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Judgments of Supreme Court of India and High Courts

Kishore S/O Uttamrao Gajbhiye vs The Election Commission Of India … on 12 December, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

ELECTION PETITION No.5 OF 2014
WITH
CIVIL APPLICATION (O) No.1542 OF 2016

Kishor s/o. Uttamrao Gajbhiye,
Aged about 57 years,
R/o. Rajgruh, Plot No.36,
Garden Layout, Bezonbagh,
Nagpur-440 004. : PETITIONER

…VERSUS…

Respondent 1. The Election Commission of India,
Nos.1 2 Through Chief Election Commissioner,
deleted as per Nirvachan Sadan, Ashoka Road,
order dated New Delhi-110 001.
13.4.2016.

2. The Chief Electoral Officer,
Maharashtra State,
New Administrative Building,
Opposite Mantralaya, Mumbai.
Respondent
No.3 deleted as 3. The Collector and District Election
per order Officer, O/o. the Collector, Nagpur.
6.10.2016.

4. The Returning Officer,
Respondent 57, North Nagpur,
No.4 deleted as
(S.C. Constituency),
per order
13.4.2016. Legislative Assembly Constituency,
Nagpur.

5. Dr. Milind s/o. Pandurang Mane,
Age : Major, Occupation : Medical Practitioner,
R/o. Saraswati Hospital, Nirmal Bhawan,
Dr. Ambedkar Marg, Indora Chowk,
Nagpur-440 017.

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Respondent 6. Dr. Nitin s/o. Kashinath Raut,
Nos.6 to 23 Age : Major, Occ.: State Minister,
deleted as per R/o. Plot No.24, Garden Layout,
order 13.4.2016.
Bezanbagh, Housing Society, Bezanbagh,
Kamptee Road, Nagpur.

7. Shridhar s/o Narayan Salve,
Age : Major, Occupation : Social Worker,
R/o. F-14, Armour Township,
Sugath Nagar, Jaripatka,
Nagpur-440 014.

8. Ritesh s/o. Kisan Meshram,
Age : Major, Occupation : Not known
R/o. 513, Indora Bhandar Mohalla,
Nagpur-440 014.

9. Vishal s/o. Vasant Khandekar,
Age : Major, Occupation : Not known,
R/o. Laxkaribagh, Bhosalewadi,
Near Prasad Flour Mill,
Nagpur-440 017.

10. Raju s/o. Manikrao Kapse,
Age : Major, Occupation : Not known,
R/o. 137, Dr. Ambedkar Colony,
Laxkaribagh, Nagpur-440 017.

11. Asang s/o. Bhagwandas Ramteke,
Age : Major, Occupation : Not known,
R/o. House No.126, B/K MIG
Hudko Colony, Nara Road, Post Office,
Jaripatka, Nagpur.

12. Vijay s/o. Ramfal Madhumatke,
Age : Major, Occupation : Not known,
R/o. Plot No.84/B, Vishwakarma
Nagar, Nagpur-440 027.

13. Satish s/o. Kalidas Meshram,
Age : Major, Occupation : Not known,
R/o. Plot No.75, V.K. Bhagwan,
Jagruti Nagar, Nagpur.

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14. Suresh s/o. Ganpat Sakhare,
Age : Major, Occupation : Not known,
R/o. H. No.400/132/195, Lumbini Nagar,
Nagpur-440 014.

15. Dhiraj s/o. Jaideo Gajbhiye,
Age : Major, Occupation : Not known,
R/o. Dhamadeep Nagar, Binaki Layout,
Post Ambedkar Marg, Nagpur-440 017.

16. Dharampal s/o. Deorao Patil,
Age : Major, Occupation : Not known,
R/o. Vaishali Nagar, Ramai Nagar,
Near Budha Murti, Nagpur-440 017.

17. Neena Laxmanrao Wasnik,
Age : Major, Occupation : Not known,
R/o. 83, Sushrit Ramai Nagar,
N.T.P.C., Nari Ring Road, Nagpur-440 026.

18. Budham s/o. Baburao Raut,
Age : Major, Occupation : Not known,
R/o. Ramakant Road, Lal Chowk,
Indora, Nagpur.

19. Chandrabhushan s/o. Govindrao Hattithele,
Age : Major, Occupation : Not known,
R/o. New Mangalwari, Kanjihouse Chowk,
Nagpur-440 010.

20. Rajesh s/o. Subhash Kharekar,
Age : Major, Occupation : Not known,
R/o. Plot No.89, Gaikwad Layout,
Nari Road, Nagpur-440 026.

21. Ramesh s/o. Khanduji Sinha,
Age : Major, Occupation : Not known,
R/o. 408, Panch Minar Apartment,
Chindwara Road, Byramji Town,
Nagpur.

22. Dr. Shashikant s/o. Nanasaheb Tayde,
Age : Major, Occupation : Not known,
R/o. C/o. Ashok Walde, 29, Garden Layout,

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Bezanbagh, Kamptee Road, Nagpur.

23. Sushil s/o. Ramrao Patil,
Age : Major, Occupation : Not known,
R/o. New Indora Republican Nagar,
Nagpur. : RESPONDENTS

———————————
Shri P.S. Wathore, Advocate for the Petitioner.
Shri Anil Kolor, Advocate for the Respondent No.5.
———————————

CORAM : S.B. SHUKRE, J.
DATE : 12th DECEMBER, 2018.

ORAL JUDGMENT :

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

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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 sub-Section (1) of Section 100 the interference

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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 94-A 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

non-applicant/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

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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 94-A 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 94-A 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 sub-Section (1) of

Section 100 and Section 101 to the High Court by any candidate at such

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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 non-

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compliance 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 sub-Section (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 sub-Sections (3) and (3-A)

thereof would be relevant. Sub-section (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.

Sub-Section (3-A) 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.

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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 sub-Section (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 94-A of the Elections Rules says that the affidavit

referred to in sub-Section (1) of Section 83 shall be sworn before a

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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.

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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

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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

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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 94-A 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

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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 94-A 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 non-applicant/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

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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 sub-Section (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

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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

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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,

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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 (3-A) 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 sub-Section (3) and sub-Section (3-A) of

Section 123 of the R.P. Act 1951. It would, therefore, be necessary to

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examine these provisions of law in order to understand the requirements

prescribed therein.

29. Sub-section (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 sub-Section (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.

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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 sub-Section (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 sub-Section (3)

of Section 123 is not attracted by the allegations made in the petition.

31. As regards second component of sub-Section (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

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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 sub-section

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 sub-Section (3-A) of Section 123, I find that

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here also the pleadings in the petition lack in material facts. Sub-Section

(3-A) 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 sub-Section (3-A) 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

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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

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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 94-A 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.

JUDGE
okMksns

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