1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD ELECTION PETITION NO.02 OF 2009 Mrs.Ranjana @ Ranjanatai Omkar Patil, age: 59 years, Occ: Household (Social Worker), R/o Gopalwada, Ward No.1, Municipal Area, House No.3771 (old), Shrirampur, Tal.Shrirampur, District Ahmednagar. Petitioner Versus 1 Mr.Navin Chavala, } The Chief Election Commissioner } of India; } } 2 The The Chief Election Commissioner } of Maharashtra State; } } 3 Mr.Devashish Chakaraborti, } Respondents No.1 to 9 The Chief Returning Officer of } deleted vide Court’s Maharashtra State Assembly Elections } order dated 15.10.2010. 2009; } } 4 The Chief Secretary for the } State of Maharashtra } } 5 The District Chief Returning Officer or } The Election Officer for District; } } 6 The District Asstt. Chief Returning } Officer or the Additional Collector; } } 7 The Chief Returning Officer, } The Election Officer for polls & counting, } inter alia the Sub Divisional Officer of } Sub Division Shrirampur; } } 2 8 The Assisting Election Officer for polls } and counting; } } 9 The Residential Naib Tahsildar, } Tahsil Kacheri, Shrirampur; } 10 Bhausaheb Malhari Kambale, age: 56 years, Occ: Cushion work, Returning Candidate (Congress (I) N.C.P.), R/o Gondhavani, Tal. Shrirampur, District Ahmednagar, State Maharashtra. Respondent 11 Mr.Devendra or Officer concerned, } Respondents No.11 to 13 E.V.M. Engineer (Alleged); } deleted vide Court’s order } dated 15.10.2010. 12 Mr.Radhakrishnan Senior Observer; } } 13 The Election Duty Officer; } Mr.P.K.Chavare, advocate for the petitioner. Mr.V.D.Hon, advocate for Rrespondent No.10. Respondents No.1 to 9 and 11 to 13 deleted vide Court’s order dated 15.10.2010. CORAM: R.M.BORDE, J. DATE : 14 th March, 2011. JUDGMENT: 1 This Election Petition is presented by the petitioner questioning the election of the returned candidate as Member of Legislative Assembly for 220 Shrirampur Constituent Assembly (ST) in an election held in the year 2009. 2 Respondent No.10 has presented his written statement and 3 controverted the contentions raised by the petitioner in the petition. Respondent No.10 has also presented an application at Exhibit-6 raising preliminary objections and tendered a request for summary dismissal of election petition on the ground of non compliance of mandatory provisions of the Representation of the People Act, 1950. Respondent No.10 has also raised similar objections in his written statement presented on 4 th October, 2010. The objections raised by Respondent No.10, as regards tenability of the election petition as well as for extending a request for summary dismissal of election petition, can be summarised as under: 1. The election petition suffers on account of non compliance of provisions of Section 81(3) of the Representation of the People Act; 2. The election petition does not contain concise statement of material facts and, therefore, suffers from non compliance of provisions of Section 83A and 83B of the Representation of the People Act; 3. The election petition is not maintainable, as it does not mention any ground for declaration of election of the returned candidate as void, as contemplated under Section 100 of the Representation of the People Act. 3 I have heard the arguments advanced by Shri V.D.Hon, learned Counsel appearing for Respondent No.10 and Shri P.K.Chavare, learned Counsel appearing for the petitioner. 4 4 The petitioner has challenged the election of the returned candidate as can be inferred on going through the contents of the writ petition on the ground of corrupt practice. The petitioner, in ground no.2, has alleged tampering of Electronic Voting Machine at the hands of local staff of Shrirampur Municipal Council. In paragraph 10 of the petition, the petitioner has alleged that the Chief Minister of Maharashtra was granted permission to address a public meeting near Hanumant temple, situate in Shrirampur city, opposite Additional S.P’s. Office, however, the Chief Minister held the meeting in the midst of road in Shrirampur city when there was no such permission secured for conducting public meeting at that particular place. 5 On going through the petition, it is very difficult to comprehend as to what the petitioner wants to convey. The language employed and the construction of the sentences is such that it is very difficult to understand as to what the petitioner wants to convey. I deem it appropriate to quote few paragraphs contained in the petition: Para 5: That due to the reason stated Para No.4, supra no establish politician or ruling M.L.A. and other party leaders and office holders of Congress (I) party were indulging into the corrupt and illegal motivations taking undue advantage of the Govt. and the Ministry of State of Maharashtra being in the hand of Congress (I) and N.C.P. Alliance. Hence with few exceptions here & there the process of nomination filing, scrutiny of nomination forms purely administrative steps and functions under observance of returning officer Mrs.Gitanjali Baviskar were generally smooth. But soon 5 after commencement of withdrawal day and thereafter as independent candidate this petitioner lady and many other independent as well as national or state recognized parties’ candidates realized that the conduct, treatment offered and use of power by returning officer in election process the R.O. Election Officer is apparently bias and suffers from inherent partiality with ruling congress (I) party especially under influence of Mr.Jayantrao Murlidhar Sasane the M.L.A. Of the constituency prior to restructure. (That above statement in Para... is to be appreciated by perusing the Exhibit No.F Page No.81 to Page No.87 this is annexed with this petition). Para 10: That, not only this but the Chief Minister of Maharashtra Mr.Ashok Shankarrao Chavan utilize his Chief Ministerial powr and executive machinery like Helicopter and addressed one public meeting and rallies in the constituency. That the record shows that the meeting which was to be addressed by the Chief Minister `Mr.Ashok Chavan’, the place which was requested as a venue was that of Shri Hanumanta temple situated in Shrirampur City opposite to additional SP office & P.W.D. Office. That only that place permission was however granted by the R.O. That shockingly thereafter arrival of Mr.Ashokrao Shankarrao Chavan the C.M. This public meeting was conducted right in the midst of main road Shrirampur when there 6 was no permission was obtained for the same. (That above statement in Para... is to be appreciated by perusing the Exhibit No.B Page No.36 to Page No.94 this is annexed with this petition. Ground No.2: That, the respondents other than No.1 all sub-ordinate officers who were under control of the election commission of Maharashtra, the officers deputed have erred in allowing or indirectly not preventing the violative acts and the fraudulent tampering with E.M.V. & C.U.B. at the hands of local staff of Shrirampur Municipal Council and thus serious prejudice has been caused to this petitioner as well as there is violation prima-facie of code of conduct for candidates and their followers. Hence the election procedure which is seriously operated through out in the violation of rules and laws and various pronouncements of election commission of India and the legislature is liable to be set aside and re-election in free, fair and fearless atmosphere is must. Thus on this ground the election deserves to be declare illegal and ultra virus and hence under R.P. Act the same for 220 Shrirampur Constitutency be declared as set aside and quashed. (That above statement in para – is to be appreciated by perusing the Exhibit No.--- Page No.---- to Page No.---- this is annexed with this petition. Ground No.6: That, since beginning the 7 Government machinery under name of appointed duty officers of election was completely a puppet show in the hand of ruling M.L.A. Congress (I) party. That ironically the Municipal Council majority officers and workers were intentionally deputed in the election process by the Collector, Ahmednagar who seems to be Chief Returning Officer of the election and thus Municipal workers and officers who were so kept on election dues were fully utilized by ruling M.L.A. as the Municipal Council of Shrirampur, itself is operating under the body of council resided by wife of newly elected candidate Mr.Bhausaheb Kambale. That, `Jayantrao Sasane’, who is running his `second term’ of membership of Assembly from Shrirampur pre-restructure constituency was having powerful command and doming upon the workers officers of Shrirampur Municipal Council, the `Mula Pravara Ele. Coop Society’ and the Revenue Department of Tahsil Shrirampur and officers like `S.D.M. Mrs.Baviskar’ who was unfortunately appointed as Returning Officer of election. Thus this nexus itself is sufficient to prove it beyond reasonable doubt that the “M.L.A. Jayantrao Sasane’ who is also a President of “Shri Saibaba Sansthan”, Shirdi, was having dominating hand over all procedures. Hence, the election procedure old server’s, `urgent interference’ and setting aside by Hon’ble the High Court of Judicature, being competent forum provided for petition. (That above statement in Para --- is to be appreciated by perusing the Exhibit No. 8 --- Page No.---- to Page No.--- this is annexed with this petition). Ground No.8: That thus “Mrs.Mandabai Bhausaheb Kambale” who was lady `President’ totally manipulated municipal council of Shrirampur, its administration, its officers, its workers and “totally corrupt machinery” was deployed with sole winning of Mr.Bhausaheb Malhari Kambale her husband. Thus on this ground alone the entire election procedure should at once be brushed aside and election result of 220 Shrirampur Constituency electing Bhausaheb Malhari Kambale be also set aside on the ground of fraud, corruption, interpolation, political influence and illegal utilization of power by President and Chief Officer of Municipal Council of Shrirampur. The list of all the officers and workers who were permanent officers and workers of Shrirampur Nagar Palika is annexed with the list of document. That the very list of documents suggests that entire decisions regarding appointments during poling and possession, preparation and maintenance including safe custody of the E.M.V. & C.U.B. Was managed in such manner as to lie with sole doming of Nagar Palika Officers and workers. (That above statement in Para .... is to be appreciated by perusing the Exhibit No.---- Page No.---- to Page No.----- this is annexed with this petition). 6 That, so far as the verification of the petition is concerned, it is 9 required to be verified as prescribed in clause (c) of sub-section (1) of Section 83 of the Act. It lays down that the verification shall be done in the manner as prescribed in the Code of Civil Procedure, 1908. The manner in which the verification should be done is prescribed in Rule 15 of Order VI of the Code of Civil Procedure. Sub-rules 2, 3 and 4 are relevant for the purpose: 15 Verification of pleadings: (1) ..... ..... ..... ..... ..... ..... ..... ..... ..... (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place of which it was signed. (4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings. 7 The petitioner has presented an affidavit as prescribed under Form No.25. The verification of the petition is not at all in consonance with the provisions of the Representation of the People Act. For example, in paragraphs no.5 to 10 of the affidavit, it is stated thus: 5 That, in Pora No. (7) & (8), it is stated that..... That, 10 even attempts were made to threat petitioner to withdraw her nomination from the election. That during entire period allowed for campagning the respondent candidate Mr.B.M.Kamble misused the machinery & influence upon the duty staff of election particularly those officers who were from the Shrirampur Municipal Council Offices. That Mrs.Mandabai Bhausaheb Kamble, who is the wife of Mr.Kamble, was holding the chair of President of Municipals local govt. She utilized these officers illegally & pressurize tactics were enforced upon those concerned. This is absolute illegal & unfair as against all other candidates. “This statement & contention is true & correct.” 6 That, in Para No.(7), & (10), it is stated that .... That, several complaints were duly repeatedly filed by this petitioner with the “ACHARSAMIHITA- KAKSHA”, established in `Tahasil of Shrirampur, as well as the respondent `Returning Officer’ & subordinate staff deputed for process but they didn’t pay any heed to the complaints filed by petitioner regarding the illegalities & malaise against her by the staff & officers. This statement & contention is true & correct. 7 That, in Para No.(9), & (10), it is stated that .... That, SDM of area appointed RO Mrs.Gitanjali Baviskar intentionally remained silent upon the agitations & thus acted as if puppet in the hands of Congress 11 leaders & respondent No.10 Kamble. That, the petitioner had recourse directly to the Central Observer deputed by the ECI authority for 220 – Shrirampur assembly elections. This statement & contention is true & correct. 8 That, in Para No.(11), & (12), it is stated that ...... That Mr.Radhakrishnan, officer observer did also declined any cognizance of the complaints & grievances. That the petitioner is way denied protection of law & equality when she was intentionally caused suffered due to at the corrupt practices from the political heavy weights. That her written complaints were kept at distance by even the officer from central ECI of India. That then the campaigning rights & access with having approach to the voters was itself throttled & the petitioner lady had been rendered to embarrassing situation i.e. No one for giving justice & preventing the malfunctioning of machinery & officers deputed at the instance of ruling party MLA, due to which this petitioner fair lady restrained in abrupt & illegal manner from appealing to her followers & generally the voters from the 220-Shrirampur Assembly constituency. This statement & contention is true & correct. 9 That, in Para No.(10), & (13), it is stated that .... That the campaigning came to an end & finally the EVM machines with CUB units which were kept intentionally with in the custody of the Municipal council 12 Shrirampur. The entire deputation of duty officers Tahsil & SDM who were RO & Asstt. RO for area abated the acts of the manipulation & afterthought interpolations of the EVM machines with CUB units with the ruling congress-I candidate & leaders, etc. This statement & contention is true & correct. 10 That, in Para No.(13), & (11), it is stated that, ...... That during this period the experts & mechanical staff managed the corrupt insertion with in the EVM & CUB & thus those all were tampered to operate pro the candidate SR NO.1. That the staff from Shrirampur Municipal Council deputed on election duty after thought engaged in the election interpolation and EVM Units and CUB Units were tampered in such manner that if the vote is casted by a voter in favour of petitioner rightly pressing the button for recording vote against of `Ranjana Omkar Patil’ & or symbol of Television the voter will see enlightened with the Red indicator light but in fact in `CUB Unit’ the vote would go in favour of `Bhausaheb Malhari Kambale’ at serial No.1, having symbol `the hand Congress (I)’. That the EVM Units and `CUB Units’ were tampered in such manner at the v enue of the safe keeping at `State Transports’ Workshop Centre’ at village-Khandala, Tal. Shrirampur, Dist.A’Nagar, This statement & contention is true & correct. 13 8 On perusal of the above noted paragraphs of the affidavit, it does not conform to the requirement. The verification part of the affidavit is as noted below: VERIFICATION I, Ranjana Alias Ranjanatai Omkar Patil, the petitioner, Age-59 years, Occ: House hold, R/o Ward No.1, Gopalwada, Opp. Old Jondhale Blood Bank, Shrirampur, Tal. Shrirampur, Dist. Ahmednagar, do hereby solemnly affirm & state that THE DOCUMENT FILED BY ME HEREIN AT EXHIBIT NO.NIL --- PAGE NO.24 to PAGE NO.35 is true & correct according to best of my knowledge & belief. I STATE THAT THIS DOCUMENT IS ACCORDING FILED BY ME IN SUPPORT OF MY PETITION & NOTHING IN THE DOCUMENT IS EIGHTER TAMPERED OR SUPPRESSED BY ME. That, as in token of the truthful & being genuine of verification of statement, I have signed here under at Aurangabad before appropriate authority. Aurangabad Sd/- Dated : 4-1-10 Deponent Ranjana Omkar Patil Sd/-4/1/2010 I know the petitioner deponent personally. ADVOCATE FOR PETITIONER Solemnly affirmed before me by Ranjana Omkar Patil, who is identified before me by H.G.Thorat, who 14 personally knows Adv. This 4 th day of Jan, 10. High Court, Appellate Side, Bombay, Bench at Aurangabad. Sd/-4-1-10 Section Officer Thus, neither the petition makes out any ground or contains concise statement of material facts, so also it does not set forth full particulars of corrupt practice, nor it is verified in the manner laid down in the Civil Procedure Code. 9 Section 86 of the Representation of the People Act provides 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 Act. Section 100 of the Representation of the People Act provides for the grounds for declaring election to be void and it reads thus: 100 Grounds for declaring election to be void:-- (1) Subject to the provisions of sub-section (2) if the High Court is of opinion-- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 1963); or (b) that any corrupt practice has been committed 15 by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-- (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act. (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied-- (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or 16 his election agent; (b) omitted (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void. 10 An election petition has to disclose all the material facts on which the election petitioner relies to establish the existence of a cause of action. Material facts essentially refer to all the relevant facts which the petitioner relies upon during the course of the trial. In the absence of material facts and insufficient cause of action, the election petition is liable to be dismissed. There is a catena of cases decided by the Apex Court, which prescribe as to what constitute “material facts” for the purposes of Section 100 of the Representation of the People Act. 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 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 17 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 sanctions 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 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. 18 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: “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,