Civil
P.C. 1908 - O.7 R. 11(a) - Representation of the People Act, 1951 - Ss. 81, 83,
100 & 123 - Conduct of Elections Rules, 1961 - R. 94A - Legislative
Assembly Constituency reserved for Scheduled Caste category candidate -
Electronic Voting Machines (EVMs) - Use of religious symbol which was an image
of Lord Buddha - Allegations made in the petition are general and vague and
that they lack in material facts - Such facts are necessary to disclose the
cause of action espoused by a party and this is the mandatory requirement -
Omission of a single material fact leads to an incomplete cause of action and
statement of claim becomes bad - Petition which lacks in the material facts and
the petition does not disclose any cause of action and is liable to be
rejected.
IN
THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR
CORAM
: S.B. SHUKRE, J.
DATE
: 12 th DECEMBER, 2018.
ELECTION
PETITION No.5 OF 2014 WITH CIVIL APPLICATION (O) No.1542 OF 2016
Kishor
Uttamrao Gajbhiye v. Election Commission of India
Shri P.S. Wathore, Advocate for the
Petitioner. Shri Anil Kolor, Advocate for the Respondent No.5.
J
U D G M E N T
1.
The election petition has been filed by the petitioner under Section 81 of the
Representation of the People Act, 1951 (in short, “R.P. Act, 1951”) challenging
the election of the respondent No.5 from Constituency No.57, North Nagpur
(Scheduled Caste), Legislative Assembly Constituency reserved for Scheduled
Caste category candidate.
2. According
to the petitioner, the Electronic Voting Machines (in short, “EVMs”) were
tampered with. It is his case that there were several voters, who were
supporters of the Bahujan Samaj Party, the party which had nominated petitioner
to contest the election held on 15.10.2014, who had cast their votes in favour
of the petitioner, but they were registered and recorded in the name of
respondent No.5 and that there were several other voters who could not exercise
their franchise due to confusion created by power failures occurring twice at
some of the polling booths on the polling day. The petitioner has also
contended that the voters were influenced in various ways by the respondent
No.5 including use of religious symbol which was an image of Lord Buddha. The
petitioner has further alleged that paper printers, in spite of directions
given by the Hon'ble Supreme Court, were not attached to the EVMs, and this
resulted into interference with the free and fair elections.
3. The
petition has been resisted by the respondent No.5 and he, after filing his
written statement, has moved an application under Order 7 Rule 11 of the C.P.C.
seeking rejection of the election petition on the ground that the allegations
are vague and the election petition as a whole does not comply with the
mandatory requirements of Sections 81,83,100 and 123 and also Rules framed
under the R.P. Act, 1951. This application has been vehemently opposed by the
petitioner.
4. I
have heard Shri Anil Kilor, learned counsel for the applicant/respondent No.5
and Shri Wathore, learned counsel for the petitioner on the application filed
by respondent No.5 seeking rejection of the plaint. With their assistance I
have gone through the documents annexed to the petition and also the case law
relied upon by them.
5. Shri
Anil Kilor, learned counsel for the respondent No.5 submits that the prayer
clause is not specific as it does not specify as to under which clause of
subSection (1) of Section 100 the interference with the elections result has
been sought. He further submits that the election petition contains vague
allegations and it does not give any material particulars regarding the corrupt
practices as well as the alleged use of religious symbol with a view to create
feeling of enmity or hatred between different classes of citizens. He further
submits that the allegations relating to tampering with EVMs and the confusion
of the voters created by the power failures are also vague. He, therefore, submits
that the election petition violates the mandate of Sections 81 and 83 read with
Section 86 of the R.P. Act, 1951 and also does not disclose any cause of action.
He further submits that verification of the pleadings is not proper and the
affidavit filed along with the petition is not in Form No.25 prescribed under
Rule 94A of the Conduct of Elections Rules, 1961 (in short, “Election Rules)
read with Section 83 of the R.P. Act, 1951. Thus, he urges that the petition be
dismissed by allowing the application.
6. Shri
P.S. Wathore, learned counsel for the nonapplicant/ petitioner opposing the
application, submits that the application itself is vague and does not specify
as to how the mandate of Section 81 and Section 83 read with Section 86 of the
R.P. Act, 1951 has been violated and as to why the petition does not disclose
any cause of action. He submits that all the material facts have been pleaded
in a concise manner in the petition and it has also been specifically alleged that
the corrupt practices have prejudicially affected the election prospects of the
petitioner. He further submits that the verification of the petition has been
done as required under Order 6 Rule 15 of the Code of Civil Procedure (in
short, “C.P.C.) and that the pleadings are duly supported by a properly prepared
and sworn affidavit as contemplated under Section 83 of the R.P. Act 1951 read
with Rule 94A of the Election Rules. He further submits that the respondent
No.5 used idol/picture of Lord Buddha in order to influence thousands of
scheduled caste voters in North Nagpur who were Buddhist by faith and,
therefore, the election result has prejudicially affected the petitioner. Thus,
he submits that the application is liable to be rejected.
7. The
arguments of rival parties on facts have their basis in the provisions of law
and the settled principles of law. So, it would useful for us to first take a
quick look at the applicable law. Some of the provisions of R.P. Act 1951 which
need to be considered by us are Sections 81, 83, 86 100 and 123, Form 25 of
affidavit, prescribed under Rule 94A of the Elections Rules read with Section
83 of the R.P. Act 1951.
8. Section
81 governs the presentation of the petition. It lays down that an election
petition calling in question any election may be presented on one or more of
the grounds specified in subSection (1) of Section 100 and Section 101 to the
High Court by any candidate at such elections or any elector within the period
prescribed therein. Although the petitioner has sought a declaration that he
himself has been duly elected, the question of expressing any opinion about the
same by this Court, in terms of Section 101 would arise only when the election petition
is tried on merit and then this Court would be required to express its opinion
that but for the votes obtained by the returned candidate by corrupt practices
the petitioner or other candidate would have obtained a majority of the valid
votes and, therefore, it is not necessary at this juncture to go in to the
prescription of Section 101. But, it would be necessary to consider the
provisions made in Section 100 as Section 81 requires that an election petition
calling in question any election would have to resort to the grounds stated
therein or Section 101.
9. The
grounds prescribed under Section 100 are such as the returned candidate was not
qualified or was disqualified on the date of his election or, any corrupt
practice has been committed by a returned candidate or his agent or any other
person with his consent or consent of election agent or, any nomination has
been improperly rejected or, that the result of the election of the returned
candidate has been materially affected by the improper acceptance of any
nomination or by any corrupt practice committed in the interest of the returned
candidate or by the improper reception, refusal or rejection of any vote or by
any noncompliance with the provisions of the Constitution or of R.P. Act, 1951.
10. In
the present case, pleadings regarding indulgence in corrupt practices and
improper reception and refusal of votes in general have been made, although, no
specific reference to any of the clauses (a), (b),(c) and (d) of subSection (1)
of Section 100 of R.P. Act, 1951 has been made either in the body of the
petition or in the prayer clause.
11. Section
123 defines corrupt practices and having regard to the pleadings raised in the
petition, I find that subSections (3) and (3A) thereof would be relevant.
Subsection (3) of Section 123 lays down that any appeal made by a candidate or
his agent or any other person with the consent of a candidate or his agent to
vote or refrain from voting on the ground of his religion, race, caste,
community or language or the the use of or making of appeal to, religious
symbol or national symbol, for the furtherance of prospect of the election of
that candidate or for prejudicially affecting the election of any candidate is
a corrupt practice. SubSection (3A) of Section 123 prescribes that any
promotion or attempt to promote, feelings of enmity or hatred between different
classes of citizens of India on grounds of religion, race, caste, community or
language by a candidate or his agent or any other person with the consent of a
candidate or his agent for the furtherance of the prospect of the election of
that candidate or for prejudicially affecting the election of any candidate is
also a form of corrupt practice.
12.
Section 83 requires that the petition must contain a concise statement of
material facts on which the petitioner relies, and it must set forth full
particulars of any corrupt practices alleged in the petition including as full
a statement as possible of the names of the parties alleged to have indulged in
the corrupt practices and the date and place of the commission of each such
practice. It further requires that it shall be signed by the petitioner and
verified in the manner laid down in the C.P.C. It also mandates that where the
petitioner has alleged any corrupt practice, the petition shall also be
accompanied by an affidavit in the prescribed form in support of the allegation
of such corrupt practice and the particulars thereof. It further requires that
any schedule or annexures to the petition shall also be signed by the
petitioner and verified in the same manner as the petition.
13. Section
86 deals with trial of election petition and here we being concerned with only
an application filed under Order 7 Rule 11 seeking dismissal or rejection of
the election petition, it would be sufficient for us to refer to only that
portion of this section which relates to dismissal of election petition and it
is subSection (1). It lays down that the High Court shall dismiss an election
petition which does not comply with the provisions of Section 81 or Section 82
or Section 117.
14. Rule
94A of the Elections Rules says that the affidavit referred to in subSection (1)
of Section 83 shall be sworn before a Magistrate of the First Class or a notary
or a Commissioner of Oaths and shall be in Form 25. Form 25 indicates that the
affidavit to be sworn in by a candidate must be specific in the sense that it
requires the deponent to make a solemn affirmation and oath and say that the
statements made in specific paragraphs of the petition about the commission of
the corrupt practice and so on and so forth are true to his knowledge and the
other statements made in other specific paragraphs are true to his information.
In other words, the affidavit must give the paragraph number and also the name
of the particular corrupt practice so as to distinctively verify the correctness
of relevant statements on the basis of knowledge of the deponent and such
information received by the deponent as is believed to be true by him.
15. There
are several cases decided by the Hon'ble Apex Court which have crystallized the
law as regards the mandate of Section 81,83 and Section 100 read with Section
123 of the R.P. Act, 1951 and how these provisions of law are mandatorily
required to be followed by a petitioner calling in question the election of a
returned candidate. Learned counsel for the respondent No.5 has referred to me
many of such cases while learned counsel for the petitioner has relied upon one
case decided by the learned Single Judge of this Court. Let us now consider the
principles of law stated in these cases as they would have a bearing upon the
issue, raised in the present application.
16.
In the case of Jagabandhu
Behera vs. Subrat Tarai and others,
reported in (2016) 6 SCC
256, the Hon'ble Apex Court
has highlighted the importance of giving of detailed particulars of the corrupt
practice alleged. In paragraph 19 it has observed that in such a case all the
particulars about time, place and persons to whom bribe of cash and gift of
other articles were given and the amount of cash and the nature of articles
given by way of gift must be pleaded and in absence of these pleadings,
evidence in that respect cannot be allowed to be led and that would result in
failure to establish the charge of corrupt practice.
17. In
the case of Ram Sukh vs.
Dinesh Aggarwal, reported in
(2009)10 SCC 541, the Supreme Court reiterating the
observations made in the constitution bench judgment given in the case of Jagan Nath vs. Jaswant Singh,
reported in AIR 1954 SC 210, in paragraph 8, held that the statutory
requirements of election law must be strictly observed and that the election
contest is not an action at law or a suit in equity but is purely a statutory
proceeding unknown to the common law and that the Court possesses no common law
power. It also emphasises the need for being very cautious in interfering with
the election of a returned candidate on the one hand and being conscience of
the need for zealously ensuring that people do not get elected by flagrant
breaches of law or by indulging in corrupt practices as enumerated in R.P. Act
1951.
18. In
the case of Ram Sukh, in paragraph 12, the Hon'ble Apex Court
further held that when Section 83(1) of the R.P. Act 1951 requires that “material
facts” be stated and if the election petition lacks “material facts”, the
election petition is liable to be dismissed on that ground alone. Elaborating
upon what are “material facts”, the Supreme Court held (para 13) that they are
facts upon which the plaintiff's cause of action or the defendant's defence
depends. It further held that broadly speaking all primary or basic facts which
are necessary either to prove the cause of action are “material facts”. It
further held that “material facts” are facts which when established would give
the petitioner the relief asked for and what could be said to be “material
facts” would depend upon facts of each case. In paragraph 20, the Supreme
Court, referring to many of its previous decisions, also held that all the
facts which are essential to clothe the petition with complete cause of action
must be pleaded and omission of even a single material fact would amount to
disobedience of the mandate of Section 83 (1)(a) of the R.P. Act, 1951 and
election petition can be and must be dismissed, if it suffers from any such
vice.
19. In
Anil Vasudev Salgaonkar vs. Naresh Kushali
Shigaonkar, reported in (2009) 9 SCC 310,
same law as referred to earlier has been laid down by the Hon'ble Supreme
Court. In paragraph 51, it has held that all the facts which are essential to
clothe the petition with complete cause of action must be pleaded as failure to
plead even a single material fact would amount to disobedience of the mandate
of Section 83(1)(a). It further held that an election petition can be and must
be dismissed if it suffers from any such vice. In paragraph 59, it has referred
to the observations of the Supreme Court in the case of Sudarsha Avasthi vs. Shiv Pal Singh, reported in (2008) 7 SCC 604 that
the election petition is a serious matter and it cannot be treated lightly or
in a fanciful manner nor it could be treated as giving a handle for vexatious
purpose. In paragraph 59, it also held that in the context of a charge of
corrupt practice, “material facts” would mean all basic facts constituting the
ingredients of the particular corrupt practice alleged, which the petitioner is
bound to substantiate before he can succeed on that charge. It further held
that if “material facts” are missing they cannot be supplied, after expiry of
period of limitation for filing the election petition and the pleadings become
deficient.
20. In
C.P.John vs. Babu M Palissery and others, reported in AIR 2015 SC 16,
in paragraph 20, the Hon'ble Supreme Court has held that a conspectus reading
of Section 83(1)(a) along with its proviso as well as Rule 94A and Form 25 of
the Election Rules makes the legal position clear that in filing of the
election petition challenging the successful election of a candidate, the
election petitioner must take extra care and should leave no room for doubt
while making any allegation of corrupt practice indulged in by the successful
candidate and that he cannot be later on heard to state that the allegations
were generally spoken to or discussed sporadically and on that basis the
petition came to be filed. Elaborating the principle further, the Hon'ble
Supreme Court observed that in other words it could be said that unless and
until the election petitioner comes forward with a definite plea of a case that
the allegation of corrupt practice is supported by a legally acceptable material
evidence, the election petition cannot be entertained and would have to be
rejected at the threshold. In paragraph 26, the Supreme Court has stressed upon
the need for supporting the material facts and material particulars given in
the petition by an affidavit which satisfies the legal requirement of Rule 94A and
Form 25.
21. In
the cases of Markio Tado vs.
Takam Sorang and others, reported
in AIR 2012 SC 993 and Tukaram
S. Dighole vs. Manikrao Shivaji Kokate,
reported in (2010) 4 SCC
329, the Hon'ble Supreme Court has
reiterated broadly the same principles of law as discussed earlier. In the case
of Ashok s/o. Mahadeorao Mankar vs. Rajendra Bhausaheb
Mulak, reported in 2010(7) Mh.L.J. 503,
relied upon by learned counsel for the nonapplicant/ petitioner, learned Single
Judge of this Court has taken a view that when there is an inconsistency in the
verification made to the election petition which involves no allegations of corrupt
practice, opportunity to correct error needs to be given.
22. I
must state it here with due respect that the principle of law stated in Ashok (supra)
would have no application to the facts of the present case as this petition
involves, unlike Ashok, allegations of corrupt practices. However, the
principles of law laid down by the Hon'ble Apex Court and discussed earlier
would have to be borne in mind by me while appreciating the rival arguments,
which I would do so now.
23. The
grounds of this petition are founded upon the allegations contained in some of
its paragraphs from out of 25 paragraphs in all. These paragraphs are from
paragraph Nos.9 to 20. It would be necessary to consider these paragraphs so as
to find out as to whether or not they contain concise statement of the “material
facts” so as to constitute the grounds specified in subSection (1) of Section
100 of the R.P. Act, 1951.
24. The
allegations contained in paragraph Nos.9, 10 and 12 are about discrepancy in
number of votes cast and the votes actually counted. It has been alleged by the
petitioner that in the election held in Constituency No.57, North Nagpur, (SC),
an aggregate of 195990 votes were polled and whereas total number of votes
counted were only 181252. This is the allegation made in paragraph 9. However,
in paragraph 10, it is alleged that the actual votes cast were not 181252, but
181534. Again in paragraph 12, the figure of actually counted votes, 181252,
has been reiterated and in paragraph 13, it is stated that there was a
difference of votes of 14304 between those polled and those actually counted on
the polling day. In paragraph 11, it is alleged that paper printers were not
attached to the EVMs and the voters could not ascertain as to whether or not
that their votes were actually registered in the name of the candidate in whose
favour they cast their votes. It is further alleged in paragraph 14 that the
difference of votes of 14304 arose due to both malfunctioning of and tampering
with the EVMs.
25. It
would be clear from the above that the petitioner himself is not clear about
number of votes actually polled and those actually counted. In one breath he
says that figure was of 181252 and in another he says that it was 181534.
Secondly, the data that the petitioner admittedly relies upon is drawn from the
newspaper reports and not from any official communication received from the
Returning Officer or the Election Commission. It is also not alleged that these
reports have been verified from some authentic official source and specifically
named in the petition, and found to be correct. In paragraph 19, the petitioner
has contended that these figures are as per the record published in newspaper
like “Hitavada”. It is settled law that the newspaper reports by themselves and
per se do not have any evidentiary value unless supported by any legally
acceptable data base and so cannot be used as a source for any pleading. A
useful reference in this regard may be made to (i) Dr. B. Singh V. Union of India and others, reported in (2004) 3 SCC 363 and
(ii) Laxmi Raj Shetty and another vs. State of
Tamil Nadu , reported in
(1988) 3 SCC 319. It would then follow that no pleading of
fact much less material fact would arise from such a data base. In fact, the
discrepancy in the pleading about number of votes actually counted, as stated
in paragraph 9 and 10, has arisen only because of use of such unauthenticated
and unverified source of information and, therefore, it would have to be said
that these pleadings are vague and do not state any material facts.
26. It
is alleged in paragraphs 10 and 13 that the paper printers were not attached to
the EVMs and that there was fraudulent tampering with and also malfunctioning
of the EVMs. But, it has not been specified as to how the election prospects of
the petitioner have been materially affected by such alleged tampering and
malfunctioning. Some specific instances of the voters casting their votes in
the name of one candidate and their votes getting registered in the name of
some other candidate ought to have been stated. But, that is not the case here
and so, the allegation about malfunctioning of the EVMs I would say, is vague. Similar
is the fate of the allegations relating to fraudulent tampering with the EVMS.
Though, this allegation has been made, it is not specified as to in what manner
the EVMs were tampered, who had done it and what was the effect of the alleged
tampering. So, this pleading is also vague.
27. Paragraph
14 contains some allegations hinting at indulgence in corrupt practices by the
respondent No.5. It is alleged that applicant appealed to the voters through an
advertisement published in the daily, “Tarun Bharat”, Nagpur by one Vikky Kukreja
of Bhartiya Janta Party, Nagpur and used the idol/picture of Lord Buddha for
seeking votes on the ground of his religion. It is then contended that such publication
amounts to corrupt practice under Section 123(3) and (3A) of the R.P. Act 1951.
It is also alleged that this applicant committed serious offence under Section
125 of the R.P. Act, 1951 stating, to use the words of the petitioner, “...............
used the religious idol of Lord Buddha in the daily newspaper “Tarun Bharat”
dated 15.10.2014, with intention to promote on ground of religion, race, caste
and community creating feeling of enmity of hatred between different classes of
citizen of India and violated the Election Rules and Code of Conduct,
therefore, the respondent No.5 is liable to be punished in accordance with law”.
It is further alleged that this applicant, “used idol/picture of Lord Buddha in
order to influence thousand of Scheduled Caste voters in North Nagpur who are
Buddhist by faith and therefore the election result was prejudicially affected
by this act of the respondent No.5.”. Then, it is alleged that, “.............
The use of Lord Buddha's idol/image by the petitioner filed has greatly damaged
the prospects of the respondent of getting elected due to prejudices created in
the minds of scheduled caste, Buddhist voters by the illegal and unlawful
action of respondent No.5.”.
28. These
allegations, one can say, are founded upon the corrupt practices as defined
under subSection (3) and subSection (3A) of Section 123 of the R.P. Act 1951.
It would, therefore, be necessary to examine these provisions of law in order
to understand the requirements prescribed therein.
29. Subsection
(3) of Section 123 has two distinct components, one is of the appeal made by a
candidate to vote or refrain from voting on the ground of “his” religion, race,
caste, community or language. The other is of use of or appeal to religious
symbol or the use of or appeal to national symbol for the purpose of furthering
the prospects of the election of that candidate or for prejudicially affecting
the election of any candidate. The first component requires an appeal to be
made on the ground of religion, race, caste, community or language of the
candidate making the appeal. That means, while making the appeal it should be made
to appear that as the candidate belongs to a particulate religion or race or
caste or community or speaks particular language, the voters professing the
same religion or belonging to same race, caste or community or speaking same
language should prefer that candidate. The essential part of second component
of subSection (3) of Section 123 is that the religious symbol must be used or
appealed on for furtherance of the prospect of election of that candidate or
for reducing or adversely affecting such prospect of any other candidate. So,
the use of the religious symbol must be alleged or shown to have been made for
the furtherance of the election prospect of the candidate using it or for prejudicially
affecting such prospect of any other candidate.
30.
Turning back to the allegations made in paragraph 14 and reproduced earlier, I
must say that these allegations, even if they are accepted as they are, do not
bring on record all the necessary ingredients of subSection (3) of Section 123
of R.P. Act, 1951. In paragraph 14, of course, it is stated that “the idol or
picture of Lord Buddha” has been used for seeking vote on the ground of “his”
religion, but, I could not come across any pleading in the petition regarding
the religion of respondent No.5. I also did not find any pleading about the
religion of the petitioner. Learned counsel for the petitioner also could not
point out to me any such pleading in the petition. Therefore, this pleading, I would
say, is vague and lacks in material facts. Further, it is also required that
there is some appeal made for seeking of vote or refraining from voting
avowedly on the ground of religion of that candidate. A close look at
advertisement at Page No. 69 , of the paper book, however, does not show that
any such appeal as is based upon the own religion of the candidate has been
made . So, the first component of subSection (3) of Section 123 is not
attracted by the allegations made in the petition.
31. As
regards second component of subSection (3) of Section 123 also, I find that
there being nothing stated as to how the use of image of Lord Buddha, if it is
taken to be a religious symbol for the sake of argument, though it is a
debatable issue as to whether or not the image or idol of Lord Buddha could be
taken to be an exclusive and distinctive symbol of one religion when there is
another religion also which holds the Lord in equal reverence and esteem, has
been made with a view to further the prospect of the election of respondent
No.5 or to mar the same of the petitioner. Such elaboration in this case was necessary
because one does not know to which religion the petitioner and to which the
respondent No.5 belong as nothing in this regard has been specifically stated.
The corrupt practice under this subsection could be said to be apparently made
out only when it is alleged that the religion of the elected candidate was so
and so and it being a different religion from that of the petitioner, the
elected candidate encashed upon it. In the present case, as stated earlier, the
material facts regarding religion of the petitioner as well as respondent No.5
have not been stated and in addition to that, one admitted fact has gone
against the petitioner. The admitted fact is that the Constituency No.57 was reserved
for Scheduled Caste category candidate and this required a specific allegation
to be made as to how the use of one religious symbol has worked to the
advantage of one candidate and disadvantage of the other candidate, also
belonging to the same category as the candidate allegedly using the religious
symbol. This has, however, not been stated or explained in any manner in the
pleadings.
32. As
regards alleged corrupt practice arising from the prohibition contained in
subSection (3A) of Section 123, I find that here also the pleadings in the
petition lack in material facts. SubSection (3A) of Section 123 requires that
such factors as religion, race, caste, community or language be used by a
candidate to fan feelings of enmity or hatred between classes of citizens and
this should be done by him for the furtherance his own election prospect or for
prejudicially affecting such prospect of the other candidate. But, in the
petition, it is not stated as to which religion or caste or community has been
used as a ground for promoting enmity or hatred between which different classes
of the voters registered in Constituency No.57. Merely saying that use of the
image of Lord Buddha in the advertisement was for promoting enmity or hatred between
different classes of citizens of India thereby resulting in prejudicially
affecting the election prospect of the petitioner or furthering the election
prospect of the respondent No.5 would not suffice. So, I find that the most
essential ingredient of subSection (3A) and stated just now is missing from the
petition.
33. The
discussion made so far would make it clear to us that even as regards the
ground of corrupt practices, the material facts have not been stated and,
therefore, on this count as well the petition is vague.
34. The
allegations contained in paragraph 15 to paragraph 20 relate to tampering with
EVMs and malfunctioning of the EVMs. It is alleged that the EVMs were set in
such a way that any vote that was cast in favour of the B.S.P. candidate was
not registered resulting in decrease in tally of B.S.P. candidate and increase
in the vote count of the B.J.P. candidate. It is not stated as to at which
polling booths this happened and which of the EVMs installed therein were
tampered with. It is also not alleged as to who were the voters affected and
what their names were. Similarly, though the allegations have been made
regarding power failure between 10.08 hours, 11.42 hours, 16.30 hours and 17.17
hours and at about about 3.00 p.m., and it is also stated that the power
failures resulted in the darkness because of which there was no proper registration
of the votes cast in some cases and votes having been cast mistakenly by
pressing the buttons against the names of some different candidates, it has not
been specified as to who were such affected voters and where did this happen.
All these allegations are general and we have seen that the law is that in a
petition calling in question election of a candidate, no roving enquiry is
permissible. If these general allegations are taken to constitute a cause of
action, it would be like embarking upon a journey into the obscure, the abyss,
the dark, and the unclear, having no end to it. This is impermissible.
35. The
pleadings contained in the remaining paragraphs relate to cause of action,
limitation and formalities to be completed in filing of an election petition
and, therefore, they need not be scrutinized for the purpose of the present
application.
36. In
view of the discussion made as above, I find that all the allegations made in
the petition are general and vague and that they lack in material facts. Such
facts are necessary to disclose the cause of action espoused by a party and this
is the mandatory requirement of Section 83 of the R.P. Act 1951. The settled
law also tells us that omission of a single material fact leads to an
incomplete cause of action and statement of claim becomes bad. This principle
of law squarely applies to the present petition which lacks in the material
facts and, therefore, I find that the petition does not disclose any cause of
action and is liable to be rejected under Order 7 Rule 11(a) of the Code of
Civil Procedure.
37. In
addition to what is stated above, the petition also does not comply with the
requirement of Rule 94A of the Conduct Rules read with Section 83 of the R.P.
Act, 1951 as the affidavit supporting the allegations made in the petition has
not been sworn in the prescribed form No.25. This would only strengthen the
contention of the respondent No.5 that the petition has been filed without
complying with the mandatory requirement of law and, therefore, deserves to be rejected.
38. The
application is allowed.
39. The
election petition stands rejected. No costs.