1 ep16.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD ELECTION PETITION NO. 16 OF 2009 Manohar s/o Babarao Dhonde, aged 43 years, occ. Social Worker & Service, R/o Shewdi (Bajirao), Tq. Loha, Dist. Nanded, Local Address for correspondence, Plot No.13, Ajantha Housing Society,Near Darga Road, Garkheda Parisar, Aurangabad ...Petitioner VERSUS 1 Shankar s/o Ganeshrao Dhondge, aged 50 years, Occ. Member of Maharashtra Legislative assembly, R/o Bachoti, Tq. Kandhar, District : Nanded, 2 The Returning Officer, 88, Loha Assembly Constituency, Dist. Nanded ...Respondents (No.2 deleted as per Court's Order, dt.25.10.10) ..... Shri B.L.Sagar Killarikar, advocate for petitioner Shri P.R.Katneshwarkar, advocate for respondent no.1 ..... 2 ep16.09 CORAM : SHRIHARI P.DAVARE, J. DATE OF RESERVING THE JUDGMENT : 25.4.2011 DATE OF PRONOUNCING THE JUDGMENT : 06.5.2011 J U D G M E N T : - 1 Heard learned counsel for the parties. 2 The petitioner has preferred the present petition challenging the election of respondent no.1 – returned candidate from 88 Loha Assembly Constituency, wherein the polling was held on 13.10.2009 and the result was declared on 22.10.2009. 3 The petitioner claims to be the resident of Shewdi (Bajirao), Taluka Loha, District Nanded and contested the election in afore said 88 Loha Assembly Constituency as an official candidate of Shiv Sena party; whereas respondent no.1 contested the election as an official candidate of National Congress Party; whereas one Pratap Patil Chikhalikar contested the said election as an independent candidate, besides the other candidates. 3 ep16.09 4 The petitioner assailed the said election, mainly on two grounds; (i) tampering of EVM i.e. Electronic Voting Machines, amounting to corrupt practice, including the alleged booth capturing, thereby materially affecting the election of the Respondent, under Section 100 (1)(b)(d)(ii) read with Section 123(8)(4) and Section 135-A(1) and (e) respectively, of the Representation of People Act, 1951 (for the sake of brevity, herein after referred to as, “the Act”); (ii) improper reception of votes under Section 100(1)(b)(d)(ii)(iii) of the Act, allegedly amounting to corrupt practice and thereby materially affecting the said election. 5 Respondent no.2 i.e. the Returning Officer, 88 Loha Assembly Constituency, Nanded preferred an application, below Exh. 10, to delete him from the array of the present petition, and after hearing learned counsel for the respective parties, the said application was allowed and name of respondent no.2 was directed to be deleted from the array of the present petition by order dated 25.10.2010. 4 ep16.09 6 Respondent no.1 i.e. Returned candidate, namely Shankar Ganeshrao Dhondge presented an application below Exh.8 under the provisions of Order VII Rule 11 of the Code of Civil Procedure and thereby raised the objections that the election petition does not disclose the cause of action and also it does not disclose the material facts and particulars of the alleged corrupt practice, nor it disclosed the material facts and particulars of improper reception of votes. It is also contended that the election petition is flimsy, vague and ambiguous, and there is no pleading in the election petition that because of the alleged corrupt practice, the result of election, in so far as it concerned to the Returned candidate, has been materially affected. Hence, it is urged that the election petition is liable to be rejected, in view of the provision of Order VII Rule 11(a)(d) of the Code of Civil Procedure. 7 The election petitioner filed affidavit in reply to the said application at Exh.11 and thereby opposed the said application vehemently and submitted that the election petition filed by the petitioner is perfectly maintainable and all the pleadings and grounds are sustainable in view of Section 83(1)(b) and (c) of the said Act r/w Order VII Rule 11(a) of the Code of Civil Procedure. It is also contended by the petitioner that there is no infirmity in the pleadings and the petition strictly complies with Sections 31, 83(1)(c) and 86 of the Act r/w Rule 94-A of the Rules framed under the Act and Form 25 of the relevant Election Rules. It is 5 ep16.09 further contended that the allegations regarding infirmities in the pleadings and the contentions raised in the afore said application Exh.8 are false, baseless and unsustainable in law, and therefore, consequently, submitted that the said application deserves to be rejected with costs. 8 Before adverting to the submissions advanced by the learned counsel for the parties in respect of the said application Exh.8, and reply thereto at Exh.11, it is necessary to consider the material pleadings in the election petition, and at the out set, the petitioner contends that while submitting the nomination form by respondent no.1-Shankar Anna Dhondge on 25.9.2009, Shri Ashok Chavan, Chief Minister of Maharashtra State was present with him in the said rally, but unfortunately, a political worker of the then M.L.A. (independent) viz. Shri Pratap Patil Chikhalikar threw a shoe on the Chief Minister and the said incident was taken seriously by the Chief Minister as well as party workers of Congress-I party to defeat the then M.L.A. (independent) Shri Pratap Patil Chikhalikar, and hence, the entire campaigning of Congress-I party in 88 Loha Assembly Constituency for the year 2009 was concentrated against said Shri Pratap Patil Chikhalikar to defeat him, and therefore, it was made a prestige issue, and hence, respondent no.1 preferred to avail corrupt practice for success in 88 Loha Assembly Constituency, such as, (1) Tampering of EVMs i.e. Electronic Voting Machines, including Booth capturing and (2) improper reception of votes. 6 ep16.09 9 In para 10 of the petition, the EVM i.e. Electronic Voting Machine is described as devised and designed by Election Commission of India in collaboration with two Public Sector Undertakings, viz. Electronics Corporation of India Ltd., Hyderabad and Bharat Electronics Ltd., Banglore and the EVMs are manufactured by the above two undertakings and same were first used in the year 1982 in Bye-Election-II Assembly Constituency of State of Kerala. 10 In para no.16 of the petition, the possible ways of tampering EVMs are enumerated as follows :- I) Tampering with the hardware cheap or software by adding malicious code like Trojan Horse or Mis-configuration, can alter vote totals or favour a particular candidate, and swapping of cheap/boards enable Trojans to favour a candidate; II) Cables of two control units can be swapped to swap votes; III) Hacking can take place during transportation, handling, polling station, storing places, repair, maintenance, etc.; 7 ep16.09 IV) Abusing the administrative access to the machine by election officials, might also allow individuals to vote multiple times. 11 It is submitted in para 21 of the petition that as per election programme, the date of withdrawal of the candidature/nomination form was 29.9.2009 and the list of final contesting candidates came to be published. It is stated in the petition that it transpired from the information furnished by the Returning Officer that 318 EVMs were brought to Nanded by vehicles MH-26/B-3369 and MH-22/559 on 23.9.2009 and said 318 EVMs were stored at Tahsil office, District Nanded. It is contended by the petitioner that as per the information supplied and gathered by him from his sources, after allotment of symbols, ballot papers with name and symbol of the candidate were prepared on 6.10.2009 and EVMs were handled by the Engineer appointed by the Electronics Corporation of India Ltd., Hyderabad, namely Shri C. Pullaiah at 88 Loha Assembly Constituency for updating ballot paper screen. 12 It is stated in para 22 of the petition that the process of insertion of ballot paper screen in EVM was done by said Shri Pullaiah, the sole authorized Agent/Engineer appointed by Electronics Corporation of India on 6/7.10.2009 by using laptop. It is also stated that in all 318 machines were to be updated by Shri Pullaiah at Loha, District Nanded and no private individual, except security guard and a hotel 8 ep16.09 owner/attendant, namely Shri Nagnath Madhukar Dhonde (who provided tea and snacks) were permitted to enter the premises. It is also recited in para 22 of the petition that on inquiry, it further disclosed to the petitioner that Shri Pullaiah was updating the machine by connecting it with laptop by a cod and while taking tea and snacks from hotel owner/attendant Shri Nagnath Madhukar Dhonde, he disclosed to the petitioner that he was updating the software of EVMs to suite it for 88 Loha Assembly Constituency. 13 It is also stated in para 23 of the petition that on making further inquiry, it revealed that on 5.10.2009 at 10.30 p.m. Shri Rohan Shankarrao Sundge has seen Shri Shankar Anna Dondge-respondent and Babasaheb Sheshrao Deshmukh (Election Agent) and Shri Pullaiah taking dinner together at Government Guest House, Nanded. Hence, on inquiry, Shri Rohan Sundge informed that though the elections were going on he was surprised to see the respondent-Shri Shankar Anna Dhondge as well as Babasaheb Sheshrao Deshmukh at Government Guest House taking dinner with unknown person. Therefore, out of curiosity, he made inquiry with the available staff and he was informed that the unknown person is Shri C. Pullaiah, an Engineer appointed by Electronics Corporation of India Ltd., Hyderabad for maintenance and updating of EVMs. Moreover, Shri Rohan Shankar Sundge also informed that he had seen said Shri Pullaiah at Loha while distributing EVMs. It is also stated in said paragraph that the petitioner was informed by Shri Rohan Shankar Sundge that he saw 9 ep16.09 respondent no.1, namely Shankar Anna Dhondge, Mr. Deshmukh (election Agent of Respondent no.1) entering in the premises of Government Guest House on 5.10.2009, but he was surprised to see the same, since the Code of Conduct was in operation and politicians in that period were prohibited from using Government Guest House, and hence, he preferred to follow them and made the inquiry, and upon inquiry he was informed that the discussion in respect of EVMs and software therein was under progress. Therefore, he preferred to observe the demonstration and future planning made by them and said Shri Pullaiah showed the demonstration thereof to respondent no.1 Shri Shankar Anna Dhondge and his election agent Shri Deshmukh. Accordingly, it is submitted that respondent, namely Shri Shankar Anna Dhondge and his agent Shri Deshmukh hatched plan, in collusion with Shri Pullaiah and thereby transferred the votes cast by voters in favour of the petitioner to respondent no.1 by using Trojan horse method/technology, which amounted to unfair means and corrupt practice, and hence, the election of respondent no.1 deserves to be quashed and set aside, since it is a fraud on election process and democratic rights of voters from 88 Loha Assembly Constituency for 2009 election. 14 In paragraph 24 of the petition, it is recited that on inquiry it revealed to the petitioner that after publication of final list of contesting candidates on 29.9.2009 and after allotment of symbols, the ballot papers with the name of candidate and his election symbol were prepared and 10 ep16.09 respondent no.1 Shri Shankar Anna Dhondge managed Shri Pullaiah for tampering the EVMs by Trojan horse software/technology to change the election results favourably. Hence, it is alleged that the dinner meeting was nothing but a meeting for manipulation of EVMs by using Trojan horse software/technology for favourable election results, thereby transferring votes cast to the petitioner at Sr. No. 3, to the candidate respondent no.1 at Sr. No.2, at prefixed percentage. 15 In the said context, it is pleaded by the petitioner in para 25 of the election petition that all these aspects and factual details came to the notice of the petitioner while taking assessment of election prospects after declaration of results in a meeting held on 4.11.2009 at Meenatai Thakare Ashram School at Risangaon, Taluka Loha, which was attended by not less than 500 party workers and during the discussion it was revealed that at those all 92 booths the trend of voting was in favour of Shiv Sena-BJP, since those were the polling booths where Shiv Sena-BJP candidates were leading in all earlier elections since 1995. It was contended that as far as Shiv Sena-BJP workers were concerned, irrespective of the candidate set up by the party, they used to vote for the party, and therefore, as far as Shiv Sena-BJP was concerned, the change in candidate never affected on the percentage of vote or voting trend. 16 It is recited in para 26 of the petition that on this background, while taking assessment of the situation, boothwise inquiry was made and 11 ep16.09 it revealed that though hundreds of voters cast their votes in favour of Shiv Sena-BJP candidate by pressing the button meant for Shiv Sena-BJP candidate, the result showed that those voters were not counted in favour of Shiv Sena-BJP candidate. Hence, minute inquiry was made in this regard and on analysing and scrutinizing the information brought to the notice by party workers minutely, it revealed that the election results were adversely affected not because of the trend of the voting but because of manipulation and tampering of EVMs by respondent no.1 Shri Shankar Anna Dhondge and Shri Babasaheb Deshmukh (election Agent of Respondent no.1) in collusion with the Engineer appointed by the Electronics Corporation of India Ltd., Hyderabad Shri C. Pullaiah. Hence, it is also contended in said para 26 that it is nothing but a case of well designed fraud committed on 88 Loha Assembly Constituency voters by respondent no.1 Shri Shankar Anna Dhondge and his election agent Shri Babasaheb Deshmukh in collusion with the said engineer appointed by the Electronics Corporation of India Ltd., Hyderabad Shri C. Pullaiah. Hence, it is urged that on this ground alone, the election of respondent no. 1 is liable to be declared as void under Section 100 (1)(b)(d)(ii) and (iii) read with Section 135-A(1) and (e) of the Act. 17 It is further pleaded in para 27 of the petition that the Returning Officer and the Tahsildar of Tahsil Office, Loha, by letter dated 24.9.2009 have supplied the information in tabulated form running from page nos. 1 to 10, thereby giving information of distribution of the Election Photo 12 ep16.09 Identity Card (hereinafter referred to as, “EPIC”) and photo coverage till 6.10.2009 as regards 267 booths. It is alleged that at the same time, the scrutiny sheet for polling station supplied by the Returning Officer showed the number of votes polled in 88 Loha Assembly Election by showing EPIC and comparison of the information as regards supply of EPIC and the number of voters who cast the votes by showing EPIC were unmatched. Moreover, further comparison of the figures as provided in those two charts showed that the number of voters voted by showing EPIC are more than the actual distribution of EPIC from the said booth. Hence, it is submitted that the election results of 88 Loha Assembly Constituency were adversely affected because of improper reception of votes, and hence, the said election deserves to be declared as void on the said ground alone. 18 On the background of the afore said pleadings, the learned counsel Shri P.R.Katneshwarkar for the respondent no.1 i.e. the Returned candidate, submitted that the election petition is liable to be rejected in view of the provision of Order VII Rule 11(a) and (d) of the Code of Civil Procedure, since the election petition does not disclose the cause of action and also does not disclose the material facts and particulars of alleged corrupt practices, nor it discloses the material facts and particulars of improper reception of votes. It is canvassed by learned counsel for the respondent that the pleadings in para nos. 1 to 26 of the election petition are unnecessary, frivolous and vexatious and do not constitute any of the 13 ep16.09 grounds under Section 100 of the Act and those are just to prejudice, embarrass and to delay the trial, as well as the said pleadings are nothing but abuse of process of law. It is further submitted, more particularly para nos. 1 to 20 of the petition are just mere informative and there is no concise statement therein in respect of the alleged corrupt practices and even no sources are disclosed therein in respect of alleged corrupt practices. 19 According to the learned counsel for the respondent, the Ground No.1 pleaded by the petitioner in the petition is based on the corrupt practice contemplated under Section 123(8)(4) r/w Section 135- A(1)(a) and (e) of the Act and it is contended that Section 123 of the Act pertains to booth capturing by a candidate; whereas Section 135-A is the penal provision and clause thereunder is in respect of 'seizure of a polling station or a place fixed for the poll by any person or persons making polling authorities surrender the ballot papers or voting machines and doing of any other act which affects the orderly conduct of elections', and clause thereunder is in respect of 'doing by any person in the Government service, of all or any of the aforesaid activities or aiding or conniving at, any such activity in the furtherance of prospects of election candidate'. Reading of entire pleadings of Ground No.1 from para nos. 10 to 26 shows that there is no disclosure of material facts, material particulars and cause of action in order to challenge the election of the respondent on the said count. 14 ep16.09 20 It is further canvassed by the learned counsel for the respondent that all the pleadings are not within the knowledge of the petitioner, but he claims that it is based upon information received by him. Pertinently, there is no disclosure of date, time and place where the alleged corrupt practice has taken place. It is submitted that even there is no disclosure of names of persons from whom the petitioner received the information. Accordingly, it is submitted that there is no pleading that which booths were captured and the number of booths captured and the manner of capturing the booths. Hence, it is submitted that in the absence of those pleadings, which would constitute complete cause of action, the petition deserves to be rejected. 21 Besides, the learned counsel Shri Katneshwarkar for the respondent argued that in the General Elections in the year 2004-2009, system of voting through EVMs was put in application. In the said context, it is submitted that the allegations contained in the election petition are merely in the nature of apprehension expressed by the petitioner. The question of tampering of EVMs is to be decided upon appreciation of facts. Unless, the petition contains proper pleading with material particulars in respect of tampering of EVMs i.e. Electronic Voting Machines, the vague allegations made by the petitioner in the petition cannot be gone into. It is further submitted that it is not open for this Court to draw a conclusion only on the basis of extraction of information or on 15 ep16.09 the basis of surmises as regards tampering of EVMs. It is also canvassed that there are absolutely no pleadings to the effect that the tampering of EVMs was at the instance of the respondent and the election was vitiated by such action of tampering, which would amount to “corrupt practice”, within the meaning of Section 123 of the Act. Hence, it is earnestly submitted by the learned counsel for the respondent that unless and until it is pleaded and demonstrated that : (1) somebody had access to EVMs; (2) those EVMs were tampered; and (3) such tampering was at the instance of respondent herein or his agent with a view to get advantage at the election of respondent, the allegations made in the petition in that behalf cannot be examined. Accordingly, it is submitted that the petition does not set out any “material facts”. It is further submitted that it is nowhere pleaded in specific terms that : (1) the Returned candidate or his agent have, in any manner, done acts or manipulated with EVMs, and consequently, the result of election is materially affected as far as Returned candidate is concerned; or (2) due to any fault or interference in the EVMs, the result of election has been materially affected as far as the Returned candidate is concerned. 22 The learned counsel for the respondent further canvassed that nothing has been stated in the petition that what kind of EVMs were used, how they were tampered and what kind of material was used for alleged tampering or whether there is any witness to state that what kind of software was used and even source of information also has not been 16 ep16.09 disclosed, even if the petition is taken as it is. Accordingly, it is submitted that no corrupt practice has been spelt out in the petition filed by the petitioner and even the names of the parties, who alleged to have committed corrupt practices are absent or even there is no statement that the Returned candidate or his Agent in connivance with the Returning Officer tampered the EVMs and even the alleged pleading in paras 23 and 24 of the petition speak about the dinner meeting and alleged plan, but there is no pleading about the implementation of the said plan. Accordingly, it is submitted that there are mere allegations and no evidence is cited regarding the alleged corrupt practices. It is also submitted that there is no pleading in para 25 of the petition regarding the attendant present at the meeting of the party workers allegedly held on 4.11.2009 and even no objection was raised regarding tampering of EVMs on the date of voting i.e. 13.10.2009, although the alleged meeting of dinner at Government Guest House was held on 5.10.2009, before the declaration of result i.e. on 22.10.2009. Accordingly, the petitioner did not take any steps from the date of knowledge of alleged corrupt practice till the date of result. Besides, it is also argued by the learned counsel for the respondent that there is no whisper regarding alleged booth capturing and there is no pleading that what was the mode of alleged booth capturing and how they participated in alleged corrupt practices and even there are no averments in that respect in the petition. 23 As regards another ground of improper reception of votes, it is 17 ep16.09 submitted by learned counsel for the respondent that para 27 of the election petition does not disclose material facts and particulars pointing out improper reception of votes. Moreover, there is no clear disclosure that how many voters were there and who were the voters who voted with EPIC. Pertinently, there is no pleading that the voters who only possessed EPIC were permitted to vote. In fact, EPIC is for identification purpose. The voters who do not possess EPIC were not restrained from exercising their votes and their identification was ensured by other documents, such as pan cards, driving license, etc. Accordingly, it is submitted that there is no pleading that the persons who did not possess EPIC are not valid voters and the persons who were not valid voters cast their votes in favour of respondent, thereby the result of the election, in so far as it concerned to the Returned candidate, has been materially affected. According to the learned counsel for the respondent, there is absolutely no pleading that how many votes were improperly accepted. It is further submitted that the election results demonstrated that respondent received 81,203 votes as against the petitioner who received hardly 7,064 votes. Accordingly, it is submitted that considering the huge gap and difference in the votes of petitioner and Respondent, more particularly, in absence of specific pleading, it cannot be said that the election of Returned candidate is materially affected. Thus, it is submitted that the pleading raised about ground no. 2 does not disclose cause of action. 24 Besides, the learned counsel for the respondent further argued 18 ep16.09 that there is no clear statement that how many votes were improperly received affecting the election materially, as well as there is nothing on record to show the difference in votes secured by the Returned candidate and the votes secured by the petitioner i.e. 74,139 votes