{1} ep0109j.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD ELECTION PETITION NO. 01 OF 2009 Sambhaji s/o Laxmanrao Pawar, age: 58 years, Occ: Business, R/o House No.1-3-83, Phule Nagar, Nanded, District Nanded. Petitioner Versus 1 Bhaskarrao s/o Bapurao Khatgaonkar Patil, age: major, Occ: Agriculture, R/o Rajendra Nagar Housing Society, Nanded, District Nanded. Respondent 2 The Returning Officer, } Names of 16, Nanded Parliamentary Constituency } Respondents No.2 and District Collector, Nanded, } & 3 stand struck having his office at Collectorate, Nanded. } off vide Court’s } order dated 3 The Election Commission of India, } 28.09.2010. Nirvachan Sadan, Ashoka Road, } New Delhi – 110 001, } through its Secretary. } Mr.P.R.Katneshwarkar, advocate holding for Mr.A.B.Girase, advocate for the petitioner. Mr.P.M.Shah, Senior Counsel i/by Mr.A.B.Dhongade, advocate for respondent no.1. Names of Respondents No.2 and 3 stand struck off vide Court’s order dated 28.09.2010. CORAM : R.M.BORDE, J. Reserved on : 25 th March, 2011 Pronounced on: 25 th April, 2011. {2} ep0109j.odt JUDGMENT: 1 The petitioner has presented instant petition challenging the election of Respondent No.1 – returned candidate to 16-Nanded Parliamentary Constituency. The results of the election were declared on 16th May, 2009 and Respondent No.1, who belongs to Indian National Congress Party, is declared as returned candidate. 2 Respondent No.1 has presented his written statement and controverted the contentions raised by the petitioner in the election petition. In the written statement presented by Respondent No.1, a preliminary objection is raised to the maintainability of the petition. Respondent No.1 has also requested for summary dismissal of the petition on the ground that it does not satisfy the requirement under Section 81(3) as well as Section 83 of the Representation of the People Act,1951 (hereinafter referred to as ‘the Act of 1951’). Respondent No.1 has raised an objection that the petition does not disclose accrual of cause of action and as such same is required to be dismissed at the threshold. A request was made by Respondent No.1 to take up the election petition for consideration of the preliminary objections. 3 Considering the request made by Respondent No.1, by an order dated 21.01.2011, it was directed to place the petition for {3} ep0109j.odt consideration of preliminary objections set out in the written statement and for consideration of prayer in paragraph 37(a) of the written statement for dismissal of the petition at the threshold. The parties were required to address on the preliminary objection. Accordingly arguments were heard on 23.03.2011 and 25.03.2011. ● CHALLENGE OF THE PETITIONER IN RESPECT OF MODE OF VOTING THROUGH APPARTUS OF ELECTRONIC VOTING MACHINES (EVMs). 4 The petitioner, in his petition, making reference to several reports, complaints, allegedly received by the petitioner, has expressed doubt as regards possibility of tampering with the EVMs. In paragraph 9 of the petition, it is contended by the petitioner, on the basis of information gathered by him, that there is every possibility that those machines can be rigged and/or manipulated and/or tampered with. In paragraph 10 of the petition, referring to the views expressed by the experts in the field, one Dr.Satinath Chaudhary, it is stated that by using Microsoft Windows 98 on a Compaq PC, an EVM could be simulated and programmed to add votes to a certain candidate, no matter who has been voted. Dr.Chaudhary is a non resident Indian (NRI) Computer Science Teacher in United States of America and it is stated that he had presented a public interest Civil Writ Petition in the Supreme Court and pointed out the risks in employing EVMs at the elections. In the said paragraph, views expressed by one {4} ep0109j.odt Shri Ravi Visvesvaraya Prasad, who is a technologist in Electronics, which are of similar nature, are referred to. It is stated in the petition that even in the developed countries like United States of America, there is a move against use of EVMs without safeguards. In rest of the paragraphs of the petition, apprehension expressed by the petitioner in respect of reliability of the electronic voting machines, has been reiterated. 5 So far as actual functioning of the EVMs at the election to the 16-Nanded Parliamentary Constituency is concerned, petitioner refers to an incidence at Booth No.90-182-Chainpur, based on the complaint of one Shri Hanumant Bhummanna Hangave. It is alleged that it was observed at the time of casting of votes, though the voters press the button before their preferential candidate, there occurred flashing of lights at two places. Thus an inference is drawn that though the voter intended to caste vote in favour of preferred candidate, it was recorded in the name of Respondent No.1. Similar allegation is made in respect of casting of votes at Polling Station No.265-Hartala. 6 The mode of voting through the apparatus of EVMs is sanctioned by law vide Section 61-A of the Representation of People Act, 1951, with effect from 15.03.1989. In the General Elections held in the year 2004 and 2009, system of voting through EVMs was put to application. So far as allegations contained in the {5} ep0109j.odt petition are concerned, those are merely in the nature of apprehension expressed by the petitioner. The actual misuse or intentional tampering or consequential malfunctioning of EVMs is a question to be decided based on appreciation of facts. Unless the petition contains proper pleadings with material particulars in respect of intentional tampering and malfunctioning of EVMs, the vague allegations made by the petitioner in the petition cannot be gone into. It is not open for this Court to draw a conclusion only on the basis of expert opinion or on the basis of surmises or conjectures as regards tampering and malfunctioning of EVMs. There are absolutely no pleadings to the effect that malfunctioning of EVMs is at the instance of Respondent No.1 and further that the result of the election is vitiated on account of such tampering which would amount to “corrupt practice” within the meaning of Section 123 of the Act of 1951. Unless and until it is demonstrated and pleaded that someone had access to the EVMs and that those machines were tampered and such tampering was at the instance of Respondent No.1 or with a view to gain advantage at the elections to Respondent No.1, the allegations made in the petition, in that behalf, cannot be examined. The petition does not set out “material facts”. It is nowhere pleaded in specific terms that: (a) The returned candidate or his agents have, in any manner, done acts of rigging or manipulations with the EVMs, consequently the result of election is materially affected as far as the returned candidate is concerned. {6} ep0109j.odt (b) 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. 7 So far as the contention raised by the petitioner, in the petition, in respect of alleged irregularity in the manner of voting at Polling Booth No.90-182-Chainpur is concerned, it is to be noted that the allegations are vague in nature. Nowhere it is stated that rigging or malpractice was by somebody at the instance of Respondent No.1 or with a view to gain advantage at the elections to Respondent No.1. 8 It is to be noted that at 16-Parliamentary Nanded Constituency, it was multi-candidate election between 22 candidates. The polling particulars at the election are as under: Total votes polled : 7,74,686 Votes secured by Respondent No.1: 3,46,400 Votes secured by petitioner : 2,71,786 Respondent No.1 got elected by a margin of 74,614 votes. 8 At Chainpur Polling Station No.90-182, total votes polled were 401. The votes secured by Respondent No.1 were 117 and votes secured by petitioner were 206 and other contesting {7} ep0109j.odt candidates got 78 votes. The election petitioner himself got a lead of 89 votes at Polling Station-Chainpur. Thus the figures, in themselves, are suggestive of the fact that vague allegations contained in the petition in respect of rigging of EVMs while recording votes at Chainpur, are without any basis. What is contended in the petition is that there was a defect in the ballot unit and not in the control unit. Ballot unit is considered to be dummy unit and kept in the polling compartment, whereas, control unit is handled by the Presiding Officer and it has all intelligence inbuilt in it. It is also to be appreciated that the petitioner has not disclosed anything about his personal knowledge about the occurrence of such an incident at Polling Station-Chainpur. 9 Similar is the case in respect of Polling Station No.265- Hatrala. The ballot particulars are thus: Total votes polled : 263 Votes cast in favour of petitioner : 81 Votes cast in favour of Respondent No.1 : 167 The allegations in respect of malfunctioning and defect occurred in the machine is distinguishable from corrupting the EVMs. Moreover, the petitioner has not stated anything in respect of his personal knowledge of the incident at village Hartala. Considering the margin of votes by which Respondent No.1 got elected, the votes cast at Polling Station No.265 and 90-182 are {8} ep0109j.odt insignificant. A reference can be made to the observations of the Apex Court in the matter of Election Commission of India Vs. Shivaji & others, reported in (1988) 1 SCC 277. The Apex Court has observed thus: “..... It has to be stated here that it is not the law that every non-compliance with the provisions of the Act or of the Constitution will vitiate an election. It is only when it is shown that the result of the election was materially affected by such non-compliance the High Court would have jurisdiction to set aside an election in accordance with Section 100 (1)(d)(iv) of the Act.” ● SECTION 83 (2) OF THE REPRESENTATION OF THE PEOPLE ACT READ WITH SECTION 94-A OF THE CONDUCT OF ELECTIONS RULES, 1961 – FORM NO.25.: 10 Section 83 of the Representation of the People Act refers to contents of petition. Sub-section (2) thereof provides that: (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. In the instant case, the schedule is not verified as per the requirements of law, however, verification of the schedule is in the nature of certifying the schedule as true copy of some {9} ep0109j.odt document. The verification of the schedule is not as contemplated by law. Each and every individual schedule is required to be verified independently. The source of knowledge stated by the petitioner is “own knowledge” as distinguishable from “information” derived from others, vide verification of Election Petition proper as well as the affidavit. The petition does not show the source of knowledge is “personal knowledge” of the petitioner himself. Such defect results in non disclosure of cause of action. A reference can be made to a judgment of the Apex Court in the matter of L.R.Shivaramagowda & others Vs. T.M.Chandrashekhar (dead) by L.Rs. & others, reported in (1999) 1 SCC 666, wherein it is observed thus: “15 The non-disclosure of grounds or sources of information in an election petition which is to be filed within forty-five days from the date of election of the returned candidate, will have to be scrutinised from two points of view. The non-disclosure of the grounds will indicate that the election petitioner did not come forward with the sources of information at the first opportunity. The real importance of setting out the sources of information at the time of the presentation of the petition is to give the other side notice of the contemporaneous evidence on which the election petition is based. That will give an opportunity to the other side to test the genuineness and veracity of the sources of information. The other point of view is that the election petitioner will not be able to make any departure from the sources or grounds, if there {10} ep0109j.odt is any embellishment of the case it will be discovered.” ● ALLEGATIONS OF CORRUPT PRACTICE MUST BE PROPERLY ALLEGED AND BOTH MATERIAL FACTS AND PARTICULARS SHOULD BE PROVIDED IN THE ELECTION PETITION ITSELF SO AS TO DISCLOSE THE COMPLETE CAUSE OF ACTION. 11 A reference can be made to a judgment in the matter of Gajanan Krishnaji Bapat Vs. Dattaji Raghobaji Meghe, reported in (1995) 5 SCC 347. The Apex Court in paras 16 & 18, has observed thus: “16 The election law insists that to unseat a returned candidate, the corrupt practice must be specifically alleged and strictly proved to have been committed by the returned candidate himself or by his election agent or by any other person with the consent of the returned candidate or by his election agent. Suspicion, however strong, cannot take the place of proof, whether the allegations are sought to be established by direct evidence or by circumstantial evidence. Since pleadings play an important role in an election petition, the legislature has provided that the allegations of corrupt practice must be properly alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action. 18 A petition levelling a charge of corrupt practice is required, by law, to be supported by {11} ep0109j.odt an affidavit and the election petitioner is also obliged to disclose his source of information in respect of the commission of the corrupt practice. This becomes necessary to bind the election petitioner to the charge levelled by him and to prevent any fishing or roving enquiry and to prevent the returned candidate from being taken by a surprise.” 12 In the instant matter, affidavit presented along with the petition, in respect of corrupt practice, is not in conformity with prescribed Form No.25. Thus, there is non compliance of Rule 94-A of the Conduct of Elections Rules, 1961. The defect, being a serious one, cannot be overlooked. Thus, the instant petition lacks all details of material facts, material particulars, proper verification of the petition and proper affidavit, which is required to be filed in prescribed Form. The affidavit required to be presented, as mandated by proviso to Section 81(3), shall be in Form No.25. The form of the affidavit requires the deponent to state which of the paragraphs of the election petition, in which allegations of corrupt practice are made, are based on his own knowledge and which are based on his information. Section 86(1) mandates that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Representation of the People Act. The language of this sub-section is quite imperative and commands the High Court, in no uncertain terms, to dismiss the election petition which does not comply with the requirements of Section 81 or {12} ep0109j.odt Section 82. ● THE INCIDENCE OCCURRED AT VILLAGE BARBADA, DATED 12 TH MARCH, 2009. 13 On consideration of the allegations contained in the petition in respect of the incidence at Barbada and on perusal of the First Information Report, there is absolutely no role attributed to Respondent No.1. The incidence is prior to presentation of nomination by the petitioner i.e. on 28.03.2009. Moreover, the election petition also does not disclose that the petitioner has any personal knowledge about the occurrence of such an incidence nor he speaks of his presence at the meeting. 14 The allegation in respect of breach of Code of Conduct is prior to the presentation of nomination by Respondent No.1. This, in itself, does not amount to a corrupt practice. Moreover, pleadings in respect of corrupt practice, so far as it relates to incidence at Barbada, is also imperfect. It is deficient in all material particulars so as to point finger to Respondent No.1 or to draw an inference in respect of complicity of Respondent No.1. 15 There is a reference in the election petition in respect of a pamphlet (produced at page 188 of the election petition), which is stated to have been published under the signature of Shri Ashok Chavan, (the then) Chief Minister of Maharashtra. In his capacity {13} ep0109j.odt as leader of the political party i.e. Indian National Congress, Shri Chavan was free to carry on electioneering campaign and make appeal to the voters for casting votes in favour of the candidates set up by the Indian National Congress party. Shri Chavan, during conduct of election campaign, is alleged to have highlighted the general development activities like Railway, Industrialization, Irrigation, which does not, in itself, amount to corrupt practice. ● THE OBJECTION BASED ON SECTION 86 OF THE REPRESENTATION OF THE PEOPLE ACT AND UNDER ORDER VII RULE 11 OF THE CODE OF CIVIL PROCEDURE READ WITH SECTION 83 OF THE ACT. 16 An election petition shall disclose all material facts on which the petitioner relies to establish existence of cause of action. Material facts essentially refer to all the relevant facts on which the petitioner relies for purposes of drawing inferences in his favour during the course of trial. The absence of material facts and insufficient cause of action would inevitably lead to dismissal of election petition. In the matter of Samant Vs. George Fernandez, reported in AIR 1969 SC 1201, it is observed as below: “The word `material’ shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material facts leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further {14} ep0109j.odt information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set out) was made and material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the appellant. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words `material facts’ will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. In the case of Virender Nath Goutam Vs. Satpal Singh and Ors [(2007) SCC 617, the Apex {15} ep0109j.odt Court explained:- All material facts, therefore, in accordance with the provisions of the Act, have to be set out in the election petition. If the material facts are not stated in a petition, it is liable to be dismissed on that ground as the case would be covered by Clause (a) of Sub-section (1) of Section 83 of the Act read with clause (a) of Rule 11 of Order VII of the Code. The expression `material facts’ has neither been defined in the Act nor in the Code. According to the dictionary meaning, `material’ means `fundamental’, `vital’, `basic’, `cardinal’, `central’, `crucial’, `decisive’, `essential’, `pivotal’, `indispensable’, `elementary’ or `primary’. (Burton’s Legal Thesaurus, (Third edn.); p.349]. The phrase `material facts’, therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, `material facts’ are facts upon which the plaintiff’s cause of action or the defendant’s defence depends. What particulars could be said to be `material facts’ would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party. In the case of Hari Shankar Jain Vs. Sonia Gandhi, reported in AIR 2001 SC 3689, it was held: {16} ep0109j.odt “Material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression `cause of action’ has been compendiously defined to mean 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. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet.” 17 In the matter of Ananga Uday Singh Deo Vs. Ranga Nath Mishra & others, reported in (2002) 1 SCC 499, the Apex Court has observed thus: “23 It will be thus seen that an election petition is based on the rights, which are purely the creature of a statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non- compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) and 86 read with Rule 94-A {17} ep0109j.odt of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between ‘material facts’ and ‘material particulars’. While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. “Material Facts” mean the entire bundle of facts, which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e. Clause (a) of sub-section (10 of Section 83. Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition leveling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it