1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR C.A.O. NO. 288 OF 2010 IN ELECTION PETITION NO. 2 OF 2009 Ashok s/o Mahadeorao Nete, aged 41 years, Occup. : Business, R/o Kannamwar Ward, Chamorshi Road, Gadchiroli, Dist. Gadchiroli. PETITIONER VERSUS 1. Shri Marotrao Sainuji Kowase, aged about 59 years, Occ. : Agriculturist, R/o Ramnagar, Ward No.8, Behind Shivaji Mahavidyalaya, Gadchiroli. 2. The Returning Officer of 12-Gadchiroli. (DELETED) 3. Shri Atul Patne. (DELETED) 4. Shri Vijay Vadettiwar. (DELETED) RESPONDENTS - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri B.G. Kulkarni, counsel for the Petitioner. Shri R.L. Khapre, counsel for the respondent. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 1, 2010 . Heard. 2 This is the respondent's application for rejection of the election petition under the provisions of Order VII Rule 11 of the Code of Civil Procedure as, according to the respondent, the same fails to make out a cause of action. 2. It is necessary to consider a few facts for deciding this application. The petitioner has filed the Election Petition under Section 80 of the Representation of the People Act, 1951. The petitioner was one of the candidates in the elections of the parliamentary constituency of Gadchiroli- Chimur. The Gadchiroli-Chimur Parliamentary Constituency was reserved for the candidates belonging to Scheduled Tribe category. The said constituency was comprised of Six Assembly Constituencies viz. Amgaon, Armori, Gadchiroli, Chimur, Brahmapuri and Aheri. In all, eleven candidates had contested the election. The petitioner was the official candidate of the Bhartiya Janata Party, whereas the respondent was the official candidate of Indian National Congress. As per the election programme announced by the Returning Officer, the polling for the Gadchiroli-Chimur constituency was to be held on 16th of April, 2009 and the 3 counting was to be held on 16th of May, 2009. After the counting was completed on 16th of May, 2009, the Returning Officer declared at 3.30 p.m. that the respondent was elected as a Member of Parliament from Gadchiroli-Chimur Parliamentary Constituency by a margin of 28,580 votes. The petitioner had secured 2,93,186 votes, whereas the respondent had secured 3,21,766 votes. 3. It is the case of the petitioner that the election of the respondent as a Member of House of People is rendered illegal and void because of serious illegalities and irregularities committed by the Returning Officer. It is stated in the petition that the illegalities and the irregularities committed by the Returning Officer fall within the provisions of Section 100(1)(b)(d) of the Act of 1951. According to the petitioner, one Shri Vijay Vadettiwar, who was initially arrayed as respondent no.4 to the petition, but, was subsequently deleted from the array of respondents by the order of this Court and who also belonged to the Indian National Congress Party, had publicly announced that in the event of defeat of the respondent in the election, Shri Vijay Vadettiwar would resign from all the Offices held by him. It is pleaded that 4 Shri Vijay Vadettiwar did not keep any stone unturned by misusing his authority and ensured the win of the respondent and these actions were planned by Shri Vijay Vadettiwar in collusion with the respondent and the Returning Officer. 4. It is then pleaded in the petition that initially, the time for voting, as per the election programme was from 7.00 a.m. To 5.00 p.m. on 16th of April, 2009 but, the Returning Officer had made an official representation to the Chief Election Commissioner seeking consent for changing the time of polling for Gadchiroli-Chimur Constituency on misleading grounds. It is, however, stated in the petition, that there was a consent of the Chief Election Commissioner for changing the time from 7.00 a.m. To 3.00 p.m. in respect of four Assembly Constituencies viz. Amgaon, Armori, Gadchiroli and Aheri. It is stated in the petition that the ground for changing the time for polling in the four Assembly Constituencies was allegedly because of the fact that those Assembly Constituencies fall in the Naxalite Areas and the Polling Stations in these Assembly Constituencies were identified as sensitive polling booths. According to the petitioner, the time was not changed for the aforesaid purpose but, was changed with a view to provide adequate time to the officers deputed on the polling stations 5 in the four Legislative Constituencies to manipulate the voting and to ensure bogus voting in favour of respondent in all the polling stations situated in the four Assembly Constituencies. It is alleged by the petitioner that many voters were unaware of the change in timing and were deprived of their voting right and since the period of two hours from 3.00 p.m. to 5.00 p.m. was substantial for manipulating the voting, the respondent no.1 became successful in the election due to the said manipulation. It is pleaded in the petition that in regard to the polling stations, which were declared as sensitive polling stations, the material was stationed for more than twenty four hours in the polling station and voting machines and the forms were sent to the Collection centre on the night of 17th of April, 2009 and in some cases on 18th of April, 2009. According to the petitioner, there was a large scale bogus voting in favour of the respondent. The petitioner has, however, fairly stated in the petition that the votes registered in the Electronic Voting Machine would not establish the allegation of manipulating bogus voting and it was, therefore, necessary for this Court to call for the record collected from all polling centres falling under the four Assembly Constituencies so as to grant an opportunity to the petitioner for verification of the slips, signatures and thumb 6 impressions of the voters. It is stated in the petition that after the voting hours on 16th of April, 2009, the percentage of voting in the four Assembly Constituencies was published in the newspapers as under : Amgaon Assembly Constituency 58% Armori Assembly Constituency 55% Gadchiroli Assembly Constituency 45% Aheri Assembly Constituency 50% 5. According to the petitioner, though on 16th of April, 2009, it was announced that the extent of polling in the parliamentary constituency was 55%, the said percentage was increased to 63.90% as announced by the Assistant Returning Officer, Shri Kulkarni. News items dated 18th of April, 2009 showing the aforesaid percentage form a part of the election petition. It is submitted in the election petition that the increase was not natural but, it was because of the manipulation of the votes by the respective presiding officers after the closure of voting hours or till the time, the voting machines were under their custody. It is stated in the petition that though the voting machines were sealed in the presence of representatives of the candidates, nobody knew and 7 identified the signatures of such representatives and the voting machines were opened for counting on 16th of May, 2009 only after verification of the seal affixed on the machines. It is stated in the election petition that after the voting hours, from 3.00 p.m. to 5.00 p.m. and also thereafter, the Presiding Officer and the Polling Officers of the centres were capable of casting additional votes in favour of respondents. It is stated in the petition that if the bogus votes are subtracted from the votes polled by the respondent, the respondent would not have been declared elected from the Gadchiroli – Chimur Parliamentary Constituency. The declaration of different percentage of voting on 16th of April, 2009 and 18th of April, 2009, according to the petitioner, was enough to find that the process of manipulation of votes continued from 16th of April, 2009 from 3.00 p.m. to 18th of April, 2009 up to 5.00 p.m., till the voting machines were finally deposited at the collection centre. It is stated that the respondent, the Returning Officer and Shri Vijay Vadettiwar were the principal conspirators for misusing the machinery for the benefit of the respondent. It is stated in the petition that each of the illegalities and irregularities mentioned in the petition constitute the ground under Section 100(1)(b)(d) of the Act of 1951 and, hence, it is necessary to grant the relief 8 as provided in Section 98(b) of the Act of 1951. The petitioner sought a declaration that the election of the respondent no.1 as a Member of House of People from Gadchiroli – Chimur Parliamentary Constituency was void. 6. The respondent nos.2, 3 and 4 viz. The Returning Officer, The Returning Officer in personal capacity and the Member of Legislative Assembly Shri Vijay Vadettiwar had filed separate applications for deletion of their names from the array of respondents. Since they were not necessary parties to the election petition, this Court allowed the applications and permitted the deletion. 7. It is necessary to note that in the application for deletion of the name of the Returning Officer, it was categorically stated that Niranjan Kumar Sudhanshu, who was earlier entrusted an election duty as an Observer, had been recalled by the Election Commission as per the direction of the Election Commission of India as a Departmental Enquiry had been initiated against him and as per the directive of the Election Commission, a person could not be entrusted any election related work if a Departmental Enquiry is pending against him. The copy of the communication 9 issued by the Under Secretary dated 28th of August, 2001 answering the queries as regards the transfer of Shri Sudhanshu is annexed with the reply to show that a Departmental Enquiry had been initiated against Shri Sudhanshu on the orders of the Election Commission. A copy of the instructions issued by the Election Commission to the Chief Secretaries of all States and Union Territories and the Chief Electoral Officer of all States and Union Territories dated 4th of February, 2009 stating that the Commission was desirous that the officers against whom Commission had recommended Departmental Enquiry or, who had been charged for any lapses in any election or election related work, may not be assigned any election related duty is also annexed to the reply. 8. In stead of considering the contents of the application under Order VII Rule 11 of the Code of Civil Procedure, as filed by the respondent, this Court thought that it was proper to consider the contents of the Election Petition with the assistance of the learned counsel for the parties so as to consider, which acts, according to the petitioner, constitute 'corrupt practice' under the provisions of the Act of 1951. 10 9. Shri Kulkarni, the learned counsel for the petitioner, stated that the election of the respondent was liable to be declared void in view of the provisions of Section 100(1)(b)(d) of the Act of 1951 as, according to him, a 'corrupt practice' has been committed by the respondent and the Returning Officer and the result of the election has been materially affected by the 'corrupt practice' committed in the interest of the respondent by the Returning Officer, who is not the Agent of the respondent. The learned counsel for the petitioner submitted that the 'corrupt practice' committed by the respondent and the Returning Officer is a 'corrupt practice' falling within the purview of the provisions of Section 123 (2) of the Act of 1951. The relevant provisions of Section 123(2) read as follows. “(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right.” 10. According to the learned counsel for the petitioner, the Returning Officer Shri Atul Patne was transferred to Gadchiroli in the month of February-2009 by 11 transferring Shri Sudhanshu from the post of Collector as he was a person of choice of the respondent and Shri Vijay Vadettiwar. It is the case of the petitioner that the timing of the election was curtailed from 7.00 a.m. – 5.00 p.m. to 7.00 a.m. – 3.00 p.m. in the four Assembly Constituencies with a view to manipulate the polling and to register bogus votes in the voting machines. The thrust of the submissions on behalf of the petitioner is that due to manipulation of voting in the four Assembly Constituencies of Amgaon, Armori, Gadchiroli and Aheri, which was done mainly in view of the change of timing and because the polling machines and other material was not returned immediately on 16th of April, 2009. According to the learned counsel for the petitioner, while counting, the number of votes polled varied from the number of the declared votes to the following effect. Amgaon - 14 Votes Armori - 40 Votes Gadchiroli + 541 Votes Aheri + 16 Votes Brahmapuri NIL Chimur - 98 Votes. 11. According to the learned counsel for the petitioner, since the percentage of polling was shown to be less on 16th of April, 2009 and was shown at an increased percentage on 18th of April, 2009, it was clear that the 12 Returning Officer as well as the Presiding Officers and Polling Officers of the centre had cast bogus votes in the Electronic Voting Machines so as to ensure that the respondent was elected. This, according to the learned counsel for the petitioner, is a 'corrupt practice' covered by the provisions of Section 123(2) of the Act of 1951, thereby rendering the election of the respondent as void on the grounds enumerated in Section 100(1)(b) and (d) of the Act of 1951. 12. The learned counsel for the petitioner relied on the judgments reported in (2005) 12 SCC 187 (Patel Dipakbhai Chimanbhai Versus Chavda Ishwarbhai Kohdabhai & others), AIR 2000 SC 16 (Mahendra Pal Versus Ram Dass Malanger & others), (2004) 11 SCC 196 (Sardar Harcharan Singh Brar Versus Sukh Darshan Singh & others), 2004(7) SCC 181 (Mahadeorao Sukaji Shivankar Versus Ramaratan Bapu & others) and 2005(13) SCC 511 (Harkirat Singh Versus Amrinder Singh) to substantiate his submission that when material facts are stated, the petition cannot be dismissed and if there is some omission in providing material particulars, then an opportunity should be granted to the petitioner to amend the 13 petition and state the particulars. 13. Shri Kulkarni, the learned counsel for the petitioner had fairly submitted that the transfer of Shri Atul Patne as a Collector of Gadchiroli in place of Shri Sudhanshu in February-2009, the declaration made by Member of Legislative Assembly Shri Vijay Vadettiwar that he would ensure that the respondent is elected or else he would resign from all the posts held by him and the curtailment of timing of polling in four Assembly Constituencies would not amount to corrupt practice as provided in Section 123 but, these facts have been stated in the petition with a view to point out that the respondent, the Returning Officer and Shri Vijay Vadettiwar had acted together so as to manipulate the votes by bogus voting, specially in the four Assembly Constituencies, where the time of polling was restricted from 7.00 a.m. to 3.00 p.m. 14. Shri Khapre, the learned counsel for the respondent, submitted that none of the acts of the respondent, the Returning Officer and Shri Vijay Vadettiwar fall within the scope of the term 'corrupt practice' as provided under Section 123 of the Act of 1951. 14 15. The learned counsel for the respondent submitted that it is not the petitioner's case that the change in timings from 7.00 a.m. to 3.00 p.m. were not published in the manner prescribed under the provisions of the Act of 1951 and it was also not stated what was the prescribed manner. According to the learned counsel for the respondent, there is nothing in the petition to show the manner in which the Returning Officer had helped in getting the respondent elected. The learned counsel for the respondent submitted that the petitioner has mainly relied on the percentage of voting declared in the newspapers on 16th of April, 2009 and the official declaration by the Returning Officer about the percentage of polling made on 18th of April, 2009 to state that there was bogus voting. The learned counsel for the respondent took this Court through some of the relevant provisions of the Act of 1951 to point out that the election agents of the candidates like the petitioner, remain present till the voting is complete and also ensure that the voting machine is affixed with the signature of the petitioner's agent. According to the learned counsel for the respondent, it is not the case of the petitioner that the sealing of the voting machine was not done in the presence of his agents or that 15 the seal so affixed was found to be tampered with when the voting machine was opened on 16th of May, 2009 for counting of votes. 16. According to the learned counsel for the respondent, the excess votes or the votes found to be in variance with the votes officially declared to be polled on 18th April, 2009 were negligible and they could not have affected the result of the petition as there were only 541 votes and 16 votes in excess in Gadchiroli and Aheri Assembly Constituencies and the votes were found to be less only by a few votes in the other three constituencies. This variance, according to the learned counsel for the respondent, did not show that the excess votes found to have been polled in the two Assembly Constituencies, materially affected the result of the election. According to the learned counsel for the respondent, the petitioner has taken a contradictory stand by stating that due to curtailment of hours, there was less voting and then saying that the voting was manipulated in the last two hours of curtailment of timing. The learned counsel for the respondent submitted that the case of the petitioner did not fall under Section 123(2) of the Act of 1951 and the petition was liable to be dismissed in the absence of cause of 16 action. According to the learned counsel for the respondent, the petitioner had merely stated that the Returning Officer, the Election Agents and the Polling Agents at the booths, had manipulated the voting by casting bogus votes to a great extent between 3.00 p.m. to 5.00 p.m. and even thereafter, in the four Assembly Constituencies but, has not pleaded the material facts to show in what manner, how and in whose presence, the said bogus voting was done. Due to the absence of cause of action, according to the learned counsel for the respondent, the petition is liable to be dismissed as the material facts about the bogus voting have not been pleaded in the petition and the petition is liable to be dismissed for the same. The learned counsel for the respondent relied on the decisions reported in AIR 1987 SC 1926 (Samar Singh Versus Kedar Nath & others), AIR 1990 SC 1731 (Lalit Kishore Chaturvedi Versus Jagdish Prasad Thada & others), AIR 1972 SC 515(1) (Hardwari Lal Versus Kanwal Singh), AIR 2000 SC 153 (T.H. Musthaffa Versus M.P. Varghese & others), AIR 2002 SC 1291 (Mahendra Pal Versus Shri Ram Dass Malanger & others) and AIR 1969 SC 1202(1) (Samant N. Balakrishna, etc. Versus George Fernandez & others etc.) to state that the petition was liable to 17 be dismissed under Order VII Rule 11 of the Code of Civil Procedure as the requirements of the provisions of Section 83(1)(b) were not fulfilled in this case. 17. After perusing the pleadings of the election petition in detail and after hearing the learned counsel for the parties, it appears that the petitioner has only made bald allegations in the petition and the petition is bereft of material facts. On a reading of the election petition in detail, it appears that the petitioner has simply imagined on the basis of the change in the percentage of polling reported in the newspapers on 16th of April, 2009 and officially declared by the Returning Officer on 18th of April, 2009 that there was bogus voting in favour of the respondent and the respondent was elected in view of the bogus voting. It was necessary for the petitioner to precisely and clearly state the material facts, which could show or at least make a person prima-facie believe that there was a bogus voting from 3.00 p.m. to 5.00 p.m. and also thereafter. The facts, which were essential to disclose a complete cause of action, were not pleaded by the petitioner in this case and bald allegations were made about the bogus voting in favour of the respondent by the polling agents and booth agents with the 18 help of the Returning Officer. Not a word has been stated in the petition, showing the manner or the form in which the Returning Officer had effected the bogus polling or had assisted in the bogus polling of votes. 18. Section 83 of the Act of 1951 provides that the material facts and particulars about the 'corrupt practice' should be set forth in the petition. The relevant provisions of Section 83 read thus----- [83. Contents of petition.–– (1) An election petition,–– (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; 19 19. It is, thus, necessary that an election petition should contain a concise statement of the material facts on which the petitioner relies. It is necessary that the contents and pleadings of the petition must be precise and not vague. The allegations in the election petition should not be vague or general in nature. The law requires that an election petition shall contain a concise statement of material facts and it shall set forth full particulars of corrupt practice in a clear and precise manner. It is necessary that the facts, which are essential to clothe the petition with complete cause of action, must be pleaded and a failure to plead even a single material fact would result in violation of the mandate of Section 83(1) (a) of the Act of 1951. It is well settled that an omission of a single material fact would lead to an incomplete cause of action and it is also well settled that an election petition bereft of material facts in regard to corrupt practice is liable to be dismissed whereas in a case of deficiency of material particulars, the Court can permit the party to rectify the defect at a subsequent stage of the election petition. The purpose of conferment of the