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2019 DIGILAW 1185 (ALL)

Ritu Jain v. State of U. P.

2019-05-03

SUNITA AGARWAL

body2019
JUDGMENT : Sunita Agarwal, J. 1. This petition is directed against the order dated 18.9.2018 passed by the Election Tribunal/ IInd Additional District and Sessions Judge, Muzaffarnagar in Election Petition No.523 of 2017 (Smt. Ritu Jain vs. Uttar Pradesh and 24 Ors), whereby the Election Petition has been rejected under Order 7 Rule 11 C.P.C. read with Section 20(1) and 22(1) of U.P. Municipalities, 1916. The Election Petition No.523 of 2017 was presented by the petitioner challenging the Election of respondent no.5 (hereinafter referred to as returned candidate). On the presentation of the Election Petition, the returned candidate, before filing of his reply, filed two applications paper no.144Ga under Order 6 Rule 16 C.P.C. and paper no.146 Ga (Order 7 Rule 11 C.P.C.). The application paper no.144Ga has been rejected on the ground that the pleadings of the Election Petition are not unnecessary, scandalous, frivolous and vexatious, which, may cause prejudice, embarrassment or delay in the fair trial of the Election Petition nor the pleadings amount to abuse of process of the Court. 2. It is contended by the learned counsel for the petitioner that once the Election Tribunal had reached at the conclusion that the pleadings in the Elections are not unnecessary, vexatious or abuse of process of Court, it could not have rejected the Election Petition under Order 7 Rule 11 C.P.C. on the ground that the “material facts” had not been disclosed, therein. There is serious contradiction in the order dated 18.9.2018 passed by the Presiding Officer, Election Tribunal, who on the one hand, had dismissed the application 144Ga under Order 6 Rule 16 C.P.C. and allowed the application 146Ga under Order 7 Rule 11 C.P.C. 3. The averments in the Election Petition had been placed before the Court to vehemently submit that the material facts, sufficient to disclose the cause of action for challenging the election of the returned candidate have been disclosed in the Election Petition. The petitioner had contested the Election of Chairman of the Nagar Palika Parishad, Khatauli, Muzaffarnagar, held on 26.11.2017. In different polling booths, total votes were 37452, 45 votes were received through post which were casted by the Government Servants who were engaged in the Election duty i.e, the total votes casted became 37497 (37452+45). The counting of votes was conducted on 1.12.2017, during the process of counting, total (36629 valid and 836 invalid) votes were counted. In different polling booths, total votes were 37452, 45 votes were received through post which were casted by the Government Servants who were engaged in the Election duty i.e, the total votes casted became 37497 (37452+45). The counting of votes was conducted on 1.12.2017, during the process of counting, total (36629 valid and 836 invalid) votes were counted. The proforma 38 containing the result of election had been filed as Annexure-'3' to the Election Petition. The irregularities conducted during the course of counting have been specifically narrated in paragraph 8' and 9' of the Election petition, In paragraph 8', it was categorically stated that in different booths, less votes were counted than those were casted or polled. In paragraph 9', it was specifically pointed out that in four booth nos. 10, 11 , 12 and 13, total five votes were found extra in the counting process. As a result of it, 32 votes in total were counted less, that means total votes casted were 37497 whereas total votes counted in the process were 37465 (36629 valid + 836 invalid). It is contended that the said irregularity was brought to the notice of the Returning Officer by writing letter/ applications on 1.12.2017 itself, soon after completion of four rounds of counting. These applications have been appended as Annexure no.'5/1, 5/6' to the election petition. The Election petitioner and their polling agents had raised dispute before the counting officers orally and when they did not pay heed to the objections of the petitioner and her agents, they refused to sign Form 38 ie. counting sheet. 4. Other candidates who had contested the election of Chairman, Nagar Palika Parishad, Khatauli, Muzaffarnagar had also raised their objections by writing applications which have been appended as Annexure-7/3 to the election petition. 5. It was urged that the Returning Officer had wrongly rejected the objection of the petitioner by passing the order dated 1.12.2017, 836 votes were illegally rejected by the Returning Officer after four rounds of counting, in the third round, the petitioner was leading by 860 votes from other candidates and after fourth round of counting the Returning Officer had even been declared the petitioner a winner by 250 votes. All the news channels starting flashing news of victory of the petitioner and the Returning Officer told the petitioners and her agents to leave the counting premises. All the news channels starting flashing news of victory of the petitioner and the Returning Officer told the petitioners and her agents to leave the counting premises. After sometime, when the petitioner got news that the respondent no.5 had been declared a winner by nine votes, email to the election commission of U.P., and the District Magistrate, pointing out the irregularities in the counting process were also sent. 6. Placing these assertions made in the election petition, it is vehemently contended by learned counsel for the petitioner that the ''material facts'' disclosing the cause of action have been duly narrated in the Election Petition. The averments made in the election petition raised triable issues and could not, therefore, be dismissed at the threshold. By no stretch of imagination, the assertions made in the Election petition can be said to be vague. Booth-wise detail had been given about the difference found in the number of votes counted and votes casted or polled. The assertion of difference of 32 votes counted less in the counting of booth wise votes, as per Proforma-38 as compared to Proforma-30, given by the petitioner in the election petition was specific. As it was not a case of corrupt practices being adopted by the returned candidate, rather irregularities committed during the course of counting were pointed out in the election petition, it was not necessary for the petitioner to state any other fact which would amount to statement of “material particulars”, which means evidence in support of the pleadings. 7. Material facts would “mean the Basic and preliminary facts upon which cause of action depends”. As per the law of pleading, only basic and primary facts were required to be pleaded in the election petition to narrate that irregularities/fraud had been committed in counting process. In paragraph 23', 25' and 34' and 35' of the Election petition, it was specifically stated that the Returning Officer had committed fraud and irregularities in declaring respondent no.5 as winning candidate by misrepresentation of the correct facts. It is contended that Order 7 Rule 11 C.P.C. can be invoked only in case, where on a plain reading of the election petition no cause of action is disclosed. It is contended that Order 7 Rule 11 C.P.C. can be invoked only in case, where on a plain reading of the election petition no cause of action is disclosed. A word of caution has been put by the Apex Court in Ponnala Lakshmaiah vs. Kommuri Pratap Reddy and others reported in 2012 7 SCC 788 for the election tribunal in dealing with the request for dismissal of the election petition at the threshold i.e to exercise their powers of dismissal with great caution. It is held therein that once the requirement of the statute (that the election petition must contain a concise statement of the material facts), has been satisfied, there was no question of dismissal of the election petition on the ground that it does not disclose the cause of action. The burden which lay on the election petitioner to prove the allegations made by him in the election petition, has to be discharged by him at the trial. The question as to whether the election petition will succeed at the trial is not to be seen at the preliminary stage under Order 7 Rule 11 C.P.C., but has to be left for adjudication at the conclusion of the trial. 8. Pronouncement in Virendra Nath Gautam v. Satpal Singh, reported in (2007) 3 SCC 617 has been placed before the court to submit that the Apex Court had pointed out the distinction between “material facts” and “material particulars” and said difference between the two must not be overlooked. The requirement of statement of “material facts” by the election petitioner in support of the case set up by him is with the object and purpose to enable the opposite party to know the case he has to meet, as in the absence of pleading a party cannot be allowed to lead evidence. The word “material” means the necessary facts for the purpose of formulating a cause of action. 9. It is contended on the basis of judgment of the Apex Court in Kuldeep Singh Pathania Vs Bikram Singh Jaryal reported in 2017 5 SCC 345 that at the stage of trial on preliminary issue, it is not permitted for the Court to conduct a Mini-trial. The inquiry under Order 7 Rule 11 C.P.C. is only on institutional defects. The court can and has to look into the entire pleadings and material available on record. The inquiry under Order 7 Rule 11 C.P.C. is only on institutional defects. The court can and has to look into the entire pleadings and material available on record. It can only see whether the pleadings of the plaintiff constitute a cause of action. The decision under Order 7 Rule 11 C.P.C. has to be taken looking at the pleadings of the plaintiff only and not the rebuttal made by the defendants. 10. Reliance has also been placed on the judgment of the Apex Court, in K.K. Ramchandran Master Vs. M.V. Sreyamakumar & others reported in 2010 7 SCC 428 , Madiraju Venkata Ramana Raju Vs. Peddireddigari Ramachandra Reddy & others reported in AIR 2018 3012, Navjot Singh Sidhu Vs. Om Prakash Soni & others reported in 2017(4) SCC 348 and that of this Court in AIR 1988 Allahabad 116 on the statement of law laying down difference between the “material facts” and “material particulars” in an Election Petition as also the scope of Order 7 Rule 11 C.P.C and the effect of decision on the application filed under 6 Rule 16 C.P.C. if any. 11. Learned counsel for the returned candidate, on the other hand, placing reliance on the judgments of Apex Court in case of Jitendra Bahadur Singh v. Krishna Behari reported in AIR 1970 SC 276 and of this Court in Ram Lakhan Yadav vs. Usha Rani and others reported in 2016 (1) ADJ 451 submits that the “material facts” are those facts which can be considered so as to support the allegations made in the election petition. The discrepancies in the number of votes mentioned in the record of election, maintained at two different stages of polling and counting, as stated in the election petition are not sufficient for passing an order of recounting of votes, specific pleading of “material facts” is mandatory. Reference has been made to the judgment by this Court in Amit Narain Rai v. State of U.P. And others reported in 2012 5 ADJ 716 and in case of Mahendra Pal v. Sh. Ra, Dass Malanger reported in AIR 2002 SC 1291 . Further reliance is placed on the judgment in case of Kashi Nath Misra, v. Vikramaditya Pandey and others reported in AIR 1993 Allahabad 32 to submit that failure to provide even single material fact would result in dismissal of the election petition being in contravention of the statutory mandate. Ra, Dass Malanger reported in AIR 2002 SC 1291 . Further reliance is placed on the judgment in case of Kashi Nath Misra, v. Vikramaditya Pandey and others reported in AIR 1993 Allahabad 32 to submit that failure to provide even single material fact would result in dismissal of the election petition being in contravention of the statutory mandate. 12. It is contended that the Apex Court in the case of Ram Sukh v. Dinesh Aggarwal reported in AIR 2010 SC 1227 has said that the election petition is a serious matter. The statutory requirement of election laws must be strictly observed as the election petition is not an action of law or suit in equity, but is a purely statutory proceeding unknown to the Common law power. It is well settled that the success of a candidate who has won at an election should not be lightly interfered and any petition seeking such interference must strictly confirm to the requirements of the law. The defect in not providing a concise statement of “material facts” in the election petition is an incurable defect and is fatal. The election petition deserves dismissal on the said ground. 13. Having considered the submissions of learned counsel for the parties and perused the record, this Court finds that there is no dispute about the fact that the challenge in the election petition is not based on any allegation of corrupt practices being adopted by the returned candidate nor any case of improper rejection of votes casted in favour of election petitioner had been made out, specifically. The averments in paragraph 11' of the election petition are only to the effect that 836 votes were rejected irregularly by the Returning Officer. The Returning Officer had rejected the objection of the petitioner on 1.12.2017 by passing an order in writing, rejecting the prayer for recounting made by the petitioner saying it was based on irrelevant facts. 14. The only question which has been pressed for adjudication by this Court is as to whether the irregularities asserted in paragraph 8' and 9' of the election petition were such, which would constitute a cause of action for maintaining the Election Petition or assertion therein can be said to be a “concise statement of material facts”, to question the result of the election announced by the Returning Officer. 15. 15. To answer this question, the legal position regarding statutory requirement of disclosure of “material facts” in the election petition within the scope of Order 7 Rule 11 C.P.C, has to be seen. The dispute relating to rejection of election petition on the ground that it has not disclosed the cause of action has been set at rest with the decision of the Apex Court in Ponnla Lakshmaiah (supra). It has been held therein that an election petition which sets out the requisite “material facts” that disclose a cause of action and gives rise to triable issues, cannot be given a short shrift by taking an unduly technical view as to the nature of the pleading. It is observed that there is no denial of the fact that the Courts are competent to dismiss the election petitions only on the ground that they do not comply with the statutory provisions or the same do not disclose any cause of action. The expression “cause of action though has not been defined anywhere in the Code of Civil Procedure, but has been explained by the Apex Court in Omprakash Srivastava vs. Union of India reported in (2006) 6 SCC 207 . The relevant paragraph of the said decision as reproduced in Ponnla Lakshmaiah (supra), is quoted as under:- 16. This Court has in Om Prakash Srivastava v. Union of India & Anr. (2006) 6 SCC 207 attempted an explanation of the expression in the following words: “The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary, to prove each fact. comprises in "cause of action”.” 17. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary, to prove each fact. comprises in "cause of action”.” 17. The Apex Court in Ponnla Lakshmaiah (supra) has further considered the principles on which, the Court would examine whether a plaint or an election petition discloses a cause of action. It is held therein that the settled principle of law in this regard is that the Court has to take a full and comprehensive view of the pleading. The averments made in the plaint or election petition cannot be read out of context or in isolation. They must be taken in totality for a true and proper understanding of the case set up by the plaintiff or election petitioner. The principles laid down in Udhav Singh vs. Madhav Rao Scindia reported in 1977 1 SCC 511 had been quoted with approval as under :- “33. We are afraid, this ingenious method of construction after compartmentalisation, dissection, segregation and inversion of the language of the paragraph, suggested by Counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole to ascertain its true import. It is not permissible to call out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention' of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole.” 18. It has, thus, been held that it is not possible for the Court to cull out a sentence or passage and to read it out of context or in isolation. For the purpose of determining whether the plaint discloses a cause of action the Court must take into consideration the plaint as a whole. 19. It has further been observed in paragraph 8' quoting the judgment of the Apex Court in Liverpool & London S.P. and I Assn. For the purpose of determining whether the plaint discloses a cause of action the Court must take into consideration the plaint as a whole. 19. It has further been observed in paragraph 8' quoting the judgment of the Apex Court in Liverpool & London S.P. and I Assn. Ltd v. M.V. Sea Success I reported in 2004 (9) SCC 512 , that the Court trying a suit or an election petition shall while examining whether the plaint or the petition discloses a cause of action, assume that the averments made in the plaint or the petition are factually correct. It is only if despite the averments being taken as factually correct, the court finds no cause of action emerging then the averments that it may be justified in rejecting the plaint. The test is as to whether if the averments made in the plaint are taken to be correct in its entirety, a decree would be passed. 20. Applying the above principles in the case at hand, taking all the averments made in the Election Petition by the petitioner as factually correct, this Court finds that:- (I) though there are allegations of difference in the total votes casted (polled) and the votes counted, but there is no allegation of any corrupt practices being adopted by the returned candidate; (II) there is no allegation of any illegal practices being adopted by the Returning Officer nor: (III) there is any allegation of corruption against the Returning Officer or any other officer engaged in the counting process; (IV) there is no allegation of seal of ballot boxes of any of the booths being found broken, nor is there an allegation of ballot papers having been destroyed or inserted by anyone present during the course of counting; (V) there is no disclosure whether the polling agent of the petitioner or the election petitioner who were present at the counting, had brought the alleged irregularity, if any, being practiced at the time of counting, such as insertion of ballot papers or rejection thereof; 21. The assertions in the election petition are only to the effect that 37 votes were less found in the ballot boxes for some booths and five (5) ballot papers in total were found extra in some booths than the votes polled, thus 32 votes were counted less in total. 22. The assertions in the election petition are only to the effect that 37 votes were less found in the ballot boxes for some booths and five (5) ballot papers in total were found extra in some booths than the votes polled, thus 32 votes were counted less in total. 22. It is admitted to the learned counsel for the petitioner that the present is not a case of improper rejection of votes casted in favour of the election petitioner nor it is a case of corrupt practices being adopted by the returned candidate to win election. The only assertion of learned counsel that for the difference in the votes polled and counted, the election petition is to be entertained as the “concise statement of material facts” of there being difference of votes had been specifically given in the election petition. The assertion is that the pleadings are complete and “material particulars” or evidence in support of the said pleading would be placed before the Election Tribunal during the course of trial. 23. In addition to the above noted facts found from the pleading, it is further relevant to note here that total 36629 votes were counted and 836 were rejected being invalid votes, the total of valid votes being 37465. Out of that 45 votes were received through post. Out of 45 votes, 28 were casted in favour of election petitioner and 4 in favour of winning candidate. Total number of votes casted in favour of the winning candidate at different booths and received through post (four in number) is, thus 10,849. Whereas, the votes casted in favour of the election petitioner (including 28 votes received through post) were total 10,840. 24. It is further noteworthy that none of the votes casted through post were cancelled being invalid if the difference of the votes casted in the polling booths, in favour of the petitioner and the winning candidate is taken, it will come to 33 votes, which is sought to be asserted being less votes found in the ballot box. The total number of votes casted through post in favour of the election petitioner and the winning candidate is 32. This is the difference which is being projected as discrepancy by the petitioner in paragraphs 8, 9 & 10 of the election petition. The total number of votes casted through post in favour of the election petitioner and the winning candidate is 32. This is the difference which is being projected as discrepancy by the petitioner in paragraphs 8, 9 & 10 of the election petition. The difference of 32 votes, allegedly counted less are in fact those votes which were received through post, as aforesaid. 25. Even otherwise, if the statement of the petitioner in the election petition is taken as true, the votes which were not found in the ballot boxes of different booths, cannot be counted in favour of any of the candidates. There is no question of counting of 37 votes, which according to the petitioner were found less or in other words were not found in the ballot box, at all, when their seal were opened in the presence of the petitioner or his polling agents. As far as, the contention of the petitioner that the five votes were found excess in different booths during counting, in absence of any assertion of the petitioner that those votes were inserted by the counting officer or anyone present during the course of counting, no irregularity can be attached to the counting process. Had it been a case of corrupt practices being adopted during the course of counting the situation might have been different. 26. There is another aspect of the matter. It is well settled that an order of recounting of votes cannot be passed lightly by the Court. To permit recounting, it is settled that the following conditions must be satisfied (i) A prima facie case is established (ii) the material facts and full particulars stating the irregularities in counting of votes must have been stated, (iii) the Court has consistently held that a roving and fishing inquiry shall not been made while directing for recounting of votes. (iv) Secrecy of ballot should be guarded and that the order of recounting shall be supported by cogent or valid reasons and not based on apprehension. The narrow margin of votes between returned candidate and the election petitioner would not by itself be sufficient for issuing a direction for recounting. The parties have to take proper pleadings by adducing evidence that by a particular irregularity or illegality, the result of the election has been materially affected. 27. The narrow margin of votes between returned candidate and the election petitioner would not by itself be sufficient for issuing a direction for recounting. The parties have to take proper pleadings by adducing evidence that by a particular irregularity or illegality, the result of the election has been materially affected. 27. Reference may be made Chandrika Prasad Yadav vs. State of Bihar and others reported in 2004 6 SCC 331 and in Arikal Narasa Reddy vs. Venkata Ram Reddy Reddygari and Ors reported in (2014) 5 SCC 312 . 28. Thus, in view of the above discussion, in the totality of facts and circumstances of the instant case, this Court finds that the election petition is lacking in “material facts” to make out a cause of action to entertain the same. In case, the election petition on the facts stated therein is entertained, the Election Tribunal would be required to make a roving and fishing inquiry as to the allegations made in the election petition, which is not permitted in law. In absence of the “material facts” to challenge the election of winning candidate, this Court does not find any error in the decision of the Election Tribunal, in rejecting the election petition at the threshold. 29. No interference is required. The present petition is, accordingly, dismissed.