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IN THE HIGH COURT OF ALLAHABAD
OM PRAKASH
RAM SINGH - Appellant
Versus
KAZI MOHIUDDIN - Respondents
C. M. A. nil Of 1986
Decided On : 12/05/1986
ELECTION PETITION - Striking out of paragraphs - Material facts - Disclosure - Cause of action - Ground (A) - Interchange of votes - Basis of allegation - Counting agents - Inspection - Ground (B) and (C) - Corrupt practice - Withdrawal - Ground (D) - Majority of valid votes - Conjectural - Election petition dismissed.
Fact of the Case:
The petitioner, one of the candidates in the election, filed an election petition challenging the election of the respondent No. 1 to the U.P. Legislative Assembly. The grounds for the challenge were: (A) non-compliance with the provisions of the Representation of People Act, 1951 and the Conduct of Election Rules, 1961; (B) commission of corrupt practice by the respondent No. 1 and his agents; (C) commission of corrupt practice by the respondent No. 1 and his agents in the interest of the respondent No. 1; and (D) the petitioner received a majority of valid votes and is entitled to be declared elected. The respondent No. 1 filed an application under Order 6, Rule 16 C.P.C. praying that paragraphs 7 to 71 of the election petition be struck out, inasmuch as they do not disclose material facts and cause of action.
Finding of the Court:
The court held that the paragraphs 7 to 71 of the election petition did not disclose material facts and cause of action. The court found that the petitioner had not disclosed the basis of his allegation that his votes had been interchanged with the votes of other respondents. The court also found that the petitioner had not disclosed the material facts for the averment that his counting agents informed him about the interchanging of his votes with the votes of the respondent No. 15 and respondent No. 1 at the polling stations Nos. 102 and 121 respectively. The court further found that the petitioner had not disclosed the material facts pertaining to the averment of interchanging votes in paragraphs 7 to 31 and that they were not germane to the averment of interchanging of votes. The court also found that no material facts had been stated in paragraphs 32 to 53 to support the allegations, made in paragraphs 32, 33, 36, 37 and 39 and, therefore, they be struck out. The court also found that no material facts had been disclosed in paragraphs 54 and 55 regarding the allegation that the petitioner's ballot papers were mixed up with the bundles of the respondent No. 1 and respondent No. 17 and also in the bundles of the other candidates and were improperly counted in their favour. The court also found that no material facts had been disclosed in paragraphs 56 to 59 regarding the allegation that a large number of ballot papers containing valid votes in favour of the petitioner were improperly rejected and similarly a large number of ballot papers which were invalid and were liable to be rejected, were improperly accepted and counted as valid votes in favour of the respondent No. 1. The court also found that the paragraphs 60 to 63 had no nexus with the objections, raised in ground (A). The court also found that the grounds (B) and (C) as stated in para. 5 and paragraphs 64 to 67 were not pressed by the petitioner and, therefore, they were deleted. The court also found that the ground (D) was merely conjectural and, therefore, it failed.
Issues: Whether the paragraphs 7 to 71 of the election petition disclosed material facts and cause of action.
Ratio Decidendi: The court held that the paragraphs 7 to 71 of the election petition did not disclose material facts and cause of action. The court found that the petitioner had not disclosed the basis of his allegation that his votes had been interchanged with the votes of other respondents. The court also found that the petitioner had not disclosed the material facts for the averment that his counting agents informed him about the interchanging of his votes with the votes of the respondent No. 15 and respondent No. 1 at the polling stations Nos. 102 and 121 respectively. The court further found that the petitioner had not disclosed the material facts pertaining to the averment of interchanging votes in paragraphs 7 to 31 and that they were not germane to the averment of interchanging of votes. The court also found that no material facts had been stated in paragraphs 32 to 53 to support the allegations, made in paragraphs 32, 33, 36, 37 and 39 and, therefore, they be struck out. The court also found that no material facts had been disclosed in paragraphs 54 and 55 regarding the allegation that the petitioner's ballot papers were mixed up with the bundles of the respondent No. 1 and respondent No. 17 and also in the bundles of the other candidates and were improperly counted in their favour. The court also found that no material facts had been disclosed in paragraphs 56 to 59 regarding the allegation that a large number of ballot papers containing valid votes in favour of the petitioner were improperly rejected and similarly a large number of ballot papers which were invalid and were liable to be rejected, were improperly accepted and counted as valid votes in favour of the respondent No. 1. The court also found that the paragraphs 60 to 63 had no nexus with the objections, raised in ground (A). The court also found that the grounds (B) and (C) as stated in para. 5 and paragraphs 64 to 67 were not pressed by the petitioner and, therefore, they were deleted. The court also found that the ground (D) was merely conjectural and, therefore, it failed.
Final Decision: The application of the respondent No. 1 made under Order 6, Rule 16, C.P.C. was allowed and the election petition was dismissed under Order 7, Rule 11, C.P.C. read with Order 6, Rule 16, C.P.C. The respondent No. 1 was awarded Rs. 500/- as costs from the petitioner.
( 1 ) THIS is an application under Order 6, Rule 16 C. P. C. by the respondent no. 1 praying that the paragraphs Nos. 7 to 71 of the election petition be struck out, inasmuch as they do not disclose material facts and cause of action.
( 2 ) THE petitioner who was one of the candidates has filed the petition under Section 81 of the Representation of People Act, 1951 (the Act, 1951 in brief) calling in question the election of the respondent No. 1 to the U. P. Legislative Assembly from 420 Roorkee Legislative Assembly Constituency with the prayer that (1) the election of the respondent No. 1 be declared void and be set aside; and (2) that the petitioner be declared elected instead from the aforesaid constituency.
( 3 ) FOR electing the members of the U. P. Legislative Assembly, general elections took place in March, 1985. Last date of filing the nomination paper was 6-2-1985 and the last date of withdrawal was 9-2-1985. The poll took place on 5-3-1985. The accounting was done on 6th March, 1985 and then the respondent No. 1 was declared elected. The petitioner and all the respondents contested the election.
( 4 ) THE petitioner has challenged the election of the respondent No. 1 on the grounds, as stated in para 5 of the petition. The ground (A) is that the result of the election of the respondent No. I was materially affected by non-compliance with the provisions of the Act, 1951 and of the Conduct of the Election Rules, 1961 (Rules 1961, for brevitys sake), inasmuch as : (I) the votes received by the petitioner at some polling stations, were interchanged with the votes, received by the respondents Nos. 1 and 15 and other candidates; (ii) the petitioners votes were mixed up in the bundles of respondents Nos. 1 and 17 and other candidates; (iii) the petitioners valid votes were improperly rejected; (iv) invalid votes were improperly accepted in favour of the respondent No. 1 and (v) the counting of votes was done in violation of the Rules, 1961 and the order 5 issued by the Election Commissioner of India.
( 5 ) GROUND (B) states that the respondent No. 1, his agents and workers with the consent of the respondent No. 1 committed the corrupt practice under Section 123 (3) of the Act, 1951 by making appeal to vote for the respondent No. 1 on the ground of his religion and community and to refrain from voting for the petitioner on the ground of the petitioners religion and community for the furtherance of the prospects of the election of the respondent No. 1 and for prejudicially affecting the election of the petitioner.
( 6 ) GROUND (C) is that the result of the election of the respondent No. 1 has been materially affected by the corrupt practice as defined under Section 123 (3) of the Act, 1951, committed in the interest of the respondent No. 1 by his agents and workers, inasmuch as they made an appeal to vote for the respondent No. 1 and to refrain from voting for the petitioner on the ground of their religion and community for the furtherance of the prospects of the election of the respondent No. I and for prejudicially affecting the election of the petitioner.
( 7 ) THE last ground (D) states that the petitioner has received a majority of valid votes and is entitled to be declared as elected to the U. P. Legislative Assembly from the aforesaid constituency.
( 8 ) THE material facts are said to have been stated for the aforesaid grounds in paragraphs Nos. 7 to 71. Let us see whether the said paragraphs disclose the material facts for the grounds, as stated in para. 5.
( 9 ) THE main objection of the petitioner is that in the final result-sheet Form 20, entries have been wrongly incorporated and the error gave rise to interchange of votes of the petitioner with other respondents. In para 42, the averment is that an inspection of the ballot papers will clearly show that Form 20 has not been correctly prepared and in fact, it is the petitioner who has received a majority of valid votes and is entitled to be declared a
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