1 EP NOS.4/2009 & 10/2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD ELECTION PETITION NO.4 OF 2009 AND ELECTION PETITION NO.10/2009 Date of decision:23/12/2011 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? Yes 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/ep 2 EP NOS.4/2009 & 10/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD ELECTION PETITION NO.4 OF 2009 1. Tatyasaheb @ Raghunath s/o Omkar Patil, Age: 57 years, Occ: Business and Social work, r/o 38, Jaikisan Housing Society, Bhadgaon Road, Pachora, Dist. Jalgaon. ...PETITIONER VERSUS ((1. The Election Commissioner of India, having office at Nirvachan Bhavan, New Delhi. 2. The Election Commissioner, State of Maharashtra, having office at New Administrative Building, Opposite Mantralaya, Mumbai 32. 3. The District Election Officer/Collector, Jalgaon. 4. Shri V.H.Valvi, Returning Officer and Electoral Registration Officer, 18, Pachora Assembly Constituency, Dist. Jalgaon. )) (Respondent nos. 1 to 4 deleted vide Courts order dt.26.7.2010) 5. Dilip s/o Omkar Wagh, Age: 44 years, Occ. Agriculture, R/o. Jai Durgamainagar Road, Pachora, Dist. Jalgaon. ...RESPONDENTS ... 3 EP NOS.4/2009 & 10/2009 Mr. S.M.Godsay & Mr.D.B.Thoke, Advocates, for the petitioner. Mr. P.M.Shah, Senior Counsel, h/f Mr. Mr. M.S.Deshmukh, Adv., for Respondent No.5. ... AND ELECTION PETITION NO.10 OF 2009 Sow.Swati w/o Pravin Patil, Age 27 years, Occu. Social Work and Household, r/o. H.No.456, Lothaya Jin, Pachora, Tq. Pachora, Dist. Jalgaon. ...PETITIONER VERSUS (1. The Election Commissioner of India, having office at Nirvachan Bhavan, New Delhi. 2. The Election Commissioner, State of Maharashtra, having office at New Administrative Building, Opposite Mantralaya, Mumbai 32. 3. The District Election Officer/Collector, Jalgaon. 4. Shri V.H.Valvi, Returning Officer and Electoral Registration Officer, 18, Pachora Assembly Constituency, Dist. Jalgaon. )) (Respondent nos. 1 to 4 deleted vide Court's order dt.26.7.2010) 5. Dilip s/o Omkar Wagh, Age: 44 years, Occ: Agriculture, r/o Jai Durgamainagar Road, Pachora, Dist: Jalgaon. ...RESPONDENTS 4 EP NOS.4/2009 & 10/2009 Mr. S.M.Godsay & Mr.D.B.Thoke, Adv., for the petitioners. Shri P.M.Shah, Senior Counsel, for Mr.M.S.Deshmukh,Advocate for respondent no.5. ... CORAM: K.U.CHANDIWAL, J. DATE : 23/12/2011 *** Date of reserving the judgment:15/12/2011 Date of pronouncing the judgment:23/12/2011 *** JUDGMENT: 1. Heard. In both the election petitions, application under Order 7 Rule 11 of C.P.C. is moved by original respondent no.5 ( now sole respondent - the returned candidate) for rejecting election petitions for want of requisite legal compliances. 2. The petitioner Tatyasaheb and respondent contested Legislative Assembly election for 18th Pachora Assembly, Maharashtra State. The Election Commissioner, vide notifiation dated 18th Sept.,2009, has declared election programme for the State Legislative Assembly of Maharashtra State, 25th Sept.,2009, was the last date for making nominations, the polling was scheduled on 13th Oct.,2009. The petitioner Tatyasaheb secured 73,501 votes while respondent (sole) Deelip Wagh 5 EP NOS.4/2009 & 10/2009 secured 79,715 votes and, consequently, the respondent was declared elected. 3. The petitioner canvassed, as per the election programme published, 25th Sept.,2009, was the date for filling in nominations, and in the light of Section 23 of the Representation of People Act, 1950, no addition and deletion in electoral roll is permissible. Publication of a supplementary list on 28th Sept.,2009, of almost 4500 names of new voters is against the provisions of the law, impermissible, amounts to non compliance of the provisions of the Constitution and Representation of People Act, 1951, in the light of Section 100(1)(d)(iv) of Representation of People Act, 1951, and on this ground the election of the respondent is sought to be declared as void. The petitioner contended, inclusion of around 4500 voters after filling in the nomination is not only illegal but it smells of mala fides on the part of respondent no.4 ( since deleted) and to usurp electoral verdict to the respondent (now sole). 4. In Election PetitionNo.10/2009 of Smt.Swati Patil, has claimed that inclusion of her name subsequently in the electoral roll has adversely influenced her chances of participating / contesting the election. This is more so as a candidate in the Assembly election has to furnish 6 EP NOS.4/2009 & 10/2009 his electoral roll number in the State, to be a contestant for such election. The illegal inclusion, without any authority of law in the officers of the Election Commission has resulted in a prejudice to all the candidates who were in the fray. This has happened only in Pachora constituency from entire State which indicates, purposeful design with an ulterior motive, to help some candidate, or to cause prejudice to some candidate. 5. By virtue of this Court's order the authorities of Election Commission, original respondent nos. 1 to 4, were duly deleted by the petitioner and the petition is contested now by the returned candidate as sole respondent. 6. The respondent has canvassed that the petition will not stand in terms of Section 100(1)(d)(iv) of the Representation of People Act, 1951 ( for short, "Act of 1951), as the Act of 1951 and the Act of 1950 operate in an altogether different fields. The assumption carried by the petitioner of all 4500 disputed electorate having exercised their right of franchise is fundamentally faulted, which is inconsistent with the electoral behaviour / pattern. Even otherwise, due to margin difference, the inclusion of disputed 4500 electorate has not slightly affected the result 7 EP NOS.4/2009 & 10/2009 of election. This eloquently demonstrate that the foundation of election petition is faulted which calls for rejection of the petition. The entire election could not be declared as void as the right of electorate which is sacrosanct, need not be interfered with casually in absence of convincing and cementing grounds. There are no material facts pleaded to distinctly show which are such 4500 names newly incorporated nor the list annexed demonstrated such 4500 names. The assumptive figure is given, to be nearly 4500 which, by assumptive surmises, could be 1 to 4500 as a cap. 7. It is canvassed by respondent that, it is not pleaded that all disputed 4500 electorate have en-block voted in favour of the returned candidate. It has also not been pleaded, and it is not known, as to which particular candidate received votes from individual included voter from disputed 4500 voters. The entire petition is theoretical, associated with assumptions, presumptions, figment of fiction. 8. In the election process there is supplementary-II finally published copy of electoral roll. It is due to the fact that the electoral registration is on till last day of nomination. The petitioner does not speak of dates of passing appropriate orders by the 8 EP NOS.4/2009 & 10/2009 Electoral Registration Officer; it only pleads about date of publication of Supplementary List No.II dated 28th Sept.,2009. This publication is only a ministerial act and there is a presumption that the official act being done in a proper manner. Section 23(3) of 1950 Act would not be applicable. 9. Shri Godsay, learned Counsel for the petitioner asserts that since the authorities of Election Commission of India, including learned Collector are deleted, he does not press the allegations concerning mala fides or ulteriorness on the part of the respondents to those of the deleted respondents and, consequently, it will not now be branded to be corrupt practice in the definition of Section 123 of the Representation of People Act, 1951. Learned Counsel reiterate there is no requirement of filing an affidavit mandated in Section 100(2) of the Representation of People Act, 1951. Learned Counsel also submits that the recitals in the petition are to be seen in the light of annexures. The list of the voters will make out the grounds of illegality and inclusion of 4500 voters by the Election authorities in the electoral rolls in breach of Section 23 of 1950 Act. Publication of voters list would not be ministerial act as it should be available before nomination. It was a failure of election officers to follow mandate of 9 EP NOS.4/2009 & 10/2009 law which would be demonstrated by leading evidence, including pointing the petitioners chances of success having been hampered. Non challenge to the voters list under the Act of 1950, would not bar remedies of election petition. There are no such defects which go to the root of the matter. Even if such defects are there, they are of cosmetic nature. He has relied on judgment reported in AIR 2008 SC 1577 (Umesh Chaliyil Vs. K.P. Rajendran). 10. points arise for consideration: a) Whether the petitioner has pleaded details of objected 4500 electorate to demonstrate that they were newly added electorate. Whether petition fails for want of material facts under the election law / Code of Civil Procedure. b) Whether the inclusion of 4500 voters/electorate has materially affected the ultimate result of the election, causing prejudice to the petitioner or any of the contesting candidate. c) Whether the election petition is maintainable under Section 100 of Act of 1951, when infirmities in compliance to Section 23 of 1950 Act are only pleaded. 10 EP NOS.4/2009 & 10/2009 d) Whether the petition fails for want of affidavit under Rule 94 alleging corrupt practice in terms of Section 123 of 1951 Act. e) What order. My findings to above points are: (a) Material facts not pleaded. Petitions fail. (b) No. (c) No. (d) On this ground it would not fail. (e) Elections Petitions fail, hence dismissed. 11. The law on Elections has been crystallized in several pronouncements of Honourable Supreme Court, including Constitution Bench. The settled legal position emerged from the cited judgments is: (a) Burden is upon the election petitioner to show affirmatively that the result of the election has been materially affected. 11 EP NOS.4/2009 & 10/2009 (b) The casting of votes at an election depends upon variety of factors and it is not possible for anyone to predicate how many or which proportion of votes will go to one or the other of the candidates. While it must be recognized that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by Section 100(1)(c) and hold without evidence that duty has been discharged. (Paokai Haokip v. Rishanq, AIR 1969 SC 663). (c) It is necessary for the petitioner to specifically plead that the election in so far it concern the returned candidate has been materially affected by non compliance with the provisions of the Act of 1951 or the Rules made thereunder. ( 2009 (11) SCC 398 ( G.S.Iqbal Vs. K.M.Khadar & Co.). (d) There is no definition of material facts either in the Representation of People Act, 1951, nor in the Code of Civil Procedure. In a series of judgments, the Supreme Court has laid down that all facts necessary to formulate a complete cause of action should be termed as material facts. All basic and primary facts which must be proved by party to establish the existence of cause of action or defence are material facts. Material facts, in other words, mean entire 12 EP NOS.4/2009 & 10/2009 bundle of facts which would constitute a complete cause of action. Whether in an election petition, a particular fact is material or not and as such requires to be pleaded is dependent on the nature of the charge levelled and circumstances of the case. All the facts which are essential to clothe with complete cause of action must be pleaded. (e) An election petition can be summarily dismissed if it does not furnish cause of action in exercise of power under Civil Procedure Code. Appropriate orders in exercise of powers under the Code can be passed if mandatory requirements enjoined by Section 83 of the Act to incorporate material facts in election petition are not complied with. Failure to state even a single material fact will entail dismissal of election petition. ( (2009 (9) SCC 310 (Anil Vasudev Salgaonkar Vs. Naresh Khushali Shigaonkar). (f) It gives a mandate to the electoral registration officers not to amend, transpose or delete any entry in the electoral roll of a constituency after the last date for making nominations for election in that constituency and before the completion of that election. (Baidyanath Panjiar vs Sitaram Mahto & Ors 13 EP NOS.4/2009 & 10/2009 ( (1969) 2 SCC 447). (g) The entire scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an Electoral Roll of a constituency can only be challenged in accordance with the machinery provided by it and not in any other manner or before any other forum unless some question of violation of the provisions of the Constitution is involved. (Pampakavi Rayappa Belagali vs B. D. Jatti & Others ( 1970 (3) SCC 147), relevant at page 150, paragraph 7). In election petition there cannot be roving and fishing inquiry at a trial without pleading. Bridging up gaps at the trial for want of pleading are not permitted. Section 87 of 1951 Act takes care of applicability of Code of Civil Procedure, still, Section 83 refers to requisite contents of the petition to inform concise statement of material facts on which the petitioner alleges; allegations of corrupt practice will invite an affidavit in the prescribed form in support of allegations of such corrupt practice and particulars thereof. (h) In Hariprasad Mulshanker Trivedi vs V. B. Raju And Others ( (1974 3 SCC 424) - Constitution Bench, paras 30/31), it is observed: 14 EP NOS.4/2009 & 10/2009 The requirement of ordinary residence, as a condition for registration in the electoral rolls is one created by Parliament by S. 19 of the 1950 Act, and as we said, we see no reason why Parliament should have no power to entrust to an authority other than a court or a tribunal trying an election petition the exclusive power to decide the matter finally. We have already referred to the observation of this Court in Kabul Singh's case (supra) that sections 14 to 24 of the 1950 Act are integrated provisions which form a complete code in the matter of preparation and maintenance of electoral rolls Section 30 of that Act makes it clear that civil courts have no power to adjudicate the question. In these circumstances we do not think that it would be incongruous to infer an implied ouster of the jurisdiction of the court trying an election petition to go into the question. That inference is strengthened by the fact that under s. 100 (1) (d) (iv) of the 1951 Act the result of the election must have been materially acted noncompliance-with the provisions of the Constitution or of that Act or of the rules, orders made under that Act in order that High Court may declare an election to be void. Non- compliance with the provisions of s. 19 of the 1950 Act cannot furnish a ground for declaring an election void under that clause. 15 EP NOS.4/2009 & 10/2009 We, therefore, return to the question whether these respondents were not qualified or were disqualified to be chosen to fill the seat under the Constitution or the 1950 Act or the 1951 Act. As we said, there was no allegation that they were disqualified under s. 16 of the 1950 Act. Nor was there any ground taken that they were not qualified in the sense of their being not citizens or under the age as required. As their names were entered in the electoral roll and as they did 'not suffer from any of the disqualifications mentioned in s. 16 of the 1950 Act, they were electors within the definition of the term in s. 2(1) (e) of the 1951 Act. They were, therefore, qualified to be chosen as candidates under s. 3 of the 1951 Act. (i) Section 23 of 1950 Act deals with inclusion of names in the electoral roll of a constituency. Section 24 of 1950 ACt provides for an appeal from any order passed under Section 22 or Section 23. Section 13 of 1950 Act deals with (a) bar of Civil Court to have jurisdiction to entertain or adjudicate upon any question where any person is or is not entitled to be registered in an electoral roll for a constituency, or (b) to question the legality of any action taken by or under the authority of an electoral registration officer or of any decision given by any authority appointed under this Act 16 EP NOS.4/2009 & 10/2009 for the revision of any such roll. Kunwar Nripendra Bahadur Singh Vs. Jai Ram Verma ( 1977 (4) SCC 153) para 8 (j) It is only where the provisions of Statute are ambiguous that the Court can depart from literal or strict construction. Where the words of a statute are plain and unambiguous must be given effect to them. There should be judicial restraint and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron. ( B.Parmanand Vs. Mohan Kokil and others decided on 16th March, 2011, Civil Appeal No.2684/2007, Supreme Court of India) (k) An election petition should not be summarily dismissed if the defects are minor or cosmetic in nature. In order to maintain the sanctity of the election, the Court should not take such technical attitude and dismiss the election petition at the threshold. On the contrary, after finding the defects, the Courts should give proper opportunity to cure the defects and, in case of failure, to remove or cure the defects, it could result into dismissal. ( AIR 2008 SC 1577 Umesh Chilial Vs. K.P.Rajendran.) 17 EP NOS.4/2009 & 10/2009 12. Petition portray that it was inclusion of around 4500 votes in the electoral roll has imbalanced and strangled the election results. 13. The petitioner has not provided details of the so called objected 4500 electors to be newly added or what are their addresses. Detailed list of such newly added electorate is not incorporated. Petitioner himself is uncertain whether the figure could be one or to a ceiling or cap of 4500. He has kept everything in guessing This is impermissible under election law as it is wanting details of fact, including furnishing particulars. Facts are imperative to be pleaded. 14. The returned candidate (respondent) cannot be blamed for the inclusion of 4500 voters in a supplementary list. It was basically in tune with the direction of Election Commission of India that a systematic process for enrollment of electoral roll was generated. It does not appear even from pleadings that Respondent choreographed the preparation of supplementary list. 15. The election programme shows that two sets of electorate were to be incorporated: (a) first timers, (b) those whose names appear in the electoral roll but their photographs were not 18 EP NOS.4/2009 & 10/2009 annexed. The Election Commission decided to make the list uptodate. The details of first or fresh electorate is imperative to be given in the petition as at the most for the sake of petitioners convenience, they could be stated to be electoral after declaration of election programme. This parameter cannot be applied to those voters whose name though exist, did not give their photographs. For want of photograph, such voters are not prohibited from casting their votes. There cannot be an investigation as to the figure of new electorate or old electorate having facilitated with photographs for want of pleading. Specific forms are provided for such purposes, being form No.6 for new electorate and form No.8 for the existing electorate but without photographs. The result of returned candidate with 1714 additional votes or with margin of 6214 votes between the petitioner and respondent cannot be branded to be associated with small margin and could tilt the balance in favour of the petitioner if the so called 4500 votes are to be excluded. This uncanny consequence asserted by the petitioner would not benefit his cause to disturb the election process, to brand the electoral roll to be illegal or ultra vires with reference to the particular entries of votes. 19 EP NOS.4/2009 & 10/2009 16. The District Election Officer by order dated 30th May, 2009, gave entire schedule of programme. The forms were to be accepted from the period 1st June, 2009, to 15th June, 2009. They were to be included in database from 15th June, 2009, to 30th June, 2009. They were to be compilled in master electoral roll from 20th June to 30th June, 2009. A formal electoral list was to be published upto 7th July, 2009. Objections to be entertained between 7th July, 2009 to 22nd July, 2009. The objections to be decided upto 5th August, 2009. The supplementary list is to be prepared and printed upto 20th August, 2009 and the publication of the list was dated 25th June, 2009, which has been extended to 27.8.2009 by an order dated 7.7.2009 of the learned District Election Officer. It was a special drive directed by the District Election Officer to be implemented in a time frame. Thus, the respondent, as a returned candidate, has virtually no role to impede or influence the process of election programme scheduled way back before declaration of the Assembly election. The inclusion of the names could be much prior to the date of nomination, or publication of election programme dated 25.9.2009 as it was the date for filling in nomination. The petitioner has not disclosed date of inclusion or publication of list. He has construed to publication after date of completion of 20 EP NOS.4/2009 & 10/2009 nomination, which also is factually wrong as the electoral list was to be completed upto 22nd August, 2009. There cannot be a friction on the legal proposition that after the last date for making nominations for an election in particular constituency, there cannot be inclusion, amendment, transposition or deletion of any entry. It was imperative for the petitioner to have informed that such publication of the electoral roll on 27.8.2009 did not answer the mandate as the notification was issued by the Election Commission of India on 18th Sept.,2009 and 25th Sept.,2009 was the last date for making nominations. 17. The petitioner has canvassed, that the list of voters so included are not residing on the addresses mentioned against their names. There is nothing in the petition quoting single instance to elaborate these facts. No affidavit of certificate produced or pleaded to parade that a particular individual named in the supplementary electoral roll is not a resident in the constituency. The petitioner canvassed, the cause of action for filing the petition has arisen on 22.10.2009 when the election results were declared. Indeed, the cause of action could be to the order of direction to include the new electorate by preparing supplementary list. 21 EP NOS.4/2009 & 10/2009 Unless such order was made and questioned, there could not be a publication. The cause of action again would not survive as based on such supplementary list, the petitioner participated in the entire election process and never raised objection to its legality or authenticity. Consequently, I hold, the petitioner has not pleaded material facts to constitute a cause of action to file election petition. 18. The challenge to the election of returned candidate is for inclusion of 4500 new voters. Section 100 of Act of 1951, deals with grounds for declaring election to be void and as the present petition proceeds, it is in terms of Section 100(d)(iv). 19. Section 100(1)(d)(iv) of 1951 Act conceive as under: "100. (1) Subject to the provisions of sub- section 2, if (the High