhra Pradesh Legislative Council) (Re-printed in February, 2011 issued by the Election Commission of India published by Chief Electoral Officer, Andhra Pradesh, it is submitted that it was specifically brought to the notice of the first respondent about the Instruction No.12(1)(d) which clearly states that the ballot paper also should not be rejected simply because ‘the mark indicating the vote is indistinct or made more than once, if the intention that the vote is for a particular candidate clearly appears from the way the paper is marked’ and also Rule 73 of the Rules, the fifth respondent arbitrarily rejected the plea of the election petitioner and treated the said ballot as exhausted.
14. It has been contended in para 17 of the election petition that the fifth respondent instead of re-examining the preferences marked by the electors in respect of all the votes secured by the petitioner and the first respondent as well as the rejected votes in the first round of counting and the exhausted votes, taken up the recounting of voters ignoring the request of the petitioner to re-examine the votes and decide the validity of the votes as per Rule 73 of the Conduct of Election Rules, 1961. It is submitted that the fifth respondent refused to re-examine all the votes polled and proceeded with the recounting of votes only. According to the election petitioner, without re-examining the scrutinizing the votes simply proceeding with the re-counting of votes by the fifth respondent is illegal, arbitrary and contrary to Rule 82 of the Conduct of Election Rules, 1961.
15. The applicant/first respondent in the main election petition filed E.A.No.582 of 2001 under Order VI Rule 16 read with Section 151 of the Code of Civil Procedure and also filed application No.583 of 2011 under Order VII Rule 11 of the Code of Civil Procedure read with Section 86 and 87 of the Representation of the Peoples Act, 1951. He contends that the allegations are vague, lacking in details, they do not state any cause of action, therefore, they being merely frivolous, scandalous and vexatious, the paras 6,7,8,9,13,14 and 17 have to be struck down and consequently, the election petition shall be rejected, since it does not disclose any cause of action.
16. Sr.D.V.Seetharama Murthy, learned senior counsel appearing for the applicant/first respondent submitted that the election petition has to be tried by this Court in accordance with the procedure applicable under the Code of Civil Procedure and if the Court is of the opinion that the evidence of any witness is not material for the decision on the election petition or that it is unnecessary to try the proceedings, the Court in its discretion may not permit the party to the election petition to tender any witness for examination, in this context, he invited the attention of the Court to Section 87 of the Representation of the People Act, 1951 which says so:
87. Procedure before the High Court:
(1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
(provided that the High Court shall have the discretion to refuse for reasons to be recorded in writing, to examine that the evidence of such witness or witnesses is not material for the decision of petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.”
17. He further argued that if the allegations mentioned in the election petition are not specified but vague and they do not disclose any cause of action, the election petition has to be dismissed at the threshold without causing any inconvenience or damage to the returned candidate. He also argued that the allegation that the Returning Officer adopted different yardsticks in similar situations to the election petitioner and the first respondent that he improperly rejected some votes which are in favour of the election petitioner and validated some doubtful votes in favour of the returning candidate, is nothing but an allegation of corrupt practices against the Returning Officer, Section 123 of the Representation of the People Act which deals with the corrupt practice mandates that the corrupt practice must be pleaded specifically, but, in the selection petition the partiality on the part of the fifth respondent which is nothing but corrupt practice having not been pleaded specifically which does not constitute any cause of action. Thus, the learned counsel tried to impress upon this Court that the corrupt practice as required under Section 123 of the Representation of the People Act has to be pleaded specifically. In the instant case, not only the corrupt practice, but the remaining allegations being vague, baseless and frivolous and beyond the scope of election petition filed under Section 100 (1)(d)(iii) and Section 101(a) of the Representation of the People Act, 1951 and since the material facts have not been pleaded in the election petition and the facts pleaded do not constitute any cause of action, it shall be rejected out-right without making any enquiry into the allegations mentioned in the election petition.
18. The learned counsel in support of his contention relied on a decision reported in KALYAN KUMAR GOGDI VERSUS AHUTOSH AGIHOTRI AND ANOTHER, (2011) 2 SCC 532 wherein the Supreme Court while dealing with non-complaince with the provisions of the Representation of the People Act, 1951 and Conduct of Election Rules, 1961 by the Officers who were in-charge of the conduct of the election and not by the elected candidate held that success of a winning candidate at an election cannot be lightly interfered with and this is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else.
19. The learned counsel also relied on a decision in DHAMPUR SUGAR (KASHIPUR) LTD VERSUS STATE OF UTTARACHAL AND OTHERS, (2007) 8 SCC 418 wherein it is held as follows:
“If sufficient averments and requisite materials are not on record, the Court would not make fishing or raving inquiry, mere assertion, vague averment or bald statement is not enough to hold the action to be mala fide, it must be demonstrated by facts. Moreover, the burden of proving mala fide is on the person leveling such allegations and the burden is very heavy.”
20. It is true that in catena of judgments, the Supreme Court held that the material facts in respect of the cause of action stated in the election petition have to be specifically pleaded that the pleadings in the election petition shall not be vague or frivolous and that if the Court dealing with the election petition thinks that the election petition does not disclose cause of action, it can dismiss the election petition in limini without going in to the impugned proceedings, to make any further enquiry into the election petition.
21. But Sri Sudershan Reddy, learned senior counsel appearing for the first respondent/election petitioner would contend that in affidavit filed by the first respondent/election petitioner all the material facts within the knowledge of the election petitioner have been specifically pleaded in the election petition, the substance of those material facts, but not merely the form, which require to be looked into for the purpose of construing the pleadings. He would further contend that the intention of the party to be gathered from the tenor and terms of his pleadings taken as a whole. The learned counsel would submit that the material facts have been specifically pleaded and those material facts constitute a definite and clear cause of action and the present applications being filed by the applicant/first respondent to protract the proceedings in the election petition before this Court, and therefore, the petitions are liable to be dismissed.
22. In support of his contention the learned senior counsel placed reliance on the following decision and I would like to state briefly the ratio laid down by the Honourable Supreme Court in the said decisions.
23. In H.D. Revanna versus G. Puttaswamy Gowda and Others ( 1999) 2 SCC271it was held that the election petition contains necessary facts constituting the cause of action for in validating the returned candidate’s election and the corrupt practices allegedly committed by him have been substantially pleaded, the election petition shall not be dismissed on the ground of vagueness and in case of want of particulars, the Court should afford opportunity to the petitioner to furnish them.
24. Similarly in D. Ramachandran versus R.V. Janakiraman and others, (1999) 3 SCC 267 the Supreme Court pointed out that as to the ‘,material facts’ and ‘full particulars’ in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the applicant if the averments made in the petition are proved to be true, the Court has to find out whether those averments disclose a cause of action or a triable issue as such and the Court cannot probe into the facts on the basis of the controversy raised in the counter.
25. In V.S. Achuthanandan versus P.J. Francis and another (1999) 3 SCC 737 the Supreme Court haws laid down that the material facts are primary facts disclosing some cause of action, these facts have to be specifically pleaded and failure to do so will result in rejection of the election petition. But defect in material particulars can be cured at a later stage by amendment and the petition cannot be dismissed in limini on the ground of such defect.
26. In K.K. Ramachandran Master versus M.V. Sreyamakumar and others, (2010) 7 SCC 428 the Supreme Court held that the election petition which does not disclose material facts can be dismissed on the ground that it does not disclose cause of action. However, the dismissal on the ground of deficiency or non-disclosure of particulars of corrupt practice may be justified only if election petitioner does not, despite on opportunity given by the court, provide particulars and thereby cure the defect. So long as the material facts are stated, absence of particulars, if any, cannot justify dismissal of the petition.
27. Having gone through the submissions made by both the learned senior counsel and on perusing the above referred judgments and other authorities cited by either side, I am of the considered view that there is no dispute about the preposition that if material facts have not been pleaded specifically in the election petition, it is a case of lack of cause of action which would result in either striking down the pleadings which are unnecessary, vague and vexatious or may also result in dismissal of the election petition in limini. But, the distinction has to be drawn between the material facts and material particulars. The material facts would mean the specific allegation in support of the cause of action mentioned in the petition. If the allegation is not specific and without furnishing any facts which support cause of action, it is a case of non-pleading of material facts which give rise to cause of action. But material particulars are those which are in the nature of details in proof of the material facts pleaded in the election petition. The material particulars can be furnished by the parties even during the course of the enquiry while adducing the evidence. The election petition is liable for rejection only when material facts have not been pleaded or when all the material facts put together do not disclose any cause of action.
28. To decide the issue as to whether the election petition is liable to be rejected at the threshold, this Court is not supposed to conduct a roving enquiry in to the truthfulness of genuineness of the material facts pleaded. The test is that considering those material facts to be true whether they disclose any cause of action which requires an inquiry in the election petition. The Court while dealing with the question as to rejection of the election petition in limini is not supposed to test the veracity or truthfulness of the material facts pleaded in the election petition. If they are absolutely unnecessary and vague and do not reveal any cause of action. The Court is justified in rejecting the election petition without conducting any further enquiry. To decide a fact to be material or not, the substance of the fact pleaded has to be taken into consideration. The Court cannot insist upon furnishing each and every detail relating to the said fact in advance, if the vagueness is apparent in the pleadings, then the Court can take a view that the facts pleaded are not material.
29. In the instant case, while going through various facts pleaded by the first respondent election petitioner in paragraphs 6,7,8,9, 13,14 and 17, I am of the view that the facts are material and they disclose cause of action which obligates this Court to conduct an enquiry into the election petition. I do not agree with the contention that the material facts have not been specifically pleaded in this case. The facts clearly indicate as to how the decision taken by the fifth respondent/Returning officer prejudiced the case of the election petitioner. As I have already said, this Court is not supposed to pre-judge the veracity or merit of the material facts pleaded in the election petition. This Court also is not supposed to insist upon the election petitioner to furnish each and every material particular relating to the material facts pleaded by him. The truth or veracity of the material facts which are pleaded in support of the cause of action mentioned in the election petition can only be decided during the course of the enquiry in the election petition. This case, in my considered view is not the one whether material facts have not been specifically pleaded or cause of action has not been made out. There are no valid grounds to either strike out only of the pleadings in the election petition or to reject the election petition ‘in limini’ on the ground that the material facts have not been pleaded or that the election petition does not disclose any cause of action.
30. For the foregoing reasons, E.A.Nos.582 and 583 of 2011 are dismissed. There shall be no order as to costs.