DATED : 23.02.2011
CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU
Application No.6569 of 2009
Election Petition No.4 of 2009
Kumar.P .. Applicant
14.Samuel Swamidoss Manojkumar.E.
19.Baby Kamitha Banu.M.
20.Manssoor Ali Khan
24.The Returning Officer,
24,Tiruchirappalli Parliamentary Constituency
and District Collector,
Tiruchirappalli. .. Respondents
Application No.6569 of 2009 is preferred under Order XIV Rule 8 of O.S. Rules read with Order VI Rule 16 of the CPC read with Section 181 of CPC seeking to strike off the election petition as not maintainable, vague and total abuse of process of law.
For Applicant : Mr.V.Raghavachari
For 1st respondent : Mr.R.Gandhi, SC
2 to 23 : No appearance
For 24th respondent : Mr.M.Raghavan, Standing Counsel
- - - -
This is an application filed by the first respondent in the Election Petition (ELP No.4/2009) under Order 14 Rule 8 of O.S. Rules read with Order 6 Rule 16 of CPC. Election Petition No.4 of 2009 was presented by the first respondent in this application under Section 81 read with S.100(1)(d)(iii) and (iv) and Section 129 of the Representation of Peoples Act 1951 (for short RP Act). The petition was presented on 29.6.2009. Thereafter, the matter was assigned to this court by the Hon'ble Chief Justice. The matter pertains to the challenge made to the election of the present applicant (who is the first respondent in the election petition) as the successful candidate for the Tiruchirappalli Parlimentary Constituency (No.24). 2.Originally orders were reserved on 26.2.2010. Subsequently, it was posted on 11.2.2011 for further clarification. After getting certain points clarified, it was reserved for orders.
3.It is an admitted case of both parties that the Election Commission had issued a notification on 17.4.2009 notifying the schedule of election for constituting 15th House of People (Lok Sabha). As per the poll schedule announced, the nomination of candidates was to be made on 24.4.2009. The scrutiny of nominations was to be done on 25.4.2009 and the last date for withdrawal of nominations was on 7.5.2009. The date of polling for electing the candidates for the house of people (Lok Sabha) was fixed on 13.5.2009. Casting of votes as well as declaration of results was notified to take place on 16.5.2009. 4.It is the case of the original election petitioner (first respondent herein) that she had filed her nomination as an official candidate sponsored by the Indian National Congress Party. She stood in the election with the notified "Hand" symbol. The present applicant, the first respondent in the election petition, who stood as an official candidate of AIADMK Party with the symbol "Two leaves" also filed his nomination. The other respondents 2 to 23 have also filed their nominations and contested either as candidates of recognized political parties or as independent candidates. Before filing her nomination, the original election petitioner was holding the post of Mayor of Tiruchirappalli Corporation. After resigning from the post, she had filed her nomination.
5.The Tiruchirappalli Parliamentary Constituency comprises of six assembly segments, i.e. Srirangam Assembly (139), Tiruchirappalli West Assembly (140), Tiruchirappalli East Assembly (141), Tiruverumbur Assembly segment (142), Kandarvakottai (Reserved assembly segment-178) and Pudukkottai Assembly segment (180). The first respondent originally appointed one T.A.Omprakash as her Chief Election Agent. In respect of each assembly segments, she had nominated 14 persons as counting agents. Polling took place for the constituency on 13.5.2009. The counting of votes took place in the premises of the Jamal Mohammed College at Tiruchirappalli in the presence of 24th respondent Returning Officer as well as Assistant Returning Officer and other Election officials. Though the first respondent was not present during the counting process, her Chief Election Agent and other counting agents were present inside the hall where the counting took place on 16.5.2009. It was her understanding that counting of votes took place in various rooms inside the college premises as per the assembly segmentwise. It was also alleged that after counting, the 24th respondent Returning Officer had declared that the present applicant (R-1 in the election petition) as having been successfully elected as a Member of Parliament. His winning margin was announced as 4335 votes. 6.It is on the basis of these admitted facts, the first respondent in her original election petition alleged that as per Form-20 prepared for each assembly constituency, she was leading in all the constituencies except for the Srirangam Assembly Constituency. In that Constituency, the first respondent got only 50767 votes, whereas the applicant, i.e., elected candidate had 70949 votes. She was given to understand by her election agent and other counting agents who were present inside the counting hall that there were various discrepancies in the manner of announcing votes polled for respective candidates. The first respondent's Chief Election Agent Om Prakash informed her that counting officials had announced results after seeing the details from the Electronic Voting Machine (EVM) that R-1 was leading with a large margin. But when the calculation statement reached the table of the Returning Officer and the Assistant Returning Officer, her margin level had become minimal in the other assembly segments except Srirangam Constituency. Her election agents had also noticed vast discrepancies in announcing votes polled in favour of the applicant while counting votes in Srirangam assembly segment. Therefore, at the end of counting, she made a request to the Returning Officer for recounting or retotalling the votes. But the 24th respondent did not consider her request for recounting of votes. Therefore, he had failed to perform the statutory duties and did not give any reason for refusing to entertain her request. 7.It was also further alleged that mandatory requirement for the voters to cast their votes in terms of Rule 49(O) of the Conduct of Election Rules, 1961 was not complied with. Because of this, the first respondent's margin of votes in the Pudukkottai and Kandarvakottai assembly segments got substantially reduced. It was her understanding through her polling agent that the polling officers had allowed voters to enter and do certain acts after the stage of Section 49(L) of the Rules without directing the voters to exercise their polling option or cancelling the voter slips even treated the voters who decided not to vote as votes. This was done to help the applicant. By the act of contravening the requirement of Rule 49 of the Conduct of Election Rules, 1961 and disregarding the directives of the Election Commission of India issued in the form of handbook, the chances of first respondent getting more votes were curtailed. The 24th respondent Returning Officer had failed to exercise his discretion properly. He had also not discharged his duties in accordance with rules 69 and 82 of the Conduct of Election Rules, 1961 as well as Rule 63 of the Conduct of Election Rules. 8.It was further alleged that in Form-20 issued assembly segmentwise regarding the final result, there was no reference to the number of voters who have exercised the option not to vote in terms of Rule 49. But, the Returning Officer had prepared a letter dated 21.5.2009 in which he mad mentioned 15444 persons had refused to exercise their franchise in all the six assembly segments. The statement was prepared by the Assistant Returning Officer of Pudukkottai assembly constituency only on 20.5.2009 after counting of votes. The first respondent also alleged that an oral request made by her agents at the time of counting of votes with the Returning Officer with reference to the particulars of persons who had opted to exercise their rights under Rule 49(O) did not materialize. It was also brought to her notice that the newspapers have reported after completion of poll process as if large number of voters have exercised their option under Rule 49(O). Under the amended rule 49(O), both voters who went to exercise their franchise as well as voters who did not want to exercise their franchise will have to comply with formalities upto the stage of Rule 49(L) of the Conduct of Election Rules. There is no discretion vested with the Returning Officer to depart from the said rules. 9.It was also alleged that in the assembly segments of Pudukkottai and Kandarvakottai, large number of voters were allowed to enter into the polling station without stopping them at the stage of obtaining their first signature in the register of voters in Form-17A. They were issued voting slips to reach the main unit officer. Thereafter without collecting the voting slips from them, the voters were allowed to exercise their poling option. Further, the voters were allowed to polling station abruptly. The voters thus were allowed to go freely without making proper endorsement. Their signatures as per Rule 49(L) were not accepted. It was further submitted that the accounts of votes recorded and Form 17-C prepared in this regard did not reflect about the number of voters who exercised rule 49(O) option. It was also brought to her notice that around 13434 voters from all six assembly segments had refused to exercise their franchise and availed the option under Rule 49(O) of the Conduct of Election Rules, 1961. But, in allowing them to exercise the option under Rule 49(O), the polling officers have breached their statutory duties. This had really vitiated and materially affected the election prospects of the original petitioner. It was also alleged that 15200 voters who have exercised their option under Rule 49(O), neither made any second signature nor made proper endorsement. Further, they were not counter signed by the Presiding Officer. The guidelines issued by the Election Commission is mandatory as they were issued in terms of the power vested under the Election Commission under Article 324 of the Constitution of India. The first respondent also understood from her Chief Election Agent that the LCD flashing figures showed higher number of votes in favour of the petitioner. She also reliably understood that 10500 votes have been wrongly calculated and accepted in favour of the applicant. This was not valid and improper inclusion of votes in favour of the applicant by making wrong calculation. Thus election results had become erroneous. 10.Further, the Election Commission had also sent a circular letter, dated 8.4.2009 informing that in order to identify the voters, the voters will have to produce any one of 13 documents set out therein. Despite the same, about 32000 voters in all six assembly constituencies were denied the right to exercise their franchise, even though their names were found in the electoral list only because they had produced Family Ration Card for identity purpose. Ultimately, the ration card can be a clear proof of their residence. The Election Commission had directed to exclude the family ration cards from one of the documents to be produced for voters' identity which was clearly erroneous and contrary to the statutory rules. Since the family ration card is legally a valid document, by the exclusion of the same, the first respondent had lost substantial votes as well as the election process was completely vitiated. It was further stated that the applicant had spent more than two crores by organizing meetings, putting up a huge dais, installing flash lights, putting up huge cutouts of their party leaders. Ever since filing of his nomination, he was lavishly spending money exceeding the election expenditure prescribed under Section 77 of the Representative of People Act and Rule 90 of the Conduct of Election Rules. The applicant had filed false accounts with the District Election Officer. The same has not been scrutinized properly by the Election Officer. In that view of the matter, the first respondent (original election petitioner) prayed for declaration of election of the applicant as the elected candidate of the Constituency No.24 Tiruchirappalli Parliamentary Constituency as null and void. 11.The election petition was presented under Section 81 read with 100(1)(d)(iii) and (iv) and 129 of the Representation of the People Act, 1951. It is necessary to extract these provisions for better appreciation of the contentions raised by the parties. Section 81 of the Representation of the People Act, 1951 reads as follows: "81.Presentation of petitions.-(1)An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.]" Section 100(1)(d)(iii) and (iv) reads as follows:
"100.Grounds for declaring election to be void.-[(1)Subject to the provisions of sub-section (2), if [the High Court] is of the opinion-
(a) to (c) omitted
(d)that the result of the election, insofar as it concerns a returned candidate, has been materially affected-
(i) and (ii) omitted
(iii)by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv)by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,
[the High Court] shall declare the election of the returned candidate to be void.]"
Section 129 of the Representation of the People Act, 1951 reads as follows:
129.Officers, etc., at elections not to act for candidates or to influence voting.-(1)No person who is [a district election officer or a returning officer,] or an assistant returning officer, or a presiding or polling officer at an election, or an officer or clerk appointed by the returning officer or the presiding officer to perform any duty in connection with an election shall in the conduct or the management of the election do any act (other than the giving of vote) for the furtherance of the prospects of the election of a candidate. (2)No such person as aforesaid, and no member of a police force, shall endeavour-
(a)to persuade any person to give his vote at an election; or
(b)to dissuade any person from giving his vote at an election; or
(c)to influence the voting of any person at an election in any manner.
(3)Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment which may extend to six months or with fine or with both.
[(4)An offence punishable under sub-section (3) shall be cognizable.]"
12.On the election petition, notice was ordered and parties were served both by Court and in some cases by substituted service. The elected candidate, who is the applicant did not file any written statement. But on the contrary he took out the present application in A.No.6569 of 2009 seeking for striking off the pleadings in the election petition as they were not maintainable, vague and filed with a view to abuse the process of law. Notice was ordered on the said application. 13.Heard the arguments of Mr.V.Raghavachari, learned counsel for the applicant (first respondent in the election petition) and Mr.R.Gandhi, learned Senior Counsel leading Mr.S.Thiruvenkatasamy for the first respondent in the application (original election petitioner).
14.In the present application to strike out the petition, it was alleged by the applicant that the first respondent was found not worthy of being returned by the electorate as she had failed to do justice to the office held by her both as a Councilor as well as the Mayor of the City Corporation. The applicant being a lawyer had done immense service to the public. That was the reason why he was elected. In filing the election petition, no proper allegations have been made. In different places in the election petition, she had come out with different pleas. The allegation found in paragraph 4 of the main election petition was denied. With reference to the allegations in paragraph 5, it was labelled as mischievous. The Returning Officer only on verification of number of votes polled had declared the results. There was no error in counting of the votes. Since votes polled were reflected in the Electronic Voting Machine, the question of tampering with votes will not arise. No complaint was given by the first respondent /election petitioner that EVM machines were not in order or that they were defective. The allegation found in paragraph 6 that votes were counted in different places and not in a common area was denied. The allegation that there were various discrepancies was too vague without being specified by the first respondent/ original election petitioner. Likewise, the allegation made in paragraph 7 also suffers from vice of vagueness.
15.To the knowledge of the applicant, the first respondent had accepted the results and no objections were raised by her election agents before the Returning Officer. The secrecy of votes is primordial in the election and that recounting of votes cannot be sought as a matter of right. Even otherwise, no such plea was made before the Election Officer. It was further stated that the EVM machines were brought from different booths to the counting station. The election petitioner did not pinpoint from which booth an error had crept in. The complaint regarding violation of voters in not following rule 49(O) was based upon false imagination and no complaint was given to the Returning Officer. The allegation that in Kandarvakottai and Pudukkottai assembly constituencies, there were large scale of option for Rule 49(O) is a vague allegation. It cannot be the subject matter of any enquiry. Further, no complaint was ever lodged. By making such vague allegations, she cannot have fishing expedition to gather proof. The allegation of violation of Rule 49(O) is made for the first time and not substantiated by any records. 16.The declaration of results are made in Form No.20 which were issued in terms of Rule 56 of the Conduct of Election Rules. The Returning Officer cannot add or supplement information set forth in Form 20. Voters who were not interested in voting for any of the candidates can validly exercise their option under Rule 49(O). It is only in Form No.17, the accounts of votes were recorded. It has been maintained properly by the Presiding Officer of the polling station. The Presiding Officer of the polling station had also furnished to the polling agents present at the close of poll true copies of the entries made in Form No.17-C. Therefore, disclosure of number of votes exercised under Rule 49(o) option was a needed exercise. There is no provision for recording the same in Form No.20. Whatever procedure followed in terms of Rule 49(O) has been followed even in Pudukkottai and Kandarvakottai assembly constituencies. The allegation to the contrary found in the original election petition was denied. The entry of voters into the polling station was based upon identification of candidates. Unless voting slip is issued, it is not possible for voters to exercise their franchise or to exercise their option under Rule 49(O). The persons who have exercised their option under Rule 49(O) are also persons who have participated in the election process. But the difference is that they are persons who have exercised their options not to vote in favour of any one of the candidates in the fray. They cannot be treated as non voters. With reference to the allegations in paragraphs 24 and 27, they are not only denied as vague, but the first respondent had not given any details. 17.With reference to the family ration cards not being accepted as a true identity of voters, it was contended that after the year 2006, there were spurious family cards under circulation. Therefore, the Election Commission thought it fit to reject it as a valid document. The allegation that 36000 voters were left out because of refusal to accept the family ration card as a valid identification is also vague and not supported by any records. The allegation made in paragraphs 29 to 33 are repetitions of previous allegations. On the other hand, the first respondent had stated in one place that she had lost by 32000 votes and in other place, she had stated that she had lost by 50000 votes only because of family ration cards were not allowed to identify the voters. But such vague allegations are made without having any data. With reference to spending of money by the applicant, it is stated that he had given correct particulars to the District Election Officer. They were scrutinized and acknowledged by the officer. There was no breach of rule 90. The allegation that he had spent more than two crores rupees was denied. It is a fantastic allegation made by the first respondent. The Election Commission on verification of records found that accounts were in order and had also refunded the original deposit made at the time of contesting elections. The allegation made against his getting elected was frivolous, vague and there was no triable issues before this court. 18.A counter affidavit was filed by the first respondent, dated 20.1.2010 opposing the said application. It is stated that in the election petition, it is not necessary to set out the evidence proposed to be adduced to substantiate the allegations. The application to strike off the election petition is an abuse of the process of the court. The statements made by her were based upon information received from the Chief Election Agent and there are triable issues. With reference to non observing the procedure under Rule 49(O), it must be stated that if statute clearly states a particular thing, it has to be done only in that manner prescribed and not in any other manner. This court without throwing out the election petition, in terms of power exercisable under Order VI Rule 16 must allow the trial to go on, so that the election petitioner can substantiate her allegations. 19.In the light of these pleadings, whether the application in A.No.6569 of 2009 is liable to be allowed and the pleadings of the first respondent are liable to be rejected is the only question that arises for consideration.
20.Mr.R.Gandhi, learned Senior Counsel submitted that it is not a fit case where the election petition can be thrown out even without a trial. He had produced Form No.20 as document Nos.4 to 9 to show that there were variations in the number of votes polled and that it did not contain the exercise of option under Rule 49(O). But the document No.10 requesting for recounting and retotalling signed by the original election petitioner's agents did not even contain any date or acknowledgment by the Returning Officer. The document Nos.11 and 12 only contain the number of voters who did not exercise their option under Rule 49(O) of the Conduct of Election Rules. Not following the procedure under Rule 49(O) itself can be a ground which can be raised in the election petition. Section 100(1)(d)(iv) clearly stipulates that non compliance of provisions of the Act or Rules can be a ground to maintain the election petition.
21.In this regard, the learned Senior Counsel relied upon a judgment of the Supreme Court inV.S. Achuthanandan v. P.J. Francis reported in (1999) 3 SCC 737 and relied on the following passage found in paragraph 22, which reads as follows:
"22.Similarly, the learned trial Judge was not justified in rejecting the election petition without affording the appellant opportunity to place on record the circumstances justifying the re-count as prayed for by him. It is true that on vague and ambiguous evidence no court can direct re-count. But it is equally true that the doors of justice cannot be shut for a person seeking re-count without affording him an opportunity of proving the circumstances justifying a re-count. In his petition the appellant had given details of the alleged illegalities and irregularities committed by Respondent 1 which according to him justified the holding of a re-count. The learned trial Judge relied upon some judgments where re-count was not allowed after trial and wrongly dismissed the election petition filed by the appellant without affording him the opportunity to substantiate the allegations made in the petition or to bring on record the evidences justifying a re-count. It is a settled position of law that the court trying an election petition can direct inspection and re-count of votes if the material facts and particulars are pleaded and proved for directing such re-count in the interest of justice. In doing so, the provisions of Section 94 of the Act have to be kept in mind and given due weight before directing inspection and re-count. In M.R. Gopalakrishnan v. Thachady Prabhakaran18it was held: (SCC pp.113-14, paras 16-17) 16. After a cursory glance of the relevant provisions discussed above it is thus abundantly clear that the rules provide adequate opportunity to a candidate, his election agent and counting agent to have a watch over the counting process before the result is declared and if they raise any objection as to the validity or otherwise or any ballot paper and if the said objection is improperly rejected, the candidate, his counting and election agent are well informed of the nature of the objection that was raised with regard to the ballot-papers and make a concise statement of material facts in the election petition in relation thereto. It is for these reasons that this Court has repeatedly held that the secrecy of the vote has to be maintained and a demand of re-count should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to the errors in the counting and is able to show that the errors are of such magnitude that the result of the election of the returned candidate is materially affected. The election petitioner, in order to seek an order of re-count, has to place material and make out a prima facie case on the threshold and before an order of re-count is actually made. The demand of a defeated candidate for re-count of votes has to be considered keeping in view that secrecy of the ballot is sacrosanct in a democracy, and, therefore, unless the election petitioner is able not only to plead and disclose the material facts but also substantiate the same by means of evidence of reliable character that there existed a prima facie case for the re-count, no tribunal or court would be justified in directing the re-count." 22.The learned Senior Counsel further referred to a judgment of the Supreme Court in Harkirat Singh v. Amrinder Singh reported in (2005) 13 SCC 511 and referred to the following passage found in paragraph 83, which reads as follows:
"83.We, therefore, hold that the High Court was wrong in dismissing the election petition on the ground that material facts had not been set out in the election petition and the election petition did not disclose a cause of action. The order passed by the High Court, therefore, deserves to be quashed and set aside." 23.Thereafter, he referred to a judgment of the Supreme Court in Umesh Challiyill v. K.P. Rajendran reported in (2008) 11 SCC 740 and referred to the following passage found in paragraph 20, which reads as follows:
"20.However, in fairness whenever such defects are pointed out then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 16 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of CPC but in the present case we regret to record that the defects which have been pointed out in this election petition were purely cosmetic and do not go to the root of the matter and secondly even if the Court found them of serious nature then at least the Court should have given an opportunity to the petitioner to rectify such defects." 24.He further referred to a judgment of the Supreme Court in Ram Sukh v. Dinesh Aggarwal reported in (2009) 10 SCC 541 for the purpose of contending that materials facts to be pleaded are not defined in the Act or in the CPC. It should be understood by the court in general terms to mean the entire bundle of facts which would constitute a complete cause of action. It depends upon the facts of each case. For this purpose, he referred to the following passage found in paragraph 13 of the said judgment, which reads as follows: "13.The phrase material facts has neither been defined in the Act nor in the Code and, therefore, it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, material facts are facts upon which the plaintiffs cause of action or the defendants defence depends. (See Mahadeorao Sukaji Shivankar v. Ramaratan Bapu3.) Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are material facts. Material facts are facts which, if established, would give the petitioner the relief asked for. But again, what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down." Therefore, the learned Senior Counsel pleaded that since the election petitioner had given full particulars along with supporting documents, the application should be rejected and the election petition should be ordered for a regular trial.
25.Mr.V.Raghavachari, learned counsel appearing for the applicant (first respondent in the election petition) placed reliance upon a judgment of the Supreme Court in Udhav Singh v. Madhav Rao Scindia reported in (1977) 1 SCC 511 and referred to the following passages found in paragraphs 20 to 22 and 25, which reads as follows: "20.The material part of Section 82 reads thus:
Parties to the petition.A petitioner shall join as respondent to his petition
(a) * * *
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
21.Behind this provision is a fundamental principle of natural justice viz. that nobody should be condemned unheard. A charge of corrupt practice against a candidate, if established, entails serious penal consequences. It has the effect of debarring him from being a candidate at an election for a considerably long period. That is why Section 82(b) in clear, peremptory terms, obligates an election-petitioner to join as respondent to his petition, a candidate against whom allegations of any corrupt practice are made in the petition. Disobedience of this mandate, inexorably attracts Section 86 which commands the High Court, in equally imperative language, to dismiss an election petition which does not comply with the provisions of Section 82. 22.The respondent cannot by consent, express or tacit, waive these provisions or condone a non-compliance with the imperative of Section 82(b). Even inaction, laches or delay on the part of the respondent in pointing out the lethal defect of non-joinder cannot relieve the Court of the statutory obligation cast on it by Section 86. As soon as the non-compliance with Section 82(b) comes or is brought to the notice of the court, no matter in what manner and at what stage, during the pendency of the petition, it is bound to dismiss the petition in unstinted obedience to the command of Section 86. ....
25.The key-words are those that have been underlined (herein in bold type). These words denote the broad test for determining whether a particular defence plea or fact is required to be incorporated in the written statement. If the plea or ground of defence raises issues of fact not arising out of the plaint, such plea or ground is likely to take the plaintiff by surprise, and is therefore required to be pleaded. If the plea or ground of defence raises an issue arising out of what is alleged or admitted in the plaint, or is otherwise apparent from the plaint, itself, no question of prejudice or surprise to the plaintiff arises. Nothing in the rule compels the defendant to plead such a ground, not debars him from setting it up at a later stage of the case, particularly when it does not depend on evidence but raises a pure question of law turning on a construction of the plaint. Thus, a plea of limitation that can be substantiated without any evidence and is apparent on the face of the plaint itself, may be allowed to be taken at any stage of the suit." 26.He further referred to a judgment of the Supreme Court inV.S. Achuthanandan (II) v. P.J. Francis reported in (2001) 3 SCC 81 and referred to the following passages found in paragraphs 12 and 13, which reads as follows:
"12.That apart, admittedly a prayer for re-count in terms of Rule 63(2) of the Conduct of Elections Rules, 1951 was not made by or on behalf of any of the contesting candidates including the petitioner before the Returning Officer which the election petitioner would ordinarily have made if there was any truth in any of the pleas canvassed by the petitioner before the High Court or this Court. 13.The power vesting in the court seized of an election dispute to order for inspection and re-count of the ballot papers has been the subject-matter of several decision of this Court which have by authoritative exposition settled the law thereon. Without burdening this judgment with the series of available decisions, it would suffice to mention a few only, namely, Constitution Bench decision in Ram Sewak Yadav v. Hussain Kamil Kidwai2, three-Judge Bench decision in Suresh Prasad Yadav v. Jai Prakash Mishra3, Bhabhi v. Sheo Govind4 which refers to all the decisions available till then and a recent decision in M.R. Gopalakrishnan v. Thachady Prabhakaran5 to which one of us (Dr A.S. Anand, J., as his Lordship then was) is a party. We may briefly restate the principles as under:
1. The secrecy of the ballot is sacrosanct and shall not be permitted to be violated lightly and merely for asking or on vague and indefinite allegations or averments of general nature. At the same time purity of election process has to be preserved and therefore inspection and re-count shall be permitted but only on a case being properly made out in that regard.
2. A petitioner seeking inspection and re-count of ballot-papers must contain averments which are adequate, clear and specific making out a case of improper acceptance or rejection of votes or non-compliance with statutory provisions in counting. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted would not serve the purpose.
3. The scheme of the rules prescribed in Part V of the Conduct of Elections Rules, 1961 emphasises the point that the election petitioner who is a defeated candidate has ample opportunity to examine the voting papers before they are counted, and in case the objections raised by him or his election agent have been improperly overruled, he knows precisely the nature of the objections raised by him and the voting papers to which those objections related. It is in the light of this background that Section 83(1) of the Act has to be applied to the petitions made for inspection of ballot boxes. Such an application must contain a concise statement of the material facts.
4. The election petitioner must produce trustworthy material in support of the allegations made for a re-count enabling the court to record a satisfaction of a prima facie case having been made out for grant of the prayer. The court must come to the conclusion that it was necessary and imperative to grant the prayer for inspection to do full justice between the parties so as to completely and effectually adjudicate upon the dispute.
5. The power to direct inspection and re-count shall not be exercised by the court to show indulgence to a petitioner who was indulging in a roving enquiry with a view to fish out material for declaring the election to be void.
6. By mere production of the sealed boxes of ballot papers or the documents forming part of record of the election proceedings before the court the ballot papers do not become a part of the court record and they are not liable to be inspected unless the court is satisfied in accordance with the principles stated hereinabove to direct the inspection and re-count.
7. In the peculiar facts of a given case the court may exercise its power to permit a sample inspection to lend further assurance to the prima facie satisfaction of the court regarding the truth of the allegations made in support of a prayer for re-count and not for the purpose of fishing out materials. " (Emphasis added) 27.In the light of the above, the learned counsel had stated that since none of the grounds raised therein are found in the original election petition, it is not a fit case where any request of the election petitioner can be considered.
28.The learned counsel for the applicant further referred to a judgment of the Supreme Court in Udey Chand v. Surat Singh reported in (2009) 10 SCC 170 wherein V.S.Achuthanandan's case (cited supra) was referred to and followed. The following passages found in paragraphs 27 to 31 of the said judgment may be usefully extracted below: "27.Having viewed the matter in the light of the principles enunciated above, we are constrained to note that the Tribunal as also the High Court lost sight of the parameters to be applied while considering the petition seeking re-counting of votes. We find that the allegations in the election petition were not only vague, even the basic material facts as could have made the Tribunal reach a prima facie satisfaction that re-count of ballots was necessary were missing in the petition. Affidavit in support of the allegations, summarised in para 3 above, was neither filed nor called for, more so, in a case where serious allegations of misconduct were levelled against the Returning Officer. Having regard to the fact that concededly the result sheet had been signed by the election petitioner, perhaps, it was a fit case where the examination of the Returning Officer was necessary to elicit the correctness of the allegations in the petition. 28.It is manifest from the observations of the Tribunal, extracted in para5 above, that the sole factor which had weighed with it to order re-count was the margin of only four votes between the appellant and the election petitioner. In our opinion, a narrow margin of four votes does not per se give rise to a presumption that there had been an irregularity or illegality in the counting of votes. 29.Apart from laying the foundation in the pleadings, the onus to prove the allegation of irregularity or illegality on the part of the Returning Officer was on the election petitioner, which he failed to discharge. The allegation against the Returning Officer of obtaining the signatures of the election petitioner on a blank result sheet and filling up the same after the election petitioner had left the polling station, was a serious allegation involving dereliction of duty. It could not be accepted at its face value and had to be proved with cogent material, which was not done. 30.We are convinced that in order to overcome his lapse in not availing of the statutory remedy for re-counting of votes as provided in Rule 69 as also the factum of his signing the result sheet in Form 19, the plea of incorrect recording of the result after his departure from the polling station was raised by the election petitioner. Clearly, it was an afterthought. In this regard, the following observations by a three-Judge Bench of this Court in Chandrika Prasad Yadav case5 are quite apposite: (SCC p.339, para 26) 26.Ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is not availed of by the election petitioner; he has to state the reasons therefor. If no sufficient explanation is furnished by the election petitioner as to why such statutory remedy was not availed of, the Election Tribunal may consider the same as one of the factors for accepting or rejecting the prayer for re-counting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for re-counting has been made out. 31.In the light of the aforestated factual scenario, we are of the opinion that in the present case there was no material on record on the basis whereof the Tribunal could have arrived at a positive finding as to how a prima facie case had been made out to order a re-count of the ballot papers. The order of re-count was passed by the Tribunal mechanically without any application of mind and, therefore, the High Court erred in upholding it."
29.A further reference was made to a judgment of the Supreme Court in Tukaram S. Dighole v. Manikrao Shivaji Kokate reported in (2010) 4 SCC 329 for contending that the charge of corrupt practice envisages by the Representation of People Act is to be equated with the criminal charge. Therefore, the standard of proof that is required is not preponderance of probabilities as in civil action, but the proof beyond reasonable doubt as in the criminal trial. A heavy onus lies on the election petitioner to prove the charge of corrupt practice. For this purpose, he referred to the following passages found in paragraphs 12 and 13, which reads as follows: "12.Before we proceed to examine the controversy at hand, we deem it necessary to reiterate that a charge of corrupt practice, envisaged by the Act, is equated with a criminal charge and therefore, standard of proof therefor would not be preponderance of probabilities as in a civil action but proof beyond reasonable doubt as in a criminal trial. If a stringent test of proof is not applied, a serious prejudice is likely to be caused to the successful candidate whose election would not only be set aside, he may also incur disqualification to contest an election for a certain period, adversely affecting his political career. Thus, a heavy onus lies on the election petitioner to prove the charge of corrupt practice in the same way as a criminal charge is proved. 13.Explaining the nature and extent of burden of proof in an election trial involving a charge of corrupt practice, in Razik Ram v. Jaswant Singh Chouhan2, speaking for the Bench, Sarkaria, J. observed as under: (SCC p.776, para 15)
15. It is well settled that a charge of corrupt practice is substantially akin to a criminal charge. The commission of a corrupt practice entails serious penal consequences. It not only vitiates the election of the candidate concerned but also disqualifies him from taking part in elections for a considerably long time. Thus, the trial of an election petition being in the nature of an accusation, bearing the indelible stamp of quasi-criminal action, the standard of proof is the same as in a criminal trial. Just as in a criminal case, so in an election petition, the respondent against whom the charge of corrupt practice is levelled, is presumed to be innocent unless proved guilty. A grave and heavy onus, therefore, rests on the accuser to establish each and every ingredient of the charge by clear, unequivocal and unimpeachable evidence beyond reasonable doubt. (emphasis supplied) In the light of these binding precedents, he prayed for allowing the application and rejecting the election petition.
30.The main allegations made by the first respondent were twofold. The first is relating to not maintaining proper procedure in the matter of voters who exercised Rule 49(O) option. In that case, nothing can be said against the elected candidate. Even the first respondent's allegation was not that votes which were recorded under Rule 49(O) have been falsely created so as to deprive her of her chance of winning election. The allegations made in this regard are too vague. Merely because these votes were not reflected in Form-20, it does not mean that they did not exist. On the other hand, details regarding voters who exercised their option under Rule 49(O) have been separately provided by the Returning Officer which was filed by the first respondent as document Nos.11 and 12. Therefore, nothing turns out by such allegations. Besides, the allegations are very vague and did not stand the scrutiny of the Court.
31.With reference to recounting of votes, the first respondent had produced only document No.10 which was supposed to have been given by her election agent. It was not even acknowledged by the Returning Officer. The allegation in this regard made in the election petition was too vague and no trial can be allowed on the said issue. Further, the request of recounting cannot be made as a matter of right as set out in the V.S. Achuthanandan 's(II) case in (2001) 3 SCC 81 (cited supra) and Udey Chand's case (cited supra).
32.The other allegation relating to the elected candidate is that he had spent amounts in excess of authorised expenditure which is not even properly pleaded. It was her mere assertion that he had produced some false accounts with the District Election Officer. In the affidavit filed in support of the application, these allegations were not only denied, but also it is brought to the notice of the court that the Election Commission on verification of records has found that accounts were in order and had also refunded the original deposit. In any event, the statement made by the first respondent in this regard cannot be accepted.
33.In this context, it is necessary to refer to the judgment of the Supreme Court in Harkirat Singh v. Amrinder Singh reported in (2005) 13 SCC 511 wherein the Supreme Court dealt with the distinction between material facts and particulars being presented in the election petition. It was stated that the material facts are primary or basic facts which must be pleaded by the plaintiff in support of the case set out by him to prove his cause of action. Particulars are on the other hand details in support of material facts pleaded by parties. 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. In this context, the following passages found in paragraphs 52 and 53 from the said judgment may be usefully extracted below: "52.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. 53.In Halsburys Laws of England (4th Edn.), Vol. 36, para 38, it has been stated:
38.The function of particulars is to carry into operation the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs. This function has been variously stated, namely, either to limit the generality of the allegations in the pleadings, or to define the issues which have to be tried and for which discovery is required. Each party is entitled to know the case that is intended to be made against him at the trial, and to have such particulars of his opponents case as will prevent him from being taken by surprise. Particulars enable the other party to decide what evidence he ought to be prepared with and to prepare for the trial. A party is bound by the facts included in the particulars, and he may not rely on any other facts at the trial without obtaining the leave of the court.
34.These particulars are lacking in the election petition filed by the first respondent. Similarly, the Supreme Court while considering the scope of power under Order 6 Rule 15 in Umesh Challiyill's case (cited supra) found the circumstances under which power can be exercised.
35.Further, in Ram Sukh's case (cited supra), the Supreme Court while dealing with the ground found under Section 100(1)(d)(iv), held in paragraphs 21 to 24 as follows:
"21.We may now advert to the facts at hand to examine whether the election petition suffered from the vice of non-disclosure of material facts as stipulated in Section 83(1)(a) of the Act. As already stated the case of the election petitioner is confined to the alleged violation of Section 100(1)(d)(iv). For the sake of ready reference, the said provision is extracted below: 100.Grounds for declaring election to be void.(1) Subject to the provisions of sub-section (2) if the High Court is of opinion
* * *
(d)that the result of the election, insofar as it concerns a returned candidate, has been materially affected
* * *
(iv)by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be void.
It is plain that in order to get an election declared as void under the said provision, the election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the Act, the result of the election, insofar as it concerned the returned candidate, was materially affected. 22.As already stated, in the present case, the allegation of the election petitioner is that the Returning Officer failed to circulate the attested signatures of his election agent to various polling stations and, therefore, failed to comply with Para 12 of Chapter VII of the Handbook for the Returning Officers. The pleadings in the election petition, in relation to Grounds (i) and (ii), extracted in para 3 above, were as under: 11. That due to the aforesaid inaction of the Returning Officer the polling agent of the petitioner was not permitted to function till 3.00 p.m. by which time more than 80% polling was over. This inaction on the part of the Returning Officer materially affected the election as almost all other polling agents of the petitioner working in other polling stations got confused and supporters of the petitioner either returned back or voted for Congress candidate.
12. That the Returning Officer was duty-bound to send required Praroop of the petitioner and his agents signature one day before the day of election which he did not do. Due to this inaction of the Returning Officer the election of 13 Laxman Chowk Legislative Assembly Constituency was materially affected. 23.There is no quarrel with the proposition that the instructions contained in the Handbook for the Returning Officers are issued by the Election Commission in exercise of its statutory functions and are, therefore, binding on the Returning Officers. They are obliged to follow them in letter and spirit. But the question for consideration is whether the afore-extracted paragraphs of the election petition disclose material facts so as to constitute a complete cause of action. In other words, the question is whether the alleged omission on the part of the Returning Officer ipso facto materially affected the election result. It goes without saying that the averments in the said two paragraphs are to be read in conjunction with the preceding paragraphs in the election petition. What is stated in the preceding paragraphs, as can be noticed from Grounds (i) and (ii) reproduced above, is that by the time specimen signature of the polling agent was circulated 80% of the polling was over and because of the absence of the polling agent the voters got confused and voted in favour of the first respondent. In our opinion, to say the least, the pleading is vague and does not spell out as to how the election results were materially affected because of these two factors. These facts fall short of being material facts as contemplated in Section 83(1)(a) of the Act to constitute a complete cause of action in relation to the allegation under Section 100(1)(d)(iv) of the Act. It is not the case of the election petitioner that in the absence of his election agent there was some malpractice at the polling stations during the polling. 24.It needs little reiteration that for the purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent was materially affected due to the said omission on the part of the Returning Officer. Unfortunately, such averment is missing in the election petition." 36.Therefore, the first respondent in her election petition, dated 29.6.2009 had not specified for any trial in terms of enquiry into the violation of either Section 100(1)(d)(iii) or (iv) or Section 129 of the Representation of the People Act or election is vitiated because of violation of Section 100(1)(d)(iii) or (iv) read with Section 129 of the Act. The election petition is too vague even to be tested in a proper trial. In this context, it is necessary to refer to a judgment of the Supreme Court in Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar reported in (2009) 9 SCC 310, wherein the Supreme Court had an occasion to consider the allegation of one of the candidate crossing the statutory limit in incurring the expenditures towards election. The following passages found in paragraphs 16, 22,23,59 and 61 to 63 of the said judgment may be usefully reproduced below : "16.The third allegation pertains to the election expenses incurred by the appellant on the basis that amount spent on digging of boreholes as well as the cost of five ambulances deployed for discharge of statutory requirements for carrying out mining operations by a company ought to be calculated towards the election expenses incurred by the appellant and, as such, devoid of any merit in view of the insufficiency of pleadings in terms of material facts with respect to the two main allegations of corrupt practices relating to digging of bore wells and five ambulances. 22.Similarly, the respondent failed to give particulars regarding the bore wells whose cost as alleged amounts to Rs6,38,557. Similarly, expenditure of Rs12,50,000 has been alleged to have been made for the purchase of ambulances. The particulars have not been provided. It is not clear as to how the respondent has come to the figure of Rs5,00,000 which according to him has been spent by the appellant. He did not give any particulars regarding either of the bore wells or the ambulances. 23.The appellant denied crossing the limit of Rs5,00,000 as prescribed under the Act and the Rules framed thereunder. It is also alleged that the appellant did not construct any bore wells nor did he provide any ambulances to the villagers and, therefore, the question of showing the same in the election expenses did not arise at all. The appellant denied that an amount of Rs6,38,557 and an amount of Rs12,50,000 as alleged has been the expenditure factually incurred by the appellant and denied having committed any corrupt practice. The question of the election results being materially affected does not arise at all and, therefore, the election petition is liable to be dismissed. 59.In the context of a charge of corrupt practice, material facts would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (the respondent herein) is bound to substantiate before he can succeed on that charge. It is also well settled that if material facts are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient. 61.The legal position has been crystallised by a series of the judgments of this Court that all those facts which are essential to clothe the election petitioner with a complete cause of action are material facts which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act. 62.When we apply the aforementioned test to the election petition in this case, then the conclusion becomes irresistible that the election petition lacks the materials facts. The election petition read as a whole does not disclose any cause of action.
63.Considering the facts and circumstances of this case and principles applicable to the election petition, this appeal deserves to be allowed and we accordingly allow this appeal. Consequently, the election petition stands dismissed. In the facts and circumstances of this case, we direct the parties to bear their own costs." 37.In the light of the above, Application No.6569 of 2009 will stand allowed. Election Petition No.4 of 2009 stands struck off from the election petition register of this court and will stand rejected with cost quantified at Rs.10000/- (Rupees ten thousand only) payable to the applicant/first respondent in the election petition by the original Election Petitioner.
The Returning Officer, 24,Tiruchirappalli Parliamentary Constituency and District Collector, Tiruchirappalli
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