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Madhya Pradesh High Court · body

2010 DIGILAW 175 (MP)

SHRINIWAS TIWARI v. RAJKUMAR URMALIA

2010-02-11

R.C.MISHRA

body2010
Judgment R.C.Mishra, J. ( 1. ) This order shall govern disposal of I.A.No.1/10 which is an application, under Order VII Rule 11(a) read with Order VI Rule 16 of the Civil Procedure Code (hereinafter referred to as "the Code") and Section 83(l)(a) of the Representation of People Act (for short the Act), moved by the respondent no. 1 for rejection of the election petition for non-disclosure of cause of action or a triable issue. ( 2. ) The respondent nos.2 to 25 have remained unrepresented despite service of respective notices. ( 3. ) In this petition, election of the returned candidate viz. the respondent no.1 from M.P. Legislative Assembly Constituency Sirmour No.68 has been called in question on the grounds mentioned in sub-clauses (iii) and (iv) of Section 100(1)(d) of the Act with a prayer for a direction to order re-inspection/recount of ballot papers. The petitioner has further sought a declaration that, he himself has been duly elected from the Constituency. ( 4. ) According to the petitioner, on 08.12.2008 upon conclusion of the counting of votes, he had won the election by securing the highest votes and, accordingly, the official website of Election Commission of India namely www.ceomadhyapradesh.nic.in also displayed that as the official candidate of Indian National Congress, he had secured 456 votes more than his nearest rival viz. the respondent no. 1 who represented Bahujan Samaj Party. Similar result was broadcasted on the National Channel of Doordarshan as well as in the regional news on Bhopal Doordarshan between 7.30 to 7.35 p.m. The release by Press Trust of India and the corresponding result uploaded on the official website of Web Duniya viz. http://hindi.webdunia.com/election08 result/ElectionInfo.htm also contained the same information. However, at about 9 p.m., to his utter dismay, the returning officer informed that he had lost election to respondent no.1 by a margin of 309 votes. On verification, it was found that there was a considerable difference in the number of votes polled and the number of votes counted. Further, there was a difference of 947 votes between the final result sheet prepared in form no.20 and return of election in form no.21-E. Suspecting manipulation in the relevant records, he on 09.12.2008 not only made complaint to the Election Commissioner, Madhya Pradesh, Bhopal but also to the Chief Election Commissioner on 13.12.2008. Further, there was a difference of 947 votes between the final result sheet prepared in form no.20 and return of election in form no.21-E. Suspecting manipulation in the relevant records, he on 09.12.2008 not only made complaint to the Election Commissioner, Madhya Pradesh, Bhopal but also to the Chief Election Commissioner on 13.12.2008. However, no cognizance upon the complaint was taken presumably on the ground that the election commission has no authority to interfere with the process of election after declaration of the result. ( 5. ) In the light of these pleadings, the petitioner has further averred that the result of the election, in so far as it concerned the respondent no.1 was materially affected - (i) by the improper reception, refusal or rejection of votes and (ii) by non-compliance with Rule 54A and 56A of Conduct of Election Rules, 1961 (for brevity the Election Rules). ( 6. ) As pointed out already, the prayer for rejection has been made by respondent no. 1 primarily on the ground that it does not disclose a cause of action. To substantiate the contention he has invited attention to the following facts - (i) Although the petitioner has sought a direction for recounting or re-inspection of votes yet, no such prayer was made, by him or his counting agent, (a) before the Returning Officer as contemplated under Rule 63(2) of the Election Rules or (b) in the complaint made to the Election Commissioner, Madhya Pradesh, Bhopal or (c) in the complaint made to the Chief Election Commissioner of India. (ii) The petition solely based on wrong information disseminated through website or television is not maintainable. Further, even if it is assumed that the petitioner was precluded from making representation in view of a wrong declaration of result on the website or on the television, he was required to offer an explanation as to why the facts pertaining to improper acceptance or rejection of votes or any manipulation in counting as pleaded were not brought to the notice of the Election Commission of India immediately after official/formal declaration of the result. (iii) The petition does not contain the statement of material facts as contemplated in Section 83(l)(a) of the Act. For example, he has not disclosed the information expected to be communicated to him by his election agent as to how many votes were received by him in each rounds. ( 7. (iii) The petition does not contain the statement of material facts as contemplated in Section 83(l)(a) of the Act. For example, he has not disclosed the information expected to be communicated to him by his election agent as to how many votes were received by him in each rounds. ( 7. ) In reply, while raising the preliminary objection as to maintainability of the interim application after filing of the written statement, the petitioner submitted that he has substantially complied with all the relevant provisions governing presentation of election petition on the grounds as contained in sub-clauses (iii) and (iv) of Section 100(1)(d) of the Act. He has further submitted that the fact that written statement has already been filed is sufficient to infer that the respondent no.1 was not, in any way, misled by any deficiency in the pleadings. It has also been pointed out that correctness or authenticity of the documents filed in support of the election petition is not to be gone into at this stage. According to him, there was no occasion to apply for recounting of votes before the Returning officer as he had already been declared as the prospective winning candidate having secured 456 votes more than the respondent no. 1 who was finally declared returned by a margin of 309 votes and, in this way, he has been able to make out a specific case of manipulation whereby 947 votes were subsequently added to the tally of respondent no. 1 by changing result of counting in 9th round and the final result prepared in form no.20 was also manipulated in order to render undue favour to respondent no1. In the light of these submissions, the petitioner has prayed for dismissal of the I.A. with costs. ( 8. ) At the outset, it may be observed that the objection raised against maintainability of the application for rejection of the petition is apparently misconceived in the light of the well-settled principle as explained in Samar Singh v. Kedar Nath ( AIR 1987 SC 1926 ) and reiterated in I. T. C. Ltd. v. Debt Recovery Appellate Tribunal (1998) 2 SCC 70 that the power to reject plaint can be exercised even after settlement of issues. ( 9. ( 9. ) Before entering into the merits of the prayer for rejection of the petition, it would be necessary to first advert to the Rule 63 of the Election Rules, that reads as under - 63. Re-count of votes.- (1) After the completion of the counting, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. (2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to re-count the votes either wholly or in part stating the grounds on which the demands such re-count.] (3) On such an application being made the returning officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (4) Every decision of the returning officer under sub-rule (3) shall be in writing and contain the reasons therefor. (5) If the returning officer decides under sub-rule (3) to allow a re-count of the votes either wholly or in part, he shall- (a) do the re-counting in accordance with 3[rule 54A,] rule 56 or rule 56A, as the case may be; (b) amend the result sheet in Form 20 to the extent necessary after such re-count; and (c) announce the amendments so made by him.] (6) After the total number of votes polled by each candidate has been announced under sub-rule (1) or sub-rule (5), the returning officer shall complete and sign the result sheet in Form 20 and no application for a re-count shall be entertained thereafter: Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (2). ( 10. ) Learned counsel for respondent no.1 has strenuously contended that, in absence of pleadings affording explanation therefor, the petitioners omission to apply before the Returning Officer for a re-count is sufficient to preclude this Court from deciding the issue. ( 10. ) Learned counsel for respondent no.1 has strenuously contended that, in absence of pleadings affording explanation therefor, the petitioners omission to apply before the Returning Officer for a re-count is sufficient to preclude this Court from deciding the issue. To buttress the contention, while pointing out that sub-Rule (2) (supra) is in pari materia with sub-Rule (2) of Rule 79 of the Bihar Panchayat Election Rules 1995, he has invited attention to the following observations made by the Apex Court in Chandrika Prasad Yadav v. State of Bihar (2004) 6 SCC 331 while interpreting Rule 79 (above) - "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 recounting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at the decision as to whether a prima facie case as to issuance of direction for re-counting has been made out." ( 11. ) However, the Court making reference to decision of three Judge Bench decision in Sohanlal v. Babu Gambhir (2003) 1 SCC 108 , whereby a contrary view taken in Ramrati v. Saroj Devi (1997) 6 SCC 66 was overruled further explained that non-filing of an application for re-counting before the Returning Officer would not, by itself, operate as a bar to the petition seeking direction for a recount. This apart, as indicated in prints of the result as displayed on the official web-site as well as that on web-duniya (Annexures 4 and 7) and the letters authored by the news editor of Doordarshan, Bhopal and Regional Head of Press Trust of India (Annexures 5 and 6), the petitioner was declared as elected by a margin of 456 votes. Obviously, he had no occasion to raise any grievance against any foul play in counting of votes. Moreover, by virtue of sub-rule 6, no application for recounting could be entertained by the Returning Officer after signing of the result sheet in form 20. ( 12. ) Learned counsel for respondent no. Obviously, he had no occasion to raise any grievance against any foul play in counting of votes. Moreover, by virtue of sub-rule 6, no application for recounting could be entertained by the Returning Officer after signing of the result sheet in form 20. ( 12. ) Learned counsel for respondent no. 1 is still of the view that, at least, after official declaration of the result, the petitioner ought to have made a request for recount in the complaints addressed to the Election Commission of India or the State Election Commission However, no such pre-condition has been prescribed under the Act or the Election Rules for filing an election petition seeking recount. ( 13. ) Coming to the pleadings, it may be observed that the respondent no.1 has already filed a written statement. As such, it is not a case where the defendant may complain that the allegations made in the election petition were so vague that they would cause prejudice to him in the matter of filing written statement. Besides this, there is a marked difference between the requirement of pleading as regards an election petition based on Section 100(1)(d)(iii) and an election petition based on Section 100(l)(b) of the Act (See. Bidesh Singh v. Madhu Singh (2003) 11 SCC 448 . Accordingly, the cause of action in the case on hand cannot be equated with "cause of action" as is normally understood because of altogether different nature of the consequences that follow. A petition challenging election on the ground of corrupt practice is a serious matter in view of the fact that in case any such allegation is found proved, the returning candidate would not only suffer ignominy but also disqualification under Section 8(a) of the Act. Furthermore, - "A reasonable cause of action is said to mean a cause of action with some chance of success when only the allegations in the pleading are considered. But so long as the claim discloses some cause of action or raises some question fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are quite often more known than clearly understood. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are quite often more known than clearly understood. It does introduce another special demurer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars". (Mohan Rawale, v. Damodar Tatyaba alias Dadasaheb, 1994 AIR SCW 2028 referred to). ( 14. ) Applying this test, it can easily be concluded that the petition certainly discloses a cause of action. ( 15. ) It is trite law that a petition not fulfilling the requirements of Section 83(1) can be rejected at the threshold as by virtue of S.87 of the Act, it is to be tried in accordance with the procedure applicable under the Code, to the trial of suits. The well-settled principles of law on the point as re-affirmed by a three Judge Bench of the Supreme Court in V. Narayanaswamy v. C. P. Thirunavuk-karasu AIR 2000 SC 694 may be extracted as under - For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such. "Material facts" mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of the Order VI Rule 16 and Order VII Rule 11 of the Code of Civil Procedure. ( 16. ) Needless to say that neither the authenticity of the documents filed in support of the petition nor defence of the respondent no.1 is to be taken into account while deciding an application for rejection of the election petition. ( 17. ) For these reasons, none of the objections, as raised in the application as to maintainability of the petition, deserves acceptance. In the result, the I.A. stands dismissed. The matter be listed for framing of issues on 09.03.2010. Order accordingly.