Virender Nath Gautam vs Satpal Singh & Ors

This appeal is filed by the appellant against the judgment and order dated December 20, 2004 passed by the High Court of Himachal Pradesh, Shimla in Election Petition No. 2 of 2003. By the said order, the High Court upheld the preliminary objection raised by the first respondent that the Election Petition did not disclose material facts and was liable to be dismissed. The case of the appellant is that the Election Commission of India notified the programme for the elections to the Legislative Assembly in the State of Himachal Pradesh scheduled to be held in February, 2003. As per the said notification, the last date of filing of nomination papers was February 7, 2003, scrutiny - February 8, 2003, date of withdrawal February 10, 2003, date of polling February 26, 2003 and of counting of votes March 1, 2003. According to the appellant, he submitted his nomination paper as a candidate of Indian National Congress Party on February 26, 2003 from 32 Una Assembly Constituency. Respondent No. 1 was set up by Bhartiya Janata Party and contested the election from the said constituency. At the counting, according to the appellant, he secured 27,600 votes while the first respondent got 27,651 votes. Thus, by a small margin of 51 votes, the first respondent was declared successful candidate.

According to the appellant, there were several irregularities and illegalities as also discrepancies in the Voters List. Electronic Voting Machines which were employed were defective; many void votes had been polled; there were cases of double voting and all those illegalities vitiated the election and materially affected the result thereof. The appellant, therefore, filed an Election Petition on April 10, 2003. In the said petition, he alleged that one Tek Chand Thakur was the Returning Officer for the constituency in question. At the time of counting, the appellant requested the Returning Officer that he had come to know that many void votes had been cast and they should be deleted from counting, but the Returning Officer expressed his inability and helplessness to do so stating that there was no such mechanism in the Electronic Voting Machines.

After striking down of the said paras, nothing survives in the election petition. The petition is rejected with costs quantified at Rs. 5000/-. (emphasis supplied) Regarding 37 votes of dead persons, the High Court observed that according to the appellant, 30 such votes out of 37 votes were cast in booth Nos. 48 and 49 which was in the native place of the first respondent-returned candidate. The Court stated that so far as that allegation was concerned, there was not a word as to how many of those votes were cast in favour of the returned candidate and who cast those votes. The Court proceeded to observe that the defeated candidate did not say that he raised any objection when electoral rolls were prepared or revised under Section 21 of the Representation of the People Act, 1950.

On the basis of the said reasons, the High Court held that the Election Petition could not be said to be in accordance with Section 83(1)(a) of the Act and the defect could not be cured by amendment of the petition. Since the appellant had not disclosed all material facts, no roving inquiry could be permitted. The High Court, therefore, ordered striking down sub-paras (i), (ii), (iii) and (iv) of para 8 which resulted in rejection of the Election Petition without entering into merits of the case. On February 14, 2005, notice was issued by this Court. Interim order was also passed to the effect that Electronic Voting Machines used in two polling booths of 32- Una Assembly Constituency and Booth Nos. 63 and 76 of 33 Kutlehar Assembly Constituency be preserved until further orders. The appeal was thereafter ordered to be placed for final hearing.

The High Court observed that the allegation, on the face of it, was 'bereft of material particulars' and the allegation presumptuous. It observed that nothing was stated as to how and when the defeated candidate came to know about the six persons having been issued double ballot papers. The said fact was material to enable the returned candidate to meet with the allegation of the defeated candidate. It was also not the case of the election-petitioner that all those 12 ballot papers were counted in favour of the returned candidate and that if those votes have been counted in favour of the petitioner, the result could have been materially affected. On the basis of our conclusions and reasoning in respect of para 8(i) to (iii), the finding of the High Court on para 8(iv) also cannot be said to be in consonance with law. Whether or not six persons had been issued voting papers twice and whether or not those voters had polled in favour of returned candidate cannot be said to be a material fact to be stated in the Election Petition. What are required to be stated in the petition are material facts to maintain the petition. There is distinction between facta probanda (the facts required to be proved, i.e. material facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facta probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue. In our considered opinion, material facts which are required to be pleaded in the Election Petition as required by Section 83 (1) of the Act read with Order VII, Rule 11(a) of the Code have been pleaded by the election- petitioner, cause of action has been disclosed in the Election Petition and, hence, the petition could not have been dismissed by the High Court. The impugned order of the High Court suffers from infirmity and cannot be sustained.

83. Contents of petition.(1) An Election petition

The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the Election Petition and not at the stage of consideration whether the Election Petition was maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside.

On an additional ground also, the order of the High Court is liable to be set aside. All allegations in Para 8 of the Election Petition, as also sub-paras (i) to (iv) of para 8 relate to improper and illegal reception and acceptance of votes and the election-petitioner has challenged the election of the returned candidate on that ground and not on the ground of 'corrupt practice'. He was, therefore, required to state material facts in the Election Petition under Section 83(1)(a) of the Act. It was, however, not necessary to 'set forth full particulars', which is the requirement of Section 83(1)(b) of 'any corrupt practice'. The High Court dismissed the petition inter alia on the ground that paras 8(i) to (iv) lacked in material particulars. Apart from the fact that the law does not require material particulars even in respect of allegations of corrupt practice but only full particulars and if they are lacking, the petition can be permitted to be amended or amplified under Section 86 of the act, in the instant case, Clause (b) of Section 83(1) had no application and the petition has been dismissed by the High Court by applying wrong test. On that ground also, the order passed by the High Court is unsustainable [Vide Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511]. For the foregoing reasons, the appeal deserves to be allowed and is, accordingly, allowed with costs. The order passed by the High Court is set aside. The Election Petition No. 2 of 2003 is restored to file, and is remitted to the High Court to decide the same on merits. Since the election took place in February, 2003 and the petition was dismissed on preliminary ground as not maintainable and is required to be decided on merits, the High Court is requested to give priority and dispose it of expeditiously.