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Madhya Pradesh High Court · body

2014 DIGILAW 1696 (MP)

Arjun Kakodiya v. Kamal Marskole

2014-12-19

G.S.SOLANKI

body2014
JUDGMENT : G.S. Solanki, J. 1. The petitioner has preferred this Election Petition under Section 80 read with Section 81 of Representation of People Act, 1951 (hereinafter referred to as the Act of 1951) calling in question the election of respondent no.1 as a member of Legislative Assembly of the State of Madhya Pradesh from 114 - Barghat (S.T.) Constituency District Seoni with prayer of calling the entire relevant records and the order for re-inspection/recount of votes polled in Legislative Assembly of the State of Madhya Pradesh from 114-Barghat (S.T.) Constituency and further declaration is sought that the election of respondent no.1 may be set aside and instead the petitioner be declared as duly elected candidate. 2. It is undisputed that petitioner was set up as official candidate of Indian National Congress for aforesaid 114- Barghat (S.T.) District Seoni Legislative Assembly Constituency and respondent No. 1 was set up as an official candidate of the Bhartiya Janta Party for 114- Barghat (S.T.) District Seoni Legislative Assembly Constituency and other respondents were set up as official candidates for the different parties. It is also undisputed that the elections of aforesaid Assembly was held as per notified programme of Election Commission, date of polling was 25/11/2013 and date of counting and declaration of result was 8.12.2013. It is further undisputed that Shri Bharat Yadav, Collector Seoni District, Seoni was the District Election Officer and Shri K.C. Parte was appointed as Returning Officer and Sub Divisional Officer (Agriculture) Seoni was appointed as Officer In-charge for postal ballots pertaining to 114- Barghat (S.T.) District Seoni, Legislative Assembly Constituency. 3. Petitioner's case, in short, is that District Election Officer and Returning Officer have been under the influence of ruling party in the State (BJP) because apparent when at every step of counting of votes on 8.12.2013 they violated the model code of conduct. Petitioner continuously raised objections before the competent authorities, ultimately on the end of counting, the petitioner made an objection/application for recounting of votes in writing on 8.12.2013 at 7.00 pm before the District Election Officer, Seoni District, Seoni. A copy of the same has been received by the Returning Officer 114- Barghat (S.T.) District Seoni Legislative Assembly Constituency regarding recounting of votes and postal ballots. But due to influence of ruling party recounting has not been conducted. A copy of the same has been received by the Returning Officer 114- Barghat (S.T.) District Seoni Legislative Assembly Constituency regarding recounting of votes and postal ballots. But due to influence of ruling party recounting has not been conducted. Petitioner has raised major abnormality in counting of postal ballots but the District Election Officer and the Returning Officer rejected the same vide order dated 8.12.2013 at frivolous and false grounds and reasons. 4. Petitioner again made an application to the Chief Election Officer, New Delhi through Sub Divisional Magistrate, Barghat, District Seoni on 9.12.2013 but same has yet not been decided. Petitioner further filed a detailed representation to the District Election Officer through Returning Officer on 10.12.2013. After counting of votes there was a dispute in relation to number of postal ballots and its polling in favour of the candidates. Petitioner has got some suspicion on counting, therefore, petitioner has applied for recounting on the same reasons and grounds. Petitioner has applied for information relating to the number of postal ballots issued and received back after voting and petitioner got date wise different informations about the postal ballots from the different authorities. Copy of the information received from different authorities are Annexures-EP/6, EP/7 and EP/8. Petitioner has applied for certified copy of Form No. 20 and other documents but due to influence of polling parties, same has not been supplied in time. It is further pleaded that petitioner has filed an application for recounting of votes under Rule 63(2) of Conduct of Election Rules at an appropriate stage but same was rejected on the frivolous grounds that petitioner has not raised any objection at proper stage. It is further pleaded that petitioner was polled the highest number of votes in counting of votes through electronic voting machine and as per newspaper Peoples Samaachar News, Jabalpur dated 9.12.2013 petitioner was declared as winning candidate by 728 votes. On the basis of aforesaid pleadings and grounds, prayer has been made for order of reinspection/recounting of votes and for setting aside the election of respondent no.1 and further the petitioner be declared as duly elected candidate. 5. Respondent no.1 has denied all averment of the petition other than admitted facts and pleaded that pleading in regard to recounting of votes are vague and deficient. 5. Respondent no.1 has denied all averment of the petition other than admitted facts and pleaded that pleading in regard to recounting of votes are vague and deficient. Though it is pleaded that the District Election Officer and the Returning Officer were working under influence of ruling party and thereby they violated model code of conduct but no complaint in this regard was ever submitted by the petitioner to the said authorities or before the Observer of the Election Commission of India who was present at the spot throughout counting process. It is further submitted that on 8.12.2013, election result of 114 Barghat (S.T.) District Seoni Legislative Assembly Constituency was declared at 6.30 pm and application for recounting was filed by petitioner at 7.10 pm after declaration of the result. It is further submitted that postal ballots were counted at a threshold before the first round of counting. The counting agents of the petitioner at no point of time filed any objection with regard to number of postal ballots or the counting of the said postal ballots. On the contrary being satisfied with the counting process appended their signatures on Form No. 17-C Part-II. It is submitted that there is no such pleading that any election agent has raised any objection during counting process. It is denied that petitioner was polled highest number of votes in counting of votes through electronic voting machine. It is further denied that petitioner was declared winning candidate by 728 votes. It is additionally pleaded that petitioner has failed to plead total number of votes polled in his favour and in favour of other candidates, details of postal votes and margin of his defeat etc. In absence of all such material facts petitioner has failed to raise the triable issue before this Court. It is further pleaded that petitioner has not pleaded any specific irregularities in the counting process in regard to the fact that how many votes were wrongly counted in favour of the returned candidate. He further failed to state as to how the election has been materially affected by such irregularities in the counting. In the absence of aforesaid pleading, there is no basis for seeking recount of votes. On the basis of aforesaid pleading, it is submitted that petition deserves to be dismissed. 6. He further failed to state as to how the election has been materially affected by such irregularities in the counting. In the absence of aforesaid pleading, there is no basis for seeking recount of votes. On the basis of aforesaid pleading, it is submitted that petition deserves to be dismissed. 6. On the basis of aforesaid pleadings of the parties following issues have been framed: The respective finding is noted against each of them. ISSUES NOS. 1, 2 & 3 Since all these issues are inter connected, therefore, these are considered together. 7. The petitioner has pleaded that the District Election Officer and the returning officer were under the influence of ruling party in the State (BJP) because apparent when at every step of counting of votes, they have violated model code of conduct. It is further pleaded that the petitioner continuously raised the objection before competent authorities, ultimately at the end of counting, the petitioner filed an objection/application (ExP-3) for recounting of votes in writing on 8.12.2013 at 7:00 PM before District Election Officer, Seoni but due to influence of the ruling party, no recounting has been conducted and the objection has been rejected on frivolous grounds vide order (Ex.P-9). 8. Respondent No. 1 has denied the aforesaid allegations and pleaded that no complaint in this regard was ever submitted by the petitioner to the said authorities or before the observer of Election Commission of India, who was present on the spot throughout the counting process. It is further pleaded that counting agents of the petitioner were present there and they have signed Form No. 17-C Part II and the objection was raised after declaration of election result. 9. Petitioner Arjun Singh Kakodia (PW-1) in his statement has stated that at the time of counting of the postal ballots, he was not fully apprised by the counting staff in regard to counting of ballot papers. He further stated that his agents were also kept in dark. During counting of the ballot papers, he made oral objection but the counting officer informed him that such objection may be raised after completion of the counting, therefore, he could not file written objection during the counting. He has admitted in his cross-examination that at the time of counting of the ballot papers, his counting agent Sunil Rana (PW-3) was present on the counting table. He has admitted in his cross-examination that at the time of counting of the ballot papers, his counting agent Sunil Rana (PW-3) was present on the counting table. He has further admitted that his counting agent did not make any objection before the returning officer, he only informed the petitioner. He has further admitted in his cross-examination that he only wrote in regard to suspicion in the counting of 16th round. 10. Sunil Rana (PW-3), who happened to be the counting agent of the petitioner at the counting table of the ballot papers, has stated that the counting officer has opened the envelop of the ballot papers before him and thereafter put it in the trays of respective candidates in favour of whom the ballot votes were given. He further added that which vote was in whose favour, he could not see. He further stated that he made objection before concerning officer but he told him to see the votes later-on. He further stated that he apprised the aforesaid fact to the petitioner and after discussion, the petitioner made objection before the returning officer. In examination-in-chief itself, this witness has admitted that he was apprised by the counting officer in regard to the fact that how many votes were received by each candidate but when they came out of the premises, they found some difference in the votes. He further admitted in his cross-examination that after completion of counting, he signed the paper prepared in regard to the counting. He further admitted that he had no knowledge in regard to the figures of votes except suspicion in regard to the counting. 11. Respondent No. 1 Kamal Mars Kole (DW-1) has stated that the petitioner did not make any objection during the counting of the ballot votes. Rudra Deo (DW-2), who happened to be the counting agent of respondent No. 1, has specifically stated that witness Sunil Rana and one other Mahendra Bisen were the counting agents of the petitioner and they were present at the time of counting of ballot papers. He has specifically denied that at the time of counting, they were not apprised in regard to the ballot papers. 12. On critical analysis of the aforesaid evidence on record, it reveals that the petitioner or his agent Sunil Rana (PW-3) did not make any written or oral objection during the counting process. He has specifically denied that at the time of counting, they were not apprised in regard to the ballot papers. 12. On critical analysis of the aforesaid evidence on record, it reveals that the petitioner or his agent Sunil Rana (PW-3) did not make any written or oral objection during the counting process. Further the petitioner has not dared to call any counting officer or counting staff to prove his case before this Court. The petitioner or his witness Sunil Rana have not pleaded or proved any fact as to how much votes were not counted in favour of the petitioner. Sunil Rana, who was present at the time of counting, specifically stated that except suspicion, he had no knowledge in regard to the number of votes. 13. I have gone through the objection/application (Ex.P-3), wherein nothing has been found in regard to number of votes or how the irregularities have been committed by the counting staff. What has been written in (Ex.P-3) is only to the effect that there was suspicion in counting of 16th round, therefore, prayer was made for recording of counting of 17th round. It further reveals that objection/application (Ex.P-3) was received by the returning officer on 8.12.2013 at 7:10 PM. The returning officer has mentioned the aforesaid time i.e. 7:10 PM, just beneath his signatures and seal. 14. So far as the contention of the petitioner that the returning officer was working under the influence of the ruling party (BJP) is concerned, petitioner Arjun Kakodia (PW-1) has not stated any particular instance to show that the returning officer was working under the pressure except the fact that when he filed the objection for recounting, the returning officer has taken the aforesaid application and passed the order after 1 1/2 hours. He further stated that he made a tip of the fact that he filed the aforesaid objection before declaration of result but despite this fact, the returning officer rejected his application. He has further stated that instruction No. 14.108 given in the booklet of Election Commission (Ex.P-7) has not been complied with by the returning officer. 15. In the instant case, it is not disputed that the petitioner has not made any pleading in regard to instruction No. 14.108 mentioned in the booklet issued by the Election Commission. He has further stated that instruction No. 14.108 given in the booklet of Election Commission (Ex.P-7) has not been complied with by the returning officer. 15. In the instant case, it is not disputed that the petitioner has not made any pleading in regard to instruction No. 14.108 mentioned in the booklet issued by the Election Commission. Learned Senior Counsel appearing for respondent No. 1 has argued that mere non-compliance or breach of constitution or statutory provision by itself does not result in invalidity of election of the returned candidate as provided under Section 100(1)(d)(iv) of the Act of 1951. He has placed reliance on a decision of the Apex Court in Mangani Lal Mandal Vs. Bishnu Deo Bhandari - : (2012) 3 SCC 314 . In the said case there was breach and non compliance but there was no pleading as to suppression of information by the returned candidate in the affidavit filed along with the nomination papers with regard to his first wife and dependent children from her and further, non disclosure of their assets and liabilities, has materially affected the result of the election. 16. Similar is the situation here in the instant case. There is no pleading in regard to non-compliance of instruction 14.108 mentioned in the booklet issued by the Election Commission, therefore, evidence without pleading cannot be taken into consideration. Further there is no specific pleading and proof in regard to influence made by the ruling party as to who made the influence upon whom and how influence or pressure has been exerted upon the returning officer. Merely taking the objection or filing the application, which was itself cryptic in nature, does not establish that there was irregularities in the counting of ballot papers. Merely on the ground that the returning officer passed the order on the objection/application after 1 1/2 hour, it cannot be said that he was influenced by the ruling party. Further it is apparent from order (Ex.P-9) passed by the returning officer on 8.12.2013 that the petitioner has filed his objection after completion of the 17th round and completion of counting of postal ballots, then why the agent of the petitioner has signed Form No. 17-C Part II after being satisfied with the counting. The application was filed after completion of 18th round as well as completion of whole counting and after declaration of the result, therefore, same was rejected. The application was filed after completion of 18th round as well as completion of whole counting and after declaration of the result, therefore, same was rejected. 17. Sunil Rana, election agent of the petitioner has admitted in his cross-examination that he had signed the aforesaid Form No. 17-C Part II and further admitted that he had only suspicion regarding counting, thus, it is clear that the application (Ex.P-3) was filed only on the basis of suspicion. Rule 63(1 & 2) of the Conduct of Election Rules, 1961, provides that 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 and 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 he demands such re-count. 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. 18. On a bare perusal of objection/application (Ex.P-3), no such specific ground has been mentioned by the petitioner for recounting of votes pertaining to 16th round and ballot papers. There was only suspicion regarding counting of the votes, and only on the basis of suspicion, the order of recounting cannot be passed by the returning officer, therefore, it cannot be said that the order (Ex.P-3) passed by the returning officer, has been passed on frivolous and false grounds or same has been passed under the influence of the ruling party. Thus, in my opinion, the returning officer has rightly rejected the objection/application filed by the petitioner vide order dated 8.12.2013 (Ex.P-9) and he has not committed any illegality in passing the aforesaid order. 19. On the basis of aforesaid discussion as well as oral and documentary evidence on record, issue Nos. 1, 2 and 3 are answered in negative. ISSUES NOS. 4 & 5 20. The petitioner has pleaded that there was major abnormality in counting of postal ballots and there was dispute in relation to number of postal ballots and its polling in favour of the candidates. 1, 2 and 3 are answered in negative. ISSUES NOS. 4 & 5 20. The petitioner has pleaded that there was major abnormality in counting of postal ballots and there was dispute in relation to number of postal ballots and its polling in favour of the candidates. The petitioner was having some suspicion with respect to counting, therefore, he filed objection/application for recounting of the same. It is further pleaded that in regard to the number of postal ballots issued and received back after voting, the petitioner got date-wise different information about the postal ballots from different authorities. (Annexures- EP/6, EP/7 and EP/8) have been filed by the petitioner in support of the aforesaid pleading. 21. Respondent No. 1 has denied the aforesaid pleading of the petitioner and has specifically stated that the petitioner has failed to give details of total number of votes polled i.e. the votes polled in his favour and in favour of the other candidates and the details of postal ballots and margin of his defeat. It is further pleaded that there is no pleading in regard to irregularities in counting such as in what manner, at what time, at whose instance and for benefit of whom such irregularities have been committed and who was the witness of such irregularities. It is further specifically pleaded that the petitioner has also failed to state as to how the election of respondent No. 1 has been materially affected by any such irregularities in the counting. 22. Learned Senior Counsel appearing on behalf of respondent No. 1 has argued that recounting of votes should not be ordered as a matter of course in the absence of pleading of material facts supported by contemporaneous evidence. He has placed reliance on the decisions of the Apex Court in Satyanarain Dudhani Vs Uday Kumar Singh and others : 1993 Supp (2) SCC 82; Charan Dass Vs. Surinder Kumar and others -1995 Supp (3) SCC 318; M. Chinnasamy Vs. K.C. Palanisamy and others : 2004(6) SCC 341 . 23. In counter, learned counsel for the petitioner has submitted that so far as material fact is concerned, in stating the material fact, it will not do merely to quote the word of section because then efficacy of material fact will be lost. He has placed reliance on the decision of the Apex Court in Ram Sukh Vs. 23. In counter, learned counsel for the petitioner has submitted that so far as material fact is concerned, in stating the material fact, it will not do merely to quote the word of section because then efficacy of material fact will be lost. He has placed reliance on the decision of the Apex Court in Ram Sukh Vs. Dinesh Aggarwal : AIR 2010 SC 1227 . In the instant case, it is undisputed on record that the petitioner has not pleaded the words 'materially affected'. In order to resolve the aforesaid controversy, it is necessary to reproduce Section 100(1)(d)(iv) of the Act of 1951. 100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion- (a)................ (b)................ (c)................ (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) ..................... (ii)...................... (iii)........................ (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. 24. A bare reading of aforesaid provision with Section 83 of the Act of 1951 leaves no manner of doubt that where a returned candidate is alleged to be guilty of non-compliance with the provision of the Constitution or the Act of 1951 or any rules or orders made thereunder and his election is sought to be declared void on such ground, it is essential for the election petitioner to aver by pleading the material facts that the result of the election, insofar as it concerned the returned candidate, has been materially affected by such breach or non-observance. If the election petition goes to trial then the election petitioner has also to prove the charge of breach or non compliance as well as establish that the result of election has been materially affected. It is only on the basis of such pleading and proof that the Court may be in a position to form opinion and record a finding that breach or non compliance with the provision of the Constitution or the Act of 1951 or any rules or orders made thereunder, has materially affected the result of the election before the election of the returned candidate could be declared void. It means mere non compliance or breach of the Constitution or the statutory provision noticed above, by itself, does not result in invalidating the election of a returned candidate under Section 100(1)(d)(iv) of the Act of 1951. It is obligatory duty of the petitioner to prove by leading the evidence that such breach or non observance of any rules or orders made thereunder has materially affected the election of the returned candidate. 25. So far as argument advanced by learned counsel for the petitioner that merely quoting the word of section is not necessary, is concerned, it is true that merely quoting the word of section is not necessary but at the same time there has to be the specific averments like how and in what manner the irregularities have been committed, who was the officer/staff, who committed the irregularities. On the strength of the decision of the Apex Court in Ram Sukh Vs. Dinesh Aggarwal (supra), learned counsel for the petitioner has argued that the ground of Section 100(1)(d)(iv) are made out in this case. But in the aforesaid case it was found that the petitioner of the case has failed to state material facts in regard to irregularity committed by the returning officer or any alleged omission on the part of the returning officer, without pleading and proof, Rules ipso facto has not materially affected the result of the election. In the aforesaid case specimen signatures of the polling agent are circulated, 80% of the polling was over and because of absence of polling agent, the voters got confused and voted in favour of the first respondent. On the basis of the aforesaid fact, it was found that the pleading was vague and does not spell out as to how the election result was materially affected because of the aforesaid factors and election petition was dismissed at threshold. In the instant case there is no such specific pleading in regard to breach of any rules or non observance of any direction made by the Election Commission in its booklet. On the contrary, it reveals from orders dated 20.3.2014 and 15.4.2014 passed by this Court that the aforesaid booklet (Ex.P-7) was filed subsequently after filing the election petition, as an afterthought. On the contrary, it reveals from orders dated 20.3.2014 and 15.4.2014 passed by this Court that the aforesaid booklet (Ex.P-7) was filed subsequently after filing the election petition, as an afterthought. In these circumstances, if there is any non-observance of instruction No. 14.108 in regard to recounting of ballot papers by the returning officer, it would not be considered as a proved fact that the aforesaid non observance has materially affected the election of respondent No. 1. 26. So far as evidence led by petitioner Arjun Kakodiya and his witnesses Manoj Rahangdale, Sunil Rana and Sitaram Panchshwar is concerned, firstly they are unable to state anything in regard to the irregularities or non-observance of any rule at the time of counting and secondly it is on record that Sunil Rana, who happened to be the election agent of the petitioner, has admitted in his cross-examination that he was having only suspicion in regard to counting. He further admitted that he signed Form No. 17-C Part II. So far as evidence in regard to number of votes as mentioned in (Ex.P-8) is concerned, since there is no pleading as to how many votes were illegally counted in favour of the returned candidate, the evidence in this regard is of no value because it is well established principle of law that no evidence can be read without there being any pleading of the parties. In these circumstances, the petitioner has failed to plead and prove any irregularity committed in counting the votes/postal ballots and further failed to prove as to how such irregularities have materially affected the election of respondent No. 1. 27. So far as the contention of the petitioner that he was polled the highest number of votes, is concerned, again there is no specific pleading as to how many votes of the petitioner were illegally included in the votes of the returned candidate. In Charan Das Vs. Surinder Kumar and others (supra), in similar circumstances, the High Court had refused to order recounting of votes, which decision was upheld by the Apex Court. In that case also the counting agent has signed certificate stating that they were fully satisfied with the conduct of the counting staff in respect of the votes. In Charan Das Vs. Surinder Kumar and others (supra), in similar circumstances, the High Court had refused to order recounting of votes, which decision was upheld by the Apex Court. In that case also the counting agent has signed certificate stating that they were fully satisfied with the conduct of the counting staff in respect of the votes. In these circumstances, the allegation of counting agents that they were kept away and were not allowed to inspect the alleged rejection of ballot papers, was not considered believable. In the instant case also statement of Sunil Rana (PW-3) and other witnesses of the petitioner cannot be said to be believable that the counting officer did not show them the ballot papers. 28. Considering the overall facts and circumstances of the case and evidence on record, I am of the considered view that the petitioner has failed to prove that there is any irregularity in counting of votes including postal ballots, which has materially affected the election of respondent No. 1 and further failed to prove that the petitioner was polled highest number of votes so that he may be declared as duly elected candidate from 114 - Barghat (S.T.) Constituency District Seoni. 29. In view of the aforesaid discussion, issue Nos. 4 and 5 are also answered in negative. 30. On the basis of conclusion arrived at by this Court on issue Nos. 1 to 5, the petitioner has failed to prove the grounds of this petition taken under Section 100(1)(d)(iv) of the Act of 1951. Consequently, the petition is liable to be dismissed and is hereby dismissed. 31. The petitioner has to bear his own cost and cost of respondent No. 1 if certified or as per schedule. A copy of this judgment be forwarded to the Election Commission as well as the Speaker of the State Legislative Assembly.