Disposed

Gajendrasinh Udesinh Parmar v. Mahendrasinh Kacharsinh Baraiya

Gujarat HC8 Feb 2019EA/26/2018

Case brief

AI extract

What is this about?

An election petition alleged that restrictions on VVPAT verification materially affected the election result. The court rejected the returned candidate’s application for threshold dismissal, holding that the petition disclosed a cause of action and was not barred by law. It allowed deletion of the election authorities.

What did the court decide?

Election Application No. 27 of 2018 allowed; original respondents Nos. 1 and 2 deleted, with amendment of the election petition’s cause title directed.

Gajendrasinh Udesinh Parmar Vs Mahendrasinh Kacharsinh Baraiya — Election Law | Gujarat HC (2019)

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C/EA/26/2018 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/ELECTION APPLICATION NO. 26 of 2018 With

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R/ELECTION APPLICATION NO. 27 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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GAJENDRASINH UDESINH PARMAR

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Versus

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MAHENDRASINH KACHARSINH BARAIYA

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Appearance:

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MR CB UPADHYAY, ADVOCATE WITH MR. RAHUL R DHOLAKIA(6765) for the PETITIONER(s) No. 1

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for the RESPONDENT(s) No. 4,5,6,7,8,9 MR ASHISH H SHAH(2142) for the RESPONDENT(s) No. 10 MR. SAHIL M SHAH(6318) for the RESPONDENT(s) No. 2,3 MR RAHUL SHARMA(8276) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 08/02/2019

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CAV JUDGMENT

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The applicant of Election Application No. 26 of 2018

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(hereinafter referred to as ‘the applicant’) is the original respondent no. 3 whose election to the 33 Prantij Legislative Assembly Constituency is under challenge in the election petition. This application has been filed by the elected candidate – original respondent no. 3 invoking the provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short ‘the Code’). According to the applicant, the election petition being Election Petition No. 12 of 2018 filed by present respondent no. 1 ought to be dismissed as (i) it does not disclose any cause of action and (ii) is barred by law.

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It is the case of the elected candidate that the petition filed by the election petitioner does not comply with the mandatory provisions of The Representation of the People Act, 1951 (hereinafter referred to as ‘the Act’) more particularly Chapter III of the Act. According to the applicant, the application is clearly barred under the provisions of Order 7 Rule 11 (a) and (d) of the Code.

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In order to decide the controversy at hand, the case of the election petitioner who has filed such petition under Sections 80 and 81 read with Section 100 of the Act need to be set out. The prayer in the election petition reads as under :

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“A. Declare para 5 of the Press Note, bearing No. ECI/PN/80/2017, dated 25.10.2017, issued by the Election Commission of India (Respondent No. 2), providing for the verification of votes of only one EVM with the VVPAT per constituency, as void ab initio and non est in the eyes of law;

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B. Declare the Press Note, bearing No. ECI/PN/90/2017, dated 08.12.2017, issued by the Election Commission of India (Respondent No. 2),

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providing for the verification of votes of only one EVM with the VVPAT per constituency, as void ab initio and non est in the eyes of law;

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C. Set aside the election of Respondent No. 3 (three) to the Gujarat Legislative Assembly at the elections held in December, 2017, results of which were declared on 18.12.2017 (Eighteenth December Two Thousand Seventeen);

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D. Allow the petitioner to apply to Respondent No. 1 for counting of votes polled through Voter Verifiable Paper Audit Trail (VVPAT) for all or any EVM as per Rule 56D of the Conduct of Election Rules, 1961, and further direct Respondent No. 1 to take further action on the application as per Rule 56D of the Conduct of Elections Rules, 1961, including the declaration of the returning candidate by considering the votes counted through the VVPATs;

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It is the case of the election petitioner that he is aggrieved by the procedure adopted for counting of votes which is in contravention of The Conduct of Election Rules, 1961 as amended by the Conduct of Election (Amendment) Rules, 2013. He has prayed for appropriate directions to the respondent no. 1 i.e. Election Officer/Returning Officer, 33 Prantij Legislative Assembly Constituency. It is the case of the petitioner that the Election Commissioner of India by a press note dated 25.10.2017 notified elections to the Gujarat Legislative Assembly. In the press note dated 25.10.2017, para 5 states as under:

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“... On a pilot basis, VVPAT from One (1) Polling Station in each Assembly Constituency will be randomly selected to count VVPAT paper slips for verification of the result obtained from the Control Unit. Thus paper slip for 182 polling stations will be counted in Gujarat. ...”

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4.1 Even the press note dated 08.12.2017 stated as under:

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“For the ensuing elections in Gujarat and Himachal Pradesh, the Commission has decided to undertake a mandatory verification of VVPAT paper slips of randomly selected 01 (one) polling station per Assembly Constituency on a pilot basis for greater transparency and credibility of the election process. Hence, a mandatory verification of at least 182 polling stations in Gujarat and 68 polling stations in Himachal Pradesh through the recount of VVPATs paper slips would be done during the Counting Process in these states.”

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4.2 It is the case of the petitioner that pursuant to a decision of the Supreme Court in the case of Subramaniam Swamy vs. Election Commission of India reported in (2013) 10 SCC 500 , Voter Verifiable Paper Audit Trail (VVPATs) were introduced for the conduct of elections. The conduct of election rules were amended in the year 2013 introducing Rule 56D which reads as under:

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“56D. Scrutiny of paper trail. - (1) Where printer for paper trail is used, after the entries made in the result sheet are announced, any candidate, or in his absence, his election agent or any of his counting agents may apply in writing to the returning officer to count the printed paper slips in the drop box of the printer in respect of any polling station or polling stations.”

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4.3 In the 33 Prantij Legislative Assembly Constituency, there are 296 booths employing EVMs. VVPATs were installed in all 296 booths along with 296 EVMs. Nomination papers of 9 candidates were accepted by respondent no. 1 for contesting the elections. It is the case of the petitioner in the

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election petition that by a press note dated 18.12.2017, the Returning Officer informed the candidates and their agents, in the presence of booth observers that only one booth, randomly selected would be taken up for verification of votes counted by EVMs with VVPAT paper slips. It was made clear that no other EVM would be taken up for verification. The petitioner therefore averred that in view of such a restriction encountered, the petitioner nor his counting agents made any representation for counting of votes of other booths with VVPATs.

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4.4 The present applicant is original respondent no. 3 belonging to the Bharatiya Janata Party who was declared elected by a margin of 2551 votes over the election petitioner. It is the case of the petitioner that the EVMs being electronic machines are susceptible to malfunctioning. That he is not alleging any corrupt practice in conduct of elections but alleges violation of Section 100(1)(d)(iv) of the Act inasmuch as it has materially effected the counting process leading to the result of the elections.

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4.5 According to the petitioner, Rule 56D of the amended Rules of 2013 conferred a right on the candidate, or in his absence to his election or counting agent to make an application to the Returning Officer for counting of votes through VVPAT. Such rights therefore cannot be taken away by the Election Commission or curtailed by passing executive instructions, restricting counting of VVPATs only from one polling station on a pilot basis. The noble objective of the VVPAT has been taken away by the “impugned press note”. It is in context of these facts that the prayers have been made in

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the election petition which have been reproduced hereinabove.

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Mr. C.B. Upadhyay, learned advocate has appeared with Mr. Rahul Dholakia, learned advocate on behalf of the applicant – elected candidate and has made the following submissions in support of his application under Order 7 Rule 11 of the Code:

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(I) That it is an undisputed fact that in accordance with Section 87 of the Act, the provisions of the Code are applicable to election petitions. He has invited my attention to the prayers made out by the election petitioner at page 14 of the main petition. Inviting my attention to the provisions of Sections 81, 100 and 101 of the Act, he submitted that merely because election petition has been filed invoking the provisions of Section 100(d)(iv) of the Act, the election petition itself would not lie. Not a single averment has been made to suggest that the result of the election in so far as it concerns the present election has been materially affected.

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(II) Inviting my attention to the grounds in the election petition, he submitted that the petitioner has specifically averred that he has not alleged any corrupt practice. What he has simply averred is that his right to make an application to the Returning Officer for counting of votes through VVPAT, which accrues under Rule 56D of the Amended Rules 2013, has been violated by the press notes which he seeks to impugn by way of such an election petition. In absence of any evidence, merely a

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bald averment made, could not give the election petitioner a right to file a petition under the Act.

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(III) Mr. Upadhyay invited my attention to Sections 81 and 86 of the Act and submitted that such reliefs which are beyond the provisions of Section 84 cannot be entertained in an election petition. An election petition, which does not comply with the provisions of Section 81 of the Act must be dismissed in limine.

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(IV) Reading of the averments made in paragraphs no. 3.4 to 3.6 of the petition would suggest that such averments would form or can form part of claiming the relief under Article 226 of the Constitution for a writ of mandamus and no election petition needs to be filed for such reliefs.

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(V) According to Mr. Upadhyay, by including the respondents no. 1 and 2 as respondents in the election petition, Section 82 of the Act has been violated which also makes the petition liable to be dismissed.

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(VI) Inviting my attention to Article 324 of the Constitution of India, Mr. Upadhyay submitted that the notifications/press notes dated 25.10.2017 and 08.12.2017 have been issued by the Election Commission of India. Such instructions are issued by the Election Commission of India in exercise of supervisory powers under Article 324 of the Constitution of India. They are directory and not mandatory instructions in nature. Such instructions have been

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issued to ensure transparency of the elections. In absence of any application made by the aggrieved petitioner under Rule 56A of the Conduct of Election Rules, admittedly, the petitioner cannot file a petition under the provisions of the Act.

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(VII) Mr. Upadhyay has invited my attention to the decision of the Division Bench of this Court rendered in Special Civil Application No. 22074 of 2017 where the petitioner had filed a petition for a direction to the Election Commission of India to make it mandatory to count all VVPAT slips in the on-going assembly elections. The petitioner there had sought such a relief because it was his concern that there was a distinct possibility of tampering of recording of votes in the EVMs. After considering the submissions made by the petitioner and the counsel for the Election Commission of India and referring to the detailed guidelines of the Commission dated 13.10.2017, the Court observed that the entire procedure was in addition to the powers of the Returning Officer under Rule 56D under which the Returning Officer has powers to accept the request of a candidate for counting of paper slips in as many polling stations as the case for such counting is made out. It is an admitted fact from the averments made in this petition that the election petitioner did not make any application and therefore in absence of making out such a case satisfying the Returning Officer it is not open for the applicant now to challenge such press notifications on the ground that the Returning Officer did not inform him of such a Rule. Mr. Upadhyay therefore invited my

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attention to the final directions which the Division Bench gave out:

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“15. In view of the above discussion no direction as prayed for by the petitioner can be granted. Before closing we may observe that there is nothing on record to suggest that the decision of Election Commission of India to go for mandatory counting of paper slips in one polling station in every constituency in any manner, limits or restricts the discretionary powers of the Election Commission of India to enlarge the scope of such manual counting. We are sure and we hope that such a situation does not arise but in the unlikely scenario of discrepancies being reported in number of polling stations which have been subjected to such manual counting it is always open for and the Election Commission will consider manual counting in larger number of polling stations as may be advised.

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With these observations the petition stands disposed of.”

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Summarizing the submissions, Mr. Upadhyay submitted that on all these counts the elected candidate’s application under Order 7 Rule 11(a) and (d) of the Code must be allowed.

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As against the above, Mr. Rahul Sharma, learned advocate for the election petitioner submitted that Rule 56D if read and as also so approved by the Division Bench in the judgement relied upon by Mr. Upadhyay gives a right to the candidate for a recount. Averments have been made in the petition showing the distinct possibility of tampering of recording of votes in the EVM and averring that the petitioner was prevented from making an application for counting of

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votes.

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4.1 Mr. Sharma submitted that if paragraph no. 2.8 of the election petition is read, it is categorically averred that during the briefing on the counting, the Returning Officer informed all the candidates that only one booth randomly selected would be taken up for verification of votes. In view of such a restriction neither he nor his counting agents could make any representation for the counting of votes of other booths with VVPAT. Once having been prevented from making such an application, the election petition must be put to trial to justify such an averment.

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4.2 Mr. Sharma invited my attention to page 118 of the paper book to suggest that it was the intention of the Commission to make it mandatory for VVPATs at all polling stations and therefore the press note was contrary to such a mandate. Inviting my attention to Section 100 of the Act, Mr. Sharma submitted that once the provisions of Section 100(1) (d)(iv) of the Act have been satisfied, there need not be an averment showing how the elections have been materially affected. Whether such elections have been materially affected is within the domain of the High Court by forming an opinion and such opinion can only be formed after the completion of trial and after the evidence has been led for and against the issue. He submitted that the application therefore of the elected candidate under the provisions of Order 7 Rule 11 of the Code must be rejected. In this connection, he has relied on the decision of the Apex court in the case of Harkirat Singh vs. Amrinder Singh reported in (2005) 13 SCC 511, paragraph no. 82 .

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4.3 As far as the objection of the application to the provisions of Section 82 of the Act is concerned, Mr. Sharma conceded that he is willing to have the Election Commission of India deleted and in fact the fact that the Election Commission of India has made such an application for deletion to which he has no objection would render the applicant’s objection meaningless. In this regard, he has relied on the decision in the case of B.S. Yadiyurappa vs. Mahalingappa and Others reported in (2002) 1 SCC 301, paragraph no. 8. There are sufficient pleadings in the memo of the petition and merely because there is non-compliance of the provisions of Sections 83, 84 and 86 of the Act, it is not necessary that the election petition be rejected by allowing the application under Order 7 Rule 11 of the Code.

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4.3 That the Division Bench in the judgement relied upon by the applicant does not answer the prayer that the petitioner should have been allowed to make an application to the Returning Officer for counting of votes from all VVPATs. That the fact that there has been non-compliance of Rule 56D would suggest that the petitioner has a cause of action to file the election petition. With regard to objection under Article 324 of the Constitution of India, Mr. Sharma submitted that the exercise of such powers cannot be in non-compliance with or in derogation of rules formed by the Central Government. He sought to rely on the provisions of Articles 327 and 328 of the Constitution of India which provide that the general powers of superintendence directions and control of the Election Commission are subject to any law made either under Article 327 or 328 of the Constitution of India. In support of

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his submission, Mr. Sharma relied on a decision of the Apex Court in the case of Kanhiya Lal Omar vs. R.K. Trivedi and Others reported in (1985) 4 SCC 628, paragraphs no. 3 & 9 .

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In rejoinder to the submissions of Mr. Sharma, Mr. Upadhyaya reiterated his submissions made earlier. He submitted that merely because the provisions of the rule have been flouted or merely because according to the petitioner restrictions have been placed on the operation of such a rule by a press note, in the petitioner’s perspective, at best if it is a violation of such right it would not ipso facto be non compliance of the provisions of Section 100(1)(d)(iv) of the Act. It was not incumbent on the Election Commission to issue such notification. In support of his submission he has relied on the decision of the Apex Court in the case of Election Commission of India vs. Ashok Kumar reported in (2000) 8 SCC 216 . There is no averment in the petition according to Mr. Upadhyaya which would suggest that the result of the election has been materially affected and therefore the application of the applicant under Order 7 Rule 11 of the Code clearly makes out a case that the election petition does not disclose a cause of action and is also barred by law, which therefore deserves to be dismissed.

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The short question that needs to be decided in this application filed under Order 7 Rule 11(a) and (d) of the Code of Civil Procedure, 1908 is, whether the Election Petition should be thrown out at the threshold by accepting the application.

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Before I go into the facts of the Election Petition, it would be in the fitness of things to quote the relevant and important Sections of the Representation Of the People Act,1951 namely Sections 81, 83, 86 and 100 of the Act.

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81. Presentation of petitions.—

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(1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1)] of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates].

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Explanation.—In this sub-section, “elector” means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.

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[***]

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[(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition [***] and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.]

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83. Contents of petition.—

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(1) An election petition—

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(a) shall contain a concise statement of the material facts on which the petitioner relies;

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(b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and

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verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: 2[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.]

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86. Trial of election petitions.—

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(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117. Explanation.—An order of the High Court dismissing an election petition under this subsection shall be deemed to be an order made under clause (a) of section 98.

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(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A.

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(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.

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(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent. Explanation.—For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.

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(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the

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particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.

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(6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.

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(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.

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100. Grounds for declaring election to be void.

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[(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion—

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(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [***] [or the Government of Union Territories Act, 1963 (20 of 1963)]; or

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(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

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(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected—

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(i) by the improper acceptance or any nomination, or

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(ii) by any corrupt practice committed in the interests of the returned candidate [by an agent other than his election

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agent], or

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(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

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(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void.]

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[(2)] If in the opinion of [the High Court], a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice [***] but [the High Court] is satisfied—

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(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and [without the consent], of the candidate or his election agent; [***]

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(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt [***] practices at the election; and

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(d) that in all other respects the election was free from any corrupt [***] practice on the part of the candidate or any of his agents, then [the High Court] may decide that the election of the returned candidate is not void.

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6.1 Section 81 provides that the election petition calling in question the election may be presented on one or more grounds specified in (sub-section) (1) of Section 100 and 101. Section 100 provides various grounds on which an election can be declared as void. One of the grounds and the one which is raised in the present subject Election Petition is that the result of the election insofar as it concerns the returned candidate, has been materially affected by non-compliance of the provisions of the Constitution or of this Act or any rules or

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orders made under this Act. As per Section 83(1)(a) of the Act, an election petition shall contain a concise statement of the material facts on which the petitioner relies. At the outset it is made clear in the Petition itself that the Election Petitioner is not challenging the Election on the ground of any corrupt practice. Therefore, what is required to be stated, in compliance of Section 83 of the Act is concise statement of the material facts. Setting out of full particulars as so required under clause (b) of sub-section(1) of Section 83 is not necessary.

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6.2 Keeping the aforesaid legal pre-requisites, the case of the election petitioner, looking to the petition and the pleadings needs to be appreciated.

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Relevant paras of the Election Petition setting out pleadings are as under:

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2.1 The petitioner submits that Respondent No. 2 vide its Press Note No. ECI/PN/80/2017, dated 25.10.2017 (Twenty-fifth October Two Thousand Seventeen), notified the elections to the Gujarat Legislative Assembly. Polling was to be held in two phases – on 09.12.2017 (Ninth December Two Thousand Seventeen) and on 14.12.2017 (Fourteenth December Two Thousand Seventeen). Counting of votes was to take place on 18.12.2017 (Eighteenth December Two Thousand Seventeen). In para 5 of the aforesaid Press Note, it was mentioned that

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182 polling stations will be counted in Gujarat. ...”

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A copy of the Press Note No. ECI/PN/80/2017, dated 25.10.2017 issued by Respondent No. 1 is annexed to this petition and marked herewith as ANNEXURE ‘P1’

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2.2 Subsequently, Respondent No. 2, through a Press Note No. ECI/PN/90/2017, dated 08.12.2017 (Eighth December Two Thousand Seventeen), declared that, on a pilot basis, it will take up the mandatory counting of votes through VVPAT for one EVM per constituency. Relevant extract from the aforesaid Press Note reads as follows :

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“For the ensuing elections in Gujarat and Himachal Pradesh, the Commission has decided to undertake a mandatory verification of VVPAT paper slips of randomly selected 01 (one) polling station per Assembly Constituency on a pilot basis for greater transparency and credibility of the lection process. Hence, a mandatory verification of at least 182 polling stations in Gujarat and 68 polling stations in Himachal Pradesh through the recount of VVPATs paper slips would be done during the Counting Process in these States.”

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A copy of the Press Note No. ECI/PN/90/2017, dated 08.12.2017 issued by Respondent No. 1 is annexed to this petition and marked herewith as ANNEXURE ‘P2’.

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2.5 The petitioner submits that the Government of India, after consultation with the Respondent No. 2, vide the Conduct of Elections (Amendment) Rules, 2013 (hereinafter referred to as the “2013 amendment”), had amended the Conduct of Election Rules, 1961, and had provided for the counting of votes through Voter Verifiable Paper Audit Trail (VVPAT) to cross-check with the normal counting of votes with the help of Electronic Voting Machines (EVM). No restriction was placed by

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Rule 56D of the 2013 amendment, regarding the number of EVMs to be cross-verified through VVPAT. The petitioner craves leave to rely upon this 2013 amendment at the time of hearings.

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2.7 In 33-Prantij Legislative Assembly constituency, there were altogether 296 (Two Hundred Ninety-Six) booths employing 296 (Two Hundred Ninety-Six) EVMs. VVPATs were installed in all the 296 ( Two Hundred Ninety-Six) booths along with the 296 ( Two Hundred Ninety-Six) EVMs. Respondent No. 1 was the Returning Officer for the aforesaid constituency. Altogether the nomination papers of 09 (Nine) candidates were accepted by Respondent No. 1 for contesting the elections from the aforesaid constituency.

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2.8 The petitioner submits that on 18.12.2017, during the briefing on the counting, Respondent No. 1 informed all candidates and their agents, in the presence of observers representing Respondent No. 2, that only one booth, randomly selected, would be taken up for verification of votes counted by EVMs with VVPAT paper slips. It was made clear that no other EVM would be taken up for verification. The petitioner submits that in view of such a restriction having been put by Respondent No.1 and Respondent No. 2, neither he nor his counting agents made any representation for the counting of votes of other booths with VVPAT.

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2.9 The petitioner submits that results of the election to the 33-Prantij Legislative Assembly Constituency were declared on 18.12.2017 (Eighteenth December Two Thousand Seventeen) and Respondent No. 3 herein, belonging to the Bharatiya Janata Party, was declared elected by a margin of 2,551 (Two Five Hundred Fifty-One) votes over the petitioner, who was the candidate with the second largest of the number of votes.

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GROUNDS

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3.1 The petitioner is not alleging any corrupt practice in the conduct of elections in this petition. However, he is alleging violation of Section 100(1)

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(d)(iv) of the Representation of Peoples Act, 1951, which has materially affected counting process leading to the result of the elections to the 33 -Prantij Legislative Assembly Constituency in Gujarat.

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3.2 The Government of India, in exercise of powers conferred by Section 169 of the Representation of the People Act, 1951, and after consulting the Election Commission (the Respondent No. 2 herein) made the 2013 amendment. By virtue of this amendment, Rule 56D was inserted after Rule 56C in the Conduct of Election Rules, 1961. Rule 56D(1) reads as follows:

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Thus, it is clear from the above, that a right has been conferred on the candidate, or in his absence, to his election or counting agent to make an application to the Returning Officer for a count of the votes through VVPAT.

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3.4 It is well settled that the general powers of superintendence, direction and control of the elections vested in the Election Commission under Article 324(1), naturally, are subject to any law made either under Article 327 or under Article 328 of the Constitution. Thus, when the Government of India has amended the Conduct of election Rules, 1961, by introducing Rule 56D, which confer certain rights to the candidate or his election agent, such rights cannot be taken away the the Election Commission by passing executive instructions.

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3.5 It is well settled that if there is a statutory

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rule or an act on a particular matter, the executive must abide by that act or rule and it cannot in exercise of its executive power under Article 162 of the Constitution ignore or act contrary to that rule or act. Thus, when there is a specific provision under the 2013 amendment providing right to the candidates to seek counting of votes through VVPAT, such right cannot be curtailed by the Respondents.

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3.6 Even otherwise, if one considers the history of the development of the VVPAT in India, it would be appreciated that the basic idea of introducing VVPAT was primarily two-fold. One, to restore public confidence in the electoral process and two, to recognise the right of a voter to know and be reassured that the candidate he had voted for has received his vote. Such noble objectives of the VVPAT have been taken away by the impugned Press Notes.

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3.7 The petitioner submits that the log of the Control Unit can throw critical information on the time or times at which the EVM was operated. Such information may be critical to analyze the data offered by the EVMs on the number of votes polled. The log of the EVMs would help verify whether the EVMs had functioned properly or not during polls.

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9 C. Set aside the Election of Respondent No. 3 (three) to the Gujarat Legislative Assembly at the elections held in December, 2017, results of which were declared on 18.12.2017 (Eighteenth December Two Thousand Seventeen);

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D. Allow the petitioner to apply to Respondent No. 1 for counting of votes polled through Voter Verifiable Paper Audit Trail (VVPAT) for all or any EVM as per Rule 56D of the Conduct of Election Rules, 1961, and further direct Respondent No. 1 to take further action on the application as per Rule 56D of the Conduct of Election Rules, 1961, including the declaration of the returning candidate by considering the votes counted through the VVPATs.

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What in essence, is the case of the election petitioner that begs the answer. The election petitioner has founded the petition on the ground that Rule 56D of the amended Conduct of Election Rules confers certain rights to the candidate or his election agent. The right is to seek counting of votes through VVPAT. Such right cannot be curtailed by the respondents. No restriction, in the submission of the election petitioner, was placed by Rule 56D regarding the number of EVMs to be cross-verified through VVPAT. In view of the Press Notes, which are contrary to the statutory provision, the election petitioner or his counting agent could not make any representation for the counting of votes of other booths with VVPAT. The Returned Candidate was declared elected by a margin of 2,551 votes. The election petitioner was the candidate with the second largest of the number of votes. There were in all together 296 booths employing 296 EVMs. VVPATs were installed in all 296 booths. There were altogether 9 nominations which were accepted by the Returning Officer.

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8.1 It is the case of the election petitioner that the statutory rule – Rule 56D provides that the candidate or in his absence, his election agent or any of his counting agent may apply in writing to the returning officer to count the printed paper slips in the drop box of the printer. Mr Sharma submitted that the restriction of the Press Notes prevented the petitioner from applying from counting of all VVPATs and therefore this had materially affected the counting process leading to the result of the elections to the 33-Prantij Legislative Assembly Constituency.

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8.2 Let the argument of the applicant of the Order 7 Rule 11 application, that the Election Petition should be rejected as it does not disclose a cause of action, be therefore now be tested. The expression “cause of action” though not specifically defined, would mean setting out every fact, which would be necessary for a plaintiff/petitioner to state which has resulted in his necessity to knock the doors of the Court. The taking away of a right or the doing of an act, illegal or otherwise, the facts so giving rise, need therefore to be set out. The Court while examining whether a plaint, in this case, an election petition, discloses a cause of action, has to take a comprehensive view. For the purpose of ascertaining as to whether the election petition discloses a cause of action, the Court is to examine the pleadings in the election petition only and taking such pleadings at its face value.

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Mr. C.B. Upadhyay, learned advocate appearing with Mr Rahul Dholakia, learned advocate by laying stress on the reliefs claimed in the Election Petition contended that the petitioner has asked for setting aside Press Notes and not the election of the Returned Candidate. The petitioner appears to be aggrieved, in the submission of Shri Upadhyay, more by issuance of such a Note and curtailment of his right, which cannot be within the purview of an Election Petition. The remedy is a Writ.

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9.1 I do not agree with Shri Upadhyay’s submission. The question with regard to the ouster of the jurisdiction cannot be considered in isolation only of the two reliefs sought to be focused by the applicant, regarding impugned press notes.

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The petition as a whole has to be looked into. It is a settled position of law that the pleadings in a plaint are to be read as a whole to find out the cause of action. Reading of pleadings in one paragraph in isolation of the pleadings in other paragraphs and dismissing the suit for want of cause of action is not permissible. Reading of the petition would suggest that the plinth of the edifice is violation of the statutory rule – Rule 56D of the Conduct of Election Rules. It is the case of the petitioner that, but for the Press Notes, he would have applied for a recount of all VVPATs, he having secured the second largest number of votes. The said infraction materially affected the election is what is pleaded. When averments made in the petition, in its entirety are considered and taken to be correct, which is the only limited role at this stage, it cannot be said that the petition does not disclose a cause of action.

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It is true that the Election Petition can be dismissed for non compliance of Section 83 of the Act if it falls within the scope of Order 7 Rule 11 of the Code of Civil Procedure. What needs to be seen here is that when the petition is read in its entirety it lays down a concise statement of the material facts on which the petitioner relies. Reading of the averments made in the Election Petition, reproduced hereinabove, reveals that it is the case of the election petitioner that the result of the election has been materially affected and had the petitioner been permitted, he would have made an application for recount, he having polled the second largest number of votes. Whatever the merit of such a contention, it is evident that a concise statement of fact based on the infraction of right, giving a cause of action has been made.

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There is a distinction between provisions of Section 83(1)(a) and 83(1)(b). It is only when prayer is made to set aside an election on the ground of any corrupt practice that the petitioner has to set forth full particulars. This is not the case here, undisputedly. The requirement therefore is only a statement of material fact in a concise form. The Election Petition cannot be thrown out at the preliminary stage on the ground that it does not contain a concise statement of material fact. Material facts are those facts which can be considered as materials supporting the allegations made in the petition.

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I am in agreement with the submission of Mr. Sharma who relied on a decision in the case of Harkirat Singh (supra) . The Court cannot while delving into the exercise of seeing whether material facts have been stated go into the correctness of the facts stated and the allegations made. That is in the arena of appreciation of evidence, which can only be gone into at the stage of trial and not at the stage of consideration whether the election petition is maintainable. The judgement relied upon by Shri Upadhyay in the case of Kameng Dolo (supra) also was a case where the conclusion regarding the breach of the provisions of Section 100(d)(iv) were arrived at after a full-fledged trial and therefore the same will not be applicable to the facts to be considered at the time of deciding this application under Order 7 Rule 11 of the Civil Procedure Code.

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As far as the second limb of the argument of the applicant that the application is barred by law also, on the

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same reasonings, the argument ought to fail. It is true that an election petition can be dismissed, which does not comply with the provisions of Section 81 or Section 82 of the Act. The case for a trial on sub-clause(iv) of clause(d) of Sub-section (1) of Section 100 is made out by stating concise facts, therefore there is no breach of Section 81 of the Act.

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As far as breach of Section 82 is concerned, it settled by the decision of the Supreme Court in the case of B.S.Yadiyurappa Versus Mahalingappa And Others (2002) 1 SCC 301 relied upon by Shri Sharma that even if the Election Petition has parties who are otherwise not necessary parties, such an election petition ought to be dismissed. Such a petition can be amended by striking out from the array of parties those additionally impleaded. In fact, an application has been made by the Original Respondents No. 1 and 2 for being deleted as parties to which Mr Sharma has conceded that they should be allowed. In view of the categorical reservation of Shri Upadhyay that such a concession is made only with a view to overcome the present applicant’s objection, the application of the Commission was not allowed. In view of the legal position that the petition can always be amended be it deletion of the party i.e. the Original Respondents No. 1 and 2 the said reservation of Mr Upadhayay also merits no attention. The Respondents No. 1 and 2 can be struck off from the array of the parties on the application of the Original Respondents – Election Commission being allowed. I, therefore, deem it fit to allow Election Application No. 27 of 2018 of the Original Respondents No. 1 and 2 and direct the Election Petitioner to amend the cause title accordingly.

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I hold that the Election Petition is one which discloses a cause of action and is not barred by law. The Election Petition cannot be dismissed at the threshold without a trial. In view of the reasons as aforesaid, Election Application No.26 of 2018 in Election Petition No.12 of 2018 is dismissed. Election Application No. 27 of 2018 in Election Petition No. 12 of 2018 is allowed. The cause title of the election petition be amended accordingly. Election petition to be listed for hearing on 08.03.2019.

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(BIREN VAISHNAV, J)

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DIVYA

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Gajendrasinh Udesinh Parmar v. Mahendrasinh Kacharsinh Baraiya

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Gajendrasinh Udesinh Parmar v. Mahendrasinh Kacharsinh Baraiya

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