Full Text
CIVIL APPEAL NO. 2689 OF 2012
(Arising out of SLP(C) No. 23285 of 2011)
Jitu Patnaik …. Appellant
JUDGMENT
Leave granted.
2. The two paragraphs – 7(A) and 7(D) – of the election petition occupied significant time of this Court on 3 days – February 7, 2012, February 9, 2012 and February 14, 2012 – to determine the correctness of the order dated June 21, 2011 passed by the Orissa High Court whereby the High Court directed that the election petition shall proceed in respect of the pleadings contained in these two paragraphs.
3. On the announcement of the 14th Assembly Election to the Orissa State Legislative Assembly, insofar as it related to 25— Champua Assembly Constituency, the following schedule of election was notified:
SCHEDULE OF ELECTION 28.3.2009 To 4.4.2009 PERIOD PRESCRIBED FOR FILLING NOMINATION. 6.4.2009 DATE FIXED FOR SCRUTINY OF NOMINATION 8.4.2009 DATE OF WITHDRAWAL 23.4.2009 DATE OF POLLING 16.5.2009 DATE OF COUNTING/ DECLARATION OF RESULT. 28.5.2009 DATE BEFORE WHICH THE ELECTION SHALL BE COMPLETED.
4. As per the above schedule, on expiry of the time of withdrawal on April 8, 2009, the returning officer prepared and published the following list of contesting candidates.
┌────────────────────────────────────────────────────────────────────────┐ │ Sl. Name of the contesting Name of the Election │ │ No candidate political symbol │ │ . party │ ├────────────────────────────────────────────────────────────────────────┤ │ 1. Chitaranjan Nayek B.S.P. Elephant │ │ 2. Bidyadhar Mohanta C.P.I. Ears of Corn │ │ and Sickle │ │ 3. Muralimanohar Sharma B.J.P. Lotus │ │ 4. Laxman Kumar Sethi J.M.M. Bow & Arrow │ │ 5. Sanatan Mahakud I.N.C. Hand │ │ 6. Keshab Mohanta Samrudha Nagara │ │ Orissa │ │ 7. Khitish Chandra Orissa Violin │ │ Mohanta Mukti │ │ Morcha │ │ 8. Jadumani Patra Samajbadi Saw │ │ Party │ │ 9. Akhila Kumar Mohanta Independen Television │ │ t │ │ 10. Akhileswar Giri Independen Battery & │ │ t Torch │ │ 11. Abhimanyu Mohanta Independen Coconut │ │ t │ │ 12. Arabinda Behera Independen Ripe │ │ t Plantation │ │ 13. Ashok Mohanta Independen Road Roller │ │ t │ │ 14. Kusha Apot Independen Scissors │ │ t │ │ 15. Jitu Patnaik Independen Saucer & │ │ t Plate │ │ 16. Deepak Moharana Independen Camera │ │ t │ │ 17. Puma Chandra Independen Baloon │ │ Mohanta t │ │ 18. Prabhupada Mishra Independen Almirah │ │ t │ │ 19. Buta Singh Independen Ceiling Fan │ │ t │ │ 20. Bhabani Mohanta Independen Candle │ │ t │ │ 21. Manoj Kumar Mohanta Independen Rail Engine │ │ t │ │ 22. Sanjita Nayek Independen Batsman │ │ t │ │ 5. It so happened that one of the contesting candidates │ └────────────────────────────────────────────────────────────────────────┘
23. Section 52 which was brought in the 1951 Act by Act 2 of 1992 was further substituted by Act 21 of 1996. The substituted Section 52 by Act 21 of 1996 has already been quoted above. The provision in 1951 Act now existing takes cognizance of the death of a candidate of recognized political party before poll only in three situations as were brought by Act 2 of 1992. The significant change brought in law by 1996 amendment is that the death of a candidate of a recognized political party before poll in three situations set out in clauses (a), (b) and (c) results in adjournment of the poll to a date to be notified later and not countermand of the poll. Proviso that follows sub-section (1) of Section 52 provides that no order for adjourning poll shall be made in a case if a candidate set up by a recognized political party dies at any time after 11.00 a.m. on the last date for making nomination and his nomination is found valid on scrutiny under Section 36 except after the scrutiny of all the nominations including the nomination of the deceased candidate. Sub-section (2) of Section 52 provides that the Election Commission shall on receipt of the report of the returning officer call upon the recognized political party to nominate another candidate in place of the deceased candidate for the said poll within seven days of issue of such notice. Sections 30 to 37 shall apply in relation to such nomination as far as applicable. According to sub-section (3) in a situation where list of contesting candidates had been published under Section 38 before the adjournment of the poll under sub-section (1), the returning officer shall again prepare and publish a fresh list of contesting candidates under that section so as to include the name of the candidate who has been validly nominated under sub-section (2). Section 52 takes care of the situation in case of death of a candidate of recognized political party before poll. However, the electoral law as enacted in 1951 Act does not contemplate cognizance of the death of an independent candidate after publication of list of contesting candidates in Section 38. Section 52 enjoins that if a candidate set up by recognized political party dies before the poll, the poll must be adjourned; it does not provide any obligation on the returning officer if a candidate of a registered political party other than recognized political party or an independent candidate dies after the list of the contesting candidates as defined in Section 38 is published.
24. We shall now consider the instructions provided in the Handbook, particularly paragraphs 4.14, 4.15, 6.1. 8.[1] and 8.[2] of Chapter XII relied upon by Mr. Mukul Rohatgi, learned senior counsel for the election petitioner. Chapter XII of the Handbook deals with preparation for the poll, particularly commissioning of EVMs. Paragraphs 4.14, 4.15, 6.1, 8.[1] and 8.[2] read as follows:- “4.14. Before a voting machine is supplied to a Presiding Officer for use at a polling station, some preparations, as detailed below, are to be made in it at your level. These preparations have to be made in the presence of the candidates and/or their agents.
4.15 You should decide well in advance as to when the voting machines shall be prepared as aforesaid. This will depend on the number of machines to be prepared, the time required for the movement of polling parties with the voting machines to the polling stations, the time likely to be taken in the printing of ballot papers for use on the ballot units and such other factors. In any case, all required EVMs must be duly prepared (i.e. commissioned) one week before the date of poll in the Constituencies. 6.[1] Each ballot unit has to be prepared at the Returning Officer’s level by: - (A) Inserting and fixing ballot paper in the space meant for the purpose; (B) Masking the candidate’s buttons which are not required to be used, depending on the number of contesting candidates;
(C) Setting the slide switch at the appropriate position, i.e., 1,
2, 3 or 4, as the case may be, according to the number of such units which are to be used depending upon the number of contesting candidates and the sequence in which each unit is to be used, and
(D) Sealing the unit (detailed step-by-step operations during sealing of EVM may be seen at Annexure XXX). 8.[1] On the ballot unit, only those candidate’s buttons should be visible which are to be used by voters. In other words, the number of candidate’s buttons, which should be visible, will be equal to the number of contesting candidates. For example, if the number of candidates is nine, the first nine from the top (i.e., 1 to 9) candidates’ buttons should be visible and the remaining seven buttons (i.e., 10 to 16) should be masked. 8.[2] The masking of the unwanted buttons can be done by moving the white masking tabs on to the candidate’s buttons, when the ballot unit is open like a book as explained in Para 7 above”.
25. We do not think paragraphs 4.14, 4.15 and 6.[1] have much relevance. Paragraphs 4.14 and 4.15 basically provide that requisite EVMs must be prepared one week before the poll in the Constituencies. Each EVM has to be prepared at the returning officer’s level in the manner provided in paragraph 6.1. The emphasis of the learned counsel was on paragraph 8.[1] which states that on ballot unit only those candidates’ buttons should be visible which are to be used by voters and remaining buttons should be masked. A careful reading of paragraph 8.[1] would show that the number of candidates’ buttons which should be visible should be equal to the number of contesting candidates and the remaining buttons must be masked. The expression “contesting candidates” in paragraph 8.[1] has to be given the same meaning as the contesting candidates defined in Section 38 of 1951 Act. No other meaning to the expression “contesting candidates” can be given. In other words, the number of candidates’ buttons which should be visible on EVM should be equal to the number of candidates as published in the list of validly nominated candidates who have not withdrawn the candidature within the period prescribed and whose nominations are included in the list published under Section 38. In this view of the matter, there was no duty imposed on the returning officer to mask the name of the candidate at Sl. no. 9, Akhila Kumar Mohanta, who was an independent candidate and who died on April 13, 2009 after publication of list of validly nominated candidates being a contesting candidate as defined in Section 38. Moreover, the instructions in the Handbook are only guidelines. These instructions have no statutory force. In a recent decision of this Court in Ramesh Rout vs. Rabindra Nath Rout[7] one of us (R.M. Lodha, J.) speaking for the Bench observed as follows: “14...... The handbook, as it states, has been designed to give to the Returning Officers the information and guidance which they may need in performance of their functions; to acquaint them with up-to-date rules and procedures prescribed for the conduct of elections and to ensure that there is no scope for complaint of partiality on the part of any official involved in the election management. We shall refer to the relevant provisions of the handbook a little later. The handbook does not have statutory character and is in the nature of guidance to the Returning Officers”.
26. In view of the above legal position that the Handbook does not have statutory character and there being no 7 2012 (1) SCC 762 non-compliance with the provisions of the Constitution or the 1951 Act or any rules framed or orders made under 1951 Act by the returning officer insofar as death of an independent candidate was concerned, the averments made in paragraph 7(A) of the election petition do not furnish any cause of action for declaring the election of the returned candidate to be void under Section 100(1)(d)(iv). The High Court seriously erred in holding otherwise and ordering trial of the election petition on the pleadings set out in paragraph 7(A).
27. The next question remains to be seen is whether the pleadings in paragraph 7(D) set out the material facts to constitute cause of action under Section 100 (1)(d)(iii) and/or (iv) of 1951 Act.
28. Paragraph 7(D) of the election petition read as under: “7(D). The petitioner further gives a concise statement of material fact exposing a glaring instance of illegality deliberately committed by the counting personnels while recording the counting figure in Form-20 with respect to Booth No. 179, Urdu Madrasa Champua Alinagar Booth. The total number of voters as recorded in the Electoral Roll with respect to Booth No. 179 is 1109. Whereas in Form-17C, certified copy, deliberately this figure has been shown wrongly as
1091. On the date of polling on a plain perusal of Register of Voters maintained in Form-17A, it will be abundantly clear that the total number of voters came to vote and signed 17-A Register is 1091 whereas in Form-17C certified copy, it has been deliberately shown as 772 making a deliberate suppression of 319 votes. According to the information received by the Election petitioner from his counting agents in Booth Number 179, the Election petitioner has received 462 (Four hundred sixty two) votes. The said 462 votes are to be added to the total vote of the petitioner as stated in preceeding paragraph. Thus, the petitioner has received in total 27410+73+462+02 (postal Ballots) = 27,947 and the first respondent having received = 27700, the Election petitioner has received 247 (Two hundred forty seven) more votes than the First respondent and is entitled to be declared elected as M.L.A. from “25-CHAMPUA” Assembly Constituency to Orissa State Legislative Assembly”.
29. Mr. Mukul Rohatgi, learned senior counsel for the election petitioner submitted that the above pleadings are in two parts. The first part relates to suppression of 319 votes. This part begins with the start of paragraph 7(D) and ends with ‘……. suppression of 319 votes’. The second part relates to addition of 462 votes which is remaining part of paragraph 7(D). He would submit that all material facts concerning deliberate suppression of 319 votes have been pleaded in paragraph 7(D) and these facts constitute cause of action for declaring the election of the returned candidate to be void.
30. Order VI Rule 2 of CPC, to the extent it is relevant, reads as under:
“O. VI Rule 2. Pleading to state material facts and not evidence.— (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. (2) xxx xxx xxx (3) xxx xxx xxx”
31. Section 83(1)(a) of the 1951 Act is as follows:
32. A bare perusal of the above provisions would show that the first part of Order VI Rule 2, CPC is similar to clause 1(a) of Section 83 of the 1951 Act. It is imperative for an election petition to contain a concise statement of the material facts on which the election petitioner relies. What are material facts? All basic and primary facts which must be proved at the trial by a party to establish the existence of cause of action or defence are material facts. The bare allegations are never treated as material facts. The material facts are such facts which afford a basis for the allegations made in the election petition. The meaning of 'material facts’ has been explained by this Court on more than one occasion. Without multiplying the authorities, reference to one of the later decisions of this Court in Virender Nath Gautam v. Satpal Singh and others[8] shall suffice.
33. In Virender Nath Gautam[8], this Court referred to the 8 2007 (3) SCC 617 leading case of Philipps v. Philipps and Others[9] and the subsequent decision in Bruce v. Odhams Press Limited10 that referred to Philipps[9] and observed in paragraphs 34 and 35 (Pg. 629) of the Report as follows:
34. Whether the averments in the election petition constitute material facts or not would depend upon facts of each case. As stated by this Court in Virender Nath Gautam[8], no rule of universal application can be applied in finding out whether the statements of fact made in the election petition amount to material 9 (1878) 4 Q.B.D. 127 10 (1936) 1 K.B. 697 facts or not. It is, therefore, necessary to consider the pleadings with regard to suppression of 319 votes in paragraph 7(D) of the election petition.
35. A close analysis of first part of paragraph 7(D) of the election petition would show that the statements comprise of the following facts: • Illegality deliberately committed by the counting personnels while recording the counting figure in Form-20 with respect to Booth No. 179. • The total number of voters as recorded in the electoral roll with respect to Booth No. 179 is 1109. • Whereas in Form-17C, certified copy, deliberately this figure has been shown wrongly as 1091. • On the date of polling, on a plain perusal of register of voters maintained in Form-17A, it will be abundantly clear that the total number of voters came to vote and signed 17-A register is 1091; whereas in Form-17C, it has been deliberately shown as 772 making a deliberate suppression of 319 votes.
36. Before we discuss the above pleadings further, it may be stated immediately that register of voters in Form-17A is not available for inspection. Rule 93 of the 1961 Rules provides for the production and inspection of election papers. Clause (dd) of Rule 93(1) makes a provision that the packets containing register of voters in Form 17A, while in the custody of the district election officer or the returning officer, as the case may be, shall not be opened and their contents shall not be inspected by, or produced before, any person or authority except under the order of a competent court.
37. We now revert back to the pleadings set out in paragraph 7(D) as analysed above. There is no averment that the election petitioner or any of his polling agents had perused the register of voters maintained in Form 17A. The basis of the knowledge that the register of voters maintained in Form 17A records that 1091 voters came to vote is not disclosed at all. Moreover, there is no pleading that 1091 voters who came to vote at Booth No. 179 in fact voted. There is no merit in the contention of Mr. Mukul Rohatgi that the facts stated in paragraph 7(D) with regard to Form 17A shall be established at the trial after Form 17A is summoned by the Court. We are afraid such fanciful imagination of proof at the trial cannot be a substitute of the pleading of material facts about the total number of voters who came to vote and in fact voted at Booth No. 179.
38. The averment that in Form-17C, certified copy, it has been deliberately shown as 772 making a deliberate suppression of 319 votes hardly improves the pleading in the election petition. There is no averment that the election petitioner or his agents challenged part II of Form-17C before authorities. At least, there are no facts pleaded concerning that. There is no pleading that there was any challenge by the election petitioner or his agents in respect of the counting figure in Form-20. The only pleading is that the illegality has been deliberately committed by the counting personnels while recording the counting figure in Form-20 with respect to Booth No. 179. There is, thus, no disclosure of material facts in respect of the challenge to the correctness of Form-20 and Form-17C.
39. The pleading of material facts with regard to suppression of 319 votes in paragraph 7(D) is also incomplete as it has not been disclosed who suppressed 319 votes; who was the counting agent present on behalf of the election petitioner at the time of counting; how 319 votes were suppressed and why recounting was not demanded. Moreover, there is no express pleading as to how the result of the election has been materially affected by less counting of 319 votes.
40. In Samant N. Balkrishna and Another v. George Fernandez and Others[1] 1 while dealing with the requirement in an election petition as to the statement of material facts and the consequences of lack of such disclosure, this Court, inter alia, exposited the legal position that omission of even a single material fact leads to an incomplete cause of action and statement of claim
41. The other part of paragraph 7(D) relating to 462 votes is based on the preceding paragraph. The preceding paragraph i.e., 7(C) has been already struck out by the High Court. Therefore, the pleadings in paragraph 7(D) in respect of 462 votes do not survive as it is.
42. In view of the above, we have no hesitation in holding that the averments made in paragraph 7(D) do not set out all the material facts and do not afford an adequate basis for the allegations made therein. The allegations in paragraph 7(D) for the reasons noted above do not constitute cause of action for declaring election of the returned candidate to be void.
43. The High Court has already struck out paragraphs 7(B), 7(C), 7(E), 7(F) and 7(G). The remaining two paragraphs 7(A) and 7(D), as noted above, do not disclose any cause of action and are liable to be struck out. After striking out paragraphs 7(A) and 7(D), we find that nothing remains in the election petition for trial and, therefore, election petition is liable to be rejected in its entirety.
44. In the circumstances, the appeal has to be allowed and is allowed. We do so without any order as to costs. …………………….J. (R.M. Lodha) ….………....…….. J. (H. L. Gokhale) NEW DELHI.
MARCH 2, 2012.