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2017 Supreme(Gau) 194
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
A.K.GOSWAMI, J.
Shri Kishor Nath, S/o Late Promesh Chandra Nath - Applicant
Versus
Misbahul Islam Laskar, S/o Late Kamrul Islam Laskar - Opposite Party
I.A. (CIVIL) NO.1499 of 2016 In El. Petition No.1 of 2016
Decided On : 02-03-2017
For the Applicant/Respondent:Mr. B.D. Das, Sr. Advocate, Mr. H.K. Sarma, Mrs. R. Deka, Mr. D. Nath, Advocates.
For the Election Petitioner/Opposite:Mr. A. Choudhury, Party No. 1 Mr. E. Ahmed, Mr. N.H. Laskar, Mr. R.A. Choudhury, Advocates.
For the Opposite Party :Mr. B.N. Sarma, Advocate.
Headnote:
Code of Civil Procedure, 1908 - Order 7 , 6 - Rule 11, 16 - Representation of People Act, 1951 - Section 2(d) , 80 , 81 ,83(1)(a) , 117 , 86(1) , 100(1)(b) , 100(D)(ii) and 123(7) - Conduct of Election Rules, 1961 - Rule 63 - Election petition - Prayed for striking out paragraph - Corrupt practice - Allegations made in election petition taken as a whole are vague and without any material facts and particulars necessary to constitute a cause of action for filing election petition - According to him, bed-rock of allegations in respect of corrupt practice is spelt out in paragraph Nos. 10 and 11 - It is argued by him that election petitioner has not reproduced speech specifically highlighting which portion thereof amounted to exercising undue influence with free exercise of any electoral right or an appeal to vote or refrain from voting for any person on ground of his religion and only bald statements are given with sole objective of fishing for a roving enquiry - With regard to anomalies in counting, it is submitted by that there is no pleading that defective EVMs were used for recording of votes and even if all allegations made in connection with irregular counting are taken at face value to be true same would not materially affect result of election in as much as alleged discrepancies were in respect of only 7 votes whereas the returned candidate was declared elected by a margin of 42 votes – Held, Averments made in paragraph 14 what crystallizes is that there was a difference of total 5 votes in respect of votes shown to have been polled in two Polling Stations and what was recorded in Annexure for Tabulating Trends/Results - There is also a difference of 5 votes between what was shown to have been polled in Annexure-4 and the cumulative total as shown in Annexure for Tabulating Trends/Results - There is no allegation that postal ballots were not correctly counted and only issue sought to be raised is with recounting, which also showed same number of votes polled by respective candidates - It was absolutely necessary for election petitioner to have pleaded that result of the election in so far as it concerned returned candidate had been materially affected by alleged irregularities in counting or by any non-compliance with the provisions of Constitution or the R.P. Act or any Rules or Orders made there under in order to enable High Court to declare an election to be void in terms of Section 100(d)(iii) and (iv) of the R.P. Act - But there is not even a whisper, either in aforesaid paragraph or elsewhere in election petition, to that effect - Thus, pleading with regard to material fact, necessary in context of Section 100(d) that result of election in so far as it concerns a returned candidate has been materially affected is absent and therefore no complete cause of action is disclosed - Aforesaid paragraphs, independently and also when read together as a whole do not disclose material facts with regard to allegation of election petitioner that there were gross illegalities and anomalies in counting process so as to attract Section 100(d)(iii) and (iv) of the R.P. Act - In view of above, aforesaid paragraphs are struck out - Application is allowed
By this Interlocutory Application under Order 6 Rule 16 read with Order 7 Rule 11 of the Code of Civil Procedure, for short, the Code, the applicant, who is arrayed as respondent No. 1 in the election petition and who was elected from No. 14 Borkhola Legislative Assembly Constituency as a candidate of the Bharatiya Janata Party (BJP) in the election held in the year 2016, has prayed for striking out paragraph Nos. 3, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the Election Petition and for rejection of the petition for want of cause of action.
2. The election petitioner, who contested the election as an independent candidate, by filing the Election Petition under Section 80 and 81 of the Representation of People Act, 1951, for short, the R.P. Act, had called into question the election of the applicant, herein after referred to as the returned candidate, result of which was declared on 19.5.2016.
3. The returned candidate polled 36482 votes while the election petitioner polled 36440 votes and thus, the margin of defeat was 42 votes.
4. I have heard Mr. B.D. Das, learned senior counsel for the returned candidate, Mr. A. Choudhury, learned counsel as well as Mr. E. Ahmed, learned counsel for the election petitioner as well as Mr. B.N. Sarma, learned counsel appearing for respondent No. 8 in the election petition i.e. the Returning Officer. In view of their submissions, as recorded in the order dated 10.11.2016, notice to opposite party Nos. 2 to 7 was not issued.
5. Mr. B.D. Das, learned senior counsel has submitted that allegations made in the election petition, taken as a whole, are vague and without any material facts and particulars necessary to constitute a cause of action for filing the election petition. According to him, bed-rock of allegations in respect of corrupt practice is spelt out in paragraph Nos. 10 and 11. It is argued by him that the election petitioner has not reproduced the speech specifically highlighting which portion thereof amounted to exercising undue influence with the free exercise of any electoral right or an appeal to vote or refrain from voting for any person on the ground of his religion and only bald statements are given with the sole objective of fishing for a roving enquiry. There being no pleading that election petitioner was present in the meeting held on 31.3.2016, swearing of the affidavit, Annexure-3, to the effect that averments are true to the best of his knowledge, even otherwise, cannot be relied upon. With regard to the anomalies in counting, it is submitted by Mr. Das that there is no pleading that defective EVMs were used for recording of votes and even if all the allegations made in connection with irregular counting are taken at the face value to be true, the same would not materially affect the result of the election in as much as alleged discrepancies were in respect of only 7 votes whereas the returned candidate was declared elected by a margin of 42 votes. He submits that, in fact, there is no pleading that because of the alleged anomalies in the counting, result of the election was materially affected. He has submitted that the election petitioner did not file any complaint before declaration of the result of the election and the complaint dated 20.5.2016, which is cryptic and without any material particulars, is the result of an after-thought. The learned senior counsel submits that the paragraphs in question are liable to be struck out being frivolous, vexatious and abuse of the process of the Court and consequentially, for lack of cause of action, the election petition is liable to be rejected under Order 7 Rule 11 CPC. The learned senior counsel has placed reliance on the following judgments: (i) Azhar Hussain vs. Rajiv Gandhi, reported in 1986 (Suppl) SCC 315; (ii) Satya Narain Dudhani vs. U.K. Singh and ors, reported in 1993 (Suppl) (2) SCC 82;(
