2011(5) ALL MR 7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, J.
Eknath Bayaji Gadkari Vs. Bombay Municipal Corporation & Ors.
Writ Petition No.5295 of 2009
2nd August, 2001
Petitioner Counsel: Mr. S.S. REDEKAR
Respondent Counsel: Mr. BALKRISHNA D. JOSHI,Mr. R.A.MALANDKAR
(A) Representation of the People Act (1951) S.123(3) - Corrupt practice - What amounts to - An appeal to voters in name of their religion would not by itself and without anything more constitute a corrupt practice under S.123 (3) of the Act of 1951.
(B) Representation of the People Act (1951) S.77(f) - Election Petition - Plea of over spending - Over spending with a view to influence the voters would not constitute a practice which can be said to be corrupt or which would vitiate or invalidate the election for any other cause simplicitor. (Para 21)
(C) Representation of the People Act (1951) Ss.77(f), 123(3) - Mumbai Municipal Corporation Act (1888) S.33(1) - Constitution of India, Art.19(1) - Election Petition - Right to vote, right to contest, right to get elected and to dispute an election, are statutory rights and they are not fundamental rights - These rights are subject to limitation in the statutes. (Para 22)
Singh Shamsher Rambahal Vs. Election Commissioner and others, 2011(1) Mh.L.J. 620 [Para 19]
Manohar Joshi Vs. Nitin Bhaurao Patil and another, AIR 1996 SC 796 [Para 20]
Kirit Jayantilal Somaiya Vs. Sanjay Dina Patil and others, reported in 2010(4) Mh.L.J. 961 [Para 24]
Bita Ghanshyam Ramteke Vs. Nanaji Sitaram Shamkule, reported in 2010(5) Mh.L.J. 707 [Para 24]
2. By this Writ Petition under Article 227 of the Constitution of India, the Petitioner challenges an order passed by the Small Causes Court at Mumbai dated 06.03.2009. By this order rendered on preliminary issues as per Exhibit 17(A), it has been held that paragraph Nos.3, 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), 3(g), 3(h), 3(i), 3(j), 3(k), 3(l), 3(m), 3(p), 3(q) and 3(r) of the election petition do not disclose any cause of action, therefore, the said paragraphs are liable to be struck off. However, it is held that the election petition is not liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure.
5. It was the case of the Petitioner that the elections to the Bombay Municipal Corporation were held on 01.02.2007. The results were declared on 02.02.2007. The Petitioner contested the election as a candidate of Nationalist Congress Party (in short "NCP") from Ward No. 194 (Parel BDD Chawls) and his symbol was "watch". The rival candidate was Sunil Govind Shinde who is Respondent No.3 to this petition. He contested as a candidate of Shiv Sena party. The Petitioner secured 3610 votes whereas the Respondent No.3 secured 11475 votes. It is the case of the Petitioner that he secured second highest number of votes. The Petitioner has impleaded other candidates as parties to the Election Petition. It is his case that the total number of voters was 40,388 whereas 20,624 votes were polled. It is the case of the Petitioner that counting was held at N.M.Joshi Marg Municipal Secondary High School, Mumbai13 on 02.02.2007. It is his case that the Respondent No.3 and his Chief Election Agent Mr.Shankar Belnekar and other workers and leaders of Shiv Sena party with his consent indulged into various corrupt practices. It was stated that there was a joint public meeting of BJP and Shiv Sena parties on 28.01.2007 at which meeting, the Respondent No.3 was present. One of the speakers in the meeting was Mr.Bal Thakare. Mr.Thakare made an appeal to vote in the name of religion and this appeal was reported in news papers. It is alleged that this has materially affected the results declared on 02.02.2007. It is stated that at this meeting, as far as BJP is concerned, Mr.Narendra Modi, Chief Minister of Gujarat was present. Both of them gave speeches to vote in favour of Shiv Sena & BJP candidates i.e. Respondent No.3 which amounted an appeal for vote in the name of religion. It is alleged that the speeches delivered, aroused the feelings of Hindu and Marathi voters in Mumbai and caused them to vote for the Respondent No.3 and refrained them from voting for the Petitioner. In these speeches, various statements were made to attract Hindu voters. The same amounts to an appeal to vote for Shiv Sena party. It is stated that in the ward in question nearly 75% of population is of Hindus. The speeches delivered on 28.01.2007 at Shivaji Park were reported in news papers i.e. Loksatta and Navakal. It was represented that BJP & Shiv Sena parties were protectors of Hindu religion and Marathi people and no other person can protect Hindu religion. This is alleged in paragraph No.3(b) of the Election Petition.
6. In paragraph Nos.3(c) and 3(d) of the Election Petition, it is alleged that the CID has tape recorded these speeches and the record is available with them. The Petitioner wishes to examine the pressreporters who attended the said meeting and made a report about the speeches. It is alleged that the expenditure permitted by law for elections was Rs. 1,35,000/, but the Respondent No.3 spent over Rs.15 lacs with a view to influence the voters. The Respondent No.3 published a booklet giving an account of the works supposed to have been done by him as Shakha Pramukh. About 25000 booklets were published which contained glossy and multicoloured papers and cost of each booklet was Rs.3/minimum.
7. It is then alleged in paragraph 3(e) that the Petitioner is from Kolhapur and there were more than 15000 voters from Kolhapur region, residing in the constituency. To mislead and to attract the said voters, the Respondent No.3 published the notices in the name of unknown person and the same were pasted at the entrances and conspicuous part of the buildings of Ward No.194, particularly at BDD Chawls and the buildings at N.M. Joshi Marg, so that everybody can read it. This act amounts to malpractice and inducement on the part of the Respondent No.3.
" (f) It is learnt that the Respondent No.3 has distributed money before starting of poll. Thus the Respondent No.3 indulged in corrupt practice. In fact the Respondent No.3 procures and/or hired vehicles for the convenience for his committed voters to the polling stations.
(g) The Petitioner submits that prior to the voting machines being installed in the polling booth, the Respondent No.3 through himself, his agents or his hirelings managed & manipulated to damage & change the internal circuit of the said voting machines to gain the votes with the help of the B.M.C. workers and police. The Petitioner submits that the Respondent No.3 with his associate damaged the internal circuit of the voting machines, whereby the connection of Sr.No.3 button was joined to Sr.No.11 and Sr.No.11 button was joined to Sr.No.3. So that the vote casted in favour of the Sr.No.3 candidate (Petitioner) goes to Sr.No.11 candidate (Respondent No.3). And that can be verified by testing the internal arrangement of the voting machines where the connection of Sr.No.3 and Sr.No.11 are interchanged. The Petitioner states that the custody of the voting machines are with the B.M.C. prior to and after the election process and not with any independent authority. Thus it is necessary to pass an order and direction at this stage that the custody of the voting machines be taken and the machines be sent for examinations of a expert which would clearly indicate and prove the contentions of the Petitioner. Therefore, it is necessary that the voting machines are taken in appropriate custody of the authority and the investigation of the voting machines to be done by appropriate authority. Further the sample votes to be casted in same voting machines and result to be seen in front of this Hon'ble Court. The Petitioner submits that this can be verified by this Hon'ble Court as from the polling booths highest votes were to be polled in favour of the Petitioner, the Respondent No.3 got the higher votes, when there was no possibility at all that the Respondent No.3 would get higher votes from these polling booths.
(h) The Petitioner states that there was bogus voting done by the Respondent No.3 on booth No.34, 35 and 36 in Ward No.194. The Petitioner states that the agents and workers of the Respondent No.3 with his consent was bringing the voters by private vehicles such as TATA Sumo, Qualis at around 3:30 p.m. to 4:15 p.m. and said fact was brought to the notice of Election Officer of the said booths. Said R.P.I. candidate also mentioned the number of vehicles which were bringing voters. The Petitioner states that when the Election Officer send photographer to said booth the party workers & brother of Respondent No.3 run away. At that time the party workers of Shiv Sena were wearing Orange Dress & ArrowBow signs and they were telling to the voters to give vote to Respondent No.3, which violates model code of conduct. The Petitioner submits that complaints was lodged by the R.P.I. candidate. Hereto annexed and marked Exhibit E is the copy of letter dt.01.02.2007 addressed by R.P.I. candidate."
9. In paragraph 3(i), the allegations are about preparation of bogus ration cards and election identity cards of the voters to cast vote in favour of the Respondent No.3. It is then alleged in paragraph 3(j) that on the date of declaration of result on 02.02.2007 when the Petitioner found that the Electronic Voting Machines (EVMs) are tampered and the electronic chips/circuits of the said EVMs are changed by the Respondent No.3, so that he can win the election easily, the Petitioner immediately lodged a complaint before the Election Officer on 02.02.2007 and also before other authorities.
10. It is then alleged that in some of the Form VM3 which was duly signed by the Polling Election Officer of the said booth, the number of the EVM was not mentioned. In some of the forms, four EVMs are mentioned, when there are only 381 voters. Thus, there was every possibility that EVMs were tampered by the Respondent No.3. It is, therefore, alleged that on account of the above corrupt practices, illegality and irregularity in the voting machines, the results of the election have been materially affected.
11. It is then alleged in paragraph 3(p) that no time was given to the Polling Agents to verify the EVMs prior to its installment and after its installation, immediately the polling started at 7:30 a.m. and EVMs were not installed one hour prior to voting as per rules. Therefore, EVMs are not tested nor verified in front of the Polling Agents. This is one more allegation insofar as possibility of tampering of EVMs by the Respondent No.3 through his agents and hirelings. Similarly, in paragraph 3(q), the allegation is that after declaring the results, the EVMs are not sealed in front of the candidates or representatives of candidates by the Election Officer. Therefore, there is possibility that the EVMs can be installed in its origin position. Upon such allegations, that Election Petition has been filed.
13. Thereafter, an Application No.18/2008 was made by the Respondent No.3 for framing the preliminary issues. In the said application which was filed in the month of January, 2008, it was prayed that paragraph Nos.3, 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), 3(g), 3(h), 3(i), 3(j), 3(k), 3(l), 3(m), 3(p), 3(q) and 3(r) be struck off as not disclosing any cause of action under Order VI Rule 16 of the Code of Civil Procedure and since after striking out these pleadings, no triable issues remain to be considered and decided, the Election Petition itself be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908. It is on this application that the impugned order has been made, by which, the learned Judge of the Court of Small Causes, Mumbai has proceeded to allow the said application and strike off the above paragraphs as same do not disclose the cause of action. It is this order of the learned Judge which is challenged in this petition.
15. Mr.Redekar, learned counsel appearing for the Petitioner, submits that a perusal of the impugned order would show that no reasons are assigned by the learned Judge. The learned Judge has merely recorded the contentions of both sides, but has not disclosed as to why he has held in the affirmative and struck off the subject paragraphs. No where in the impugned order there is any discussion either on applicable principles or with regard to any specific allegations in the election petition pursuant to which the learned Judge concludes that the subject paragraphs do not disclose any cause of action. The entire exercise of the learned Judge is, therefore, erroneous and impermissible in law. He should have been aware that the election petition is a serious proceeding and unless the Petitioner has an opportunity to substantiate his allegations which are of corrupt practice, the petition cannot be thrown out merely at the desire of the returned candidate. Purity of the election process is at stake. Therefore, the impugned order be quashed and set aside.
16. On the other hand, Mr.Joshi, learned counsel appearing for the returned candidate (Respondent No.3), supported the impugned order and submitted that the learned Judge has made reference to the settled principles and has correctly applied them to the facts of the instant case. The election petition is devoid of any cause of action because absolutely nothing has been stated which could constitute an allegation of corrupt practice within the meaning of Section 28F of the Mumbai Municipal Corporation Act, 1888. Mr.Joshi submits that the learned Judge has referred to all paragraphs which are the subject matter of the application and therefore, it cannot be said that elaborate and satisfactory reasons have not been assigned. Inviting my attention to paragraph No.3 of the impugned order, Mr.Joshi submits that the learned Judge is aware of the fact that the allegations are vague and not precise at all. The election petition does not contain the material facts so as to give rise to any triable issue and therefore, the said paragraphs have been rightly struck off. In fact after striking out these paragraphs, nothing remains in the election petition and it deserves to be dismissed as a whole. Mr.Joshi submits that if the settled principles are applied and this Court peruses the instant election petition independently of the reasonings in the impugned order, no other conclusion is possible. For all these, Mr.Joshi prays for dismissal of the Writ Petition.
17. For properly appreciating the rival contentions, a reference will have to be made to Section 33 of the Mumbai Municipal Corporation Act, 1888. That provides for hearing of the election petition by the Chief Judge of the Court of Small Causes. The election can be questioned on the grounds of improper rejection of a nomination or improper reception or refusal of a vote or for any other cause. The validity of the election of a person can also be questioned on the ground that he has committed corrupt practice within the meaning of Section 28F of the Mumbai Municipal Corporation Act, 1888. Section 28F defines a corrupt practice and Section 28G states about corrupt practices, criminal offences and procedure. Sections 28F and 28G read thus:
"28F. What is a corrupt practice.
(i) who, with a view to inducing any voter to give or to refrain from giving a vote in favour of any candidate, offers or gives any money or valuable consideration, or holds out any promise of individual profit or holds out any threat of injury, to any person; or
(ii) who gives, procures or abets the giving of a vote in the name of a voter who is not the person giving such vote; or
(iii) who hires or procures, whether on payment or otherwise, any vehicle or vessel for the conveyance of any voter to, or from, any polling station:
(a) the hiring of a vehicle or vessel by a candidate for himself or his family or an election agent shall not be deemed to be a corrupt practice under this section;
(b) the hiring of a vehicle by a voter or by several voters at their joint cost for the purpose of conveying him or them, to, or from any such polling station shall not be deemed to be corrupt practice under this section, if the vehicle or vessel so hired is a vehicle or vessel not propelled by mechanical power;
(c) the use of any public transport vehicle or vessel or any tramcar or railway carriage by any voter at his own cost for the purpose of going to, or coming from, any such polling station shall not be deemed to be a corrupt practice under this section.
And a corrupt practice shall be deemed to have been committed by a candidate if it has been committed with his knowledge and consent with reference to the elections.
Explanation:The expression "a promise of individual profit"
( i) does not include a promise to vote for or against any particular measure which may come before the corporation for consideration, but (ii) subject thereto, includes a promise for the benefit of the person himself or any person in whom he is interested.
28G. Corrupt practices, criminal offences and procedure.
(1) (a) Whoever in any election directly or indirectly, by himself or by any other person on his behalf, shall, with a view to inducing any voter to give or to refrain from giving a vote in favour of any candidate, offer or give any money or valuable consideration or hold out any promise of individual profit or hold out any threat of injury to any person, or
(b) Whoever shall give, procure or abet the giving of a vote in the name of a voter, who is not the person giving such vote, or
(c) Whoever hires or procures any vehicle or vessel for the conveyance of any voter, to, or from, a polling station in the circumstances described in clause (iii) of section ]28F,
(2) Whoever, being qualified to vote at any election claiming to be so qualified accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person any money or valuable consideration or any individual profit as a motive or reward for giving or forbearing to give his vote in any such election shall be liable to a fine not exceeding one hundred rupees for every such offence.
ExplanationIn subsections(1), (2) 'individual profit' includes a benefit accruing to the person himself or to any one in whom he is interested. It does not include a promise to vote for or against any measure which may come before the corporation for consideration.
[(2A)] Whoever in connection with any election, directly or indirectly, by himself or by any other person on his behalf, promotes or attempts to promote feelings of enmity or hatred, between different classes of the citizens of India on grounds of religion, race, caste, community or language, shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.]
(3) Every person convicted under subsection(1) or subsection(2) [or subsection(2A)] shall, for such period not exceeding seven years from the date of the conviction as the Court may direct, be disqualified from voting at any election.
(4) No court shall take cognizance of any offence under this section except on the complaint of the Judge who has held an enquiry under section 33 or before whom such inquiry is pending.
(5) No prosecution for an offence under this section shall be instituted except within six months next after the date of the declaration of, the result of the election.
(6) An appeal shall lie to the High Court against any sentence or order passed by a Magistrate under subsection(1), subsection(2), [subsection(2A)] or subsection(3)."
18. If in the light of these statutory provisions, the election petition is perused, it is clear that what it projects in paragraph 3(a) is a corrupt practice in the form of an appeal to vote on the ground of religion. As far as this allegation is concerned, the election petition may be maintainable. In the election petition, such allegation can be made to question the validity of the election and it could fall within the term "or for any other cause" under Section 33 of the Mumbai Municipal Corporation Act, 1888, but the allegation must be pleaded on par with subclause(3) of Section 123 of the Representation of the People Act, 1951 or section 28G(2A) of the Mumbai Municipal Corporation Act, 1888. However, if this is stated to be a case on par with subsection (3) of section 123 of the Representation of the People Act, 1951, then, the pleadings ought to be precise and clear and the appeal should be to vote or refrain from voting in the name of his religion (candidate's religion). The test that is applied in relation to corrupt practice is that the inquiry is quasicriminal in nature. In the instant case, the allegations made are also referable to section 28G(2A) of the Mumbai Municipal Corporation Act, 1888. Therefore, the tests are stringent and rigorous in nature. Hence, the degree of proof is as above. Hence, specific allegations have to be made in the petition. Now paragraph 3(a) no where refers to religion of the returned candidate nor does it contain any pleading that these speeches constitute an appeal to vote for the returned candidate or refrain from voting for the Petitioner on account of his religion. If the pleading is perused, it is clear that the speech is an appeal to all Hindus/Marathi voters in Mumbai to vote for Shiv Sena party. Now, the general allegation that if the speeches were made to attract Hindu/ Marathi voters or to arouse the feelings of Hindu/ Marathi voters, then, that cannot be a corrupt practice within the meaning of Section 123(3) of the Representation of the People Act, 1951. It would not be proper to permit for the purpose of the Mumbai Municipal Corporation Act, 1888, a pleading of corrupt practice traceable to Section 123(3) of the Representation of the People Act, 1951, which does not meet the requirement of that statute. In other words, the pleading of corrupt practice on the ground of appealing to the voters to vote or refrain from voting in the name of candidate's religion, should be in consonance with the said provision.
19. Recently, in the case of Singh Shamsher Rambahal v/s Election Commissioner and others, reported in 2011(1) Mh.L.J. 620, I had an occasion to consider as to what would constitute a pleading of corrupt practice under Section 123(3) of the Representation of the People Act, 1951 and after referring to the entire case law and principles laid down therein, this is what is held:
"24] In the above decision this is what the Hon'ble Supreme Court observed in the above context:
"7. The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P.Ponnuswami Vs. Returning Officer, Namakkal Constituency, 1952 SCR 218 : (A.I.R. 1952 S.C. 64) and Jagan Nath Vs. Jaswant Singh, A.I.R. 1954 S.C. 210. We proceed to state what we have gleaned from what has been said, so much as necessary for this case."
"8. A right to elect, fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a common law right. It is pure and simple a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and selfcontained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?
24A] An election petition is not a contest between the petitioner and returned candidate but the entire constituency and the voters, who cast their valuable vote at the elections, are interested and affected by the outcome of the same. It is their precious vote in the democratic process of a poll held by secret ballot and the identity of which is not to be disclosed, save and except, mandated by law, which is at trial. Therefore, the proceedings affect the entire constituency. Similarly it throws open the credibility of those in charge of the election machinery.(See AIR 1975 SC 290 Rahim Khan Vs. Khurshid Ahmed and AIR 1976 SC 1599 D.Venkata Reddy Vs. R. Sultan).
25] In a recent decision reported in A.I.R. 2004 S.C. 38 (Regu Mahesh Vs. Rajendra Pratap Bhanj Dev) this is what the Supreme Court has observed:
" 17. An election petition has a definite role in the law relating to election of representatives of the people.
"18. The casual approach of the appellant is not only visible from the manner in which verification was done, but also from the fact that he has mentioned two different districts to which he claims to be belonging. The explanation that the same was given by mistake is too shallow when considered in the background that he is stated to be a practising advocate. An advocate is supposed to know the importance of verification and the advocate is supposed to know the importance of verification and the desirability of making a statement of correct facts in any petition and more in case of an election petition. An election petition is intended to bring into focus any illegality attached to an election. It essentially and basically puts a question mark on the purity of election, casts doubt on the fairness thereof and seeks a declaration that the mandate of the people has been obtained by questionable means. In a democracy the mandate has sacrosanctity. It is to be respected and not lightly interfered with. When it is contended that the purity of electoral process has been polluted, weighty reasons must be shown and established. The onus on the election petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun."
25B] The independence or freedom of choice of the voter is not to be tinkered or interferred with by candidates, their Agents or by persons, with their consent. It is their acts which are deemed to be corrupt practices in law. That is how subsections of section 123 read and must be interpreted. One of the corrupt practice is incurring or authorising of expenditure in contravention of Section 77 of R.P.Act [See Section 123(6)]. This provision will have to be construed in the light of the explanations below Section 77(1) of the R.P.Act. This highlights as to why acts of candidates are alone projected in section 123 of the R.P.Act. The word candidate is also defined in section79. The definition is also of the term "returned candidate' [see section 79(f)]. This is the reason why the word "his religion" appears in Section 123(3) of R.P.Act.
26] It is in such circumstances that the Supreme Court emphasised the importance of striking off the pleadings, which are frivolous and vexatious so also dismissal of election petitions, which do not disclose any cause of action. In a recent decision on which reliance is placed by Mr.Kumbhakoni and reported in A.I.R. 2010 S.C. 1227 (Ram Sukh Vs. Dinesh Aggarwal) this is what the Supreme Court has observed:"
16. Now, before examining the rival submissions in the light of the aforestated legal position, it would be expedient to deal with another submission of learned Counsel for the appellant that the High Court should not have exercised its power either under Order VI Rule 16 or Order VII Rule 11 of the Code to reject the election petition at the threshold. The argument is two fold viz.,(i)that even if the election petition was liable to be dismissed ultimately, it would have been dismissed only after affording an opportunity to the election petitioner to adduce evidence in support of his allegation in the petition and (ii) since section 83 does not find a place in Section 86 of the Act, rejection of petition at the threshold would amount to reading into subsection(1) of Section 86 an additional ground."
"17. In our opinion, both the contentions are misconceived and untenable. Undoubtedly by virtue of section 87 of the Act, the provisions of the Code apply to the trial of an election petition and, therefore, in the absence of anything to the contrary in the Act, the Court trying an election petition can act in exercise of its power under the Code, including Order VI Rule 16 and Order VII Rule 11 of the Code. The object of both the provisions is to ensure that meaningless litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must apply with greater vigour in election matters where the pendency of an election petition is likely to inhibit the elected representative of the people in the discharge of his public duties for which the electorate have reposed confidence in him. The submission, therefore, must fail. Coming to the second limb of the argument viz., absence of section 83 in Section 86 of the Act, which specifically provides for dismissal of an election petition which does not comply with certain provisions of the Act, in our view, the issue is no longer resintegra. A similar plea was negatived by a three Judge Bench of this Court in Hardwari Lal Vs. Kanwal Singh, wherein speaking for the Bench, A.N.Ray, J (as His Lordship then was) said:( SCC p.221 para 23) :
"23. Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of Section 81, or section 82 or section 117 of the Act. It was emphasised that section 83 did not find place in Section 86. Under section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. A suit which does not furnish cause of action can be dismissed."
"18. The issue was again dealt with by this Court in Azhar Hussain Vs. Rajiv Gandhi. Referring to earlier pronouncements of this Court in Samant N. Balkrishna (AIR 1969 SC 1201) (supra) and Udhav Singh Vs. Madhav Rao Scindia wherein it was observed that the omission of a single material fact would lead to incomplete cause of action and that an election petition without the material facts is not an election petition at all, the Bench 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 Act and an election petition can be and must be dismissed if it suffers from any such vice."
32] Corrupt practice which is pressed in this case falls under section 123(3) of the RP Act.
33] Analysing the provision and the pleadings necessary for the said corrupt practice to be ultimately held as proved, this is what the Supreme Court has held in the case of Harmohinder Singh Pradan Vs. Ranjeet Singh Talwandi (AIR 2005 SC 2379):"
10. The question arising for decision in this appeal is no more res integra as the point is covered by several decided cases, the most instructive one being Dr.Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte & Ors (1996) 1 SCC 130. The emphasis is laid on the word 'his' as it occurs in Section 123(3) of the Act which word was not to be found in the original draft of the provision as enacted but came to be inserted into the text of the provision by the Act 40 of 1961. Reference has been made to the Parliamentary debates and the reasons ascribed by the then Law Minister for the amendment while moving the Bill in the Parliament. The Court has then held that the word 'his' used in subsection(3) of Section 123 of the Act must have significance and it cannot be ignored or equated with he word 'any' to be brought within the net of subsection(3). The religion forming the basis of the appeal to vote or refrain from voting for any person, must be of that candidate for whom the appeal to vote or refrain from voting is made. This is clear from the plain language of subsection(3) and this is the only manner in which the word 'his' religion for the furtherance of the prospects of the election of that candidate, that appeal is made on the basis of religion of the candidate for whom votes are solicited. On the other hand, when the appeal is to refrain from voting for any person on the ground of 'his' religion for prejudicially affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicially affected. Thus, for soliciting votes for a candidate, the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought; and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religion of that other candidate. The first is a positive appeal and the second a negative appeal. Subsection(3) clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited under subsection(3).
11. So is the view taken by this Court in Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel,(1969) 1 SCC 455.
"12. In the case before us, the election petition nowhere mentions the religion of respondent No.1. There is no averment made in the election petition that the said appeal was made in the name of the religion of respondent No.1. It is not the case of the appellant in his election petition that there was any negative appeal made at any time by respondent No.1 or on his behalf, that is to say, an appeal to voters to refrain from voting for the appellant on the ground of his religion.
13. There is yet another reason why the averments made in the election petition are deficient. The appeals are said to have been made by certain religious leaders. A distinction has to be drawn between an appeal simpliciter to vote or to refrain from voting made by religious leaders which may benefit any particular candidate and an appeal to vote or to refrain from voting on the ground of religion emanating from religious leaders and attributable to the candidate within the meaning of Section 123(3). The former is not vulnerable while the latter is. All that the election petition alleges is that certain religious leaders, held in reverence by the voters, issued an appeal to vote in favour of respondent No.1. The appeals forming the gravamen of the charge of corrupt practice do not carry in it the element of an appeal to vote for any person on the ground of religion."
34] The appeal by a candidate or his agent or by any other person with the consent of the returned candidate or his election agent to vote or refrain from voting to any person on the ground of his religion etc. is a corrupt practice that is committed under section 123(3). Therefore, it is necessary to plead that an appeal of the nature set out in section 123(3) has been made by the candidate or his agent or by any other person with the consent of candidate or his election agent. Secondly, the appeal should be to vote or refrain from voting for any person on the ground of his religion......"
20. Similarly, in a decision of the Honourable Supreme Court reported in AIR 1996 SC 796 (Manohar Joshi v/s Nitin Bhaurao Patil and another), it has been held that an appeal to the voters in the name of their religion would not by itself and without anything more constitute a corrupt practice under Section 123(3) of the Representation of the People Act, 1951. Here the pleading is that in the subject ward nearly 75% population is of Hindus. The speeches were made at Shivaji Park and it was stated that BJP and Shiv Sena parties are protectors of Hindu religion and Marathi people and none other can protect them. Read as a whole, this is not a pleading of corrupt practice and particularly seeking votes in the name of religion and appealing to voters and citizens to refrain from voting against the candidate in the name of his religion. Paragraphs 3(a) to 3(c) have been, therefore, rightly struck off.
21. As far as paragraph 3(d) is concerned, the allegation is that the expenditure permitted by law was Rs.1,35,000/, but the Respondent spent over Rs.15 lacs during the course of election with a view to influence the voters. A reference has been made to booklets. As far as this allegation is concerned, the pleading should be in terms of Section 77(F) of the Representation of the People Act, 1951. There if the candidate has spent more than the prescribed sum as election expenses, then, once again precise allegation will have to be made. In the instant case, barring stating that the Respondent No.3 has spent over Rs.15 lacs with a view to influence the voters, it is not clear as to whether, this is an allegation of violating the norms prescribed for expenditure to be incurred at the election or this is inducement to the voters to vote for the Respondent No. 3. From reading of paragraph 3(d), it appears that the Petitioner is not sure as to what would vitiate or invalidate the election, either it is on the grounds specifically mentioned in Section 33(1) of the Mumbai Municipal Corporation Act, 1888 or for any other case. If he is making a reference to the sections which carve out an offence, then, that is not clear from reading of this election petition. It is clear that anything to induce the voters to give vote or refrain from giving a vote to any candidate either by way of offering or giving money or valuable consideration or holding out any promise of individual profit or holding out any threat of injury to any person; would be a corrupt practice. In the instant case, it is not clear as to what is the act which invalidates the election. Either it is overspending, but overspending with a view to influence the voters would not constitute a practice which can be said to be corrupt or which would vitiate or invalidate the election for any other cause simplicitor. If publication of the booklets is to influence the voters, then, the corrupt practice that is mentioned in Sections 28F and 28G of the Mumbai Municipal Corporation Act, 1888 does not refer to any publication.
22. Similarly, the allegation in paragraph 3(e) of pasting of certain notices has been termed as malpractice and inducement, but once again this act would not be a pleading so as to frame the issues with regard to validity of election. Ultimately, this is an election to the Municipal Corporation and if the Petitioner wishes to question the same, either on the ground of improper rejection or improper acceptance or improper refusal of nomination or for any other cause, that must have some relation with the elections to Mumbai Municipal Corporation from his ward and must vitiate the process. It is well settled that right to vote, right to contest, right to get elected and to dispute an election, are statutory rights and they are not fundamental rights. If they are statutory rights, they are subjected to the limitation in the statutes. The election petition is not like any other or ordinary litigation. In these circumstances, if the allegations in paragraph 3(e) are perused as a whole, they cannot be said to be a pleading so as to raise an issue either of any corrupt practice or the election being vitiated for any other cause.
23. The allegation in paragraph 3(f) is nothing but reproduction of Section 28F(i) and (ii) of the Mumbai Municipal Corporation Act, 1888. A mere reproduction of section in this case will not constitute a pleading in an election petition.
24. As far as paragraph 3(g) is concerned, it pertains to the Electronic Voting Machines (EVMs). Now, damaging internal circuit of EVMs by joining connections of buttons, has been stated to be a ground, but paragraph 3 itself opens with the sentence that the Respondent No.3 himself, his Chief Election Agent Mr.Shankar Belnekar and other workers and leaders of his party with his consent indulged into various corrupt practices. Paragraph 3(g) of the election petition can, by no stretch of imagination, be termed as corrupt practice under Section 28F of the Mumbai Municipal Corporation Act, 1888. In fact even the earlier paragraphs have been scrutinized by me with reference to the provisions of the Representation of the People Act, 1951 and only to find out as to whether, any cause of action is disclosed so as to frame an issue for trial of the election petition, but finding that the Petitioner confines his case to the corrupt practices, it is not possible to take assistance of the words "or any other cause". Once the Petitioner himself pleads that the election is invalidated or vitiated on account of corrupt practice, then, he must point out the precise corrupt practice and with reference to Section 28F of the Mumbai Municipal Corporation Act, 1888. Any general statement and particularly in relation to the working of EVMs, has not been made a corrupt practice. Section 28F and Section 28G have been specifically reproduced by me so as to emphasise that, the corrupt practice that is provided therein is committed by the returned candidate. In the instant case, EVMs and allegations pertaining to their working, cannot be said to be a corrupt practice within the meaning of the Mumbai Municipal Corporation Act, 1888. In this behalf, in two election petitions under section 83(1) of the Representation of the People Act, questioning the parliamentary elections, this Court held thus:
(i) In Kirit Jayantilal Somaiya v/s Sanjay Dina Patil and others, reported in 2010(4) Mh.L.J. 961:
"27. In para 11 of the petition, the petitioner has sought recounting of votes polled in the constituency in question inter alia on the ground that the counting process of each round was done so fast that there was total chaos, and that the central observer failed to recount 2 EVM machines in the presence of the election agent in each round randomly as required under the guidelines laid down by the Election Commission of India. It is further alleged that the election agent of the petitioner had made an application for recounting of votes polled even before the declaration of results, but till date no order has been passed on the said application, except orally announcing before declaration of results that all date received from the respective assistant returning officers in respect of each assembly segment have been checked and found to be correct. It is further alleged that as per the working sheet of the petitioners counting sheet, the respondent No. 1 has secured 7 votes in booth No.122 whereas the official vote sheet shows that the respondent No.1 has secured 75 votes. It is further alleged that as per the information made available by the Election Commission to the petitioner, total votes polled at Polling Station No. 40 is 298 votes, while votes counted are 545 votes (difference of 247 votes). Similarly, it is alleged that at Polling Station No.136 the votes polled are 319 votes while the votes counted are 401 votes (difference of 82 votes). In these circumstances, the petitioner has sought recounting of all votes polled in the constituency in question.
28. It is well established in law that recounting of votes especially after the declaration of results cannot be ordered as a matter of course. The pleadings in the election petition seeking recounting of votes must prima facie establish that errors are of such magnitude so as to materially affect the election. In the present case, the allegation that the counting of votes was done fast is a totally vague allegation and such an allegation cannot be a ground to order recounting of votes. The allegation that the central observer had failed to recount 2 EVM machines is equally vague because, admittedly the complaint made to that effect had been expressly rejected by the returning officer, even before the declaration of results. Moreover, no case is made out to show as to how such an error, if any, committed by the central observer has materially affected the election. Once a decision on the application made by the petitioner's election agent seeking recounting of votes has been orally communicated to the petitioner, there is no reason to presume that the said decision has not been recorded by the returning officer. In any event, in the absence of any pleading as to how failure to record reasons has materially affected the election, the recounting of votes cannot be ordered."
(ii) In Bita Ghanshyam Ramteke v/s Nanaji Sitaram Shamkule, reported in 2010(5) Mh.L.J. 707:
" 28. This Court has again taken a quick view and check of the pleadings and what this Court reaffirms on the basis of summary noted in the body of foregoing paras of this judgment is that, the averments can be divided in to following:
(a) Petitioner's belief that the voting machines are tamperable.
(b) Expert or Scholars' opinion that the EVMs have been in fact tampered.
(c) Knowledge of the petitioner that EVMs have been in fact, tampered in the election subject matter so as to help the Respondent No.1 to get victory over the petitioner.
29. Insofar as the first two aspects at item (a) and (b) referred to in the foregoing paragraph are concerned those do not constitute ground on which result of election can be set aside, because the apprehensions do not constitute to be the fact on the basis of which the cause of action can arise.
30. Insofar as the aspect contained in item (c) of para 28 that EVMs are actually tampered, is concerned, the averments are seen only in paragraph Nos.19 of the election petition.
31. Since the aspect of tampering being done as a 'fact' is concerned, it has to be dealt with.
32. It would be useful once again to refer to the relevant averments, ad verbatim. The averment contained in paragraph No.19 is quoted below:
19.Thus, in the present matter there is ample circumstantial evidence available to show that the respondent No.1 has got victory by extra ordinary margin. The circumstantial evidence further suggests that fraud was perpetrated in the EVMs of the booths of the areas where the petitioner was having strong hold and those areas have mysteriously chosen the respondent No.1 and these were the polling booths where it is apparent that the EVMs were so programmed and tampered that it should help the respondent No.1 to get victory over the petitioner. The Polling booths where according to the petitioner the respondent No.1 has tampered the EVMs at the Polling Booths are as under:
|Polling Station||Name of the Polling Station||Name of the Building of Polling Station|
|Z.P. School Room No.1 |
Z.P. School Room No.2
Vidyavihar Mandir Uarjagram Tadali
Z.P. Primary School, Morva, Room No.2
Z.P. Primary School, Vidhoda Rayatwari
Z.P. Primary School, Padoli Room No.1
Z.P. Primary School, Padoli Room No.3
|(Total 160 polling booths......”|
[Quoted from page 25 and 26 of election petition paper book]
33. This Court considers that it is necessary to advert to the verification clause of the election petition. In verification clause, the petitioner has stated as follows:"I further say that the contents of above paragraphs 1 to 7 and 29 to 34 of the above petition are true to my own knowledge. I further say that the contents of above paragraphs 8 to 18 are based upon the information received by me and believed by me to be true. I further say that the contents of above paragraphs 19 to 28 are partly based on my personal knowledge and partly on the information received by me which I further believe to be true."
[Quoted from page 39 of election petition paper book] Thus, the petitioner claims that the tampering of EVMs narrated in paragraph No.19 is partly a matter of personal knowledge of the petitioner, and partly based on information received by her which are true to her belief. Analysis of part thereof which is based on personal knowledge and part thereof based on belief is not segregated and affirmed distinctly.
34. Any narration which would constitute the description of the act of programming the EVMs for favouring the respondent, interference and access therein, theft or any other overt acts to or in the EVMs tantamounting to tampering has not been incorporated, anywhere in the entire body of election petition.
35. As the petitioner claims that the tampering is her personal knowledge, she ought to have given the specific acts or omissions constituting such facts which describe the tampering.
If at all the tampering was done, has to be a human act done by some individual. If it be so, and if it is within the knowledge of the petitioner, she has to plead those facts, so that those can be proved.
36. The petitioner may not know technical data or manner in which the tampering has been done or whether it has been done on somebody's behest and if she knows it, she ought to have disclosed said acts and source of knowledge."
25. As far as paragraph 3(h) is concerned, the learned Judge has held that even that does not make out the case of corrupt practice within the meaning of the Mumbai Municipal Corporation Act, 1888. As far as Section 28F(ii) is concerned, that states that a person shall be deemed to have committed corrupt practice within the meaning of Section 33 of the Mumbai Municipal Corporation Act, 1888, if he gives, procures or abets the giving of a vote in the name of a voter who is not the person giving such vote. Therefore, the Petitioner alleges bogus voting done by the Respondent No.3 in booth Nos.34, 35 and 36 in Ward No.194. At the same time, what the Petitioner alleges is that the agents and workers of the Respondent No.3 with his consent brought the voters by private vehicles at around closure of the voting hours, so as to enable them to cast their votes for him. This act is not attributable to the Respondent No.3. To my mind, even this pleading is not enough to frame an issue of corrupt practice in terms of Section 28F of the Mumbai Municipal Corporation Act, 1888.
26. The same is fate of paragraphs 3(i), (i) and (m) as well. Equally, paragraphs 3(k) and (l) would not fall within the term of corrupt practice as defined under Section 28F of the Mumbai Municipal Corporation Act, 1888.
27. To my mind, this is a very casual and light hearted attempt by the Petitioner to question the validity of the elections which he contested and at which he lost against the Respondent No.3. He had made certain sweeping and irresponsible allegations not only against the Respondent No.3, but against the election machinery as well. His whole attempt is to somehow question the election by filing a petition under Section 33(1) of the Mumbai Municipal Corporation Act, 1888 and use its pendency so as to cause embarrassment to all concerned. The learned Judge may not have applied his mind to the above aspects which have been noted by me and his order is rightly termed as unreasoned and cryptic by Mr.Redekar, yet, independent scrutiny of the pleadings with the assistance of the learned counsel appearing for the parties, leaves me in no manner of doubt that the subject paragraphs have rightly been struck off.
28. Once the subject paragraphs have been struck off, then, according to Mr.Joshi, nothing survives in the election petition and it must also be dismissed. However, it is not necessary for me to consider this aspect and it will be for the Trial Judge to apply its mind to the rest of averments and allegations in the election petition and the issues, framed in that behalf. It would be open for the Respondent No.3 to point out to the learned Judge that in the light of the findings on the preliminary issues and same having been confirmed by this Court, no triable issue remains and therefore, the election petition itself should be dismissed. If such contention is raised, the learned Judge should consider it after hearing both sides and without being influenced by his earlier views.
29. As a result of the above discussion and finding that the paragraphs of the election petition referred to above, do not disclose any cause of action, there is no alternative but to dismiss this Writ Petition. It is, accordingly, dismissed. Rule discharged. No costs.