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Jharkhand High Court · body

2007 DIGILAW 542 (JHR)

Amit Kumar v. Sudesh Kumar Mahto

2007-07-06

DHANANJAY PRASAD SINGH

body2007
JUDGMENT D.P. Singh, J. 1. Hazari filed on behalf of the petitioner to be examined as the first witness in this Election Petition. Case called out. 2. At this stage the learned Counsel for the respondent Sri Pandey requests that I.A. No. 1388 of 2007 regarding the maintainability of the Election Petition in its present form may be taken up first. With consent of the counsels I.A. No. 1388 of 2007 is taken up for hearing on merit. 3. According to this I.A., the present Election Petition was not maintainable mainly on the grounds that the facts brought on record and pleaded by the petitioner do not disclose any corrupt practice has resulted in election of the respondent. It is stressed that all such Election Petitions must discloses on facts pleaded specifically to show that any corrupt practice has been adopted and mere pleading that EVM did not function properly for sometime on 15.2.2005 could not mean that such non functioning of the EVM have resulted in defeat of the petitioner. 4. According to Sri Pandey, these allegations do not fulfilled the requirements of law as laid down under Section 100(1)(d)(ii) of the Act. According to him, all the assertions tempering of the EVM do not disclose as to when, where and by whom the said machines were tampered resulting in any prejudice to the election. So far allegation of mal practice asserted in form 25 and supported by affidavit that the polling agent of the petitioner was assaulted at booth No. 63 by the respondent dated 15.2.2005, made after the elections were over. As such the whole Election Petition is fit to be rejected being not maintainable. In support of this contention Sri Pandey relied upon 2000 (1) SCC 481 . 5. The learned Counsel for the petitioner submitted that the W.S. filed by the respondent does not deny the allegation made regarding mal functioning of the EVM as well as corrupt practices with assault upon the polling agent of the petitioner on 15.2.2005 in both No. 63. Sri Singh further pointed out that all facts essential to press the corrupt practice has been properly pleaded in the Election Petition which requires to be considered by this Court. Sri Singh further pointed out that all facts essential to press the corrupt practice has been properly pleaded in the Election Petition which requires to be considered by this Court. Sri Singh further pointed out that the corrupt practices i.e. assault upon the polling agent has been properly reported to the Polling Officer at booth No. 63 and mal functioning of EVM have been admitted by the Polling Officials as well as respondent. Therefore the Election Petition disclosing all the material facts regarding corrupt practice and mal functioning of the EVM having resulted in wrong reception of votes which is sufficient ground to declare the Election void under Section 100(1)(d)(ii) of the Act. Therefore the present petition properly filed and supported with all relevant facts deserves to be heard on merit. Sri Singh relied upon a decision reported in 2007(2) Supreme Today 273. 6. From the pleadings brought on record by both sides as well as the arguments advanced before me discussed above facts in issue are: i. The present petition filed under the provisions under the Representation of People Act, 1951 (hereinafter referred to as the Act) provided for presentation of such petition under Section 81 of the Act how an Election Petition may be presented on one or more of the counts. Section 82 provides who are to be joined as respondent. Section 83 of the Act requires contents of the petition which is as follows: Contents of Petition: (1) An Election Petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: [provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petitioner. 7. 7. The first point raised by the respondent is that the present petition lacks concise statement of the mal practice as well as full particulars of the corrupt practices alleged against the respondent. 8. After going through the Election Petition as discussed above from para 12 to 18 of the petition, the non functioning of the EVM at different booths No. 54, 55, 101, 105, 106, 133 and 140 appears to have been brought on record. It is also asserted by the petitioner that the EVM during short period at these booths resulted in casting votes on a particular mark/"banana" though not intended by the voters resulting in the vote being casted in favour of the petitioner. It further mentions that the machines were not brought and stored at the Central Receiving Storage at Ranchi on 15.2.2005 and admittedly reached after 19 hours. Apart from the above corrupt practices alleged by way of assault upon the polling agent of the petitioner Brindaban Goshwami by the respondent has been mentioned in form 25 required under Section 94-A of the Act which stands supported by the affidavit at of the petition. 9. According to Sri Pandey, these facts are not sufficient to disclose the corrupt practices. On the contrary, Sri Singh learned Counsel for the petitioner pleaded that necessary facts have been pleaded by the petitioner required under the provisions of the Act specifically under Section 83(1)(a)(b)(c). Sri Singh further pointed out that these facts need to be scrutinized during the trial under the provisions of Section 86 and if this Court find and hold that no cause of action has occurred, the petition may be dismissed with cost. 10. The I.A. No. 1388 of 2007 is for deciding the preliminary issue whether the facts pleaded by the petitioner is in sufficient and the petition itself deserves to be dismissed for non disclosure of facts which are required under the provision of this Act to disclose mal practices and irregularity in the election process or not. In this context, the decision relied upon by the respondent may be useful. The Honble Apex Court in R.P. Moldutty v. P.T. Kunju Mohammad and Anr. has occasion to consider the corrupt practices required to be pleaded in such an Election Petition. Their Lordships Honble Justice Dr. In this context, the decision relied upon by the respondent may be useful. The Honble Apex Court in R.P. Moldutty v. P.T. Kunju Mohammad and Anr. has occasion to consider the corrupt practices required to be pleaded in such an Election Petition. Their Lordships Honble Justice Dr. A.S. Anand, as C.J.I., Honble Justice S. Rajendra Babu and Honble Justice R.C. Lohati as their Lordships were sitting at that time, have laid down what may be standard of proof in support of the corrupt practices alleged by the petitioner and the onus to prove upon such petitioner. Their Lordships had occasion to discuss the provisions of the conduct of Election Rules 1961, Rule 94(A) and Form 25 along with provisions of Section 83 of Representation of People Act, 1951 vide para 14, 33 and 35. 11.The said Civil Appeal No. 6618 of 1997 was preferred by the appellant who has been defeated in the election and his election petition was also dismissed by the High Court that the appellant failed to make out a case of corrupt practices under Section 123 Sub-section 3(a) of the Act for attempted promotion of feeling of enmity. The High Court has finally decided that the appellant could not make out the case of corrupt practices and the assertions did not disclose the facts necessary to constitute corrupt practices.Their Lordships have discussed the provisions at length in para 15, 16 and 17 of the judgment and held that such petition would be liable to be dismissed at the threshold for non compliance of the requirements of the proviso to Section 83(1) of R.P. Act and form 25 appended to Rules 94(A) to discourage the wild and irresponsible allegations unsupported by facts on record. This law was laid down in an appeal under Section 116A of the Act preferred by the candidate who lost in the election as well as in the Election Petition challenging the election of respondent No. 1. Sri Pandey submitted that in such view of the facts the present Election Petition deserves to be dismissed on this issue alone. 12. This law was laid down in an appeal under Section 116A of the Act preferred by the candidate who lost in the election as well as in the Election Petition challenging the election of respondent No. 1. Sri Pandey submitted that in such view of the facts the present Election Petition deserves to be dismissed on this issue alone. 12. The petitioner has relied upon a decision cited above 2007 (2) Supreme Today 273 wherein the Honble Apex Court in Civil Appeal No. 809/2005 considered the dismissal of Election Petition on preliminary objection that it did not disclose material facts in the Election Petition to disclose corrupt practices under the provision of Section 82, 83, 100 and 123 of the Act. This appeal has been preferred by the unsuccessful candidate who has preferred the Election Petition No. 2 of 2003 before the High Court of Himachal Pradesh, Shimla that he lost by small margin of 51 votes due to defective EVM and the returning officer counting such double votes in spite of objections raised by him. The Election Petition, preferred by the appellant was dismissed on preliminary issue No. 5, 6 and 8 discussing all the relevant facts. For better appreciation the issue as taken up by the high court may be reproduced. On the basis of the pleadings, the High Court framed eight issues. The High Court, however, treated issues Nos. 5, 6 and 8 as preliminary issues. Since, we are concerned in the instant case only with regard to preliminary issues, they may be reproduced. 5. Whether the Election Petition does not disclose any cause of action? 6. Whether the petition lacks in material facts and particulars, as contemplated under Section 83 of the Representation of People Act? 8. Whether the petitioner is estopped from claiming recounting of votes? 16. The points raised in this appeal before the Honble Apex Court was that the High Court has committed an error of law in dismissing the Election Petition at the threshold without entering into the merits of the matter on the ground that it did not set out material facts in the Election Petition and failed to disclose valid cause of action and as such it was liable to be dismissed. Their Lordships held as follows: We have heard the learned Counsel for the parties. Their Lordships held as follows: We have heard the learned Counsel for the parties. The learned Counsel for the appellant contended that the High Court has committed an error of law in dismissing the Election Petition at the threshold without entering into merits of the matter on the ground that it did not set out material facts in the Election Petition and failed to disclose cause of action and as such it was liable to be dismissed. According to the learned Counsel, not only material facts had been set out in the Election Petition, but full particulars had also been mentioned. The High Court was, therefore, not right in dismissing the petition without entering into the correctness or otherwise of the allegations and averments in the petition. The counsel, therefore, submitted that the appeal deserves to be allowed by setting aside the order of the High Court and by remitting the Election Petition to be decided on merit. Their Lordships having discussed the provisions of Section 82, 83 and 100 of the Act at length, and held that an Election Petition must contain of concise statement of material facts on which the petitioner relies. However in para 34, 35, 36 of the judgment Their Lordships did not appreciate the reasonings adopted and conclusions arrived at by the High Court regarding the facts asserted in para 8 of the Election Petition making out specific allegations of mal practice alleged therein and deciding the facts alleged in the Election Petition without providing the petitioner an opportunity to lead evidence on that point. Their Lordships have further discussed distinction between "Facta Probanda" (the facts required to be proved i.e. material facts). "Facta probantia (the facts by means of which they are proved, i.e. particulars or evidence) as follows: There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue. In our considered opinion, material facts which are required to be pleaded in the Election Petition as required by Section 83(1) of the Act read with Order VII, Rule 11(a) of the Code have been pleaded by the Election Petitioner, cause of action has been disclosed in the Election Petition and, hence, the petition could not have been dismissed by the High Court. The impugned order of the High Court suffers from infirmity and cannot be sustained. The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into merits of the case which could be permissible only at the stage of trial of the Election Petition and not at the stage of consideration whether the Election Petition was maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside. 13. Having regards to the above mentioned facts and circumstances, I find that the requirements of Section 83 of the Act along with necessary facts alleging corrupt practices vide Schedule (A) at page 34 supported by affidavit at page 36 are available on records. Accordingly preliminary issue raised in I.A. No. 1388 of 2007 is answered in negative. In the result, I.A. No. 1388 of 2007 stands rejected.The parties are directed to take steps for early hearing of this Election Petition by producing witnesses.