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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Lok Pal Singh, J.
Prabhu Lal Bahuguna - Appellant
Versus
Umesh Sharma Kau - Respondent
Election Petition No. 6 of 2017
Decided On : 16-12-2020
The election petition was dismissed at the threshold for non-compliance of mandatory provisions of law as to the pleadings. The court held that the election petition did not disclose a cause of action and the petitioner failed to remove the defects in the election petition even after an opportunity was given to him.
Fact of the Case:
The election petitioner challenged the election of the respondent on the grounds of alleged corrupt practices, including tampering with EVMs. The respondent filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code') to dismiss the election petition on the grounds that it did not comply with the provisions of the Representation of People Act, 1951 (hereinafter referred to as 'the Act') or the Rules made thereunder.
Finding of the Court:
The court found that the election petitioner had not complied with the mandatory provisions of law as to the pleadings. The election petition did not disclose a cause of action and the petitioner failed to remove the defects in the election petition even after an opportunity was given to him. The court held that the election petition was liable to be dismissed at the threshold.
Issues: Whether the election petition disclosed a cause of action; Whether the petitioner had complied with the mandatory provisions of law as to the pleadings; Whether the defects in the election petition could be removed after an opportunity was given to the petitioner.
Ratio Decidendi: The court held that the election petition did not disclose a cause of action. The petitioner had not raised any of the grounds raised in the election petition before the Returning Officer at the time of election or at the time of counting of votes. The petitioner had also failed to file an affidavit of corrupt practice in the prescribed Form 25 as required under Rule 94-A of the Conduct of Election Rules, 1961 (hereinafter referred to as 'the Rules of 1961'). The court further held that the petitioner had failed to remove the defects in the election petition even after an opportunity was given to him. The court relied on several judgments of the Supreme Court to support its findings.
Final Decision: The court allowed the application filed by the respondent under Order VII Rule 11 of the Code and dismissed the election petition.
JUDGMENT
Lok Pal Singh, J. - Instant election petition has been instituted by the election petitioner seeking a prayer to declare the election of the respondent as returned (elected) candidate from 19-Raipur Constituency of Legislative Assembly in the IV Assembly Elections of the State of Uttarakhand to be null and void and consequently to declare the certificate of election granted by the Returning Officer (District Development Officer), Dehradun on 11.03.2017, also null and void.
2. Briefly stated, facts of the case are that voting took place on 15.02.2017 in respect of elections for 19-Raipur constituency of Uttarakhand Legislative Assembly and the result was declared on 11.03.2017. The election petitioner, who is the candidate for Indian National Congress party, submitted his nomination papers and contested the election for said constituency of Uttarakhand Legislative Assembly. Respondent also contested the election and was declared returned candidate.
3. The election petitioner has filed the election petition, inter alia, on the grounds that the respondent was the candidate of Bhartiya Janta Party at the time of election, which was the ruling party in the Center. It is contended that Electronic Voting Machine (EVM) with Voter Verified Paper Audit Trail (VVPAT) machines were not installed in the election pursuant to the directions issued by Hon'ble Apex Court in its judgment rendered in the case of Dr. Subramanian Swami Vs Election Commission of India, (2013) 10 SCC 500. After the election, several reports were published in regard to the malfunctioning of the EVMs throughout the country. Taking advantage of the situation to introduce the EVM with VVPAT, the respondent committed corrupt practices in collusion and connivance with their associates, whereby the respondent took help of experts under a planned modus operandi, for tampering / hacking / manipulating the EVMs deployed at various polling booths and, as such, hampered with the free, fair, genuine recording of votes through EVMs, which amounts to "Booth Capturing", and is an offence under Section 135A of the Representation of People Act,1951.
4. It is alleged that having knowledge of the fact that the EVMs were found to be tempered because of the non-use of EVMs with VVPAT, respondent with the help of persons who are specialized in manipulating and hacking computers and such other machine which need programming for the purpose of working, computing, calculating and classifying, tampered / hacked, the EVMs at different stages of the process of the said election and as such the respondent adopted corrupt practice and succeeded in winning the election. It is further alleged that the respondent in a pre-planned manner with specific strategy got different EVMs tempered through technology skilled professionals to get false votes in his favour. It is stated that some integrated parts of the EVMs are manufactured in U.S.A. or Japan and are imported and the assembling is done in the country itself giving every chance of hacking the EVMs. The respondent has adopted corrupt practice by misusing of technology and managed to hack the EVM in such a manner that votes casted in favour of other different candidates were added to the account of respondent.
5. After the filing of present election petition, amendment applications were moved on behalf of the Election Commission of India in instant election petition as well as in connected election petitions with a prayer to delete the names of respondent nos. 2 to 6 from the array of parties. Such applications were allowed on 22.08.2017. Names of respondent nos. 2 to 6 were deleted from the array of parties in the election petitions.
6. It is contended that some voters, who were not ordinary residents of Raipur constituency remained present in the Raipur and surrounding constituencies throughout the election period / process. It is alleged that these persons manipulate the EVM's in such a fashion that votes casted in favour of others were wrong
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