Jitu Patnaik vs Sanatan Mohakud & Ors

2. The two paragraphs - 7(A) and 7(D) - of the election petition occupied significant time of this Court on 3 days - February 7, 2012, February 9, 2012 and February 14, 2012 - to determine the correctness of the order dated June 21, 2011 passed by the Orissa High Court whereby the High Court directed that the election petition shall proceed in respect of the pleadings contained in these two paragraphs.

3. On the announcement of the 14th Assembly Election to the Orissa State Legislative Assembly, insofar as it related to 25-- Champua Assembly Constituency, the following schedule of election was notified:

4. As per the above schedule, on expiry of the time of withdrawal on April 8, 2009, the returning officer prepared and published the following list of contesting candidates.

5. It so happened that one of the contesting candidates at Sl. No. 9, namely, Akhila Kumar Mohanta, who was an independent candidate, died on April 13, 2009. His death was allegedly informed to the returning officer. However, his name continued to appear in the list of contesting candidates and was 4 included in Electronic Voting Machine (EVM). The polling was held on April 23, 2009 in all 218 booths of the 25-Champua Assembly Constituency through EVM. The total votes recorded in the EVMs of 218 booths were 1,25,342 and postal ballots were 10. The appellant, Jitu Patnaik who contested as an independent candidate secured 27700 votes. The first respondent, Sanatan Mohakud, a candidate of Indian National Congress, secured 27555 votes. The deceased Akhila Kumar Mohanta got 550 votes. Since the appellant secured the highest number of votes, he was declared elected from 25-Champua Assembly Constituency.

7. On service of the notice of the election petition, the returned candidate appeared and filed his written statement/reply traversing the pleadings set out in the election petition. The returned candidate also made an application under Order VI Rule 16 read with 5 Section 151 and Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short, `CPC') read with Section 86(1) of the Representation of the People Act, 1951 (for short, `1951 Act') with prayer to strike out/reject the pleadings made in paragraphs 7(A), 7(B), 7(C), 7(D), 7(E), 7(F) and 7(G) of the election petition and reject the election petition.

8. The High Court considered the above application made by the returned candidate and, after hearing the learned counsel for the election petitioner and the returned candidate, struck out paragraphs 7(B), 7(C), 7(E), 7(F) and 7(G) of the election petition by invoking its jurisdiction under Order VI, Rule 16(c) of CPC. However, the High Court ordered that the election petition shall proceed in respect of the remaining pleadings. In other words, the High Court permitted trial of the election petition on the pleadings set out in paragraphs 7(A) and 7(D).

32. A bare perusal of the above provisions would show that the first part of Order VI Rule 2, CPC is similar to clause 1(a) of Section 83 of the 1951 Act. It is imperative for an election petition to contain a concise statement of the material facts on which the election petitioner relies. What are material facts? All basic and primary facts which must be proved at the trial by a party to establish the existence of cause of action or defence are material facts. The bare allegations are never treated as material facts. The material facts are such facts which afford a basis for the allegations made in the election petition. The meaning of 'material facts' has been explained by this Court on more than one occasion. Without multiplying the authorities, reference to one of the later decisions of this Court in Virender Nath Gautam v. Satpal Singh and others8 shall suffice.

34. Whether the averments in the election petition constitute material facts or not would depend upon facts of each case. As stated by this Court in Virender Nath Gautam8, no rule of universal application can be applied in finding out whether the statements of fact made in the election petition amount to material 9 (1878) 4 Q.B.D. 127 10 (1936) 1 K.B. 697 26 facts or not. It is, therefore, necessary to consider the pleadings with regard to suppression of 319 votes in paragraph 7(D) of the election petition.

42. In view of the above, we have no hesitation in holding that the averments made in paragraph 7(D) do not set out all the material facts and do not afford an adequate basis for the allegations made therein. The allegations in paragraph 7(D) for the reasons noted above do not constitute cause of action for declaring election of the returned candidate to be void.

44. In the circumstances, the appeal has to be allowed and is allowed. We do so without any order as to costs.

(H. L. Gokhale) NEW DELHI.

MARCH 2, 2012.