Supreme Court of India
ASHOKversusRAJENDRA BHAUSAHEB MULAK
- Citation
- 2012 INSC 479
- Decided
- 18 October 2012
- Disposal
- Matter referred to larger bench
- Bench
- T S THAKUR
Holding
An election petition that fails to plead that the improperly received votes were cast in favour of the returned candidate does not disclose a cause of action and must be dismissed for lack of material particulars.
Summary
In the Maharashtra Legislative Council election, Ashok lost to Rajendra by four votes and filed an election petition alleging that at least five of the fourteen votes counted were improperly received because voters were accompanied by another person, violating Rule 39 of the Conduct of Election Rules, 1961. The High Court dismissed the petition, holding that the petition failed to specify whether the allegedly improper votes were cast for the returned candidate, and therefore lacked material particulars to show a material effect on the result. On appeal, the Supreme Court examined the statutory requirement under Section 100(1)(d) of the Representation of People Act, 1951 that the petitioner must plead and prove that the improper votes were cast in favour of the returned candidate to establish a material impact. The Court held that the petition’s averments, while identifying the voters and the breaches, did not plead the crucial fact that those votes were for the returned candidate, and consequently no cause of action existed. It further noted the absence of any contemporaneous objection at the polling station and the impossibility of identifying the disputed votes for recount. Accordingly, the Supreme Court set aside the High Court order and restored the election petitions for trial, emphasizing that without pleading the material fact of the votes’ beneficiary, the petition cannot be entertained. The appeal was allowed, and the matter was remanded for a proper trial on merits.
Issues considered
- The petition must disclose material facts showing that the improperly received votes were cast for the returned candidate, as required by Section 100(1)(d) of the Representation of People Act, 1951.
- Whether the absence of a specific averment that the disputed votes were in favour of the returned candidate defeats the cause of action and warrants dismissal at the threshold.
- Whether the High Court's dismissal under Order VII Rule 11 CPC, rather than under Section 86 of the RP Act, is appealable under Section 116A.
- Whether the petitioner’s reliance on a CD recording and lack of contemporaneous objection affect the validity of the alleged breaches of Rule 39.
Legislation cited
- Code of Civil Procedures. Order VII Rule 11
- Conduct of Election Rules, 1961s. Rule 39(2)(c), s. Rule 39(4), s. Rule 39(5), s. Rule 39(6), s. Rule 39(7), s. Rule 39(8)
- Representation of People Act, 1951s. 100(1)(d), s. 116A, s. 81, s. 83
Subjects
election petitionmaterial factsmaterial particularsSection 100(1)(d)Conduct of Election Rulesvote secrecyimproper reception of votesmargin of victorysummary dismissalburden of proof
Judgment
[2012] 12 S.C.R. 463
ASH OK A
v.
RAJENDRA BHAUSAHEB MULAK
(Civil Appeal No. 7591 of 2012)
OCTOBER 18, 2012
B
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]
Election Laws - Conduct of Election Rules, 1961 - r.39
- Election petition - On ground of improper reception of votes
- Election to State Legislative Council - Two main C
contestants, appellant and respondent - Respondent won by
a thin margin of 4 votes - Appellant filed election petition
challenging the election of respondent on the plea of breach
of the Election Rules stating that at least 5 out of 14 votes
had been cast by such voters who were accompanied by o
another person to the voting compartment at the time of
actual casting of vote in the election which was in breach of
r.39 (5) to 39 (8) and hence reception of such votes by
including them at the time of counting of votes ought to be
declared as illegal - Election petition dismissed by the High E
Court at the threshold on thie ground that it failed to declare
material particulars which could be held to have materially
affecting the election result - Whether the election petition in
question indicated absence of 'material particulars' which
materially affected the result ol the election so as to entertain
F
a cha/ienge to the same - Matter referred to three Judge
bench in view of conflicting views expressed by the two Hon'ble
Judges.
In the election to the Maharashtra State Legislative
Council from the Nagpur Local Authorities Constituency, G
there were two main contestants, namely the appellant
and the r:ispondent. The appellant pnlled 198 votes as
against 202 votes polled in favour of the respondent. The
respondent thus won by a thin margin of 4 votes.
463 H
464 SUPREME COURT REPORTS [2012] 12 S.C.R.
A The appellant filed an election petition challenging
the election of the respondent on the plea of breach of
the Conduct of Election Rules, 1961 stating that at least
5 out of 14 votes had been cast by such voters who were
accompanied by another person to the voting
B compartment at the time of actual casting of vote in the
election which was in breach of Rule 39 (5) to 39 (8) of
the Election Rules and hence reception of such votes by
including them at the time of counting of votes ought to
be declared as illegal. The election petition was
C dismissed by the High Court on the ground that it failed
to declare material particulars which could be held to
have materially affecting the election result. The High
Court found the election petition deficient on account of
the absence of a specific averment to the effect that the
votes that were improperly received were cast in favour
0
of the successful candidate i.e. the respondent. Hence
the present appeal.
Referring the matter to the larger Bench, the Court
E HELD:
Per T.S. Thakur, J.
1.1. The averments made in the election petition
sufficiently disclosed a cause of action inasmuch as the
F essential, the pivotal and the basic facts relevant to the
charge levelled by the appell;;nts had been stated with
sufficient clarity by them in their respective election
petitions. The question whether the votes improperly
received were polled in favour of one or the other
G candidate was not an essential or material fact the
absence whereof could possibly result in the summary
dismissal of the election petitions. [Para 8] [486-A-C]
1.2. The interpretation of Section 100(1)(d) of the
H Representation of People Act, 1951 and in particular the
ASHOK v. RAJENDRA BHAUSAHEB MULAK 465
true import of the expression "the result of the election A
in so far as it concerns a returned candidate has been
materially affected" is a serious issue, which may arise
for consideration but only after the election petition is
tried by the High Court and after the parties have
adduced whatever evidence may be available to them. B
[Para 15] [493-D-E]
1.3. There can indeed be fact situations where the
Court may legitimately hold even in the absence of
affirmative evidence, that the result of the election was C
materially affected by improp~r acceptance of the
nomination paper or the improper reception of votes.
[Para 17] [496-C-D]
1.4. Apart from the fact that the averments made in
the election petitions in the present case are specific and D
the individuals who have cast their votes have been
named and reason given why the votes cast by them
were improperly received, the petitioner has alleged that
exclusion of five votes cast by the persons named in the
petition would materially affect the result of the election. E
The question whether any votes were improperly
received and if so, whether such reception had materially
affected the result of the election are matters to be
examined at the trial after the parties have adduced
evidence in support of their respective cases. Dismissal F
of the election petitions at the threshold was in the facts
and circumstances not justified. In the result, the
judgment passed by the High Court is set aside and the
election petitions are restored to be tried by the High
Court on merits in accordance with law. [Para 18] [496- G
G-H; 497-A-C]
Shiv Charan Singh S!o Angad Singh v. Chandra Bhan
Singh Slo Mahavir Singh and Ors. (1988) 2 SCC 12: 1988
(2) SCR 713 and T.H. Musthaffa v. M.P. Varghese (1999) 8
SCC 692: 1999 (3) Suppl. SCR 162 - distinguished. H
466 SUPREME COURT REPORTS (2012) 12 S.C.R.
A Cheedi Ram v. Jhilmit Ram and Ors. (1984) 2 .sec 281:
1984 (1) SCR 966 - relied on.
Dipak Chandra Ruhidas v. Chandan Kumar Sarkar
(2003) 7 SCC 66: 2003 (2) Suppl. SCR 72; Deputy Collector,
B Northern Sub-Division Panaji v. Comunidade of Bambolim
(1995) 5 SCC 333: 1995 (2) Suppl. SCR 359; Virender Nath
Gautam v. Satpa/ singh and Ors. 2007 3 SCC 617: 2006 (10)
Suppl. SCR 413; Vashist Narain Sharma v. Dev Chandra
AIR (1954) SC 513: 1955 SCR 509: Swantraj and Ors. v.
State of Maharashtra (1975) 3 SCC 322: 1974 (3) SCR 287;
C Kanwar Singh v. Delhi Administration AIR 1965 SC 871: 1965
SCR 7; State of Tamil Nadu v. N.K. Kandaswami (1974) 4
SCC 745; Samant N. Ba/akrishna and Anr. v. George
Fernandez and Ors.(1969) 3 SCC 238: 1969 (3) SCR 603-
referred to.
D
Heydon's case (1584) 76 E.R. 637; Seaford Court
Estates Ltd. v. Asher (1949) 2 All E.R. 155 and lnayatullah
v. Divanchand Mahajan 15 ELR 210 - referred to.
Maxwell on the Interpretation of Statutes - referred to.
E
Case Law Reference:
2003 (2) Suppl. SCR 72 referred to Para 2, 5
1995 (2) Suppl. SCR 359 referred to Para 5
F
2006 (10) Suppl. SCR 413 referred to Para 8
1988 (2) SCR 713 distinguished Para 9
1999 (3) Suppl. SCR 162 distinguished Para 9, 18
G 1955 SCR 509 referred to Para 9,11,
15
1974 (3) SCR 287 referred to Para 12
(1584) 76 E.R. 637 referred to Para 12
.H
ASHOK v. RAJENDRA BHAUSAHEB MULAK 467
1965 SCR 7 referred to Para 13 A
(1974) 4 sec 745 referred to Para 14
(1949) 2 All E.R. 155 referred to Para 14
1969 (3) SCR 603 referred to Para 15 B
15 ELR 210 referred to Para 15
1984 (1) SCR 966 relied on Para 15
Per Gyan Sudha Misra. J. (dissenting)
c
1.1. On the prevailing facts, it is apparent. that the
petitioner/appellant is indulging in a process which
amounts to speculation and conjecture in absence of
material particulars; for instance, if it were the specific
plea of the petitioner that all 14 votes or at least 4 votes D
which were cast in which the voters were alleged to have
been accompanied by another person were in fact polled
in favour of the respondent so as to influence the election
result, the plea of the petitioner could be held as
amounting to materially affecting the election result. But E
in absence of this candid relevant and factual detail, the
election petition obviously is based only on such
averment, which will have to be held speculative and
conjectural in nature and can hardly be held to be
disclosing 'material facts with material particulars' so as F
to conclude that it materially affected the result of the
election. Even assuming that the election petition were to
be allowed in spite of absence of such material
particulars, the net result would be the recounting of the
votes by declaring 14 votes as invalid which were alleged G
to have been polled in breach of the election rules but
could hardly be identified or deciphered. [Para 16] [509-
D-H; 510-A]
1.2. In the absence of any identification mark of those
votes which are alleged to have been polled by voters H
468 SUPREME COURT REPORTS [2012] 12 S.C.R.
A accompanied by another person and is alleged to be in
breach of the Rules cannot possibly be identified so as
to treat them as invalid votes and if that is so, the election
petition is clearly based on vague material and hence
would be unjust to allow the election to be questioned
B by entertaining the election petition where the losing
candidate/the petitioner had himself not alleged any
corrupt practice in holding the election but merely a
breach of the election rule in regard to which he had not
complained at all at the time of election or even thereafter
c but straightway filed the election petition challenging the
election on the basis of an alleged CD after the election
result was declared. Thus, the entertainment of an
election petition on such speculative material can hardly
be held to be disclosing material facts with material
particular which would justify the challenge to an election
0
by entertaining an election petition as the same does not
spell out material particulars which would affect the
election result. [Para 17] [510-C-F]
1.3. It is well settled legal position that no evidence
E can be led on a matter unless there is a pleading thereon.
Therefore, unless it was pleaded that the invalid votes
were cast in favour of the returned candidate, no
evidence can be led to that effect. In a petition seeking
to challenge an election on the ground stated in Section
F 100 (1) (d) (iii) and (iv) of the Representation of People Act,
1951, it was imperative for the petitioner to plead the most
crucial and vitally material fact that the invalid votes were
cast in favour of the returned candidate because then
alone could it be pleaded and proved that "the result of
G the election, in so far-as it concerns a returned candidate,
has been materially affected" within the meaning of
Section 100 (1) (d). The words "in so far as it concerns a
returned candidate" and "has been materially affected"
read with clauses (iii) and (iv) clearly show the legislative
H intent to place the burden of pleading and proving that
ASHOK v. RAJENDRA BHAUSAHEB MULAK 469
the improper reception of votes or violation of law in A
regard to casting of votes benefited the returned
candidate and materially affected his election as a
returned candidate. It is not enough to show mere
improper reception of votes or reception of votes or non-
compliance with law. In the present case, lack of pleading B
that the votes were cast in favour of the respondent leads
to absence of cause of action for the petition for
invalidating the election under Section 10Q (1) (d) (iii) and
(iv). Merely because the margin of difference between the
winner and the loser was four votes and five votes were c
disputed by the petitioner would not give rise to any valid
cause of action. [Paras 18, 19] [510-G-H; 511-A-F]
1.4. There is substance in the view taken by the High
Court in the impugned judgment, that the election
petitioner only pointed out a possibility of result of D
election being different if 14 or 5 votes were to be
excluded from counting. The objection is only that those
votes ought not to have been taken into consideration
while counting the votes. In absence of identification of
those votes which are alleged to have been cast by the E
voters in the company of another person, it would be
difficult to identify them so as to infer as to which are the
votes which ought not to have been reckoned for
counting by declaring them invalid. In that event even if
the petitioner's election petition were to be allowed, the F
entire trial would result into an exercise in futility leading
the controversy nowhere. The election petition filed by
the petitioner indicates absence of 'material particulars'
which materially affected the result of the election so as
to entertain a challenge to the same. To contend that the G
alleged breach of secrecy would render the entire
election result as void so as to order for a re-poll in spite
of absence of any objection by the defeated candidates
or his representative in this regard at the time of polling
would be an outrageous contention which is fit to H
rejected outright. [Para 21] [512-E-H; 513-A·B]
470 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 1.5. The impugned judgment and order of the High
Court is not required to be interfered with and the election
petition was rightly held to be fit for rejection for want of
material facts and material particulars which could
materially affect the result of the election. [Para 22] [513-D]
B
Kalyan Kumar Gagoi v. Ashutosh Agnihotri, 2011 (1)
SCALE 516; Mu/ayam Singh Yadav v. Dharampa/ Yadav
(2001) SCC 98 and Vashisht Narain Sharma v. Dev Chandra
and others AIR 1954 S.C. 513: 1955 SCR 509 - relied on.
c R.P. Moidutty v. P. T. Kunju Mohammad & Anr. 2000 (1)
SCC 481 and Jabar Singh v. Genda Lal (1964) SCR 54 -
referred to.
Mayar (HK) Ltd v. Owners & Parties (2006) 3 SCC 100:
0 2006 (1) SCR 860 - held inapplicable.
Case Law Reference:
2000 (1) sec 481 referred to Para 3
2011 (1) SCALE 516 relied on Para 4, 15
E
(2001) sec 98 relied on Para 12
1955 SCR 509 relied on Para 16
2006 (1) SCR 860 held inapplicablePara 19
F (1964) SCR 54 referred to Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7591 of 2012.
G From the Judgment and Order dated 02.08.2010 of the
High Court of Judicature of Bombay Bench at Nagpur in
Election Petition No. 1 of 2010.
WITH
C.A. No. 7592 of 2012.
H
ASHOK v. RAJENDRA BHAUSAHEB MULAK 471
Ravi Shankar Prasad, PS Narasimha , Vined A Babde, A
V.C. Daga, SS Shamshery, Vikramjeet Banerjee, Anil S. Killer,
R.C. Kohli, Shriram Parakkat, Kishor Lampat, Vishnu Shankar
Sain, Samab Samshery, Shally Bhasin Maheshwari, Kamna
Sagar, Shivaji M. Jadhav, SK Jain, Sarv Preet, Nitin Popli,
Jayant Bhatt for the Appearing Parties. B
The Judgments and order of the Court was delivered by
T.S. THAKUR, J. 1. High Court of Judicature at Bombay,
Nagpur Bench has dismissed Election Petitions No.1 and 2 of
2010 filed by the appellants-petitioners in these appeals. The C
High Court has taken the view that although the election
petitions did not allege the commission of any corrupt practice
against the returned candidate (respondent herein) and
although the petitions sufficiently established the authenticity of
thePage 3 documents relied upon by the petitioners yet the D
petitions were deficient inasmuch as the same did not disclose
as to how the election of the returned candidate was materially
affected by the alleged improper reception of the votes polled
in the election. The hallmark of the order passed by the High
Court is a copious reference to the decisions of this Court no E
matter some if not most of them had no or little relevance or
application to the facts of the case before it, in the process
adding to the bulk of the order under challenge. At the heart of
the conclusion arrived at by the High Court is the argument that
even when the election petitions contain specific averments F
alleging improper reception of 14 votes with the names of those
who cast those votes, the same do not go furtherto state as to
in whose favour the said votes were actually polled. This,
according to the High Court, was an essential requirement for
disclosure of a cause of action inasmuch as in the absence of G
a statement that the improperly received votes were polled and '
counted in favour of the returned candidate, neither the election
petitions disclosed a cause of action nor was it possible to say
that the result of thePage 4 election was materially affected by
the narrow margin of the victory notwithstanding. We cannot do H
472 SUPREME COURT REPORTS [2012] 12 S.C.R.
A better than extract from the judgment of the High Court the
passages from which the reasoning underlying the conclusion
drawn by the High Court can be deduced albeit with some
amount of difficulty. The High Court observed:
''The Election Petitioners here only point out a possibility
B
of result of election being different if 14 or 5 votes can be
excluded. It is not their case that said votes when displayed
revealed that they were in favour of Rajendra or not in favour
of Ashok. The Pssolling Agent of Petitioner at Kamptee
is not being quoted or relied upon by Shri Ashok Mankar.
c Here, there are only two contestants and difference
between them is of 4 votes only. The objection is about
receipt of 14 or 5 votes. Several questions having bearing
on result of said election being materially affected in so
far as returned candidate is concerned, arise. The
D Petitioners have not pointed out the beneficiary of those
14 or 5 votes. It is not their plea that all those voters cast
their vote in favour of Returned Candidate or did not vote
in favour of defeated candidate. There is no plea about
their political affinities either to associate or dis-associate
E them with BJP or National Congress {I) political parties.
The said votes now can not be traced out & segregated.
Hence when "displayed" what was seen & the vote was
cast in whose favour ought to have been pleaded.
F Election Petitioners can not seek rejection of 14
votes or 5 votes which according to them can be identified
and ask for recount without even asserting that those votes
or any number out of it has gone to Returned Candidate.
These votes may have been excluded only if they were
cancelled before they were inserted in ballot box as per
G
Rule 39 of 1961 Rules. Otherwise, those votes can then
be subjected only to Rule 56. If any violations or breaches
of their duties by staff at Polling Station at Kamptee is to
be alleged, it is apparent that adequate pleadings are
must for said purpose. nmely protest by agent of Ashok
H
ASHOK v. RAJENDRA BHAUSAHEB MULAK 473
[T.S. THAKUR, J.]
would have been one such fact. If any thing was displayed A
and it was adverse to Ashok's interest, why objection was
not lodged then & there is again an important factor. It is
the result of election in so far as it concerns the returned
candidate which is required to be proved as materially
affected. Only possibility of election getting affected is not B
sufficient to un-sit the elected candidate.
Section 100 (1 )(d)(iii) & (iv) requires pleading of
illegalities as also irregularities and also of facts indicating
material effect thereof on the election of the returned
candidate. Only after these pleadings.evidence in relation C
thereto can come on record & not otherwise. Opinion of
High Court contemplated by S.100(1) is possible only after
due opportunity to returned candidate. Hence pleading of
this material fact of link between the victory & lacunae/
omissions is prerequisite to formation of this opinion. A D
"triable issue" cannot be said to arise till then as no cause
of action surfaces. Election Petitions cannot in its absence
demonstrate how the result of election in so far as it
concerns returned candidate is materially affected.
Respondent's success with slender margin, in the absence E
of specific plea of any connection between it & alleged
irregularities or illegalities and facts showing that
connection, by itself cannot be the material fact. Pleading
such link or connection cannot be pleading a material
particular. The Election Petitions cannot be said to be F
"complete" without any whisper of such connection. Both
Election Petitioners have avoided to plead vital link
between the alleged breaches and the success of
Returned Candidate. This omission cannot be allowed to
be cured by amendment as limitation for filing Election G
petition has long expired and "material facts" cannot be
now permitted to be added."
2. When these special leave petitions came up for hearing
before this Court on 3rd April, 2012, Mr. V.A. Bobde, learned H
474 SUPREME COURT REPORTS [2012] 12 S.C.R.
A senior counsel for the respondents, raised a preliminary
objection to the maintainability of the petitions. It was contended
by Mr. Bobde that the impugned judgment and order of the
High Court dismissing the election petitions filed by the
petitioners being appealable under Section 116A of the
B Representation of People Act, 1950, the petitioners could not
maintain the special leave petitions under Article 136 of the
Constitution which deserves dismissal on that ground alone.
Reliance inPage 6 support was placed by Mr. Bobde upon a
decision of this Court in Dipak Chandra Ruhidas v. Chandan
c Kumar Sarkar (2003) 7 SCC 66.
3. Section 116A of the Representation of the People Act,
1951 provides for appeals to this Court both on facts as also
on questions of law from every order made by the High Court
under Section 98 or 99 of the Act. Sub-section (2) of Section
D 116A prescribes a period of 30 days for filing of such appeals
while proviso to sub-section (2) empowers this Court to
entertain an appeal even after the expiry of the said period if
the appellant shows sufficient cause for not preferring the
appeal within such period.
E
4. Section 98 of the Act provides for the orders that the
High Court shall make at the conclusion of the trial in an election
petition. These orders could be in the nature of dismissal of an
election petition or declaring the election of all or any of the
F returned candidates to be void or declaring the election of all
or any of the returned candidates to be void and the petitioner
or any other candidate to have been declared elected. Section
86 of the Act deals with the trial of election petitions and, inter
alia, provides that the HighPage 7 Court shall dismiss an
G election petition which does not comply with the provisions of
Sections 81 or 82 or Section 117 of the Act. Any such dismissal
may come after the parties go to trial or even at the threshold.
An election petition which does not call for dismissal on the
ground that the same violates any one of the three provisions,
H namely, Section 81 or 82 or 117 may still be dismissed
ASHOK v. RAJENDRA BHAUSAHEB MULAK 475
[T.S. THAKUR, J.]
summarily and without the parties going to trial on the merits A
of the controversy under Order VII Rule 11 of CPC. Any such
order if may not be qualifying for a challenge before this Court
under Section 116A as an appeal is under that provision limited
to only such orders as are passed under Section 98 of the Act
at the conclusion of the trial of election petition. Strictly B
speaking, it could well be said that an order which does not
fall within the four corners of Section 98 inasmuch as the same
is not passed at the conclusion of the trial of an election petition
may not qualify for being challenged in appeal under Section
116A including an order dismissing the petitions summarily c
under Section 86 of the Act for non-compliance of the provisions
of the Sections 81, 82 and 117. What is important and
whatPage 8 makes a difference is the presence of an
explanation under Section 86(1) that by a legal fiction makes
an order passed under Section 86 of the Act to be an order
0
under Section 98 thereof explanation reads :
"Explanation to Section 86: An order of the High Court
dismissing an election petition under this sub-section shall
be deemed to be an order made under clause (a) of
Section 98." E
5. The fiction is, however, limited to orders passed under
Section 86(1) alone namely to cases where dismissal is for non-
compliance with the provisiC?ns of Sections 81, 82 and 117 of
the Act. It does not extend to dismissal under Order VII Rule F
11 of the CPC for non-compliance with the provisions of
Section 83 of the Act. In other words, if a petition does not state
the material facts on which the petitioner relies as required
under Section 83(1 )(a) and thereby fails to disclose any cause
of action and is consequently dismissed by the Court in G
exercise of its powers under Order VII, Rule 11 CPC, such an
order of rejection of the petition is not in terms of Explanation
to Section 86 treated as an order made under Section 98 so
as to be appealable under Section 116A of the Act. Mr. Prasad
was, therefore, perfectly justified in arguing that since the High H
476 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Court has, in the instant case, dismissed the election petitions
not under Section 86 to which the Explanation appearing
thereunder is attracted but under Order VII Rule 11 for the
alleged failure of the petitioners to state the material facts on
which they relied, the order passed by the High Court was not
B appealable under Section 116A. The only difficulty which was
encountered by us in holding that the special leave petitions
were maintainable is a decision of this Court in Dipak Chandra
Ruhidas case (supra) where this Court has taken the view that
Section 116A must be interpreted liberally and an order
c dismissing the election petition on the ground that the
averments do not state material facts would be appealable
under Section 116A. With utmost respect to the Hon'ble Judges
comprising the Bench, we find that conclusion to be contrary
to the scheme of the Act. We were, therefore, inclined to make
a reference to a larger Bench for reconsideration of that view,
0
for the same, in our opinion, extends the fiction created under
the Explanation to Section 86 even to case where the Court
does not invoke Section 86 while passing an order of dismissal
but exercises its power of rejection of the plaint/petition under
Order VII Rule 11 CPC. It is noteworthy that an order under
E Order VII Rule 11 CPC by reason of Section 2(2) of the CPC
is a decree hence appealable under Section 96 of the Code.
Since, however, the right of appeal under the Representation
of the People Act is regulated by .section 116A, the fact that
an order rejecting a plaint under Order VII Rule 11 CPC would
F have been in the ordinary course appealable before the higher
Court hearing such appeals would not make any difference.
Inasmuch as the right of appeal is a creature of the statute, and
Section 116A does not provide for an appeal against an order
passed under Order VII Rule 11 CPC read with Section 83 of
G the Representation of the People Act, 1951 no resort can be
taken to that provision by a process of interpretation of the
Explanation to Section 86 or an artificial extension of the legal
fiction beyond the said provision. Mr. Prasad was not, however,
very keen to pursue his argument to its logical end for obvious
H reasons. A reference to a larger bench would inevitably delay
•
ASHOK v. RAJENDRA BHAUSAHEB MULAK 477
[T.S. THAKUR, J.]
the disposal of these appeals and even the election petitions. A
Mr. Prasad, therefore, chose the alternative course available
to him and sought permission of this Court to convert the SLPs
into appeals under Section 116A of the Act. Two applications,
one seeking permission to convert the petitions into an appeal
under Section 116A and the other seeking condonation of B
delay in the filing of the appeals were accordingly made by the
petitioner. Having heard learned counsel for the parties at some
length we are inclined to allow both these applications in both
the special leave petitions. Whether or not an appeal was
maintainable against the impugned order was and continues c
to be a highly debatable issue as seen in the foregoing
paragraphs. The petitioners appear to have been advised that
the orders could be challenged only by way of SLPs. That
advice cannot in the circumstances of the case, be said to be
a reckless piece of advice nor can the petitioners be accused 0
of lack of diligence in the matter when the SLPs were admittedly
filed within the period of limitation stipulated for the purpose.
The decision of this Court in Deputy Collector, Northern Sub-
Division Panaji v. Comunidade of Bambolim (1995) 5 SCC
333, recognizes a bonafide mistake on the part of the counsel E
in pursuing a remedy as a good ground for condonation of delay
in approaching the right forum in the right kind of proceedings.
The limitation prescribed for filing an appeal under Section
116A is just about 30 days from the date of the order. There
is, therefore, a delay of nearly 20 days in the filing of the appeal
which deserves to be condoned. We accordingly allow the F
applications for conversion and for condonation of delay in both
the special leave petitions and direct that the SLPs shall be
treated as appeals filed under Section 116A of the
Representation of the People Act.
G
6. That brings us to the merits of the controversy in the
election petitions filed by the appellants. The election petitions
specifically alleged improper reception of votes which had
according to the appellant materially affected the result of the
election. It is common ground that there were only two H
478 SUPREME COURT REPORTS [2012) 12 S.C.R.
A contestants namely the appellant-Ashok and the respondent-
Rajend ra Bhausaheb Mulak. The election was to the
Maharashtra State Legislative Council from Nagpur Local
Authorities Constituency. Result of the election declared on 21st
January, 2010 showed that the appellant Ashok had polled 198
B ballots as against 202 votes polled in favour of the respondent-
Rajendra Bhausaheb Mulak. The respondent thus won by a
margin of only four votes. The election-petitioners' case as set
out in the election petition was that the election was materially
affected by the improper reception of as many as 14 votes out
c of a total of 400 votes in the course of elections. Specific
averments, in regard to the votes so cast, were made in the
election petition including averments based on the CD
recording at each polling station obtained officially by the
electionpetitioner from the concerned authorities under the
D Right to Information Act, 2005. In para 11 to 17 of the election
petition, the petitioner made specific averments regarding
vig_Jption of the provisions of the Act and the Rules and
improper reception of as many as 14 votes by voters who were
named in these paragraphs. In para 17, the petitioner had
further asserted that the improper reception of the 14 votes had
E materially affected the result of the election. Para 11 to 17 may
at this stage be reproduced for ready reference:
"11 ............ On going through the said CD relating to
Kamptee Polling Station, that was supplied by the Office
F of the Collector-cum-District Election Officer, Nagpur it
was found that a voter namely, Mrs. Begum Shehnaz
Begum Akhtar entered the polling station along with
another voter Shri Abdul Shakoor Usman Gani @ Shakoor
Nagani who had accompanied her to the Polling booth in
G utter breach of the Election Rules and Handbook of the
Returning Officer issued by the Election Commission of
India under Art. 324 of the Constitution of India. Shri Abdul
Shakoor Usman Gani @ Shakoor Nagani marked the
ballot paper that had been issued to Mrs. Begum Shehnaz
H Begum Akhtar and thereafter displayed the said ballot
ASHOK v. RAJENDRA BHAUSAHEB MULAK 4 79
[T.S. THAKUR, J.)
paper to those present in the room where the ballot box A
had been kept and thereafter put the ballot paper in the
ballot box. This act is visible from the CD that has been
supplied to the petitioner by the Office of the Collector-cum-
District election Officer, Nagpur. In accordance with Rule
39(4) of the Election Rules, no other voter can be allowed B
to enter a voting compartment when another elector is
inside it. Thus, there has been violation of Rule 39 (4) of
the Election Rules as one voter Ms. Begum Shehnaz
Begum Akhtar was accompanied by another voter Shri
AbdulShakoor Usman Gani @ Shakir Nagani and both c
voters entered the voting compartment together. Thus,
there has also been a breach of Rule 39(5) to 39(8) of the
Election Rules where there is breach of secrecy by display
of the ballot paper, the vote in question is required to be
cancelled by making an endorsement to that effect on the D
reverse of the ballot paper. However, the Returning Officer
failed in his boundened duty in cancelling the said vote
though its secrecy was qlatantly violated in his very
presence and permitted the same to be put in the ballot
box. The petitioner submits that from the CD supplied by E
the Office of the respondent No.2 he has taken still
photographs. The copies of the aforesaid photographs are
filed along with the Election Petition as Document No.17.
12. The petitioner further submits that from the said CD, it
was further revealed that another lady voter Ms.Rashida F
Khatoon Mohammed Tahir entered the polling booth at
Kamptee Police Station accompanied by one Shri Niraj
yadav, another voter at the said ele9tion. Both Ms.Rashida
Khatoon Mohammed Tahir and Shri Niraj Yadav together
went to the voting compartment along with the ballot paper G
that had been issued to Ms.Rashida Khatoon Mohammed
Tahir. This act of two voters going together in the voting
compartment at the same time was in violation of rule 39(4)
of the Election Rules. There Shri Niraj Yadav marked the
ballot paper that had been issued to Ms.Rashida Khatoon H
480 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Mohammed Tahir. Thereafter, Shri Niraj Yadav displayed
the marked ballot paper to others who were present in the
polling booth and thereafter put the ballot paper in the ballot
box. Thus, there was, again breach of secrecy of the vote
polled on behalf of Ms.Rashida Khatoon Mohammed Tahir.
B As per the guidelines mentioned in the Handbook of the
Returning Officer, it was the duty of the Presiding Officer,
it was the duty of the Presiding officer to cancel the said
ballot paper on account of violation of its secrecy, the same
having been displayed to others and the voter being
c accompanied by another voter. Though the Presiding
Office was very much present in the said room where this
entire exercise took place, he remained merely a mute
witness and failed to cancel the aforesaid vote as being
void. Thus, the vote cast by Ms.Rashida Khatoon
Mohammed Tahir was required to be cancelled and could
D
not be taken into consideration. Thus, there has been a
breach of Rule 39(5) to 39(8) of the Election Rules. The
petitioner submits that from the CD supplied by the Office
of the respondent No.2 he has taken still photographs. The
copies of the aforesaid photographs are filed along with
E the Election Petition as Document No.18.
13. The petitioner further submits that it is clear from the
CD relating to Kamptee Poling Station that another voter
Shri Abdul Shakoor Usman Gani @ Shakoor Nagani,
F thereafter, exercised his franchise by marking the ballot
paper issued to him. He, thereafter, came out of the voting
compartment without folding the ballot paper in violation
of rule 39(2)(c) of the Election Rules and, on the contrary,
displayed the marked ballot paper to the Presiding Officer
G and others present there. Again, the Presiding Officer
failed to act in accordance with the provisions of Rule
39(5) to 39(8) of the Election Rules as well as the
guidelines prescribed in the Handbook of the Returning
Officer issued by the Election Commission of India and
H failed to cancel the aforesaid vote on account of breach
ASHOK v. RAJENDRA BHAUSAHEB MULAK 481
[T.S. THAKUR, J.]
of its secrecy. On the contrary, the Presiding Officer A
allowed said Shri Abdul Shakoor Usman Gani @ Shakoor
Nagani to put his vote in the ballot box. On account of
breach of its secrecy the aforesaid vote of Shri Abdul
Shakoor Usman Gani @ Shakoor Nagani could not have
been taken into consideration as a valid vote. The B
petitioner submits that from the CD supplied by the Office
of the respondent No.2 he has taken still photographs. The
copies of the aforesaid photographs are filed along with
the Election Petition as Document No.19.
14. The petitioner submits that after viewing the CD C
supplied from the Office of the Collector-cum-District
Election Officer, Nagpur, it can be seen that another voter
Shri Niraj Yadav took his ballot paper to the voting
compartment and after marking the same, came out of the
voting compartment without folding the ballot paper. This D
action was in breach of Rule 39(2) (c) of the Election Rules.
The said Shri Niraj Yadav displayed his marked ballot
paper to the Presiding Officer and others present in the
polling booth, thereby violating the secrecy of voting. The
Presiding Officer was very much present in the said room E
but, instead of cancelling the said vote on account of
breach of its secrecy, permitted the said voter to put the
said vote in the ballot box. Therefore, on account of
violation of secrecy of the vote cast by Shri Niraj Yadav
the same was required t be cancelled and it could not have F'
been enlisted as a valid vote. There was, thus, breach of
Rule 39(5) to 39(8) of the Election Rules. The petitioner
submits that from the CD supplied by the Office of the
respondent No.2 he has taken still photographs. The
copies of the aforesaid photographs are filed along with G
the Election Petition as Document No.20.
15. The petitioner further submits that after viewing the CD
supplied by the Office of the Collector-cum-District Election
Officer, Nagpur, it is seen that another voter Shri Mushtaq H
482 SUPREME COURT REPORTS (2012] 12 S.C.R.
A Ahmed Abdul Shakoor exercised his franchise by marking
his ballot paper. However before coming out of the voting
compartment, said Shri Mushtaq Ahmed Abdul Shakoor
did not fold the ballot paper as required by Rule 39(Z)(c)
of the Election Rules; but, on the contrary, he displayed the
B marked ballot paper to the Presiding officer and others
who were present in the said room. The Presiding Officer
was required to have cancelled the aforesaid vote on
account of breach of its secrecy as required by rule 39(5)
to 39(8) of the Election Rules and the guidelines mentioned
c in the Handbook of the Returning Officer issued by the
Election Commission of India. However, instead of
cancelling the aforesaid vote as invalid, the Presiding
Officer permitted Shri Mushtaq Ahmed Abdul Shakoor to
put the said ballot paper in the ballot box in violation of the
laid down voting procedure and in violation of Rule 39(2)(c)
D
of the Election Rules. Therefore, the vote cast by Shri
Mushtaq Ahmed Abdul Shakoor could not have been
enlisted as a valid vote as there was breach of secrecy
during the actual polling. The petitioner submits that from
the CD supplied by the Office of the respondent no.2 he
E has taken still photographs. The copies of the aforesaid
photographs were filed along with the Election Petition as
Document No.21.
16.The petitioner submits that a perusal of the CD
F supplied from the offie of the Collector-cum-District Election
Officer, Nagpur pertaining to Kamptee Polling Station, it
can be seen that various voters were carrying a spy pen
with in-built camera along with them. The said voters as
can be identified from the CD are Smt. Savita Sharma,
G S/shri Siddartha Rangari, Moreshwar Patil, Dilip
Bandebuche, Prashant Nagarkar, Mukund Yadav,
Mohammed Arshad Mohd. Altaf, Ukesh Lehandas and
Smt. Pratibha Meshram. The aforesaid voters carried
articles other than those that were permitted to be carried
H in the voting compartment in violation of the voting
ASHOK v. RAJENDRA BHAUSAHEB MULAK 483
[T.S. THAKUR, J.]
procedure and rules framed thereunder. In this regard, it A
is submitted that Rule 39(2)(b) read with Rule 70 of the
Election Rules require an elector to record his vote on the
ballot paper with the article supplied by the authorities for
the said purpose. Under Rule 73(2)(e), a ballot paper
marked by an elector otherwise supplied for the said B
purpose becomes invalid. It is submitted that each elector
was supplied with a marked pen so as to mark the ballot
paper. The above-mentioned voters carried a additional
camera as can be seen from the CD referred to above.
The spy pen is quite distinct from an ordinary pen on c -.
account of its size, colour and design, so much so that it
can easily be differentiated from an ordinary pen. Thus, it
is submitted that the Election Rules especially Rule 39
(2)(b), Rule 70 & Rule 73(2)(e) were violated during the
course of polling at Kamptee Polling Station. The petitioner D
submits that from the CD supplied by the Office of the
respondent No.2 he has taken still photographs. The
copies of the aforesaid photographs are filed along with
the Election Petition as Document No.22.
17.The petitioner submits that the votes that were cast by E
Mrs. Begum Shehaz Begum Akhtar and Ms. Rashida
Khatoon Mohammed Tahit at the Kamptee Polling Station
with the aid of other voters, namely, Shri Abdul Shakoor
usman Gani @ Shakoor Nagani and Shri Niraj Yadav
respectively, were in violation of the provisions of Rule F
39(4) of the Election Rules. It is submitted that the said two
voters, namely, Mrs. Begum Shehnaz Begum Akhtar and
Ms.Rashida Khatoon Mohammed Tahir were neither
illiterate, blind or infirm so as to take the aid of any
companion. The report on the election submitted by the G
Returning Officer under paragraph 3 of Chapter XV of the
said Act, especially Item No.16, indicates that there was
no such voter who was illiterate, blind or infirm who had
voted with the help of a companion. In any event, a
companion cannot be another voter and Rule 39(4) of the H
484 SUPREME COURT REPORTS [2012) 12 S.C.R.
A Election Rules specifically prohibits one elector from
entering the voting compartment when another elector is
inside it. Therefore the said two votes polled by Mrs.
Begum Shehnaz Begum Akhtar and Ms. Rashida Khatoon
Mohammed Tahir cannot be taken into consideration as
B valid voters. Similarly, insofar as the votes polled by Shri
Abdul Shakoor Usman Gani @ Shakoor Nagani, Niraj
Yadav and Shri Mushtaq Ahmed Abdul Shakoor are
concerned, they are also required to be excluded from
consideration inasmuch as the said voters have displayed
c the marked ballot paper before putting the same in the
ballot box. Rule 39(2)(c) requires the voter to fold the ballot
paper so as to conceal his vote after he has marked the
ballot paper. There being breach of aforesaid rule, the
secrecy of voting has been violated. Similarly, there is
breach of provision of Rules 39(5) to 39(8) of the Election
D
Rules. Therefore, the said votes are required to be
excluded from being considered as valid votes. It is further
submitted that as many as nine voters, namely Smt. Savita
Sharma, S/shri Siddartha Rangari, Moreshwar Patil, Dilip
Bandebuche, Prashant Nagarkar, Mukund Yadav,
E Mohammed Arshad Mohd. Altaf, Ukesh Lehandas and
Smt. Pratibha Meshram having carried an article other than
that which was permissible to be carried in the voting
compartment, have breached the provisions of Rule
39(2)(b) of said rules and there being breach of provisions
F of Rules 39(5) to 39(8) of the Election Rules, the votes
polled by aforesaid nine voters also deserved to be
excluded from being considered as valid votes. Similarly,
the vote of Smt. Nirmala Rahul Gajbe that was polled at
Narkhed Polling Station, where she was found carrying a
G spy-pen fitted with camera also deserved to be excluded
form being considered as a valid vote.Page 18 there
being breach of provisions of Rule 39(2)(b) read with Rule
39(5) to 39(8) of the Election Rules. Therefore in all, said
14 votes are required to be excluded from being
H considered as valid votes. The result of the election has
ASHOK v. RAJENDRA BHAUSAHEB MULAK 485
[T.S. THAKUR, J.]
been materially affected. Therefore, the election of the A
returned candidate is required to be declared as void under
Section 100 (1)(d) (iii) and (iv) of the said Act and it further
needs to be declared that the petitioner is validly elected
in place of the returned candidate under section 100 (a)
of the said Act, the petitioner having received majority of B
the valid votes. The copy of the Handbook for Returning
Officer issued by the Election Commission of India and
supplied to the petitioner from the Officer of respondent
No.2 is filed along with the Election Petition and Marked
as Document No.23." c
7. The High Court has noticed the above averments and
recorded a finding that the same satisfied the requirement of
Section 83 of the Act inasmuch as the material facts inregard
to the alleged improper reception of votes had been stated by
the petitioner. The High Court has said: D
"In pleadings itself, authenticity of all these document is
prima-facie sufficiently established. Essential facts to
prove breaches of Rules with relevant legal provisions are
sufficiently brought on record by him. E
Here, in both Petitions case of wrongful receipt of invalid
or void votes sufficient in number to change the result is
already pleaded. As held in Laxmi Kant Bajpayi vs. Haji F
Yaqoob, supra, where election petition was under Section
83 read with Section 100 (1) (d) (iii) & (iv) of 1951 Act. &
the pleadings in election Petitioner reveal a clear complete
picture of the circumstances and disclose a definite cause
of action, the election petition cannot be summarily G
dismissed."
8. The High Court all the same found the election petition
deficient on account of the absence of a specific averment to
the effect that the votes that were improperly received were cast H
486 SUPREME COURT REPORTS [2012] 12 S.C.R.
A in favour of the successful candidate. We find sthat reason to
be unsustainable. The averments made in the election petition,
in our opinion, sufficiently disclosed a cause of action inasmuch
as the essential, the pivotal and the basic facts relevant to the
charge levelled by the appellants had been stated with sufficient
B clarity by the petitioners in their respective election petitions.
The question whether the votes improperly received were polled
in favour of one or the other candidate was not an essential or
material fact the absence whereof could possibly result in the
summary dismissal of the election petitions. We draw support
c for that view from the decision of this Court in Virender Nath
Gautam v. Satpa/ Singh and Ors. (2007) 3 SCC 617. That was
also a case where the election-petitioner had been defeated
by a narrow margin of 51 votes only. The challenge to the
election was founded on the plea that as many as 188 votes
had been wrongly counted n spite of the fact that all those votes
0
were invalid votes and that since the margin was only 51 vqtes,
wrong counting of 188 invalid votes materially affected the result
of the election. It was further alleged that 37 votes of dead
persons had been cast and they were thus void and could not,
E therefore, have been counted. The petitioner gave names of all
the 37 voters and annexed death certificates of 36 of such
persons. So also there were allegations that there was double
voting by 60 voters in violation of Section 62(4) of the Act.
Another 19 votes were challenged on the ground of being void
as the voters had exercised their right to vote in two
F constituencies. In addition there were allegations of material
irregularities in counting of postal ballot papers. The High Court
had despite such assertions dismissed the election petition
holding that there was nothing to show as to how many votes
of dead persons had been cast in favour of the returned
G candidate. The High Court also held that the election petition
did not disclose as to how the petitioner came to know about
dead persons casting their votes nor was it indicated as to how
the petitioner came to know about the persons listed having
voted in two different constituencies. Reversing the view taken
H by the High Court, this Court observed that the election petition
ASHOK v. RAJENDRA BHAUSAHEB MULAK 487
[T.S. THAKUR, J.]
stated all the requisite material facts and that the High Court A
committed an error in examining the correctness of the
allegations at an intermediary stage which could be done only
at the time of trial. As to whether the election-petitioner was
required to make a statement that the void votes were polled
in favour of the returned candidates this Court held that the B
same was not a material fact to be stated in the petition. This
Court observed:
"49. On the basis of our conclusions and reasoning in
respect of paras 8(i) to (iii), the finding of the High Court C
on para 8(iv) also cannot be said to be in consonance with
law. Whether or not six persons had been issued voting
papers twice and whether or not those voters had polled
in favour of the returned candidate cannot be said to be a
material fact to be stated in the election petition. What are
required to be stated in the petition are material facts to D
maintain the petition."
9. The High Court has in support of its conclusion drawn
support from the decisions of this Court in Shiv Charan Singh
S/o Angad Singh v. Chandra Bhan Singh S/o Mahavir Singh E
and Ors. (1988) 2 SCC 12 and T.H. Musthaffa v. M.P.
Varghese (1999) 8 SCC 692 to hold that in order to succeed,
the election-petitioners have to prove by adducing evidence,
that the result of the election was materially affected by the
· improper reception of votes. There can be no quarrel with this F
proposition that in order to succeed the election petitioners
have not only to prove by leading requisite evidence that votes
were improperly received but also that such improper reception
materially affected the result of the election in so far as the
returned candidate was concerned. The question is whether an G
election petition could be dismissed summarily on the ground
that production of any such evidence was not possible. In Shiv
Charan Singh's case (supra), this Court was dealing with an
appeal under Section 116A of the Act after the High Court had
tried the election petition on merits and held the election of the H
488 SUPREME COURT REPORTS [2012] 12 S.C.R.
A returned candidate to be void with a direction to the election
commission to hold a fresh election. In that case, the margin
of victory of the returned candidate was no more than 4497,
over Roshan Lal, the candidate who polled the 2 nd highest
number of votes. Kanhaya Lal, the candidate who had polled
B 17841 votes was held ineligible to contest being less than 25
years of age. The High Court was of the view that since the
number of votes polled by Kanhaya Lal whose nomination
papers were wrongly accepted were far more than the margin
of victory the election of the retuned candidate was materially
c affected by the improperPage 23 acceptance of the nomination
paper of Kanhaya Lal. This Court did not agree with that
reasoning. Relying upon the decision of this Court in Vashist
Narain Sharma v. Dev Chandra AIR 1954 SC 513, this Court
held that the margin of victory being less than the votes polled
by an improperly nominated candidate did not by itself mean
0
that the result of the election was materially affected. The
election petitioner, observed this Court is required to lead
evidence to prove as a fact that the result of the election was
indeed materially affected, no matter it may be difficult and
even impossible for the election petitioner to adduce, any such
E proof. This Court observed:
"The result of the election can be affected only on the proof
that the votes polled by the candidate whose nomination
paper had wrongly been accepted would have been
F distributed in such a manner amongst the remaining
candidates that some other candidate (other than the
returned candidate) would have polled the highest number
of valid votes. In other words the result of the election of
the candidate cannot be held to have been materially
G affected unless it is proved that in the absence of the
candidate whose nomination paper was wrongly accepted
in the election contest, any other candidate (other than the
returned candidate) would have polled the majority of valid
votes. In the absence of any such proof the result cannot
H be held to have been materially affected. The burden to
ASHOK v. RAJENDRA BHAUSAHEB MULAK 489
[T.S. THAKUR, J.]
prove this material effect is difficult and many times it is A
almost impossible to produce the requisite proof. But the
difficulty in proving this fact does not alter the position of
law. The legislative intent is clear that unless the burden
howsoever difficult it may be, is discharged, the election
cannot be declared void. The difficulty of proving the B
material effect was expressly noted by this Court in Vashist
Narain Sharma and Paokai Haokip cases and the court
observed that the difficulty could be resolved by the
legislature and not by the courts. Since then the Act has
been amended several times, but Parliament has not c
altered the burden of proof placed on the election
petitioner under Section 100(1 )(d) of the Act. Therefore the
law laid in the aforesaid decisions still holds the field. It is
not permissible in law to avoid the election of the returned
candidate on speculations or conjectures relating to the
0
manner in which the wasted votes would have been
distributed amongst the remaining validly nominated
candidates. Legislative intent is apparent that the harsh
and difficult burden of proving material effect on the result
of the election has to be discharged by the person
challenging the election and the courts cannot speculate E
on the question. In the absence of positive proof of material
effect on the result of the election of the returned candidate,
the election must be allowed to stand and the court should
not interfere with the election on speculation and
conjectures." F
10. There are two dimensions to the above observations.
The first is that the election petition had been allowed by the
High Court after a full fledged trial. It was not a case of summary
dismissal of an election petition on the ground that no evidence G
can be produced to prove that the result of the election in so
far as the returned candidate was materially affected by
improper reception of any vote as is the position in the case
at hand. The High Court in the case at hand failed to notice that
difference and hastened to conclude that the election petition H
490 SUPREME COURT REPORTS [2012] 12 S.C.R.
A could not be tried with whatever chances the petitioner may
have had to avoid the election in question.
11. The second dimension is that although the legal
position emerging from the decisions is of vintage value, it may
8 have the effect of obliterating Section 100(1)(d)(i) and (iii) of
the Act. We say it with utmost respect for the Judges who
delivered the decisions in the two cases referred to above that
the decisions require the election petitioners to produce
evidence in what would be a totally hypothetical situation defying
any attempt to show that the votes polled by a candidate whose
C nomination was improperly accepted would have been polled
in his absence in a fashion that would have materially affected
the result of the election so far as the elected candidate is
concerned. So also it would be near impossible to satisfactorily
prove in a given case that the improperly received votes would
D have gone to one or the other candidate. The question is
whether an election petitioner can be asked to prove something
that is not amenable to proof and whether by doing so a ground
that is recognised by the statute as a valid ground for declaring
the election to be void can be rendered otiose or sterile. What
E is noteworthy is that the difficulty which would arise in giving
effect to Section 100(1 )d(i) and (iii) has been noticed by this
Court in Vashist Narain Sharma's case (supra) but instead of
finding an answer to the same the Court has left the issue to
be resolved by the legislature, in the following words:
F
"It is impossible to accept the ipse dixit of witnesses
coming from one side or the other to say that all or some
of the votes would have gone to one or the other on some
supposed or imaginary ground. The question is one of fact
and has to be proved by positive evidence. If the petitioner
G
is unable to adduce evidence in a case such as the
present, the only inescapable conclusion to which the
Tribunal can come is that the burden is not discharged and
that the election must stand. Such result may operate
harshly upon the petitioner seeking to set aside the
H
ASHOK v. RAJENDRA BHAUSAHEB MULAK 491
[T.S. THAKUR, J.]
election on the ground of improper acceptance of a A
nomination paper, but neither the Tribunal, nor this Court
is concerned with the inconvenience resulting from the
operation of the law. How this state of things can be
remedied is a matter entirely for the legislature to
consider." B
12. In Swantraj and Ors. v. State of Maharashtra (1975)
3 SCC 322, this Court said that every legislation is a social
document and judicial construction seeks to decipher the
statutory mission, language permitting, taking cue from the rule C
in Heydon's case (1584) 76 E.R. 637, of suppressing the evil
and advancing the remedy. This Court held that what must tilt
the balance is the purpose of the statute, its potential frustration
and judicial avoidance of the mischief by a construction
whereby the licensing meets the ends of ensuring pure and
potent remedies for the people. This Court placed much D
reliance upon the following passage from Maxwell on the
Interpretation of Statutes:
"There is no doubt that 'the office of the Judge is, to make
such construction as will suppress the mischief, and E
advance the remedy, and to suppress all evasions for the
continuance of the mischief. To carry out effectively the
object of a statute, it must be so construed as to defeat
all attempts to do, or avoid doing, in an indirect or circuitous
manner that which it has prohibited or enjoined: quando F
aliquid prohibetur, prohibetur et omne pe quod devenitur
ad illud .
.This manner of construction has two aspects. One is that
the courts, mindful of the mischief rule, will not be astute
to narrow the language of a statute so as to allow persons G
within its purview to escape its net. The other is that the
statute may be applied to the substance rather than the
mere form of transactions, thus defeating any shifts and
contrivances which parties may have devised in the hope
of thereby falling outside the Act. When the courts find an H
492 SUPREME COURT REPORTS [2012] 12 S.C.R.
A attempt at concealment, they will, in the words of Wilmot,
C.J. 'brush away the cobweb varnish, and shew the
transactions in their true light'."
13. Reference may also be made to the decision of this
Court in Kanwar Singh v. Delhi Administration (AIR 1965 SC
8
871), where this Court observed: "It is the duty of the court in
construing a statute to give effect to the intention of the
legislature. If, therefore, giving a literal meaning to a word used
by the draftsman, particularly in a penal statute, would defeat
the object of the legislature, which is to suppress a mischief,
C the court can depart from the dictionary meaning or even the
popular meaning of the word and instead give it a meaning
which will 'advance the remedy and suppress the mischief."
14. In State of Tamil Nadu v. N.K. Kandaswami (1974) 4
D SCC 745, this Court held that while interpreting a penal
provision which is also remedial in nature a construction that
would defeat its purpose or have the effect of obliterating it from
the statute book should be eschewed and that if more than one
constructions are possible the Court ought to choose a
E construction that would preserve the workability and efficacy of
the statute rather than an interpretation that would render the
law otiose or sterile. This Court relied upon the following
passage from the Seaford Court Estates Ltd. v. Asher [1949]
2 All E.R. 155 wherein Lord Denning, L.J. observed:
F "The English language is not an instrument of
mathematical precision. Our literature would be much
poorer if it were. This is where the draftsmen of Acts of
Parliament have often been unfairly criticised. A judge,
believing himself to be fettered by the supposed rule that
G he must look to the language and nothing else, laments
that the draftsmen have not provided for this or that, or have
beenguilty of some or other ambiguity. It would certainly
save the judges trouble if Acts of Parliament were drafted
with divine prescience and perfect clarity. In the absence
H of it, when a defect appears a judge cannot simply fold his
ASHOK v. RAJENDRA BHAUSAHEB MULAK 493
[T.S. THAKUR, J.]
hands and blame the draftsman. He must set to work on A
the constructive task of finding the intention of Parliament,
and he must do this not only from the language of the
statute, but also from a consideration of the social
conditions which gave rise to it and of the mischief which
it \f/as passed to remedy, and then he must supplement B
the written word so as to give 'force and life' to the intention
of the legislature. .. . A judge should ask himself the
question how, if the makers of the Act had themselves
come across this ruck in the texture of it, theywould have
straightened it out? He must then do so as they would have c
done. A judge must not alter the material of which the Act
is woven, but he can and should iron out the creases."
15. The interpretation of Section 100(1)(d) and in particular
the true import of the expression "the result of the election in
so far as it concerns a returned candidate has been materially D
affected" is a serious issue, which may arise for consideration
but only after the election petition is tried by the High Court and
after the parties have adduced whatever evidence may be
available to them. All that we need to say for the present is that
the decision of this Court in Vashist Narain Shanna's case E
(supra) and Samant N. Balakrishna and Anr. v. George
Fernandez and Ors. (1969) 3 SCC 238, and lnayatullah v.
Divanchand Mahajan 15 ELR 210, requiring positive proof of
the adverse effect of the improper acceptance of a nomination
paper or improper reception of votes, on the result of the F
election qua the returned candidate have been considered and
explained by a three-Judge Bench of this Court in Cheedi Ram
v. Jhilmit Ram and Ors. (1984) 2 SCC 281. That was a case
where the margin of victory was just about 373 votes, while the
votes polled by the candidate whose nomination papers were G
improperly accepted were many times more. There was no
evidence, as indeed there could be none, to show as to how
those votes would have got distributed among the remaining
candidates if the nomination papers had not been improperly
accepted. This Court held that a Court cannot lay down an H
494 SUPREME COURT REPORTS [2012] 12 S.C.R.
A impossible standard of proof and hold that the fact required to
be proved was not proved on that standard. This Court further
held that in the facts of a given case, a Court could hold a fact
as proved if a reasonable probability supported that
conclusion. Applying that test this Court held that the improper
B acceptance of the nomination papers of Moti Ram, one of the
candidates, had materially affected the election of the returned
candidate. Chinnappa Reddy J. speaking for the Court
conceptualised three situations that would arise in such cases
in the following words:
c ".... True, the burden of establishing that the result of the
election has been materially affected as a result of the
improper acceptance of a nomination is on the person
impeaching the election. ThePage 31 burden is readily
discharged if the nomination which has been improperly
D accepted was that of the successful candidate himself. On
the other hand, the burden is wholly incapable of being
discharged if the candidate whose nomination was
improperly accepted obtained a less number of votes than
the difference between the number of votes secured by the
E successful candidate and the number of votes secured by
the candidate who got the next highest number of votes.
In both these situations, the answers are obvious. The
complication arises only in cases where the candidate,
whose nomination was improperly accepted, has secured
F a larger number of votes than the difference between the
number of votes secured by the successful candidate and
the number of votes got by the candidate securing the next
highest number of votes .... "
G 16. The Court then dealt with the third situation out of the
three mentioned above and held:
"..... In this situation, the answer to the question whether the
result of the election could be said to have been materially
affected must depend on ths facts, circumstances and
H reasonable probabilities of the case, particularly on the
ASHOK v. RAJENDRA BHAUSAHEB MULAK 495
[T.S. THAKUR, J.]
difference between the number of votes secured by the A
successful candidate and the candidate securing the next
highest number of votes, as compared with the number of
votes secured by the candidate whose nomination was
improperly accepted and the proportion which the number
of wasted votes (the votes secured by the candidate B
whose nomination was improperly accepted) bears to the
number of votes secured by the successful candidate. If
the number of votes secured by the candidate whose
nomination was rejected is not disproportionately large as
compared with the difference between the number of votes c
secured by the successful candidate and the candidate
securing the next highest number of votes, it would be ne.xt
to impossible to conclude that the result of the election has
been materially affected. But, on the other hand, if the
number of votes secured by the candidate whose D
nomination was improperly accepted is disproportionately
large as compared with the difference between the votes
secured by the successful candidate and the candidate
securing the next highest number of votes and if the votes
secured by the candidate whose nomination was
improperly accepted bears a fairly high proportion to the E
votes secured by the successful candidate, the reasonable
probability is that the result of the election has been
materially affected and one may venture to hold the fact
as proved. Under the Indian Evidence Act, a fact is said
to be proved when afterPage 32 considering the matters F
before it, the court either believes it to exist or considers
its existence so probable that a prudent man ought, under
the circumstances of the particular case, to act upon the
supposition that it exists. If having r~gard to the facts and
circumstances of a case, the reasonable probability is all G
one way, a court must not lay down an impossible standard
of proof and hold a fact as not proved. In the present case,
the candidate whose nomination was improperly accepted
had obtained 671 O votes, that is, almost 20 times the
difference between the number of votes secured by the H
496 SUPREME COURT REPORTS [2012] 12 S.C.R.
A successful candidate and the candidate securing the next
highest number of votes. Not merely that. The number of
votes secured by the candidate whose nomination was
improperly accepted bore a fairly high proportion to the
number of votes secured by the successful candidate -
B it was a little over one-third. Surely, in that situation, the
result of the election may safely be said to have been
affected."
17. We find ourselves in respectful agreement with the
C above reasoning. There can indeed be fact situations where
the Court may legitimately hold even in the absence of
affirmative evidence, that the result of the election was
materially affected by improper acceptance of the nomination
paper or the improper reception of votes. Beyond that we do
not wish to say anything on this aspect at this stage.
D
18. In T.H. Musthaffa's case (supra) relied upon by the
High Court, also the election petition was tried on merits and
on the basis of evidence adduced by the parties, the Court had
eventually dismissed the same. In an appeal against the said
E order under Section 116 A of the Act, this Court noted that the
allegations made in the course of the petition regarding
acceptance of invalid votes was deficient inasmuch as the
number of votes that were liable to be rejected was not stated.
This Court also noted that there was no indication as to how
F many of such votes had been polled in favour of the returned
candidates to enable it to determine whether the same had
materially affected the result of the election. In the absence of
any such plea, the High Court could not have, declared this
Court, granted the relief of recount and the refusal of the High
G Court to do so was justified. There is nothing in that decision
which advances the case of the respondent-returned candidate
before us. Apart from the fact that the averments made in the
election petitions in the present case are specific and the
individuals who have cast their votes have been named and
H reason given why the votes cast by them were improperly
ASHOK v. RAJENDRA BHAUSAHEB MULAK 497
received, the petitioner has alleged that exclusion of five votes A
cast by the persons named in the petition would materially affect
the result of the election. Suffice it to say that the question
whether any votes were improperly received and if so, whether
such reception had materially affected the result of the election
are matters to be examined at the trial after the parties have B
adduced evidence in support of their respective cases.
Dismissal of the election petitions at the threshold was in the
facts and circumstances not justified. In the result, we allow
these appeals, set aside the judgment and order passed by the
High Court and restore the election petitions to be tried by the c
High Court on merits in accordance with law. No costs.
GYAN SUDHA MISRA, J. 1. Having deliberated over the
. arguments and counter arguments advanced on behalf of the
appellant and the respondent in the light of the ratio of a catena
of decisions as to what would constitute 'material facts' and 0
'material particulars' which could be held to be materially
affecting the result of the election so as to entertain an election
petition challenging the same, as also the reasonings assigned
in the impugned judgment and order of the High Court, I have
not been able to persuade myself to take a view that the E
judgment and order dismissing the election petition of the
appellant is fit to be set aside.
•
2. The petitioner had filed an election petition challenging
the election of the respondent not on the ground of indulgence F
in corrupt practice in any manner but on the plea of breach of
the Conduct of Election Rules, 1961 at the instance of a few
voters and inaction of the Presiding Officer at the polling station
by failing to mark them as invalid votes. It has been alleged by
the petitioner that at least 5 out of 14 vo.tes had been cast by G
such voters who were accompanied by another person to the
voting compartment at the time of actual casting of vote in the
election which was in breach of Rule 39 (5) to 39 (8) of the
Election Rules and hence reception of such votes by including
them at the time of counting of votes ought to be declared as H
498 SUPREME COURT REPORTS [2012] 12 S.C.R.
A illegal. It is for this purpose that he filed an election petition which
has been dismissed on the ground that it failed to declare
material particulars which could be held to have materially
affecting the election result.
B 3. Thus, this matter does not relate to a case where the
respondent returned candidate is alleged to have indulged in
corrupt practice but it is based specifically on the ground of
breach of the Election Rules. But even in cases where the
election petition is filed on the ground of corrupt practice, this
C Court time and again has held that "the electoral process in a
democracy undoubtedly is too sacrosanct to be permitted or
allowed to be polluted by corrupt practice and if the court
records a finding of commission of corrupt practice by a
returned candidate or his election agent or by any other person
with the consent of returned candidate or his election agent, then
D the election of the returned candidate shall be declared to be
void and in that event challenge to such election obviously would
be entertained." But at the same time it cannot be overlooked
as was observed by the Supreme Court in the case of R.P.
Moidutty vs. P. T. Kunju Mohammad & Anr., 2000 (1) SCC
E 481 and a series of authorities too numerous to mention, that
it is basic to the law of election and election petition, that in a
democracy, the mandate of the people expressed in the form
of their ballot, must prevail and be respected by the Court and
that is why the election of a successful candidate is not to be
F set aside lightly since the consequences flowing from the
allegation of corrupt practice or alleged breach of any Rule
affecting the election of a returned candidate is far more serious
and hence the Supreme Court time and again has held that
utmost care and caution are required to be applied while
G dealing with the allegation of indulgence in corrupt practices at
the instance of the defeated candidate as in the process,
misappreciation of evidence and hence error of judgment in
coming to a definite conclusion cannot be ruled out.
4. It is in this backdrop that the preliminary question as to
H
ASHOK v. RAJENDRA BHAUSAHEB MULAK 499
[GYAN SUDHA MISRA, J.]
whether the election petition filed by the respondent is fit to be A
dismissed on the ground of lack of material facts with material
particulars which materially affects the result of the election
assumes great significance and hence are fit to be taken care
of at the stage when the election petitions are entertained. In
this context, it is further apt to remember that this Court in the B
case of Kalyan Kumar Gagoi Vs. Ashutosh Agnihotri, 2011
(1) SCALE 516 has held - "that the election of the returned
candidate should not normally be allowed to be set aside unless
there are cogent and convincing reasons. The success of a
winning candidate at an election cannot be lightly interfered c
with. This is all the more so when the election of a successful
candidate is sought to be set aside for no fault of his but of
someone else". That is why the scheme of Section 100 of the
Representation of People Act, 1961 especially clause {d) of
sub-section (1) thereof clearly prescribes that in spite of the
0
availability of grounds contemplated by sub-clauses {i) to {iv)
of clause (d), the election of a returned candidate cannot be
voided unless and until it is proved that the result of the election
in so far as it concerns a returned candidate is materially
affected. It is no doubt true that such material facts and material
particulars depend upon the facts of each case and no rule of E
universal application can be applied to test the correctness of
the allegation that material facts clearly affect the result of the
election and it is the fact of each case which will be relevant for
determination as to whether the election petition was fit to be
rejected on the plea of lack of material facts and material F
particulars or it was fit to be entertained if the same disclosed
a cause of action for consideration by the court so as to
entertain the election petition. But the language of Section 100
(1) {c) of the Representation of People Act, 1951 is too clear
for any speculation about possibility. G
5. Fortunately, for the respondenVreturned candidate, the
basis of the election petition filed by the appellant in the instant
matter is not on the allegation of indulgence in corrupt practice
but breach of the rule of secrecy of the ballot by the voters and H
500 SUPREME COURT REPORTS [2012] 12 S.C.R.
A inaction on the part of the Presiding Officer to mark them as
invalid votes as the specific allegation is improper reception
and acceptance of at least 5 votes out of the 14 votes which
according to the appellant has materially affected the result of
the election due to which he had filed election petition
B challenging the election of the respondent who has won the
election by a thin margin of 4 votes.
6. Admittedly, the common ground is that there were
mainly two contestants, namely, the appellant -Ashok and the
C respondent Rajendra Bhausaheb Mulak for the election to the
Maharashtra State Legislative Council from Nagpur Local
Authorities Constituency. The result of the election which was
declared on 21.1.2010 admittedly showed that the appellant
Ashok had been polled 198 votes as against 202 votes polled
in favour of the respondent-Rajendra Bhausaheb Mulak. The
D respondent thus has won by a thin margin of 4 votes. The
election petitioner's case as set out in the election petition
admittedly was that the election was materially affected by the
improper reception of votes and as many as 14 votes out of a
total of 400 votes were invalid which were polled in the course
E of the election by voters who were accompanied by another
person to the voting compartment which was a breach of the
election rules to the Representation of People Act, 1951.
Specific averments in regard to such polling of votes is that the
voter namely Mrs. Begam Shehaz Begum Akhtar entered the
F polling station along with another voter Abdul Shakoor Usman
Gani @ Shakoor Nagani who had accompanied her to the
voting compartment in utter breach of the election rules and
hand book of the returning officer issued by the Election
Commission of India under Article 324 of the Constitution of
G India. Similarly, another lady voter Ms. Rashida Khatoon
Mohammed Tahir was alleged to have entered the polling booth
at Kamptee Polling Station accompanied by one Shri Niraj
Yadav, yet another voter at the said election was accompanied
by Shri Niraj Yadav who went to the voting compartment along
H with the ballot paper which had been issued to Ms .. Rashida
ASHOK v. RAJENDRA BHAUSAHEB MULAK 501
[GYAN SUDHA MISRA, J.]
Khatoon Mohammed Tahir. Further, two other voters namely A
Abdul Shakoor and Usman Gani were alleged to have voted
and by showing their ballot to others on the polling booth and
in all 14 votes polled by 14 voters were thus alleged as to have
been polled by the voters in breach of Rule 39(5) to 39(8) of
the Election Rules, 1951 as the Presiding Officer did not cancel B
the said votes although the irregularities were clear and
apparent which happened in front of him. The petitioner/
appellant thus took the categorical plea that "if 5 votes are
treated as cancelled and excluded from consideration then it
can be said with certainty that the petitioner had received c
majority of the valid votes and therefore, petitioner deserved
to be declared as elected. The petitioner thus wanted the Court
to assume that the said disputed votes were cast in favour of
the respondent No.1, without specifically pleading this vital and
material fact. D
7. However, learned counsel for the petitioner conveniently
ignored and overlooked that it is not the case of the petitioner-
appellant that all the 14 votes which were alleged to have been
polled in breach of the Rules were polled in favour of the
respondent. In absence of this vital 'material particular', the plea E
of the petitioner that inclusion of all such votes in which the voter
had been accompanied by another person had materially
affected the result of the election, does not disclose a cause
of action which would lead to the irresistible conclusion that it
has materially affected the result of the election. The petitioner F
however sought to fill in this material lacuna by raising pleas in
this regard at a much later stage.
8. There is yet another important aspect of the matter
regarding breach of the Rules admittedly, neither the petitioner G
nor any of his representative had raised any objection at the
time of polling that the voter was accompanied by another
person while casting his vote or that the secrecy of the votes
were breached. The petitioner has taken this plea in the election
petition for the first time that he had seen such accompaniment H
502 SUPREME COURT REPORTS [2012) 12 S.C.R.
A in the CD which he procured at a later stage after declaration
of the election result completely overlooking that if no such plea
or objection had been raised at the time of actual polling, then
after declaration of the result, breach of such rules viz. Rules
39 (5) to 39 (8) could not have been allowed to be raised
B straightaway by way of an election petition for the first time as
that clearly amounts to absence of ingredients of such breach
and absence of material particulars in regard to the polling,
relying merely on the CD which he claims to have procured later
rendering the entire plea of materially affecting the result of the
c election to be speculative in nature and hence fit to be rejected
outright.
9. It is relevant in this context to refer to Rule 39 of The
Conduct of Election Rules, 1961. Relevant extracts of the said
Rule is quoted hereinbefore for facility of reference.
D
39. Maintenance of secrecy of voting by electors within
polling station and voting procedure. - (1) Every elector
to whom a ballot paper has been issued under rule 38 or
under any other provision of these rules, shall maintain
E secrecy of voting within the polling station and for that
purpose observe the voting procedure hereinafter laid
down.
(2) The elector on receiving the ballot paper shall forthwith
F
(a) proceed to one of the voting compartments;
(b) there make a mark on the ballot paper with the
instrument supplied for the purpose on or near the symbol
G of the candidate for whom he intends to vote;
(c) fold the ballot paper so as to conceal his vote;
(4) No elector shall be allowed to enter a voting
compartment when another elector is inside it.
H
ASHOK v. RAJENDRA BHAUSAHEB MULAK 503
[GYAN SUDHA MISRA, J.]
(5) If an elector to whom a ballot paper has been issued, A
refuses, after warning given by the Presiding Officer, to
observe the procedure.as laid down in sub-rule (2), the
ballot paper issued lo him shall, whether he has recorded
his vote thereon or not, be taken back from him by the
Presiding Officer or a polling officer under the direction of B
the Presiding Officer.
(6) After the ballot paper has been taken back, the
Presiding Officer shall record on its back the words
"Cancelled : voting procedure violated" and put his
signature below those words. C
(7) All the ballot papers on which tile words "Cancelled :
voting procedure violated" are recorded, shall be kept in
a separate cover which shall bear on its face the words
"Ballot papers : voting procedure violated". D
(8) Without prejudice to any other penalty to which an
elector, from whom a ballot paper has been taken back
under sub-rule (5), may be liable, the vote, if any, recorded
on such ballot paper shall not be counted.
E
10. It is clear on perusal of the aforesaid Rules that the
procedure for casting of votes clearly envisages that if the voting
procedure has been violated, an objection should have been
raised by the candidate or his representative as the Presiding
Officer under Rule 6 was required to mark "Cancelled: voting F
procedure violated" and put his signature below those words.
Thereafter, all the ballot papers on which the words "Cancelled:
voting procedure violated" are recorded is required to be kept
in separate cover which shall bear on its face the words "Ballot
papers: voting procedure violated". G
11. In continuation, Rule 8 further lays down that without
prejudice to any other penalty to which an elector, from whom
a ballot paper has been taken back under sub-rule (5), may be
liable, the vote, if any, recorded on such ballot paper shall not H
. .
504 SUPREME COURT REPORTS [2012] 12 S.C.R.
A be counted. Thus, this Rule although does not envisage a
penalty to the voter, it is clearly laid down that such ballot paper
shall not be counted for the purpose of election. An inference
can clearly be drawn from this Rule that the candidate or his
representative is expected to raise objection at the time of
B actual polling regarding violation of Rules 5, 6, 7 and 8 of
Section 39 so that the votes which were alleged to have been
polled in breach of the aforesaid Rules could be cancelled by
the Presiding Officer. The election petitioner admittedly has not
lodged any complaint anywhere regarding the inaction of the
C Presiding Officer by writing on the back of the ballot paper -
"Cancelled : voting procedure violated" and put his signature
below those words. If the Presiding Officer violates to discharge
his duty in this regard obviously it must be construed that a
complaint ought to have been registered somewhere for
cancellation of such ballot papers and if the said action has
D been taken by the petitioner. then it was open for him to
challenge the same by way of an election petition at the
appropriate stage. But the admitted position in the matter is
that the petitioner or his representative or anyone else
connected to the polling had nowhere complained of any such
E violation of the voting procedure and at later stage that he saw
such violation on the CD which he had later procured from the
Collector. But in absence of any complaint by the candidate at
the time of polling, is not capable of establishing as to how
these rules could be alleged to have been violated expecting
F the Presiding Officer to cancel the votes on account of violation
of the procedures and keep them in a separate packet so as
to prevent them from counting. The CD on which the petitioner
was relied to prove violation of Rules 39 (5) to 39 (8) cannot
possibly establish absence of any protest lodged by the
G candidate or his agent regarding violation of the procedure as
the very basis of challenge alleging violation of Rule 39 is
based on allegation but not supported by material particulars
so as to establish violation of Rule 39 of The Election Rules,
1961.
H
ASHOK v. RAJENDRA BHAUSAHEB MULAK 505
[GYAN SUDHA MISRA, J.]
12. It is further to be taken note that there was total non- A
compliance of the provisions of Section 81 (3) of the RP Act,
1951 as the original CD which formed an integral part of the
Election Petition, was not produced along with the Election
Petition and what was produced as Document No.11 was
merely a truncated, doctored and an edited copy thereof. Thus B
in absence of the original CD containing full video recording
of the polling, there. was non-compliance of Section 81 (3)
thereby making the petition liable to be dismissed. In the case
of Mulayam Singh Yadav Vs. Dharampa/ Yadav reported in
(2001) SCC 98 this Hon'ble Court in a similar circumstance c
has held as follows:
"7. The principal question, therefore, that we have to
decide is whether Schedule 14 and the video cassette
therein referred to are an integral part of the Election
Petition and whether the failure to file the Original thereof D
in the court along with the Election Petition attracts Section
81 and therefore, Section 86 (1) of the RP Act, 1951.
"11. Whether or not schedule 14 is an integral part of the
Election Petition does not depend on whether or not the E
draftsman of the Election Petition has so averred. It has
to be decided objectively, taking into account all relevant
facts and circumstances. Schedule 14 is one sof 25
schedules which is, as a matter of fact, part of the bound
Election Petition,. .. Clearly, the video cassette mentioned F
and verified in schedule 14 is as much an integral part of
the Election Petition as the papers and documents
mentioned and verified in the other schedules ... Further,
that the video cassette mentioned and verified in Schedule
14 is a part of the Election Petition and was intended to G
be such is evident from the affidavit of the first respondent
verifying the allegation of corrupt practice made in the
Election Petitioner. Therein, the first respondent has
verified the correctness of what is stated in para 83 of the
election petition, which refers to schedule 14 and which has H
been auoted above and to schedule 14 itself. Yet again,
506 SUPREME COURT REPORTS [2012] 12 S.C.R.
A that the video cassette mentioned and verified in schedule
14 is and was intended to be a part of the Election Petition
is shown by the fact that 15 video cassettes which were
copies of the video cassettes mentioned and verified in
schedule 14 were filed in the High Court along with the
B Election Petition for being served upon the respondents.•
"13. We are, therefore, satisfied that the video cassettes
mentioned and verified in schedule 14 is an integral part
of the Election Petition and that it should have been filed
in Court along with copies thereof for service upon the
c respondents to the Election Petition. Whereas 15 copies
thereof were filed for serving upon the respondents, the
video cassette itself was not filed. The Election Petition as
filed was, therefore, not complete."
D 13. It is further to be noted that in order to make out a
cause of action for challenging the election under Section 100
(1) (d) (iii) (iv) all the material facts have to be pleaded which
are necessary to show that the election of the returned
candidate was 'materially affected' by the improper reception
E of votes or improper reception of any vote which is void or by
non-compliance of the provisions of the Constitution or of the
Act or of the rules or orders made under the Act. In the present
case, petitioner's only allegation is that certain votes were
improperly accepted because of non-observance of the election
F rules. According to the petitioner, these disputed votes which
are more than the margin of votes between the returned
candidate and the petitioner are required to be excluded from
being considered as valid votes. If these disputed votes, are
treated as cancelled and excluded from consideration then
G according to the petitioner he receives majority of the valid
votes and deserves to be declared as elected. These
allegations, as has been rightly held by the High Court, are not
sufficient to demonstrate as to how the result of the election in
so far it concerned the returned candidate is 'materially
H affected'. The High Court, in my opinion, has rightly held that
ASHOK v. RAJENDRA BHAUSAHEB MULAK 507
[GYAN SUDHA MISRA, J.]
The Election Petitioners only point out a possibility of the result A
of election being different if 14 or 5 votes can be excluded. It
is not their case that the said votes when displayed revealed
that they were in favour of Rajendra and not in favour of Ashok.
The petitioners have not pointed out the beneficiary of those
14 or 5 votes. It is not their plea that all those voters cast their B
vote in favour of returned candidate or did not cast in favour of
defeated candidate. There is no plea about their political
affinities either to associate or disassociate with any political
party. The said votes now cannot be traced out or segregated.
Hence when 'displayed' what was seen and the vote was cast c
in whose favour ought to have been pleaded which is missing.
Thus, link between the victory and lacunae/omissions is pre-
requisites to formation of this opinion. A triable issue cannot
be said to arise till then as no cause of action surfaces.
14. In absence of any allegation that the disputed votes D
were cast in favour of the returned candidate, the petitioner
failed to make out a case that the election was 'materially
affected' merely on the ground of alleged improper acceptance
of the said votes. The material fact which ought to have been
pleaded in the Election Petition was not only that the disputed E .
votes ought not to have been accepted, but those votes were
cast in favour of respondent No.1 and if they were not so
accepted, then the result of the election would be materially
affected. These facts become material in the present case
especially because the petitioner had not alleged any corrupt F
practice against the respondent No.1 and the petitioner himself
had come up with a case that the ballot papers were displayed
to those present in the room were the ballot box had been kept.
Pleading these material facts for the first time at the stage in
the SLP is impermissible and cannot be taken cognizance of. G
Thus, the contention of the respondent that the material facts
so as to make out a cause of action have not been pleaded
stands vindicated.
15. The present SLP is devoid of merits and substance
also in view of the recent judgment of Ka/yan Kumar Gagoi Vs. H
508 SUPREME COURT REPORTS [2012) 12 S.C.R.
A Ashutosh Agnihotri reported in 2011 (1) SCALE 516 wherein
it was held as follows:
"14. It may be mentioned here that in this case non-
compliance to the provisions of Representation of People
Act, 1951 and the Election Rules of 1961 was by the
B
officers, who were in charge of the conduct of the election
and not by the elected candidate. It is true that if clause
(iv) is read in isolation, then one may be tempted to come
to the conclusion that any non-compliance with the
provisions of the Constitution or of the Act of 1951 or any
c Rules of 1961, Rules or Orders made under the Act would
render the election of the returned candidate void. But one
cannot forget the important fact that clause (d) begins with
a rider, namely, that the result of the election in so far it
concerns a returned candidate must have been materially
D affected. This means that if it is not proved to the
satisfaction of the court that the result of the election in so
far as it concerned a returned candidate has been
materially affected, the election of the returned candidate
would not be liable to be declared void notwithstanding
E non-compliance with the provisions of the Constitution or
of any Rules of 1961, Rules or Orders made thereunder..
It is well to remember that this Court has laid down in
several reported decisions that the election of the returned
candidate should not normally be set aside unless there
F are cogent and convincing reasons. The success of a
winning candidate at an election cannot be lightly
interfered with. This is all the more so when the election
of a successful candidate is sought to be set aside for no
fault of his but of someone else. That is why the scheme
G of Section 100 of the Act especially clause (d) of sub-
section (1) thereof clearly prescribes that in spite of the
availability of grounds contemplated by sub-clauses (i) to
(iv) of clause (d), the election of a returned candidate
cannot be voided unless and until it is proved that the result
H
ASHOK v. RAJENDRA BHAUSAHEB MULAK 509
[GYAN SUDHA MISRA, J.]
of the election in so far as it concerns a returned candidate A
is materially affected."
16. It is further worthwhile to take note of the legal position
reflected in the decision of the Court in the matter of Vashisht
Narain Sharma Vs. Dev Chandra and Others, AIR 1954 S.C. B
513 wherein this Court observed as follows:
"It is not permissible in law to avoid the election of the
returned candidate on speculation or conjectures relating
to the manner in which the wasted votes would have been
distributed amongst the remaining validly nominated C
candidates .................. In the absence of positive proof
of material effect on the result of the election of the returned
candidate, the election must be allowed to stand and the
Court should not interfere with the election on speculation
and conjectures." D
When the case of the petitioner/appellant is examined on the
anvil of the aforesaid position and on the prevailing facts, it is
apparent that the petitioner/appellant is indulging in a process
which amounts to speculation and conjecture in absence of E
material particulars; for instance, if it were the specific plea of
· the petitioner that all 14 votes or at least 4 votes which were
cast in which the voters were alleged to have been
accompanied by another person were in fact polled in favour
of the respondent so as to influence the election result, the plea
of the petitioner could be held as amounting to materially
F
affecting the election result. But in absence of this candid
relevant and factual detail, the election petition obviously is
based only on such averment, which will have to be held
speculative and conjectural in nature and can hardly be held to
be disclosing 'material facts with material particulars' so as to G
conclude that it materially affected the result of the election.
Even assuming that the election petition were to be allowed in
spite of absence of such material particulars, the net result
would be the recounting of the votes by declaring 14 votes as
invalid which were alleged to have been polled in breach. of the H
510 SUPREME COURT REPORTS (2012] 12 S.C.R.
A election rules but could hardly be identified or deciphered. To
clarify it further, it may be stated that even if the election petition
were to be allowed by declaring the 14 votes as invalid, it is
inconceivable as to how those 14 votes which were alleged to
have been polled by those voters who had been accompanied
B by another person could be identified so as to hold that the
alleged invalid votes materially affected the result of the
election.
17. What is sought to be emphasized is that in the absence
C of any identification mark of those votes which are alleged to
have been polled by voters accompanied by another person
and is alleged to be in breach of the Rules cannot possibly be
identified so as to treat them as invalid votes and if that is so,
the election petition is clearly based on vague material and
hence would be unjust to allow the election to be questioned
D by entertaining the election petition where the losing candidate/
the petitioner had himself not alleged any corrupt practice in
holding the election but merely a breach of the election rule in
regard to which he had not complained at all at the time of
election or even thereafter but straightway filed the election
E petition challenging the election on the basis of an alleged CD
after the election result was declared. Thus, the entertainment
of an election petition on such speculative material can hardly
be held to be disclosing material facts with material particular
which would justify the challenge to an election by entertaining
F an election petition as the same does not spell out material
particulars which would affect the election result.
18. It is well settled legal position that no evidence can be
led on a matter unless there is a pleading thereon. Therefore,
G unless it was pleaded that the invalid votes were cast in favour
of the returned candidate, no evidence can be led to that effect.
In a petition seeking to challenge an election on the ground
stated in Section 100 (1) (d) (iii) and (iv), it was imperative for
the petitioner to plead the most crucial and vitally material fact
that the invalid votes were cast in favour of the returned
H
ASHOK v. RAJENDRA BHAUSAHEB MULAK 511
[GYAN SUDHA MISRA, J.]
candidate because then alone could it be pleaded and proved A
that "the result of the election, in so far as it concerns a returned
candidate, has been materially affected" within the meaning of
Section 100 (1) (d). The words "in so far as it concerns a
returned candidate" and "has been materially affected" read with
clauses (iii) and (iv) clearly show the legislative intent to place B
the burden of pleading and proving that the improper reception
of votes or violation of law in regard to casting of votes benefited
the returned candidate and materially affected his election as
a returned candidate. It is not enough to show mere improper
reception of votes or reception of votes or non-compliance with c
law. In addition it has to be pleaded and proved that this
materially affected the election in so far as it concerns the
returned candidate. The language of Section 100 (1) (d) (iii)
and (iv) itself clearly indicates the requirement of pleading the
vitally material fact that the votes were improperly or unlawfully
0
cast in favour of the returned candidate. In the present case,
lack of pleading that the votes were cast in favour of the
respondent leads to absence of cause of action for the petition
for invalidating the election under Section 100 (1) (d) (iii) and
(iv).
E
19. Thus, merely because the margin of difference between
the winner and the loser was four votes and five votes were
disputed by the petitioner would not give rise to any valid cause
of action. The petitioner's contention in this regard is
unsustainable in law. Thus, the ratio of the judgment in the case F
of Mayar (HK) Ltd Vs. Owners & Parties, (2006) 3 SCC 100
is of no assistance to the petitioner as it is settled legal position
that merely because the wasted votes or accepted or rejected
votes are more than the margin, it cannot be said that the
election has been materially affected. G
20. Since the petitioner had failed to plead material facts
as contemplated under Section 83 (1) (a) of the RP Act, which .
alone could give cause of action for claiming that the election
of the respondent was materially affected within the meaning H
512 SUPREME COURT REPORTS (2012] 12 S.C.R.
A of Section 100 (1) (d) (iii) and (iv), the petition was rightly
dismissed. In the matter of T.H. Musthaffa Vs. M.P. Varghese
(Supra), this Court relying upon the ratio of this Court in Jabar
Singh Vs. Genda Lal, (1964) SCR 54, it was held that the
scope of the enquiry in a case under Section 100 (1) (d) (iii) is
B to determine whether any votes had been improperly cast in
favour of the returned candidate or any votes had been
improperly refused or rejected in regard to any other candidate.
These are the only two matters which would be relevant for
deciding whether the election of a returned candidate had been
c materially affected or not. But, in view of the facts of this case
where the petitioner has failed to disclose as to whether the
alleged improper reception of 14 or 5 votes were cast in favour
of which candidate, it is clear that the election petition failed to
disclose material particulars in this regard so as to give rise
to a cause of action apart from the fact that no objection was
0
. raised at the time of actual polling.
21. I thus find substance in the view taken by the High Court
in the impugned judgment, that the election petitioner herein has
only pointed out a possibility of result of election being different
E if 14 or 5 votes were to be excluded from counting. The High
Court appears to be correct in my view while stating that the
case of the petitioner is not that the said votes reveal that they
were in favour of respondent - Rajendra or not in favour of
petitioner - As.hok. But the objection is only that those votes
F ought not to have been taken into consideration while counting
the votes. As already stated in absence of identification of those
votes which are alleged to have been cast by the voters in the
company of another person, it would be difficult to identify them
so as to infer as to which are the votes which ought not to have
G been reckoned for counting by declaring them invalid. In that
event even if the petitioner's election petition were to be
allowed, the entire trial would result into an exercise in futility
leading the controversy nowhere. It is in view of this inevitable
consequence that I hold that the election petition filed by the
H petitioner indicates absence of 'material particulars' which
ASHOK v. RAJENDRA BHAUSAHEB MULAK 513
materially affected the result of the election so as to entertain A
a challenge to the same. To contend that the alleged breach of
secrecy would render the entire election result as void so as to
order for a repoll in spite of absence of any objection by the
defeated candidates or his representative in this regard at the
time of polling would be an outrageous contention in my view B
which is fit to rejected outright. Fortunately, this is not even the
contention of the petitioner and rightly so, as he has confined
his challenge only to the extent of challenging the validity of 5
or 14 votes alleging breach of secrecy, which materially
affected the election result. This contention is extremely fragile c
and hence has no force for the reasoning recorded
hereinbefore.
22. I am, therefore, conclusively of the view that the
impugned judgment and order of the High Court is not required
to be interfered with and the election petition was rightly held D
to be fit for rejection for want of material facts and material
particulars which could materially affect the result of the election.
ORDER
E
In view of conflicting views expressed by ui;, we refer this
matter to a three Judge Bench for resolving the conflict. The
Registry shall place the record before Hon'ble the Chief Justice
of India for constituting an appopriate Bench:
B.B.B. Matter referred to Larger Bench.
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