Full Judgement
Ashok Vs. Rajendra Bhausaheb Mulak
[Civil Appeal No. 7592 of 2012 arising out of S.L.P. (C) No.28333 of 2010]
[Civil Appeal No. 7591 of 2012 arising out of S.L.P. (C) No.28143 of 2010]
O R D E R
In view of conflicting views expressed by us, we refer this matter to a three Judge Bench for resolving the conflict. The Registry shall place the record before Hon'ble the Chief Justice of India for constituting an appopriate Bench.
.........................J. (T.S. THAKUR)
.........................J. (GYAN SUDHA MISRA)
New Delhi
October 18, 2012
Ashok Vs. Rajendra Bhausaheb Mulak
[Civil Appeal No. 7591 of 2012 arising out of S.L.P. (C) No.28143 of 2010]
[Civil Appeal No. 7592 of 2012 arising out of S.L.P. (C) No.28333 of 2010]
J U D G M E N T
T.S. THAKUR, J.
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:
"The Election Petitioners here only point out a possibility of result of election being different if 14 or 5 votes can be excluded. It is not their case that said votes when displayed revealed that they were in favour of Rajendra or not in favour of Ashok. The Polling Agent of Petitioner at Kamptee is not being quoted or relied upon by Shri Ashok Mankar. Here, there are only two contestants and difference between them is of 4 votes only. The objection is about receipt of 14 or 5 votes. Several questions having bearing on result of said election being materially affected in so far as returned candidate is concerned, arise. The Petitioners have not pointed out the beneficiary of those 14 or 5 votes. It is not their plea that all those voters cast their vote in favour of Returned Candidate or did not vote in favour of defeated candidate.
There is no plea about their political affinities either to associate or dis-associate them with BJP or National Congress (I) political parties. The said votes now can not be traced out & segregated. Hence when "displayed" what was seen & the vote was cast in whose favour ought to have been pleaded. Election Petitioners can not seek rejection of 14 votes or 5 votes which according to them can be identified and ask for recount without even asserting that those votes or any number out of it has gone to Returned Candidate. These votes may have been excluded only if they were cancelled before they were inserted in ballot box as per Rule 39 of 1961 Rules.
Otherwise, those votes can then be subjected only to Rule 56. If any violations or breaches of their duties by staff at Polling Station at Kamptee is to be alleged, it is apparent that adequate pleadings are must for said purpose. Timely protest by agent of Ashok would have been one such fact. If any thing was displayed and it was adverse to Ashok's interest, why objection was not lodged then & there is again an important factor. It is the result of election in so far as it concerns the returned candidate which is required to be proved as materially affected. Only possibility of election getting affected is not sufficient to un-sit the elected candidate. Section 100 (1)(d)(iii) & (iv) requires pleading of illegalities as also irregularities and also of facts indicating material effect thereof on the election of the returned candidate. Only after these pleadings, evidence in relation thereto can come on record & not otherwise.
Opinion of High Court contemplated by S.100(1) is possible only after due opportunity to returned candidate. Hence pleading of this material fact of link between the victory & lacunae/omissions is pre-requisite to formation of this opinion. A "triable issue" cannot be said to arise till then as no cause of action surfaces. Election Petitions cannot in its absence demonstrate how the result of election in so far as it concerns returned candidate is materially affected. Respondent's success with slender margin, in the absence of specific plea of any connection between it & alleged irregularities or illegalities and facts showing that connection, by itself cannot be the material fact. Pleading such link or connection cannot be pleading a material particular. The Election Petitions cannot be said to be "complete" without any whisper of such connection. Both Election Petitioners have avoided to plead vital link between the alleged breaches and the success of Returned Candidate. This omission cannot be allowed to be cured by amendment as limitation for filing Election petition has long expired and "material facts" cannot be now permitted to be added."
2. When these special leave petitions came up for hearing before this Court on 3rd April, 2012, Mr. V.A. Bobde, learned senior counsel for the respondents, raised a preliminary objection to the maintainability of the petitions. It was contended by Mr. Bobde that the impugned judgment and order of the High Court dismissing the election petitions filed by the petitioners being appealable under Section 116A of the Representation of People Act, 1950, the petitioners could not maintain the special leave petitions under Article 136 of the Constitution which deserves dismissal on that ground alone. Reliance in support was placed by Mr. Bobde upon a decision of this Court in Dipak Chandra Ruhidas v. Chandan Kumar Sarkar (2003) 7 SCC 66.
3. Section 116A of the Representation of the People Act, 1951 provides for appeals to this Court both on facts as also on questions of law from every order made by the High Court under Section 98 or 99 of the Act. Sub-section (2) of Section 116A prescribes a period of 30 days for filing of such appeals while proviso to sub-section (2) empowers this Court to entertain an appeal even after the expiry of the said period if the appellant shows sufficient cause for not preferring the appeal within such period.
4. Section 98 of the Act provides for the orders that the High Court shall make at the conclusion of the trial in an election petition. These orders could be in the nature of dismissal of an election petition or declaring the election of all or any of the returned candidates to be void or declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been declared elected. Section 86 of the Act deals with the trial of election petitions and, inter alia, provides that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81 or 82 or Section 117 of the Act.
Any such dismissal may come after the parties go to trial or even at the threshold. An election petition which does not call for dismissal on the ground that the same violates any one of the three provisions, namely, Section 81 or 82 or 117 may still be dismissed summarily and without the parties going to trial on the merits of the controversy under Order VII Rule 11 of CPC. Any such order if may not be qualifying for a challenge before this Court under Section 116A as an appeal is under that provision limited to only such orders as are passed under Section 98 of the Act at the conclusion of the trial of election petition.
Strictly speaking, it could well be said that an order which does not fall within the four corners of Section 98 inasmuch as the same is not passed at the conclusion of the trial of an election petition may not qualify for being challenged in appeal under Section 116A including an order dismissing the petitions summarily under Section 86 of the Act for non-compliance of the provisions of the Sections 81, 82 and 117. What is important and what makes a difference is the presence of an explanation under Section 86(1) that by a legal fiction makes an order passed under Section 86 of the Act to be an order under Section 98 thereof explanation reads : "Explanation to Section 86: An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of Section 98."
5. The fiction is, however, limited to orders passed under Section 86(1) alone namely to cases where dismissal is for non-compliance with the provisions of Sections 81, 82 and 117 of the Act. It does not extend to dismissal under Order VII Rule 11 of the CPC for non- compliance with the provisions of Section 83 of the Act. In other words, if a petition does not state the material facts on which the petitioner relies as required under Section 83(1)(a) and thereby fails to disclose any cause of action and is consequently dismissed by the Court in exercise of its powers under Order VII, Rule 11 CPC, such an order of rejection of the petition is not in terms of Explanation to Section 86 treated as an order made under Section 98 so as to be appealable under Section 116A of the Act.
Mr. Prasad was, therefore, perfectly justified in arguing that since the High Court has, in the instant case, dismissed the election petitions not under Section 86 to which the Explanation appearing thereunder is attracted but under Order VII Rule 11 for the alleged failure of the petitioners to state the material facts on which they relied, the order passed by the High Court was not appealable under Section 116A. The only difficulty which was encountered by us in holding that the special leave petitions were maintainable is a decision of this Court in Dipak Chandra Ruhidas case (supra) where this Court has taken the view that Section 116A must be interpreted liberally and an order dismissing the election petition on the ground that the averments do not state material facts would be appealable under Section 116A. With utmost respect to the Hon'ble Judges comprising the Bench, we find that conclusion to be contrary to the scheme of the Act.
We were, therefore, inclined to make a reference to a larger Bench for re-consideration of that view, for the same, in our opinion, extends the fiction created under the Explanation to Section 86 even to case where the Court does not invoke Section 86 while passing an order of dismissal but exercises its power of rejection of the plaint/petition under Order VII Rule 11 CPC. It is noteworthy that an order under Order VII Rule 11 CPC by reason of Section 2(2) of the CPC is a decree hence appealable under Section 96 of the Code. Since, however, the right of appeal under the Representation of the People Act is regulated by Section 116A, the fact that an order rejecting a plaint under Order VII Rule 11 CPC would have been in the ordinary course appealable before the higher Court hearing such appeals would not make any difference.
Inasmuch as the right of appeal is a creature of the statute, and Section 116A does not provide for an appeal against an order passed under Order VII Rule 11 CPC read with Section 83 of the Representation of the People Act, 1951 no resort can be taken to that provision by a process of interpretation of the Explanation to Section 86 or an artificial extension of the legal fiction beyond the said provision. Mr. Prasad was not, however, very keen to pursue his argument to its logical end for obvious reasons. A reference to a larger bench would inevitably delay the disposal of these appeals and even the election petitions. Mr. Prasad, therefore, chose the alternative course available to him and sought permission of this Court to convert the SLPs into appeals under Section 116A of the Act. Two applications, one seeking permission to convert the petitions into an appeal under Section 116A and the other seeking condonation of delay in the filing of the appeals were accordingly made by the petitioner. Having heard learned counsel for the parties at some length we are inclined to allow both these applications in both the special leave petitions.
Whether or not an appeal was maintainable against the impugned order was and continues to be a highly debatable issue as seen in the foregoing paragraphs. The petitioners appear to have been advised that the orders could be challenged only by way of SLPs. That advice cannot in the circumstances of the case, be said to be a reckless piece of advice nor can the petitioners be accused of lack of diligence in the matter when the SLPs were admittedly filed within the period of limitation stipulated for the purpose. The decision of this Court in Deputy Collector, Northern Sub-Division Panaji v. Comunidade of Bambolim (1995) 5 SCC 333, recognizes a bonafide mistake on the part of the counsel in pursuing a remedy as a good ground for condonation of delay in approaching the right forum in the right kind of proceedings. The limitation prescribed for filing an appeal under Section 116A is just about 30 days from the date of the order. There is, therefore, a delay of nearly 20 days in the filing of the appeal which deserves to be condoned. We accordingly allow the applications for conversion and for condonation of delay in both the special leave petitions and direct that the SLPs shall be treated as appeals filed under Section 116A of the Representation of the People Act.
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:
"11. On going through the said CD relating to Kamptee Polling Station, that was supplied by the Office of the Collector-cum-District Election Officer, Nagpur it was found that a voter namely, Mrs. Begum Shehnaz Begum Akhtar entered the polling station along with another voter Shri Abdul Shakoor Usman Gani @ Shakoor Nagani who had accompanied her to the Polling booth in utter breach of the Election Rules and Handbook of the Returning Officer issued by the Election Commission of India under Art. 324 of the Constitution of India. Shri Abdul Shakoor Usman Gani @ Shakoor Nagani marked the ballot paper that had been issued to Mrs. Begum Shehnaz Begum Akhtar and thereafter displayed the said ballot paper to those present in the room where the ballot box had been kept and thereafter put the ballot paper in the ballot box. This act is visible from the CD that has been supplied to the petitioner by the Office of the Collector-cum-District election Officer, Nagpur. In accordance with Rule 39(4) of the Election Rules, no other voter can be allowed to enter a voting compartment when another elector is inside it.
Thus, there has been violation of Rule 39 (4) of the Election Rules as one voter Ms. Begum Shehnaz Begum Akhtar was accompanied by another voter Shri AbdulShakoor Usman Gani @ Shakir Nagani and both voters entered the voting compartment together. Thus, there has also been a breach of Rule 39(5) to 39(8) of the Election Rules where there is breach of secrecy by display of the ballot paper, the vote in question is required to be cancelled by making an endorsement to that effect on the reverse of the ballot paper. However, the Returning Officer failed in his boundened duty in cancelling the said vote though its secrecy was blatantly violated in his very presence and permitted the same to be put in the ballot box. 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.17. 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."
7. The High Court has noticed the above averments and recorded a finding that the same satisfied the requirement of Section 83 of the Act inasmuch as the material facts in regard to the alleged improper reception of votes had been stated by the petitioner. The High Court has said: "In pleadings itself, authenticity of all these document is prima- facie sufficiently established. Essential facts to prove breaches of Rules with relevant legal provisions are sufficiently brought on record by him. "xxxxxxxxx" Here, in both Petitions case of wrongful receipt of invalid or void votes sufficient in number to change the result is already pleaded. As held in Laxmi Kant Bajpayi vs. Haji Yaqoob, supra, where election petition was under Section 83 read with Section 100 (1) (d)(iii) & (iv) of 1951 Act, & the pleadings in election Petitioner reveal a clear complete picture of the circumstances and disclose a definite cause of action, the election petition cannot be summarily dismissed."
8. The High Court all the same found the election petition deficient on account of the absence of a specific averment to the effect that the votes that were improperly received were cast in favour of the successful candidate. We find that reason to be unsustainable. The averments made in the election petition, in our opinion, sufficiently disclosed a cause of action inasmuch as the essential, the pivotal and the basic facts relevant to the charge levelled by the appellants had been stated with sufficient clarity by the petitioners in their respective election petitions. The question whether the votes improperly received were polled in favour of one or the other candidate was not an essential or material fact the absence whereof could possibly result in the summary dismissal of the election petitions.
We draw support for that view from the decision of this Court in Virender Nath Gautam v. Satpal Singh and Ors. (2007) 3 SCC 617. That was also a case where the election-petitioner had been defeated by a narrow margin of 51 votes only. The challenge to the election was founded on the plea that as many as 188 votes had been wrongly counted n spite of the fact that all those votes were invalid votes and that since the margin was only 51 votes, wrong counting of 188 invalid votes materially affected the result of the election. It was further alleged that 37 votes of dead persons had been cast and they were thus void and could not, therefore, have been counted. The petitioner gave names of all the 37 voters and annexed death certificates of 36 of such persons.
So also there were allegations that there was double voting by 60 voters in violation of Section 62(4) of the Act. Another 19 votes were challenged on the ground of being void as the voters had exercised their right to vote in two constituencies. In addition there were allegations of material irregularities in counting of postal ballot papers. The High Court had despite such assertions dismissed the election petition holding that there was nothing to show as to how many votes of dead persons had been cast in favour of the returned candidate. The High Court also held that the election petition did not disclose as to how the petitioner came to know about dead persons casting their votes nor was it indicated as to how the petitioner came to know about the persons listed having voted in two different constituencies. Reversing the view taken by the High Court, this Court observed that the election petition stated all the requisite material facts and that the High Court committed an error in examining the correctness of the allegations at an intermediary stage which could be done only at the time of trial.
As to whether the election-petitioner was required to make a statement that the void votes were polled in favour of the returned candidates this Court held that the same was not a material fact to be stated in the petition. This Court observed: "49. On the basis of our conclusions and reasoning in respect of paras 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 the 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."
9. The High Court has in support of its conclusion drawn support from the decisions of this Court in Shiv Charan Singh S/o Angad Singh v. Chandra Bhan Singh S/o Mahavir Singh and Ors. (1988) 2 SCC 12 and T.H. Musthaffa v. M.P. Varghese (1999) 8 SCC 692 to hold that in order to succeed, the election-petitioners have to prove by adducing evidence, that the result of the election was materially affected by the improper reception of votes. There can be no quarrel with this proposition that in order to succeed the election petitioners have not only to prove by leading requisite evidence that votes were improperly received but also that such improper reception materially affected the result of the election in so far as the returned candidate was concerned.
The question is whether an election petition could be dismissed summarily on the ground that production of any such evidence was not possible. In Shiv Charan Singh's case (supra), this Court was dealing with an appeal under Section 116A of the Act after the High Court had tried the election petition on merits and held the election of the returned candidate to be void with a direction to the election commission to hold a fresh election. In that case, the margin of victory of the returned candidate was no more than 4497, over Roshan Lal, the candidate who polled the 2nd highest number of votes. Kanhaya Lal, the candidate who had polled 17841 votes was held ineligible to contest being less than 25 years of age.
The High Court was of the view that since the number of votes polled by Kanhaya Lal whose nomination papers were wrongly accepted were far more than the margin of victory the election of the retuned candidate was materially affected by the improper acceptance of the nomination paper of Kanhaya Lal. This Court did not agree with that reasoning. Relying upon the decision of this Court in Vashist Narain Sharma v. Dev Chandra AIR 1954 SC 513, this Court held that the margin of victory being less than the votes polled by an improperly nominated candidate did not by itself mean that the result of the election was materially affected. The election petitioner, observed this Court is required to lead evidence to prove as a fact that the result of the election was indeed materially affected, no matter it may be difficult and even impossible for the election petitioner to adduce, any such proof. This Court observed:
"The result of the election can be affected only on the proof that the votes polled by the candidate whose nomination paper had wrongly been accepted would have been distributed in such a manner amongst the remaining candidates that some other candidate (other than the returned candidate) would have polled the highest number of valid votes. In other words the result of the election of the candidate cannot be held to have been materially affected unless it is proved that in the absence of the candidate whose nomination paper was wrongly accepted in the election contest, any other candidate (other than the returned candidate) would have polled the majority of valid votes. In the absence of any such proof the result cannot be held to have been materially affected. The burden to prove this material effect is difficult and many times it is almost impossible to produce the requisite proof. But the difficulty in proving this fact does not alter the position of law.
The legislative intent is clear that unless the burden howsoever difficult it may be, is discharged, the election cannot be declared void. The difficulty of proving the material effect was expressly noted by this Court in Vashist Narain Sharma and Paokai Haokip cases and the court observed that the difficulty could be resolved by the legislature and not by the courts. Since then the Act has been amended several times, but Parliament has not altered the burden of proof placed on the election petitioner under Section 100(1)(d) of the Act. Therefore the law laid in the aforesaid decisions still holds the field. It is not permissible in law to avoid the election of the returned candidate on speculations or conjectures relating to the manner in which the wasted votes would have been distributed amongst the remaining validly nominated candidates. Legislative intent is apparent that the harsh and difficult burden of proving material effect on the result of the election has to be discharged by the person challenging the election and the courts cannot speculate on the question. In the absence of positive proof of material effect on the result of the election of the returned candidate, the election must be allowed to stand and the court should not interfere with the election on speculation and conjectures."
10. There are two dimensions to the above observations. The first is that the election petition had been allowed by the High Court after a full fledged trial. It was not a case of summary dismissal of an election petition on the ground that no evidence can be produced to prove that the result of the election in so far as the returned candidate was materially affected by improper reception of any vote as is the position in the case at hand. The High Court in the case at hand failed to notice that difference and hastened to conclude that the election petition could not be tried with whatever chances the petitioner may have had to avoid the election in question.
11. The second dimension is that although the legal position emerging from the decisions is of vintage value, it may have the effect of obliterating Section 100(1)(d)(i) and (iii) of the Act. We say it with utmost respect for the Judges who delivered the decisions in the two cases referred to above that the decisions require the election petitioners to produce evidence in what would be a totally hypothetical situation defying any attempt to show that the votes polled by a candidate whose nomination was improperly accepted would have been polled in his absence in a fashion that would have materially affected the result of the election so far as the elected candidate is concerned. So also it would be near impossible to satisfactorily prove in a given case that the improperly received votes would have gone to one or the other candidate.
The question is whether an election petitioner can be asked to prove something that is not amenable to proof and whether by doing so a ground that is recognised by the statute as a valid ground for declaring the election to be void can be rendered otiose or sterile. What is noteworthy is that the difficulty which would arise in giving effect to Section 100(1)d(i) and (iii) has been noticed by this Court in Vashist Narain Sharma's case (supra) but instead of finding an answer to the same the Court has left the issue to be resolved by the legislature, in the following words:
"It is impossible to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand. Such result may operate harshly upon the petitioner seeking to set aside the election on the ground of improper acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with the inconvenience resulting from the operation of the law. How this state of things can be remedied is a matter entirely for the legislature to consider."
12. In Swantraj and Ors. v. State of Maharashtra (1975) 3 SCC 322, this Court said that every legislation is a social document and judicial construction seeks to decipher the statutory mission, language permitting, taking cue from the rule in Heydon's case (1584) 76 E.R. 637, of suppressing the evil and advancing the remedy. This Court held that what must tilt the balance is the purpose of the statute, its potential frustration and judicial avoidance of the mischief by a construction whereby the licensing meets the ends of ensuring pure and potent remedies for the people. This Court placed much reliance upon the following passage from Maxwell on the Interpretation of Statutes:
"There is no doubt that 'the office of the Judge is, to make such construction as will suppress the mischief, and advance the remedy, and to suppress all evasions for the continuance of the mischief. To carry out effectively the object of a statute, it must be so construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined: quando aliquid prohibetur, prohibetur et omne pe quod devenitur ad illud. This manner of construction has two aspects. One is that the courts, mindful of the mischief rule, will not be astute to narrow the language of a statute so as to allow persons within its purview to escape its net. The other is that the statute may be applied to the substance rather than the mere form of transactions, thus defeating any shifts and contrivances which parties may have devised in the hope of thereby falling outside the Act. When the courts find an attempt at concealment, they will, in the words of Wilmot, C.J. 'brush away the cobweb varnish, and shew the transactions in their true light'."
13. Reference may also be made to the decision of this Court in Kanwar Singh v. Delhi Administration (AIR 1965 SC 871), where this Court observed: "It is the duty of the court in construing a statute to give effect to the intention of the legislature. If, therefore, giving a literal meaning to a word used by the draftsman, particularly in a penal statute, would defeat the object of the legislature, which is to suppress a mischief, the court can depart from the dictionary meaning or even the popular meaning of the word and instead give it a meaning which will 'advance the remedy and suppress the mischief'."
14. In State of Tamil Nadu v. N.K. Kandaswami (1974) 4 SCC 745, this Court held that while interpreting a penal provision which is also remedial in nature a construction that would defeat its purpose or have the effect of obliterating it from the statute book should be eschewed and that if more than one constructions are possible the Court ought to choose a construction that would preserve the workability and efficacy of the statute rather than an interpretation that would render the law otiose or sterile.
This Court relied upon the following passage from the Seaford Court Estates Ltd. v. Asher [1949] 2 All E.R. 155 wherein Lord Denning, L.J. observed: "The English language is not an instrument of mathematical precision. Our literature would be much poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity.
In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. ... A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
15. The interpretation of Section 100(1)(d) and in particular the true import of the expression "the result of the election in so far as it concerns a returned candidate has been materially affected" is a serious issue, which may arise for consideration but only after the election petition is tried by the High Court and after the parties have adduced whatever evidence may be available to them. All that we need to say for the present is that the decision of this Court in Vashist Narain Sharma's case (supra) and Samant N. Balakrishna and Anr. v. George Fernandez and Ors. (1969) 3 SCC 238, and Inayatullah v. Divanchand Mahajan 15 ELR 210, requiring positive proof of the adverse effect of the improper acceptance of a nomination paper or improper reception of votes, on the result of the election qua the returned candidate have been considered and explained by a three-Judge Bench of this Court in Cheedi Ram v. Jhilmit Ram and Ors. (1984) 2 SCC 281.
That was a case where the margin of victory was just about 373 votes, while the votes polled by the candidate whose nomination papers were improperly accepted were many times more. There was no evidence, as indeed there could be none, to show as to how those votes would have got distributed among the remaining candidates if the nomination papers had not been improperly accepted. This Court held that a Court cannot lay down an impossible standard of proof and hold that the fact required to be proved was not proved on that standard. This Court further held that in the facts of a given case, a Court could hold a fact as proved if a reasonable probability supported that conclusion.
Applying that test this Court held that the improper acceptance of the nomination papers of Moti Ram, one of the candidates, had materially affected the election of the returned candidate. Chinnappa Reddy J. speaking for the Court conceptualised three situations that would arise in such cases in the following words: "True, the burden of establishing that the result of the election has been materially affected as a result of the improper acceptance of a nomination is on the person impeaching the election. The burden is readily discharged if the nomination which has been improperly accepted was that of the successful candidate himself.
On the other hand, the burden is wholly incapable of being discharged if the candidate whose nomination was improperly accepted obtained a less number of votes than the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next highest number of votes. In both these situations, the answers are obvious. The complication arises only in cases where the candidate, whose nomination was improperly accepted, has secured a larger number of votes than the difference between the number of votes secured by the successful candidate and the number of votes got by the candidate securing the next highest number of votes "
16. The Court then dealt with the third situation out of the three mentioned above and held: " .In this situation, the answer to the question whether the result of the election could be said to have been materially affected must depend on the facts, circumstances and reasonable probabilities of the case, particularly on the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, as compared with the number of votes secured by the candidate whose nomination was improperly accepted and the proportion which the number of wasted votes (the votes secured by the candidate whose nomination was improperly accepted) bears to the number of votes secured by the successful candidate.
If the number of votes secured by the candidate whose nomination was rejected is not disproportionately large as compared with the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes, it would be next to impossible to conclude that the result of the election has been materially affected. But, on the other hand, if the number of votes secured by the candidate whose nomination was improperly accepted is disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate securing the next highest number of votes and if the votes secured by the candidate whose nomination was improperly accepted bears a fairly high proportion to the votes secured by the successful candidate, the reasonable probability is that the result of the election has been materially affected and one may venture to hold the fact as proved. Under the Indian Evidence Act, a fact is said to be proved when after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
If having regard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down an impossible standard of proof and hold a fact as not proved. In the present case, the candidate whose nomination was improperly accepted had obtained 6710 votes, that is, almost 20 times the difference between the number of votes secured by the successful candidate and the candidate securing the next highest number of votes. Not merely that. The number of votes secured by the candidate whose nomination was improperly accepted bore a fairly high proportion to the number of votes secured by the successful candidate it was a little over one-third. Surely, in that situation, the result of the election may safely be said to have been affected."
17. We find ourselves in respectful agreement with the above reasoning. There can indeed be fact situations where the Court may legitimately hold even in the absence of affirmative evidence, that the result of the election was materially affected by improper acceptance of the nomination paper or the improper reception of votes. Beyond that we do not wish to say anything on this aspect at this stage.
18. In T.H. Musthaffa's case (supra) relied upon by the High Court, also the election petition was tried on merits and on the basis of evidence adduced by the parties, the Court had eventually dismissed the same. In an appeal against the said order under Section 116 A of the Act, this Court noted that the allegations made in the course of the petition regarding acceptance of invalid votes was deficient inasmuch as the number of votes that were liable to be rejected was not stated. This Court also noted that there was no indication as to how many of such votes had been polled in favour of the returned candidates to enable it to determine whether the same had materially affected the result of the election. In the absence of any such plea, the High Court could not have, declared this Court, granted the relief of recount and the refusal of the High Court to do so was justified.
There is nothing in that decision which advances the case of the respondent-returned candidate before us. Apart from the fact that the averments made in the election petitions in the present case are specific and the individuals who have cast their votes have been named and reason given why the votes cast by them were improperly received, the petitioner has alleged that exclusion of five votes cast by the persons named in the petition would materially affect the result of the election. Suffice it to say that the question whether any votes were improperly received and if so, whether such reception had materially affected the result of the election are matters to be examined at the trial after the parties have adduced evidence in support of their respective cases. Dismissal of the election petitions at the threshold was in the facts and circumstances not justified. In the result, we allow these appeals, set aside the judgment and order passed by the High Court and restore the election petitions to be tried by the High Court on merits in accordance with law. No costs.
............................J. (T.S. THAKUR)
New Delhi
October 18, 2012
Ashok Verus Rajendra Bhausaheb Mulak
[Civil Appeal No. 7592 of 2012 arising out of SLP (C) No. 28333 of 2010]
[Civil Appeal No. 7591 of 2012 arising out of SLP (C) No. 28143 of 2010]
J U D G E M E N T
GYAN SUDHA MISRA, J.
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 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.
3. Thus, this matter does not relate to a case where the respondent returned candidate is alleged to have indulged in corrupt practice but it is based specifically on the ground of breach of the Election Rules. But even in cases where the election petition is filed on the ground of corrupt practice, this Court time and again has held that "the electoral process in a democracy undoubtedly is too sacrosanct to be permitted or allowed to be polluted by corrupt practice and if the court records a finding of commission of corrupt practice by a returned candidate or his election agent or by any other person with the consent of returned candidate or his election agent, then the election of the returned candidate shall be declared to be void and in that event challenge to such election obviously would be entertained."
But at the same time it cannot be overlooked as was observed by the Supreme Court in the case of R.P. Moidutty vs. P.T. Kunju Mohammad & Anr., 2000 (1) SCC 481 and a series of authorities too numerous to mention, that it is basic to the law of election and election petition, that in a democracy, the mandate of the people expressed in the form of their ballot, must prevail and be respected by the Court and that is why the election of a successful candidate is not to be set aside lightly since the consequences flowing from the allegation of corrupt practice or alleged breach of any Rule affecting the election of a returned candidate is far more serious and hence the Supreme Court time and again has held that utmost care and caution are required to be applied while dealing with the allegation of indulgence in corrupt practices at the instance of the defeated candidate as in the process, mis appreciation of evidence and hence error of judgment in coming to a definite conclusion cannot be ruled out.
4. It is in this backdrop that the preliminary question as to whether the election petition filed by the respondent is fit to be dismissed on the ground of lack of material facts with material particulars which materially affects the result of the election assumes great significance and hence are fit to be taken care of at the stage when the election petitions are entertained. In this context, it is further apt to remember that this Court in the case of Kalyan Kumar Gagoi Vs. Ashutosh Agnihotri, 2011 (1) SCALE 516 has held - "that the election of the returned candidate should not normally be allowed to be set aside unless there are cogent and convincing reasons. The success of a winning candidate at an election cannot be lightly interfered with. This is all the more so when the election of a successful candidate is sought to be set aside for no fault of his but of someone else".
That is why the scheme of Section 100 of the Representation of People Act, 1961 especially clause (d) of sub- section (1) thereof clearly prescribes that in spite of the availability of grounds contemplated by sub-clauses (i) to (iv) of clause (d), the election of a returned candidate cannot be voided unless and until it is proved that the result of the election in so far as it concerns a returned candidate is materially affected. It is no doubt true that such material facts and material particulars depend upon the facts of each case and no rule of universal application can be applied to test the correctness of the allegation that material facts clearly affect the result of the election and it is the fact of each case which will be relevant for determination as to whether the election petition was fit to be rejected on the plea of lack of material facts and material particulars or it was fit to be entertained if the same disclosed a cause of action for consideration by the court so as to entertain the election petition. But the language of Section 100 (1) (c) of the Representation of People Act, 1951 is too clear for any speculation about possibility.
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 v
