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Smt. Kanchana Singh v. Manish Jaiswal And Others - ELECTION PETITION No. 2 of 2004  RD-AH 11539 (9 July 2007)
Judgement Reserved on 20.4.2007
Judgement Delivered on 09.7.2007
Civil Misc. Application No. A-15
Civil Misc. Application No. A-24
(Under Order VII Rule 11 C.P.C)
On behalf of respondent No.1
Civil Misc. Application No. A-23
(Under Order VI Rule 16 C.P.C)
On behalf of respondent no.1
Election Petition No. 2 of 2004
Smt Kanchan Singh Versus Manish Jaiswal and others.
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
Delay in filing counter affidavit to the above applications is condoned and counter affidavit is taken on record.
The first two applications dated 8.11.2004 and 17.10.2005 have been filed by respondent No.1 the elected/returned candidate, under Order VII Rule 11 C.P.C. The first application is quite short, it only states in para 2 that "respondent No.1 applicant has specifically stated in para 55 of his written statement that the Election Petition does not disclose any cause of action." The other application dated 17.10.2005 contains the detail. In the said application, it has been stated that Election Petition does not state or allege any material fact having materially affected upon the election of respondent No.1. It has also been stated that pleadings are frivolous, fictitious, unnecessary and irrelevant and that election petition does not raise triabal issue.
In the application A-23, under Order VI Rule 16 C.P.C it has been stated (in para 11) that "the main allegation of the petitioner in the election petition is that 133 votes of petitioner were improperly rejected. Petitioner has made the allegation without stating or pleading any material facts or ingredients." It has further been stated that the following details have not been given.
Serial number of ballot papers, the counting table number, the round number of counting in which the alleged irregularities was done, name of counting agents, names of the counting assistants and names of counting supervisors, the nature of objection, if any, raised and source of information and basis of allegation etc.
In para 13, it has further been stated that "documents annexed to the Election Petition show that neither the petitioner's counting agents nor the petitioner ever complained about such irregularity to any one, at any point of time. The petitioner herself filed copies of alleged complaints along with the election petition but none of the complaints contained any objection about improper rejection of votes on the ground of wrong marking."
In this election petition, statement of learned counsel for the petitioner was recorded under Order X Rule 2 C.P.C to the following effect on 15.2.2007:
"Sri Ravi Shanker Prasad, learned counsel for the petitioner states that in this election petition, petitioner will press only two points firstly regarding rejection of some votes on the ground that preference was written in Roman and secondly a bundle of 50 votes was missing at the time of counting."
Through this Election Petition, petitioner has challenged the election of respondent No.1 as Member of Legislative Council (MLC). In the election 4962 votes were cast. 133 votes were rejected as invalid on the ground that preference was shown in Roman numerical like I, II, III and not Arabic / Hindi numerical written in English like 1,2,3.... . Respondent No.1 was declared elected by a margin of 77 votes. Required pattern of voting for MLC is preferential. According to para 8 and 28 of election petition, 133 votes were wrongly rejected and all the rejected votes contained first preference in favour of the petitioner. The exact allegation is quoted below:
"8- That 133 votes were declared invalid unilaterally, polled in favour of election petitioner on the ground that the preference has been marked in a manner that it resembled "I" of the English alphabet.
28- That total of 4962 votes were polled and 133 votes were wrongly declared by the returning officer as invalid as the preference marked against the name of petitioner was shown in Roman ''I'. Similar votes were caste in favour of respondent No.1 Manish Jaiswal were declared valid."
These allegations have been replied in paragraphs 11,12, 19 and 40 of the written statement filed by respondent No.1. It has been stated therein that "it is wrong to allege that 133 votes were polled only in favour of the election petitioner or they were wrongly, illegally, arbitrarily and extraneously rejected by the returning officer. In fact these 133 votes were polled in favour of the petitioner and other candidates also and were rightly rejected by the returning officer as preference was marked as "I" in all these votes."
Sri Kesri NathTripathi, learned senior counsel appearing for respondent No.1 has mainly argued that material facts and cause of action have not been disclosed in the election petition, hence, it is liable to be dismissed at the initial stage. Learned counsel has further elaborated his argument by stating that the first step in the process of counting is rejection of invalid votes and at the time of rejection of invalid votes it is not indicated that in whose favour the said votes were cast. It has further been argued that firstly no objection was raised by the petitioner or her agents at the time of rejection of 133 invalid votes either promptly or uptill finalization of process of counting and secondly it has not been stated that on what basis petitioner is alleging that all the 133 invalid votes were cast in her favour. Learned counsel for the respondent No.1 has placed reliance upon the following authorities:
1.Hari Shanker Jain Vs. Sonia Gandhi 2001 (8) SCC 233.
2.Mahendra Pratap Vs. Krishna Pall and others 2003 (1) SCC 390 (from para 15 of the said judgment, it is clear that evidence had been adduced in the said case.)
3.R.A Tiwari Vs. Election Tribunal, AIR 1958 Alld 663.
4.Ram Singh Vs. K. Mohiuddin and others AIR 1988 Alld 210.
5.A copy of order / judgment dated 21.8.1986 delivered by an Hon'ble Single Judge of this Hon'ble Court in Election Petition No. 17 of 1985.
A recent authority of Supreme Court reported in Virendra Nath Gautam Vs. Satya Pal Singh AIR 2007 SC 581 is very much relevant for deciding the points involved in these applications. In the said authority distinction between material facts and particulars has been pointed out. It has also been held that if ground of corrupt practice has not been taken in the election petition then even setting forth of full particulars as required by section 83 (1)(b) of Representation of Peoples Act is not necessary. (Para 52).
In the said authority order of the High Court rejecting the election petition on the ground that material particulars had not been given was set-aside. In para 51 it was held as follows:
"The High Court in our considered opinion step into prohibited area of considering correctness of allegation and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable and dismissed the petition. The said action, therefore, can not be upheld and the order deserves to be set-aside."
Paragraph 38 and 39 of the said authority are also quoted below:
"38- The High Court dealing with the allegation in para 8 (i) has observed that there was nothing to show and not a word as to how many of those 37 votes were caste in favour of the returned candidate and who caste those votes. It was also observed that the defeated candidate never raised any objection at the time of polling and at the stage of filing election petition. It was not open to raise objection. It was further observed that it was not the case of the election petitioner that he was not aware of death of those persons at the time of poling and it was a case of personation of electors within the meaning of section 61 of the Act. There was also not a whisper observed, the High court that the polling agent had challenged the identity of the persons who allegedly voted for the dead electors. The High Court also stated that it was not stated in the election petition that the returned candidate or his supporters or election agent managed to have votes caste by impersonation. All these facts, according to the High court were material facts and since they were not stated in the election petition, the petition was defective.
39- We are unable to agree with the High Court. In our opinion, the considerations, which weighed with the High Court, were in the nature of ''evidence', which is a matter to be considered and proved at the time of trial. The High Court was also not right in virtually invoking the doctrine of estoppel and in dismissing he petition on that ground."
In view of the above authority of the Supreme Court effect of failure of the petitioner or her agent to promptly raise the objection against rejection of 133 votes as invalid cannot be seen at this stage. Similarly the argument, that it has not been disclosed that how petitioner knew that all the rejected 133 ballot papers contained first preference in her favour, can be considered at this stage. It is for the plaintiff to prove these facts through evidence. Howe she does it, is yet to be seen. The stage for that has not yet arrived.
Several authorities were cited by the learned counsel for the petitioner, however, in view of the aforesaid authority of the Supreme Court reported in V.N. Gautam Vs. Satya Pal Singh it is not necessary to consider other authorities.
Petitioner has alleged that 133 ballot papers were illegally declared invalid and all those ballot papers contained first preference in her favour. The margin of defeat of petitioner was 77. If the allegation made by the petitioner is proved by her then the result of the election will stand materially affected. Accordingly, it can not be said that election petition is liable to be dismissed for not containing the material facts or for not disclosing the cause of action.
Accordingly all the above applications are rejected.
List for hearing on other remaining applications on....8.2007.
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