Ashok vs Rajendra Bhausaheb Mulak

1. High Court of Judicature at Bombay, Nagpur Bench has dismissed Election Petitions No.1 and 2 of 2010 filed by the appellants- petitioners in these appeals. The High Court has taken the view that although the election petitions did not allege the commission of any corrupt practice against the returned candidate (respondent herein) and although the petitions sufficiently established the authenticity of the documents relied upon by the petitioners yet the petitions were deficient inasmuch as the same did not disclose as to how the election of the returned candidate was materially affected by the alleged improper reception of the votes polled in the election. The hallmark of the order passed by the High Court is a copious reference to the decisions of this Court no matter some if not most of them had no or little relevance or application to the facts of the case before it, in the process adding to the bulk of the order under challenge. At the heart of the conclusion arrived at by the High Court is the argument that even when the election petitions contain specific averments alleging improper reception of 14 votes with the names of those who cast those votes, the same do not go further to state as to in whose favour the said votes were actually polled. This, according to the High Court, was an essential requirement for disclosure of a cause of action inasmuch as in the absence of a statement that the improperly received votes were polled and counted in favour of the returned candidate, neither the election petitions disclosed a cause of action nor was it possible to say that the result of the election was materially affected by the narrow margin of the victory notwithstanding. We cannot do better than extract from the judgment of the High Court the passages from which the reasoning underlying the conclusion drawn by the High Court can be deduced albeit with some amount of difficulty. The High Court observed:

6. That brings us to the merits of the controversy in the election petitions filed by the appellants. The election petitions specifically alleged improper reception of votes which had according to the appellant materially affected the result of the election. It is common ground that there were only two contestants namely the appellant-Ashok and the respondent-Rajendra Bhausaheb Mulak. The election was to the Maharashtra State Legislative Council from Nagpur Local Authorities Constituency. Result of the election declared on 21st January, 2010 showed that the appellant-Ashok had polled 198 ballots as against 202 votes polled in favour of the respondent- Rajendra Bhausaheb Mulak. The respondent thus won by a margin of only four votes. The election-petitioners’ case as set out in the election petition was that the election was materially affected by the improper reception of as many as 14 votes out of a total of 400 votes in the course of elections. Specific averments, in regard to the votes so cast, were made in the election petition including averments based on the CD recording at each polling station obtained officially by the election-petitioner from the concerned authorities under the Right to Information Act, 2005. In para 11 to 17 of the election petition, the petitioner made specific averments regarding violation of the provisions of the Act and the Rules and improper reception of as many as 14 votes by voters who were named in these paragraphs. In para 17, the petitioner had further asserted that the improper reception of the 14 votes had materially affected the result of the election. Para 11 to 17 may at this stage be reproduced for ready reference:

12. The petitioner further submits that from the said CD, it was further revealed that another lady voter Ms.Rashida Khatoon Mohammed Tahir entered the polling booth at Kamptee Police Station accompanied by one Shri Niraj yadav, another voter at the said election. Both Ms.Rashida Khatoon Mohammed Tahir and Shri Niraj Yadav together went to the voting compartment along with the ballot paper that had been issued to Ms.Rashida Khatoon Mohammed Tahir. This act of two voters going together in the voting compartment at the same time was in violation of rule 39(4) of the Election Rules. There Shri Niraj Yadav marked the ballot paper that had been issued to Ms.Rashida Khatoon Mohammed Tahir. Thereafter, Shri Niraj Yadav displayed the marked ballot paper to others who were present in the polling booth and thereafter put the ballot paper in the ballot box. Thus, there was, again breach of secrecy of the vote polled on behalf of Ms.Rashida Khatoon Mohammed Tahir. As per the guidelines mentioned in the Handbook of the Returning Officer, it was the duty of the Presiding Officer, it was the duty of the Presiding officer to cancel the said ballot paper on account of violation of its secrecy, the same having been displayed to others and the voter being accompanied by another voter. Though the Presiding Office was very much present in the said room where this entire exercise took place, he remained merely a mute witness and failed to cancel the aforesaid vote as being void. Thus, the vote cast by Ms.Rashida Khatoon Mohammed Tahir was required to be cancelled and could not be taken into consideration. Thus, there has been a breach of Rule 39(5) to 39(8) of the Election Rules. The petitioner submits that from the CD supplied by the Office of the respondent No.2 he has taken still photographs. The copies of the aforesaid photographs are filed along with the Election Petition as Document No.18.

13. The petitioner further submits that it is clear from the CD relating to Kamptee Poling Station that another voter Shri Abdul Shakoor Usman Gani @ Shakoor Nagani, thereafter, exercised his franchise by marking the ballot paper issued to him. He, thereafter, came out of the voting compartment without folding the ballot paper in violation of rule 39(2)(c) of the Election Rules and, on the contrary, displayed the marked ballot paper to the Presiding Officer and others present there. Again, the Presiding Officer failed to act in accordance with the provisions of Rule 39(5) to 39(8) of the Election Rules as well as the guidelines prescribed in the Handbook of the Returning Officer issued by the Election Commission of India and failed to cancel the aforesaid vote on account of breach of its secrecy. On the contrary, the Presiding Officer allowed said Shri Abdul Shakoor Usman Gani @ Shakoor Nagani to put his vote in the ballot box. On account of breach of its secrecy the aforesaid vote of Shri Abdul Shakoor Usman Gani @ Shakoor Nagani could not have been taken into consideration as a valid vote. The petitioner submits that from the CD supplied by the Office of the respondent No.2 he has taken still photographs. The copies of the aforesaid photographs are filed along with the Election Petition as Document No.19.

14. The petitioner submits that after viewing the CD supplied from the Office of the Collector-cum-District Election Officer, Nagpur, it can be seen that another voter Shri Niraj Yadav took his ballot paper to the voting compartment and after marking the same, came out of the voting compartment without folding the ballot paper. This action was in breach of Rule 39(2) (c) of the Election Rules. The said Shri Niraj Yadav displayed his marked ballot paper to the Presiding Officer and others present in the polling booth, thereby violating the secrecy of voting. The Presiding Officer was very much present in the said room but, instead of cancelling the said vote on account of breach of its secrecy, permitted the said voter to put the said vote in the ballot box. Therefore, on account of violation of secrecy of the vote cast by Shri Niraj Yadav the same was required t be cancelled and it could not have been enlisted as a valid vote. There was, thus, breach of Rule 39(5) to 39(8) of the Election Rules. The petitioner submits that from the CD supplied by the Office of the respondent No.2 he has taken still photographs. The copies of the aforesaid photographs are filed along with the Election Petition as Document No.20.

15. The petitioner further submits that after viewing the CD supplied by the Office of the Collector-cum-District Election Officer, Nagpur, it is seen that another voter Shri Mushtaq Ahmed Abdul Shakoor exercised his franchise by marking his ballot paper. However before coming out of the voting compartment, said Shri Mushtaq Ahmed Abdul Shakoor did not fold the ballot paper as required by Rule 39(2)(c) of the Election Rules; but, on the contrary, he displayed the marked ballot paper to the Presiding officer and others who were present in the said room. The Presiding Officer was required to have cancelled the aforesaid vote on account of breach of its secrecy as required by rule 39(5) to 39(8) of the Election Rules and the guidelines mentioned in the Handbook of the Returning Officer issued by the Election Commission of India. However, instead of cancelling the aforesaid vote as invalid, the Presiding Officer permitted Shri Mushtaq Ahmed Abdul Shakoor to put the said ballot paper in the ballot box in violation of the laid down voting procedure and in violation of Rule 39(2)(c) of the Election Rules. Therefore, the vote cast by Shri Mushtaq Ahmed Abdul Shakoor could not have been enlisted as a valid vote as there was breach of secrecy during the actual polling. The petitioner submits that from the CD supplied by the Office of the respondent no.2 he has taken still photographs. The copies of the aforesaid photographs were filed along with the Election Petition as Document No.21.

16.The petitioner submits that a perusal of the CD supplied from the offie of the Collector-cum-District Election Officer, Nagpur pertaining to Kamptee Polling Station, it can be seen that various voters were carrying a spy pen with in-built camera along with them. The said voters as can be identified from the CD are Smt. Savita Sharma, S/shri Siddartha Rangari, Moreshwar Patil, Dilip Bandebuche, Prashant Nagarkar, Mukund Yadav, Mohammed Arshad Mohd. Altaf, Ukesh Lehandas and Smt. Pratibha Meshram. The aforesaid voters carried articles other than those that were permitted to be carried in the voting compartment in violation of the voting procedure and rules framed thereunder. In this regard, it is submitted that Rule 39(2)(b) read with Rule 70 of the Election Rules require an elector to record his vote on the ballot paper with the article supplied by the authorities for the said purpose. Under Rule 73(2)(e), a ballot paper marked by an elector otherwise supplied for the said purpose becomes invalid. It is submitted that each elector was supplied with a marked pen so as to mark the ballot paper. The above-mentioned voters carried a additional camera as can be seen from the CD referred to above. The spy pen is quite distinct from an ordinary pen on account of its size, colour and design, so much so that it can easily be differentiated from an ordinary pen. Thus, it is submitted that the Election Rules especially Rule 39 (2)(b), Rule 70 & Rule 73(2)(e) were violated during the course of polling at Kamptee Polling Station. The petitioner submits that from the CD supplied by the Office of the respondent No.2 he has taken still photographs. The copies of the aforesaid photographs are filed along with the Election Petition as Document No.22.

17.The petitioner submits that the votes that were cast by Mrs. Begum Shehaz Begum Akhtar and Ms. Rashida Khatoon Mohammed Tahit at the Kamptee Polling Station with the aid of other voters, namely, Shri Abdul Shakoor usman Gani @ Shakoor Nagani and Shri Niraj Yadav respectively, were in violation of the provisions of Rule 39(4) of the Election Rules. It is submitted that the said two voters, namely, Mrs. Begum Shehnaz Begum Akhtar and Ms.Rashida Khatoon Mohammed Tahir were neither illiterate, blind or infirm so as to take the aid of any companion. The report on the election submitted by the Returning Officer under paragraph 3 of Chapter XV of the said Act, especially Item No.16, indicates that there was no such voter who was illiterate, blind or infirm who had voted with the help of a companion. In any event, a companion cannot be another voter and Rule 39(4) of the Election Rules specifically prohibits one elector from entering the voting compartment when another elector is inside it. Therefore the said two votes polled by Mrs. Begum Shehnaz Begum Akhtar and Ms. Rashida Khatoon Mohammed Tahir cannot be taken into consideration as valid voters. Similarly, insofar as the votes polled by Shri Abdul Shakoor Usman Gani @ Shakoor Nagani, Niraj Yadav and Shri Mushtaq Ahmed Abdul Shakoor are concerned, they are also required to be excluded from consideration inasmuch as the said voters have displayed the marked ballot paper before putting the same in the ballot box. Rule 39(2)(c) requires the voter to fold the ballot paper so as to conceal his vote after he has marked the ballot paper. There being breach of aforesaid rule, the secrecy of voting has been violated. Similarly, there is breach of provision of Rules 39(5) to 39(8) of the Election Rules. Therefore, the said votes are required to be excluded from being considered as valid votes. It is further submitted that as many as nine voters, namely Smt. Savita Sharma, S/shri Siddartha Rangari, Moreshwar Patil, Dilip Bandebuche, Prashant Nagarkar, Mukund Yadav, Mohammed Arshad Mohd. Altaf, Ukesh Lehandas and Smt. Pratibha Meshram having carried an article other than that which was permissible to be carried in the voting compartment, have breached the provisions of Rule 39(2)(b) of said rules and there being breach of provisions of Rules 39(5) to 39(8) of the Election Rules, the votes polled by aforesaid nine voters also deserved to be excluded from being considered as valid votes. Similarly, the vote of Smt. Nirmala Rahul Gajbe that was polled at Narkhed Polling Station, where she was found carrying a spy-pen fitted with camera also deserved to be excluded form being considered as a valid vote, there being breach of provisions of Rule 39(2)(b) read with Rule 39(5) to 39(8) of the Election Rules. Therefore in all, said 14 votes are required to be excluded from being considered as valid votes. The result of the election has been materially affected. Therefore, the election of the returned candidate is required to be declared as void under Section 100 (1)(d) (iii) and (iv) of the said Act and it further needs to be declared that the petitioner is validly elected in place of the returned candidate under section 100 (a) of the said Act, the petitioner having received majority of the valid votes. The copy of the Handbook for Returning Officer issued by the Election Commission of India and supplied to the petitioner from the Officer of respondent No.2 is filed along with the Election Petition and Marked as Document No.23.”

2. The petitioner had filed an election petition challenging the election of the respondent not on the ground of indulgence in corrupt practice in any manner but on the plea of breach of the Conduct of Election Rules, 1961 at the instance of a few voters and inaction of the Presiding Officer at the polling station by failing to mark them as invalid votes. It has been alleged by the petitioner that at least 5 out of 14 votes had been cast by such voters who were accompanied by another person to the voting compartment at the time of actual casting of vote in the election which was in breach of Rule 39 (5) to 39 (8) of the Election Rules and hence reception of such votes by including them at the time of counting of votes ought to be declared as illegal. It is for this purpose that he filed an election petition which has been dismissed on the ground that it failed to declare material particulars which could be held to have materially affecting the election result.

5. Fortunately, for the respondent/returned candidate, the basis of the election petition filed by the appellant in the instant matter is not on the allegation of indulgence in corrupt practice but breach of the rule of secrecy of the ballot by the voters and inaction on the part of the Presiding Officer to mark them as invalid votes as the specific allegation is improper reception and acceptance of at least 5 votes out of the 14 votes which according to the appellant has materially affected the result of the election due to which he had filed election petition challenging the election of the respondent who has won the election by a thin margin of 4 votes.

6. Admittedly, the common ground is that there were mainly two contestants, namely, the appellant –Ashok and the respondent Rajendra Bhausaheb Mulak for the election to the Maharashtra State Legislative Council from Nagpur Local Authorities Constituency. The result of the election which was declared on 21.1.2010 admittedly showed that the appellant Ashok had been polled 198 votes as against 202 votes polled in favour of the respondent-Rajendra Bhausaheb Mulak. The respondent thus has won by a thin margin of 4 votes. The election petitioner’s case as set out in the election petition admittedly was that the election was materially affected by the improper reception of votes and as many as 14 votes out of a total of 400 votes were invalid which were polled in the course of the election by voters who were accompanied by another person to the voting compartment which was a breach of the election rules to the Representation of People Act, 1951. Specific averments in regard to such polling of votes is that the voter namely Mrs. Begam Shehaz Begum Akhtar entered the polling station along with another voter Abdul Shakoor Usman Gani @ Shakoor Nagani who had accompanied her to the voting compartment in utter breach of the election rules and hand book of the returning officer issued by the Election Commission of India under Article 324 of the Constitution of India. Similarly, another lady voter Ms. Rashida Khatoon Mohammed Tahir was alleged to have entered the polling booth at Kamptee Polling Station accompanied by one Shri Niraj Yadav, yet another voter at the said election was accompanied by Shri Niraj Yadav who went to the voting compartment along with the ballot paper which had been issued to Ms. Rashida Khatoon Mohammed Tahir. Further, two other voters namely Abdul Shakoor and Usman Gani were alleged to have voted and by showing their ballot to others on the polling booth and in all 14 votes polled by 14 voters were thus alleged as to have been polled by the voters in breach of Rule 39(5) to 39(8) of the Election Rules, 1951 as the Presiding Officer did not cancel the said votes although the irregularities were clear and apparent which happened in front of him. The petitioner/appellant thus took the categorical plea that “if 5 votes are treated as cancelled and excluded from consideration then it can be said with certainty that the petitioner had received majority of the valid votes and therefore, petitioner deserved to be declared as elected. The petitioner thus wanted the Court to assume that the said disputed votes were cast in favour of the respondent No.1, without specifically pleading this vital and material fact.

14. In absence of any allegation that the disputed votes were cast in favour of the returned candidate, the petitioner failed to make out a case that the election was ‘materially affected’ merely on the ground of alleged improper acceptance of the said votes. The material fact which ought to have been pleaded in the Election Petition was not only that the disputed votes ought not to have been accepted, but those votes were cast in favour of respondent No.1 and if they were not so accepted, then the result of the election would be materially affected. These facts become material in the present case especially because the petitioner had not alleged any corrupt practice against the respondent No.1 and the petitioner himself had come up with a case that the ballot papers were displayed to those present in the room were the ballot box had been kept. Pleading these material facts for the first time at the stage in the SLP is impermissible and cannot be taken cognizance of. Thus, the contention of the respondent that the material facts so as to make out a cause of action have not been pleaded stands vindicated.

1. Having deliberated over the arguments and counter arguments advanced on behalf of the appellant and the respondent in the light of the ratio of a catena of decisions as to what would constitute ‘material facts’ and ‘material particulars’ which could be held to be materially affecting the result of the election so as to entertain an election petition challenging the same, as also the reasonings assigned in the impugned judgment and order of the High Court, I have not been able to persuade myself to take a view that the judgment and order dismissing the election petition of the appellant is fit to be set aside.

(2) The elector on receiving the ballot paper shall forthwith –

(c) fold the ballot paper so as to conceal his vote; (4) No elector shall be allowed to enter a voting compartment when another elector is inside it.

(6) After the ballot paper has been taken back, the Presiding Officer shall record on its back the words “Cancelled : voting procedure violated” and put his signature below those words. (7) All the ballot papers on which the words “Cancelled : voting procedure violated” are recorded, shall be kept in a separate cover which shall bear on its face the words “Ballot papers : voting procedure violated”.

(iv) itself clearly indicates the requirement of pleading the vitally material fact that the votes were improperly or unlawfully cast in favour of the returned candidate. In the present case, lack of pleading that the votes were cast in favour of the respondent leads to absence of cause of action for the petition for invalidating the election under Section 100 (1) (d) (iii) and (iv).

21. I thus find substance in the view taken by the High Court in the impugned judgment, that the election petitioner herein has only pointed out a possibility of result of election being different if 14 or 5 votes were to be excluded from counting. The High Court appears to be correct in my view while stating that the case of the petitioner is not that the said votes reveal that they were in favour of respondent - Rajendra or not in favour of petitioner - Ashok. But the objection is only that those votes ought not to have been taken into consideration while counting the votes. As already stated in absence of identification of those votes which are alleged to have been cast by the voters in the company of another person, it would be difficult to identify them so as to infer as to which are the votes which ought not to have been reckoned for counting by declaring them invalid. In that event even if the petitioner’s election petition were to be allowed, the entire trial would result into an exercise in futility leading the controversy nowhere. It is in view of this inevitable consequence that I hold that the election petition filed by the petitioner indicates absence of ‘material particulars’ which materially affected the result of the election so as to entertain a challenge to the same. To contend that the alleged breach of secrecy would render the entire election result as void so as to order for a repoll in spite of absence of any objection by the defeated candidates or his representative in this regard at the time of polling would be an outrageous contention in my view which is fit to rejected outright. Fortunately, this is not even the contention of the petitioner and rightly so, as he has confined his challenge only to the extent of challenging the validity of 5 or 14 votes alleging breach of secrecy, which materially affected the election result. This contention is extremely fragile and hence has no force for the reasoning recorded hereinbefore.

22. I am, therefore, conclusively of the view that the impugned judgment and order of the High Court is not required to be interfered with and the election petition was rightly held to be fit for rejection for want of material facts and material particulars which could materially affect the result of the election.

Petition(s) for Special Leave to Appeal (Civil) No(s).28143/2010 (From the judgement and order dated 02/08/2010 in EP No.1/2010 of The HIGH COURT OF BOMBAY AT NAGPUR) ASHOK Petitioner(s) VERSUS RAJENDRA BHAUSAHEB MULAK Respondent(s) WITH C.A. No. 7592 of 2012 @ SLP(C) NO. 28333 of 2010 Date: 18/10/2012 This Petition was called on for JUDGMENT today.

COUSEL FOR THE APPEARING PARTIES: