Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 403 (PAT)

Vijay Krishna v. Nitish Kumar

2002-03-22

M.L.VISA

body2002
Judgment 1. This is an order on the petition filed on behalf of respondent No. 1 raising preliminary objection regarding maintainability of election petition and rejoinder of election petitioner to this petition. 2. Respondent No. 1 in this petition under consideration has stated that the election petition is not maintainable and it is fit to be dismissed summarily under Sec. 86 of Representation of the People Act, 1951 (hereinafter referred to as the Act) for non-compliance of mandatory provisions of Secs. 81, 82 and 117 of the Act. According to respondent No. 1 the copy of election petition filed and served by election petitioner on him is not in fact properly attested and signed and hence it is liable to be dismissed under Sec. 86(1) of the Act. Further objection of respondent No. 1 is that election petitioner in his election petition has made reckless and imaginary allegations of commission of irregularities and illegalities in the counting of ballot papers but he has totally failed to furnish material facts and relevant particulars regarding the said allegations and election petition does not show any cause of action and is fit to be dismissed under Order 7, Rule 11 of the Code of Civil Procedure (in short CPC) read with Sec. 83 of the Act. The further case of respondent No. 1 is that there is no contemporaneous document to support baseless and imaginary allegations of petitioner regarding commission of irregularities and illegalities in the counting of ballot papers and the entire election petition simply makes allegations of improper acceptance of invalid ballot papers but it does not contain any material fact to support this allegation. Respondent No. 1 has prayed for deciding the preliminary objection regarding maintainability of election petition which he has already raised in his written statement. Respondent No. 1 has prayed for dismissing the election petition after passing necessary order. 3. The election petitioner has filed rejoinder and has opposed the prayer of respondent No. 1 for dismissing the election petition. According to the election petitioner, respondent No. 1 has filed the petition under consideration with an ulterior motive to delay the trial of election petition. Respondent No. 1 has prayed for dismissing the election petition after passing necessary order. 3. The election petitioner has filed rejoinder and has opposed the prayer of respondent No. 1 for dismissing the election petition. According to the election petitioner, respondent No. 1 has filed the petition under consideration with an ulterior motive to delay the trial of election petition. According to the election petitioner, the respondent No. 1 in his petition has not specifically stated that what material facts are wanting in the election petition and Sec. 83(1)(a) of the Act simply requires that election petitioner is to state the material facts in concise form and it nowhere requires that the election petition should also contain the details of evidence through which allegations made in the election petition are required to be proved. Further case of election petitioner is that pleading is required to be construed liberally and is to be read as a whole. About copy of election petition served on respondent No. 1 the case of election petitioner is that he has fully complied the provisions of Secs. 81, 82 and 117 of the Act and he has attested every copy of election petition strictly in accordance with law. It has further been stated by the election petitioner that he has furnished all relevant material facts and particulars in his petition regarding the allegations of commission of irregularities in the counting of ballot papers and material facts concerning the allegation of miscounting of ballot papers can not be equated with the allegation of corrupt practice. Election Petitioner has prayed for dismissing the petition of respondent No. 1 raising preliminary objection regarding maintainability of election petition. 4. The first objection of respondent No. 1 is that copy of election petition served on him is not properly attested and signed and therefore, election petition is fit to be dismissed under Sec. 86(1) of the Act for non-compliance of the provisions of Sec. 83(1)(a) of the Act. The reply of election petitioner is that he has attested every copy of election petition strictly in accordance with law and statement of respondent No. 1 that the copy of election petition served on him is not attested by petitioner is incorrect. The reply of election petitioner is that he has attested every copy of election petition strictly in accordance with law and statement of respondent No. 1 that the copy of election petition served on him is not attested by petitioner is incorrect. In his objection petition the respondent No. 1 has simply stated that copy of election petition served on him is in fact not properly attested and signed but he has not made it clear whether copy of election petition has not been attested and signed by petitioner or by notary. In the written statement filed on behalf of respondent No. 1 in para 2 it is simply stated that mandatory provisions of Secs. 81, 82, 83 and 117 of the Act have not been complied with. Nowhere in his written statement respondent No. 1 has stated that copy of election petition served on him was not attested and signed. Learned counsel appearing on behalf of respondent No. 1 relying upon a decision of the Bombay High Court in the case of Purshottam V/s. Returning Officer, Amaravati, AIR 1992 Bom 227 , has argued that "the absence of endorsement of notary on the copy of affidavit accompanying the election petition renders the copy as not conforming the requirements of Sec. 81(3) of the Act and therefore, election petition is liable to be dismissed on account of that omission." Admittedly this decision was in respect of endorsement of notary on the copy of affidavit sworn by election petitioner under Rule 94A of the Conduct of Election Rules, 1961 (in short, the Rules). Such affidavit is required under the proviso to Sec. 83 of the Act which states that where petitioner raises any corrupt practice the election petition shall also be accompanied by such an affidavit. In the present case petitioner, has not made allegation of the use of any corrupt practice by any of respondents. Besides this, respondent No. 1 has not shown to this Court the copy of election petition which was served on him in support of his case that copy of election petition was not duly attested and signed by petitioner. On the other hand, in para 29 of election petition itself election petitioner has stated that he has accompanied 10 extra copies of election petition duly attested as true copy of original election petition under his own signatures. On the other hand, in para 29 of election petition itself election petitioner has stated that he has accompanied 10 extra copies of election petition duly attested as true copy of original election petition under his own signatures. Considering all these facts, I do not find any merit in the objection raised on behalf of respondent No.1 that copy of election petition served on him has not been duly attested and signed by election petitioner. 5. Learned counsel of respondent No. 1 has further argued that there is no order passed by the Returning Officer on the petition said to have been filed by the election petitioner under Rule 63 for recount of votes and therefore in view of the decision of the Apex Court in the case of Ram Rati (Smt.) V/s. Saroj Devi (1997) 6 SCC 66 the inference will be that no such application had been made on the date of declaration of result and the allegation of an application having been made, would be an afterthought. To this, reply of petitioner is that Prof. Subhash Chandra Singh, election agent of petitioner, on 7-10-1999 filed a petition for recount of ballot papers before final declaration of result and Returning Officer assured the election agent of petitioner of his passing necessary order on the petition for recount but the Returning Officer without passing any order on the petition of recount filed by the election agent of petitioner declared the result. In the election petition the petitioner has annexed the copy of petition which, according to him, his agent had filed before the Returning Officer for recounting and this copy of petition is marked Annexure-1. The election petitioner in his election petition has further stated that he sent petitions through fax to the Chief Election Commissioner, Election Commission of India, Chief Electoral Officer, Bihar, Patna and Returning Officer for recounting of ballot papers but recount was not done. He has annexed copies of these petitions with the election petition and these copies are marked Annexures 2, 2-a and 2-b. When there is specific statement of election petitioner that in spite of filing a petition before the Returning Officer for recounting of votes, no order was passed by the Returning Officer, in such circumstances, the question of producing by petitioner any order passed by the Returning Officer on the petition of recount does not arise. In presence of specific averment of petitioner that Returning Officer did not pass any order on the petition for recount of votes he could have at best annexed the copy of his petition filed before the Returning Officer which he has already done. Besides this, in the case of Ram Rati (Smt.) V/s. Saroj Devi which has been relied upon by the learned counsel of respondent No. 1 , no copy of petition for recount was produced even at the stage of hearing of appeal by the Apex Court and in that situation it was held that allegation of filing such application was an afterthought. The facts of the present case are quite different. Here the petitioner has annexed the copy of petition which according to him was filed by his election agent before the Returning Officer for recount of votes but which, according to him, was not entertained. Besides this, election petitioner is yet to adduce evidence in the case and examination of Returning Officer as a witness in this case is yet to be done. So merely on the ground that there is no order of Returning Officer on the petition filed by election agent of petitioner for recounting of votes at this stage without giving opportunity of election petitioner to adduce evidence in support of his allegation that petition for recount of votes was filed by his election agent it can not be said that no such petition was ever filed and allegation in this regard made by the election petitioner is a afterthought. 6. The next objection raised by the learned counsel of respondent No. 1 is that in para 14 of his petition the election petitioner has not given the number of votes found in the ballot boxes of booth Nos. 94 and 192 of Harnaut Assembly Constituency segment and this part does not show that result was materially affected. It has further been argued that in para 19 the petitioner has not given the booth number or ballot paper numbers of those valid ballot papers of petitioner which, according to him, were mixed up with the bundles of ballot papers of respondent No. 1 and were counted in his favour. Relying upon a number of decisions of the Apex Court in the cases of Ram Sewak Yadav V/s. Hussain Kamil Kidwai, AIR 1964 SC 1249 , Dr. Relying upon a number of decisions of the Apex Court in the cases of Ram Sewak Yadav V/s. Hussain Kamil Kidwai, AIR 1964 SC 1249 , Dr. Jagjit Singh V/s. Giani Kartar Singh, AIR 1966 SC 773 , Jitendra Bahadur Singh V/s. Krishna Behari, AIR 1970 SC 276 , Shashi Bhushan V/s. Prof. Balraj Madhok , AIR 1972 SC 1251 , Chanda Singh V/s. Choudhary Shiv Ram Verma (1975) 4 SCC 393 , Bhabhi V/s. Sheo Govind 1975 (Supp) SCR 202, Pritpal Singh V/s. Ranjit Rai, AIR 1984 Delhi 198, Satyanarain Dudhani V/s. Uday Kumar Pandey, 1993 (Supp) 2 SCC 82 and Loknath Padhan V/s. Birendra Kumar Sahu, AIR 1974 SC 505 , learned Counsel of respondent No. 1 has submitted that because the election petition does not disclose material facts the petition is liable to be dismissed at a preliminary stage. 7. Amongst the cases relied upon by learned counsel of respondent No. 1 the case of Loknath Padhan V/s. Birendra Kumar Sahu, AIR 1974 SC 505 was in respect of use of corrupt practice and during the pendency of appeal the Assembly was dissolved and in that circumstance, it was held that the decision would not have any effect on any of the parties and hence it was futile to proceed with the appeal and decide it on merits. The principle laid down in this case is not applicable to the facts of the present case because it is not the case of any contesting parties that Parliament to which respondent No. 1 has been elected has been dissolved. In the case of Satyanarain Dudhani V/s. Uday Kumar Singh, 1993 (Supp) 2 SCC 82 it was held that "an order of recount cannot be granted as a matter of course. The secrecy of ballot papers has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence that recount can be ordered. " In the present case election petitioner is yet to adduce his evidence. In this view of the matter the principle laid down in the aforesaid case is also not applicable to the facts of the present case because in the present case evidence is yet to be adduced on behalf of the petitioner in support of his allegation made in the petition. In this view of the matter the principle laid down in the aforesaid case is also not applicable to the facts of the present case because in the present case evidence is yet to be adduced on behalf of the petitioner in support of his allegation made in the petition. Only after going through the evidence adduced on behalf of the petitioner decision on the point of his allegations can be given. In the case of Ram Sewak Yadav V/s. Hussain Kamil Kidwai, AIR 1964 SC 1249 it was held as follows : "(7) An order for inspection may not be granted as a matter of course : having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection provided two conditions are fulfilled; (i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection." 8. The present case is not a case where there is mere allegation that petitioner suspects and believes that there has been an improper reception, refusal and rejection of votes. In his petition the petitioner has given details of some irregularities which as alleged have been committed in the counting of ballot papers. In the case of Dr. The present case is not a case where there is mere allegation that petitioner suspects and believes that there has been an improper reception, refusal and rejection of votes. In his petition the petitioner has given details of some irregularities which as alleged have been committed in the counting of ballot papers. In the case of Dr. Jagjit Singh V/s. Giani Kartar Singh, AIR 1966 SC 773 it has been held that "in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to improper acceptance or rejection of the voting papers. But in exercising this power, the Tribunal has to bear in mind certain important considerations. Sec. 83(1)(a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material fact on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which S. 83(1)(a) has in mind". In the case of Jitendra Bahadur V/s. Krishna Behari, AIR 1970 SC 276 the decisions of the Apex Court in the cases of Ram Sewak Yadav V/s. Hussain Kamil Kidwai, AIR 1964 SC 1249 and Dr. Jagjit Singh V/s. Giani Kartar Singh, AIR 1966 SC 773 were relied upon and it was held that these and other decisions of the Apex Court and of the High Courts have laid down certain basic requirements to be satisfied before an election tribunal can permit the inspection of ballot papers. They are : "(1) that the petition for setting aside the election must contain an adequate statement of the material facts on which the petitioner relies in support of his case and (2) the tribunal must be prima facie satisfied that an order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary." 9. Learned counsel of respondent No. 1 has stated that because the election petition is silent about the serial numbers of those ballot papers which, according to him, were in his favour but have been counted in favour of respondent No. 1, therefore, the election petition is lacking in stating material facts. In the election petition, apart from the acceptance of invalid ballot papers in favour of respondent No. 1 and rejection of valid ballot papers of petitioner there are other allegations such as, earlier the Returning Officer had decided to reject the ballot papers of four ballot boxes which were tempered but when respondent No. 1 was found to lose the election, ballot papers of those four tempered boxes were counted which according to petitioner has materially affected the result of election. Besides this, in the aforesaid case relied on by learned counsel of respondent No. 1, I find that scrutiny of ballot papers was sought on the basis of assertions which were neither accompanied by material facts nor supported by any evidence because no oral evidence was given in support of allegations made in the election petition. As stated above, in this case the petitioner is yet to adduce his evidence and therefore, at this stage, by applying the principle of the case relied on by learned counsel of respondent No. 1 the election petition cannot be dismissed. 10. In the case of Shri Shashi Bhushan V/s. Prof. Balraj Madhok, AIR 1972 SC 1251 it has been held that "Facts naturally differ from case to case, Therefore it is dangerous to lay down any rigid test in the matter of ordering an inspection. It is no doubt true that a Judge while deciding the question of inspection of the ballot papers must bear in mind the importance of the secrecy of the ballot papers. The allegations in support of prayer for inspection must not be vague or indefinite, they must be supported by material facts and prayer made must be a bona fide one. If these conditions are satisfied, the Court will be justified in permitting inspection of ballot papers. Secrecy of ballot papers is important, but doing justice is undoubtedly more important and it would be more so, if what is in stake is in the interests of the society." 11. If these conditions are satisfied, the Court will be justified in permitting inspection of ballot papers. Secrecy of ballot papers is important, but doing justice is undoubtedly more important and it would be more so, if what is in stake is in the interests of the society." 11. In the case of Chanda Singh v. Choudhary Shiv Ram Verma (1975) 4 SCC 393 the facts were quite different. In that case the election of a successful candidate was challenged on a number of grounds such as, character assassination of the appellant, communal appeal to influence the electorate, bribery of some candidates etc. along with a ground that illegal and erroneous counting of votes fracturing the sure success of the appellant followed by the unjust refusal of a recount which would have revealed the real result. In the petition filed for recount only suspicion was raised but in the election petition a well grounded demand for recount was made and in view of these facts the Court observed that "what was a mere bud of suspicion flowered into several figures of malpractice and it was alleged with surprising accuracy that 1200 votes polled in favour of the petitioner were illegally declared invalid by the Returning Officer." Here the election petitioner has annexed the copy of petition which, according to him, was filed before the Returning Officer for recount of ballot papers and this copy shows that same allegations which are mentioned in election petition were stated. In the case of Bhabhi V/s. Sheo Govind, 1975 (Supp) SCR 202 the Apex Court has held that following are the conditions which are imperative for sample inspection of ballot papers :- (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving enquiry with a view to fish materials for declaring the election to be void; and (5) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials." 12. In that case the Apex Court finding that High Court had not given any finding whether evidence adduced on behalf of respondent No.1 was sufficient for prima facie satisfaction of the High Court, remanded the matter to the High Court for disposing of the application of inspection of ballot papers in the light of aforesaid conditions. 13. Learned counsel of respondent No.1 has argued that because serial number of ballot papers alleged to be improperly rejected and their number of polling stations have not been stated in the election petition, therefore, in view of decision of the Apex Court (Delhi High Court) in the case of Pritpal Singh V/s. Ranjit Rai, AIR 1984 Delhi 198 the petition does not disclose any cause of action. In that case the petitioner had simply given the number of rejected votes at each of the 14 counting tables but in the present case the petitioner has not only given the number of valid ballot papers of petitioner which were mixed up with the valid ballot papers of respondent No. 1 and were counted in his favour tablewise but he has also given the number of rounds in which such irregularities were committed and has also given the name of Assembly Constituency in respect of such ballot papers in a tabular form in para 19 of election petition. 14. Learned counsel for the petitioner has submitted that because counting was not held booth-wise, therefore, it was not possible for the petitioner to give number of booth of such ballot papers. He has drawn attention of this Court towards Rule 59A of the Rules which provides that in certain cases ballot papers taken out of all boxes used in a particular constituency can be mixed before counting. Parties are yet to adduce evidence and only after considering their evidence it can be decided whether counting was held under Rule 59A of the Rules or booth-wise. Learned counsel appearing on behalf of the petitioner relying upon the decision of the Apex Court in the case of Ahwani Kumar Sharma V/s. Yaduvansh Singh, AIR 1998 SC 337 has argued that if an election petitioner in his petition gives the number of votes wrongly counted booth-wise the petition cannot be said to be lacking in concise statement of material facts and rejection of petition on the ground that allegations are not supported by material particulars will not be proper. In this case which has been relied upon by the learned counsel for the petitioner, decision in the case of Arun Kumar Bose V/s. Mohd. Furkan Ansari, AIR 1983 SC 1311 was referred and in that case in spite of the fact that particulars of ballot papers were not given as not available but number of wrongly rejected ballot papers with their counting table numbers and booth numbers were given it was held that pleadings set out material facts as per Sec. 83(1)(a) of the Act and pleading was adequate. Learned counsel for the petitioner has further argued that the decision of the Apex Court in the case of Jitendra Bahadur V/s. Krishna Behari, AIR 1970 SC 276 and in the case of Satyanarain Dudhani V/s. Uday Kumar Singh, AIR 1993 SC 367 which have been relied upon by the learned counsel for respondent No.1 are not applicable to the facts of the present case because these cases do not deal with the summary dismissal of election petition but they are in respect of order of inspection and recount of ballot papers. In the case of Ashwani Kumar Sharma V/s. Yaduvansh Singh, AIR 1998 SC 337 the Apex Court distinguished these two cases and holding that they do not deal with dismissal of election petition in limine on the ground of non-compliance of the provisions of Sec. 83(1)(a) of the Act, remanded the case to High Court for disposal on merit. He has further argued that pleading has to be taken as a whole for gathering intention of the parties and non-mentioning of serial number of improperly counted ballot papers will not be a ground to non-suit the election petitioner at the threshold without trial if the election petitioner in his petition has given particulars of irregularities said to have been committed in counting. In support of this argument he has relied upon the decision of the Apex Court in the case of Mahendra Pal V/s. Ram Dass Malanger, AIR 2000 SC 16 . According to him, in this case the order of Himachal Pradesh High Court dismissing the election petition was set aside and case was remanded to High Court for trial on merit in accordance with law. It has further been argued by the learned counsel for the petitioner that in the case of H. D. Revanna V/s. G. Puttaswamy Gowda, AIR 1999 SC 768 the Apex Court has held that "the test in all cases of preliminary objection is to see whether any of the reliefs prayed for could be granted to the petitioner if the averments made in the petition are proved to be true. If the answer to the question is in the affirmative, the maintainability of the petition has to be upheld. If the answer to the question is in the affirmative, the maintainability of the petition has to be upheld. In the present case we have no doubt that if the allegations contained in the election petition are proved to be true by the petitioner therein, he will be entitled to get the relief set out in the prayer portion. Hence we do not find any merit in the appeals and they are hereby dismissed with costs." He has also relied upon another judgment of Apex Court in the case of D. Ramchandran V/s. R. V. Janakiraman and others, AIR 1999 SC 1128 and has submitted that if election petition does disclose cause of action which if unrebutted could void the election, the provisions of Order 7, Rule 11(a), CPC cannot therefore be invoked in such case. 15. Considering the submissions made on behalf of the parties I find that respondent No.1 has not been able to make out a case for rejecting the petition of election petitioner at the preliminary stage. 16. I, therefore, find no merit in the petition of respondent No.1 challenging the maintainability of election petition and accordingly the petition is dismissed. Petition dismissed.