For Petitioner: G.M Chaphekar, Senior Counsel with Subhodh Abhyankar;
For Respondent No. 1: S.C Bagadiya, Senior Counsel with D.K Chhabra;
For Respondent/State: Yashpal Rathore, Panel Lawyer.
List of cases referred: 1. Baidyanath Panjira v. Sitaram, (1969) 2 SCC 447 : AIR 1970 SC 314 (Paras 21, 35) 2. Kabulsingh v. Kundansingh, (1969) 2 SCC 452 : AIR 1970 SC 340 (Paras 21, 35) 3. WOPANSAO v. N. 0. Odyuo, (1971) 2 SCC 550 (Para 21) 4. Goodyear India Ltd. v. State of Haryana, (1990) 2 SCC 71 : AIR 1990 SC 781 (Para 21) 5. C.I.T v. Suth Engineering, (1992) 4 SCC 363 : AIR 1993 SC 43 (Para 21) 6. Archana Kumar v. Purendu, 2000 (1) MPLJ (F.B) 491 : 2000 (2) JLJ 84 (Para 21) 7. Vashisht Narain Sharma v. Dev Chandra, AIR 1954 SC 513 (Paras 24, 27) 8. Paokai Haokip v. Rishang, AIR 1969 SC 663 (Para 24) 9. Latadevi v. Haru Rajwar, (1989) 4 SCC 773 : AIR 1990 SC 19 (Para 24) 10. J. Chandrashekhar Rao v. Jagapathi Rao, 1993 Supp (2) SCC 229 (Paras 24, 28) 11. Uma Ballav Rath v. Maheshwar Mohanty, (1999) 3 SCC 357 : AIR 1999 SC 1322 (Para 24) 12. Laxmikant Bajpai v. Haji Yaqoob, (2010) 4 SCC 81 (Paras 24, 29) 13. Kalyan Kumar Gogoi v. Ashutosh Agnihotri, 2011 AIR SCW 688 (Paras 24, 31) 14. Shyamdeo Pd. Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46 : 2000 AIR (SC) 3000 (Para 24) 15. Santosh Yadav v. Narender Singh., (2002) 1 SCC 160 : AIR 2002 SC 241 (Para 24) 16. Kalyansingh v. CP Joshi, 2011 (1) SCALE 718 (Para 24) 17. Hariprasad Mulshankar Trivedi v. V.B Raju, (1974) 3 SCC 415 : AIR 1973 SC 2602 (Para 24) 18. Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691 (Paras 25, 34) 19. Indrajeet Barua etc. v. Election Commission of India, (1985) 1 SCC 21 : AIR 1984 SC 1911 (Paras 32, 35)
1. This petition under section 81 of the Representation of the People Act has been filed by the petitioner-Gopikrishna Nema, who was a candidate on behalf of Bhartiya Janta Party in the election held for the assembly constituency No. 206 - Indore - 3 of the State of Madhya Pradesh in the year 2008 who lost the election by 402 number of votes, for setting aside the election of Mr. Ashwin Joshi, the returned candidate on the following grounds namely:
(i) Entire Municipal Ward No. 25 which fell in assembly constituency No. 204-Indore-1 was illegally included in assembly constituency No. 206-Indore-3.
(ii) According to notification dated 14th May, 2007 published in M.P Gazette, localities of Jeevan Ki Fel and New Jeevan Ki Fel which fell in ward Nos. 30 & 59 which were the part of assembly constituency No. 206-Indore-3, were illegally and unconstitutionally transferred to 205-Indore-2 constituency. Similarly, localities of Bhavana Nagar Palda, Pavanpuri Colony, Durga Nagar (Palda, Dev Nagar and Shanti Nagar falling within the limits of Ward No. 59 and therefore, falling in the 206-Indore-3 constituency were illegally transferred to 210-Rao constituency.
(iii) Various illegalities were committed in the conduct of the polls and counting also which materially affected the result of the election. EVM used at several polling stations did not record the votes polled correctly. In several booths of EVMs, the tally of votes cast as per the Form No. 17(x) did not tally with the tally of voters as per EVM. Some of the EVMs did not open at all and had to be left out from counting. In several polling booths, the record of votes polled according to the entries in the register maintained by the polling officer did not tally with the votes recorded in the EVMs.
(iv) As per the instructions of the Election Commission, only the EVM units carrying specific identity numbers allotted to a polling Booth could be used at that polling booth. Despite these clear instructions, at several polling booths EVMs not allotted to the particular polling booth were used. This was a gross violation of legal instructions and for that purpose, votes polled in such machines deserved to be excluded from counting as void votes. If the votes polled in such EVMs were not counted as valid votes result of the election would have been different.
2. Learned Senior Counsel for the petitioner submits that aforesaid illegalities committed during the polling and counting rendered the entire election, polling and counting process doubtful and resulted in improper reception, refusal or rejection of votes and reception of void votes and therefore, the election of respondent No. 1 stands vitiated and deserves to be set aside.
3. It is thus submitted that the result of the election in favour of the winning candidate i.e the first respondent has been materially affected on account of preparation of wrong electoral rolls and change of Electronic Voting Machines (for short hereinafter referred to as EVM) in the midst of polling. It is submitted that more than 4000 voters shown in the electoral role in the constituency No. 206-Indore-3 have been shown as voter of other constituency. It is thus submitted that the election of the winning candidate is liable to be set aside under section 100(1)(d)(iv) of the Representation of the People Act, 1951.
4. The respondents have opposed the election petition besides objecting to the petition on merits, and also prays for its dismissal on the basis of the following preliminary objections:—
(i) The election petition suffers from various defects, in addition to others which were pointed out in the reply.
(ii) There is a wrong description of respondent No. 1 in the election petition regarding occupation which is described as Leadership.
(iii) There is absence of necessary parties. As per para 4 of the election petition, there were seven candidates who contested the election but, in the election petition the petitioner has only impleaded respondent No. 1, as a party.
(iv) So far as inclusion and transfers of Wards is concerned, the electoral roll for the election was published long back and the petitioner despite having full opportunity, did not raise any objection in this regard and the elections were held on the basis of final electoral roll as published. Once the name of the person was included in that constituency, he cannot be prevented from voting in that constituency and the result of the election cannot be challenged on that ground. Section 62(3) provides that a person cannot vote in more than one constituency. Placing reliance on the Supreme Court Judgment delivered in the case of Shyam Dev v. Navalkishore, wherein it is held that inclusion of the person in the electoral roll even if that person was not qualified to be so enrolled, cannot be a ground for setting aside the election.
(v) Result of the election was not affected in any manner on account of use of EVM. There is no change in the EVM at any particular booth. There is no legal proposition that if instead of Machine A, Machine - B is used, there would have any change in the result of polling. Before using the EVM, it is properly checked and after satisfaction of the candidates, or their election agents, EVM is used.
5. In their rejoinder, the petitioner has reiterated the submissions made in the election petition.
6. It may be observed that in this case, an application was filed by respondent No. 1 under Order 7, Rule 11 of Civil Procedure Code. This Court dismissed the said application, but the matter went to the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed their petition, as withdrawn, vide order dated 16-4-2010.
7. On the pleadings of the parties following issues were framed:—
(i) Whether the areas of other constituencies were wrongly included in the Voter List of Area 206-Indore-3 constituency?
(ii) Whether certain areas of 206-Indore-3 constituency were illegally and unconstitutionally transferred to area 205-Indore-2 constituency?
(iii) Whether the above change of areas in delimiting Assembly constituency proceedings can be challenged in this Election Petition?
(iv) Whether the above change of areas effected the right of Voters?
(v) Whether the EVM were used at the polling booths against the instructions of the Election Commission?
(vi) Whether the use of EVM effected the casting and counting of voters adversely to the petitioner?
(vii) Whether there is difference of votes in the actual votes casted and calculated by EVM?
(viii) Whether as a cumulative effect of above circumstances this election petition deserves to be allowed?
(ix) Relief and costs.
8. Thereafter the parties were allowed to lead their evidence. On behalf of the petitioner, Gopikrishna Nema who appeared as PW-1 was examined, while on behalf of the respondents, Ashivin Joshi, Renu Pant, Shriniwas Paradkar, Ramakant G. Dhinchwalkar, Prakashchandra Rathi and Manoj Pushp were examined.
9. In his deposition Shri G.K Nema (PW-1) has reasserted what he has stated in the election petition. It would be appropriate to take note of some portion of his deposition which reads as under:—
10. It will also be appropriate to take note of para 25 of his deposition in his cross-examination which reads as under:—
11. Same is the line of deposition of this witness about other discrepancies of electoral roll. After perusal of his deposition and having gone through the cross examination one thing comes out very clear that before going for the election, this witness has not challenged the preparation of electoral rolls which were published long back and were in his knowledge.
12. The second point taken by Shri G.K Neema (PW-1) in his deposition is regarding change of EVM in various Polling Stations. It was stated that EVMs were changed on nine Polling Stations. Specific averment was made in respect to change of EVM at Polling Station No. 24 after casting of 406 votes. It is stated that though as per EVM 406 votes were casted but, only 58 votes were counted. It has been stated that if the number of votes casted in the earlier EVM and which was changed lateron would have been taken into consideration, the result of the election would have been materially affected inasmuch as he would have won the election as he has lost the election only by 54 votes. The cross-examination of Shri G.K Nema (PW-1) on this point is material which reads as under:—
13. As regards the change of EVM during course of election, the petitioner has made the following deposition:—
14. Except his own statement, no other witness was examined on behalf of the petitioner whereas, the respondent appeared as his own witness and has also examined other witnesses such as, witnesses (authorities) from the Election Commissioner's Office who were concerned with providing of EVMs. The examination-in-chief of the respondent is relevant and has been reproduced hereunder:—
15. This witness has been cross-examined, but nothing material has come out from his cross-examination.
16. Smt. Renu Pant appeared as second witness on behalf of the respondent. She has clearly stated that at the relevant time she was appointed as a returning officer of constituency 206-Indore-3. She stated that she was not the person responsible for issuing EVMs, or their custody. It was the job of the Treasury Officer. She has specifically stated that EVMs cannot be tampered with. She also stated that before actual polling, a mock poll was conducted in each polling booth with the EVMs in the presence of polling agents of the candidates participating in the election, in accordance with the directions issued by the Election Commission. After the mock poll as there was no objection, the EVM was sealed and was used for polling. The EVM was also closed that time so that there was no tampering, that is to say, the result section was closed with a green paper seal. She also deposed that no complaint was received by her qua mock poll from any of the polling booth. Even during polling or thereafter, she did not receive any complaint regarding mal-functioning of EVMs except one regarding polling booth No. 24 and for which an alternative EVM was sent to the said polling station. She also stated that before using the alternate EVM, again mock poll was conducted on that machine in polling booth No. 24 and polling was resumed for the remaining voters. Thereafter she did not receive any complaint from any side regarding its functioning.
17. Cross-examination of this witness is relevant and is reproduced hereunder:—
“I cannot confirm without perusing the record in booth No. 24, the total number of voters were 739. It is correct that in this polling station 406 numbers of votes were casted. Since no vote casted and recorded by the defective machine could have been counted, only 58 votes which were casted and recorded by the replaced machine taken into consideration. It is correct that out of 58 votes, Ashwin Joshi got 57 votes and one vote was casted in favour of one Munna Ansari. It is correct that Gopikrishna Nema was BJP candidate.
It is correct that after the polling is over, a chart is prepared at every polling station regarding votes casted in that polling station of which a copy is supplied to the candidates/their representative by the presiding officer.
Question: I put it to you at least 25 polling stations there was a difference in the number of votes casted and counted as per Annexure P-18? What have you to say?
Answer: This is a clerical mistake on account of not making proper entries by the presiding officer in the concerned column in the form, otherwise there was no difference. Such mistake are writ large if one examine Ex.P/18.”
18. The other relevant witness is Manoj Pushp, who sent electoral rolls for publication. Nothing has come in his cross-examination, who stated that no objection was taken to the publication of the electoral rolls and the objections which were filed before him were disposed of before directing the printing of electoral rolls.
19. In short, following are the submissions of Shri G.M Chaphekar, learned Senior Counsel for the petitioner firstly that there is a violation of the Rules of delimitation inasmuch as the voter list has not been prepared according to order of delimitation. Some areas pertaining to constituency No. 206-Indore-3 have been added in Rau constituency and some areas having in constituency No. 204-Indore-1 were included in the voter list of 206-Indore-3 Assembly constituency. Thus, in part 24 of the voter list of 206-Indore-3 Assembly constituency a total number of 739 voters were illegally and improperly inducted. Out of these 406 voters actually voted at the election and if these voters were not allowed to vote, result of the election would have been different. Secondly, under the instructions of the Election Commission specific EVMs were to be allotted to the polling booths but despite the clear instructions, at several Polling Booths EVMs not allotted to the particular Polling Booth were used. Thirdly, One of the EVMs, the EVM at Polling Booth No. 24 was found to be defective in which 406 votes were already casted but when an alternate machine was given to the returning officer for that constituency those 406 votes which had already been casted in the earlier EVM were not counted.
20. It is submitted that the aforesaid discrepancies have materially affected the result of the election. Thus, all these shortcomings are sufficient to set aside the election considering the provisions contained under section 100(d)(iv) of the Representation of the People Act, 1951.
21. In support of his contentions, the learned Senior Counsel for the petitioner has placed reliance on the following judgments. In the case of Baidyanath Panjira v. Sitaram, (1969) 2 SCC 447 : AIR 1970 SC 314, Kabulsingh v. Kundansingh, (1969) 2 SCC 452 : AIR 1970 SC 340, WOPANSAO v. N.O Odyuo, (1971) 2 SCC 550, Goodyear India Ltd. v. State of Haryana, (1990) 2 SCC 71 : AIR 1990 SC 781, C.I.T v. Suth Engineering, (1992) 4 SCC 363 : AIR 1993 SC 43, Archana Kumar v. Purendu, 2000 (2) MPLJ (F.B) 491 : 2000 (2) JLJ 84.
22. On behalf of the respondent/elected candidate Shri S.C Bagadiya, learned Senior Counsel submits that so far as the objection regarding electoral roll for the election in question was concerned, it was published long back. The petitioner had full opportunity to raise any objection to the said electoral roll, but he did not chose to make any objection in that regard. The elections were also held on the basis of the final electoral roll as published and he participated in the said elections after the final publication of the electoral rolls. Now the said point cannot be taken up by the petitioner by way of this election petition for the said reasons. Once the name of a person is included in the electoral roll of any constituency, he cannot be prevented from voting in that constituency and the result of the election cannot be challenged on that ground.
23. Learned Senior Counsel for the respondent further submitted that so far as EVM supplied to the in-charge of Polling Booths are concerned, it is submitted that before the use of any EVM the correctness of the machines is demonstrated and after satisfaction of the candidates or their election agents, the machine is used. Infact, only one EVM viz. at Booth No. 24 was found to be not working properly however the petitioner could not have suffered any prejudice on account of that because after receipt of complaint that machine was substituted by another EVM and further 58 votes were casted and out of these 58 votes the respondent No. 1 obtained 57 votes while the petitioner did not obtain a single vote. As such the votes polled in that first machine could not have been taken into consideration. It is submitted that if the earlier machine had also recorded the votes correctly then the margin of the victory of the respondent No. 1 would have been more. Moreover there is no evidence that how many voters have casted their votes in favour of the petitioner or respondent. It is thus submitted that on all these points itself the petition is not maintainable under section 100(d)(iv) of the Representation of the People Act, 1951 and thus election petition is liable to be dismissed.
24. Shri S.C Bagadiya, learned Senior Counsel further pointed out that an election petition is not a civil suit. The election petition can only be filed under the Provisions of Representation of the People Act, 1951. The grounds for which the election petition can be filed for the purpose of vitiating the election have been provided under section 100(1) of the aforesaid Act. If that section is taken note of, the non-preparation of proper electoral rolls cannot be aground for vitiating of election. He relied upon the following judgments such as in the case of Vashisht Narain Sharma v. Dev Chandra, AIR 1954 SC 513, Paokai Haokip v. Rishang, AIR 1969 SC 663, Latadevi v. Haru Rajwar, (1989) 4 SCC 773 : AIR 1990 SC 19, J. Chandrashekhar Rao v. Jagapathi Rao, 1993 Supp (2) SCC 229, Uma Ballav Rath v. Maheshwar Mohanty, (1999) 3 SCC 357 : AIR 1999 SC 1322, Laxmikant Bajpai v. Haji Yaqoob, (2010) 4 SCC 81, Kalyan Kumar Gogoi v. Ashutosh Agnihotri, 2011 AIR SCW 688, Shyamdeo Pd. Singh v. Nawal Kishore Yadav, (2000) 8 SCC 46 : 2000 AIR (SC) 3000, Santosh Yadav v. Narender Singh., (2002) 1 SCC 160 : AIR 2002 SC 241, Kalyansingh v. CP Joshi, 2011 (1) SCALE 718 and Hariprasad Mulshankar Trivedi v. V.B Raju, (1974) 3 SCC 415 : AIR 1973 SC 2602.
25. At the outset I may observe that the scope of an election petition has been considered by a Full Bench of the Hon'ble Supreme Court in the case of Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691, wherein their Lordship has made the following observations:—
A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at common law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to common law and equity must remain strangers to election law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a strait-jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any rights claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the scheme of the Act. We have noticed the necessity to rid ourselves of notions based on common law or equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?”
26. It is thus clear from the aforesaid preposition of law laid down by the Hon'ble Supreme Court that an election petition can only be filed in accordance with the provisions of the Representation of the People Act, 1951. Violation of any rule for which a separate remedy is provided cannot be a ground for vitiating an election that also by way of an election petition.
27. In the Case of Vashist Narain Sharma v. Dev Chandra, AIR 1954 SC 513 (1) the scope of an election petition in the light of section 100(1)(c) was considered. In that case an allegation was made that on account of change of the venue of the election, the result of election was materially affected. Certain observations made in the said judgment are seem to be relevant for the purpose of deciding this case, are reproduced for the sake of reference:—
“But we are not prepared to hold that the mere fact that the wasted votes are greater than the margin of votes between the returned candidate and the candidate securing the next highest number of votes must lead to the necessary inference that the result of the election has been materially affected. That is a matter which has to be proved and the onus of proving it lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate.
The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how may or which proportion of the votes will go to one or the other of the candidates. While it must be recognized that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1)(c) and hold without evidence that the duty had been discharged. Should the petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this point, the inevitable result would be that the Tribunal would not interfere in his favour and would allow the election to stand.
We are of opinion that the language of section 100(1)(c) is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected.”
28. To the same effect is the judgment delivered in the case of J. Chandrashekhar Rao v. Jagapathi Rao (supra).
29. Another aspect of the matter is as to whether not publishing correct electoral rolls could have been a ground for filing an election petition under section 100(d)(iv) of the Representation of the People Act, 1951 on that ground. The answer is in negative. In the case of Laxmikant Bajpai v. Haji Yaqoob (supra) the very issue with regard to publishing electoral rolls became the subject-matter of seeking a declaration that the election of the returned candidate was liable to be set aside. The Apex Court having taken note of the provisions of the Constitution of India (Articles 324, 325 and 329), section 9(1)(b) of the Representation of the People Act, 1950, Rules 24 and 22 of the Registration of Electors Rules, 1960 and Ss. 8 to 11 of Delimitation Act, 2002, came to the conclusion that once the electoral rolls were published and elections were held on the basis of such electoral rolls, then the elections could not have been set aside merely on the ground that the electoral rolls had been printed incorrectly. The relevant paras for the sake of reference reads as under:—
“12. Section 83 of the Representation of the Peoples Act, 1951 deals with the contents of an election petition. Section 83(1) of the Act reads:—
“An election petition:—
a) shall contain a concise statement of the material facts on which the appellant relies;
b) shall set forth full particulars of any corrupt practice that the appellant 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
c) shall be signed by the appellant and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings.”
13. Sub-section (d) of section 100 of the Representation of the Peoples Act, 1951 which deals with grounds for declaring election to be void reads:—
“(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected—
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(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.”
14. The power to carry out delimitation of the constituencies has been vested with the Delimitation Commission constituted under the Delimitation Act, 2002. The object of the Act is provide for the readjustment of the allocation of seats in the House of People to the States, the total number of seats in the legislative assembly of each State, the division of each State and each Union Territory having a legislative assembly into territorial constituencies for elections to the House of People and legislative assemblies of the States and Union Territories and for matters connected therewith.
15. Section 8 of the Act provides for readjustment of number of seats, section 9 of the Act provides for Delimitation of constituencies, section 10 of the Act provides for publication of orders and their date of operation by Commission in the Gazette of India and in the official Gazettes of the State concerned and on such publication, every such order shall have the force of law and shall not be called in question in any Court. Section 11 of the Act mandates that the Election Commission shall maintain delimitation orders up-to-date.
16. The appellant relies on the purported communication dated 24-3-2007 by the Under Secretary of the Election Commission of India to the Chief Electoral Officer, Uttar Pradesh. The effect of the communication was that the geographical boundaries delimited during the previous delimitation cannot undergo any change, unless the new delimitation order is implemented. On 26-3-2007 the Officer on Special Duty, Chief Electoral Officer, U.P forwarded the aforesaid letter to the District Election Officer, Meerut informing him that there cannot be any change in the territorial boundaries of the Legislative Assembly constituency until the implementation of the new delimitation order. The contention of the appellant is that this amounts to a direction on the part of the Election Commission of India, and despite such direction the names of the voters from the 21 localities continued to be included in the electoral roll of 381 Meerut Assembly constituency. The appellant further contends that if the total number of votes received by respondent No. 1 from these localities were to be excluded, the results of the election would have been different, and hence the results of the election have been materially affected.
17. The process and procedure of preparing electoral rolls is governed by the Registration of Electors Rules, 1960. Rule 24 of the said rules reads:—
“24, Special provision for preparation of rolls on re-delimitation of constituencies.— (1) If any constituency is delimited a new in accordance with law and it is necessary urgently to prepare the roll for such constituency, the Election Commission may direct that it shall be prepared—
(a) by putting together the rolls of such of the existing constituencies or parts thereof as are comprised within the new constituency; and
(b) by making appropriate alterations in the arrangement, serial numbering and headings of the rolls so compiled.
(2) The roll so prepared shall be published in the manner specified in Rule 22 and shall, on such publication, be the electoral roll for the new constituency.”
18. The Rule provides that if any constituency is delimited a new in accordance with law and if it is necessary to prepone the roll for such constituency, the election commission may direct that it shall be prepared by putting together the rolls of such of the existing constituencies or parts thereof as are comprised within the new constituency. The rolls so prepared requires to be published in the manner provided in Rule 22 of the Rules. On such publication of the rolls, the same shall be the electoral roll for the new constituency.
19. In the present case, there has been no re-delimitation of the Meerut constituency carried out by the Delimitation Commission under the auspices of the Delimitation Act. The earlier order published by the Commission is still in force. As stated above, delimitation of parliamentary and assembly constituencies is the exclusive domain of the Delimitation Commission. The Election Commission's power with respect to delimitation of constituencies extends to correcting any mistakes which might have crept in the delimitation order.
20. In other circumstances, however, once an electoral roll is published, it becomes the final electoral roll of the constituency. This is also specified in Rule 22 of the specified rules which reads:—
“22. Final publication of roll.— (1) The registration officer shall thereafter—
(a) prepare a list of amendments to carry out his decisions under Rules 18, 20, 321 and 21A and to correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll;
(b) publish the roll, together with the list of amendments, by making a complete copy thereof available for inspection and displaying a notice in Form 16 at his office; and
(c) subject to such general or special directions as may be given by the Election Commission supply, free of cost, two copies of the roll, as finally published, with the list of amendments, if any, to every political party for which a symbol has been exclusively reserved by the Election Commission.
(2) On such publication, the roll together with the list of amendments shall be the electoral roll of the constituency.”
21. Hence, the electoral roll published becomes the electoral roll of the constituency, and therefore the electoral roll containing the names of people residing in the 21 localities, is the final and valid electoral roll for the Meerut Assembly constituency. The only alteration to the electoral roll can only be brought about by following the procedure prescribed in the relevant rules.
36. The sections clearly reveal that the State Government has the power to break up every municipality into territorial constituencies to be called ‘Wards’. Section 11-C clearly empowers the State Government to alter or amend the delimitation carried out earlier. There is no bar on the State Government to increase the area of a Ward. Hence the contention of the appellant that delimitation is to be carried out only by the Delimitation Commission fails as the notifications issued by the Delimitation Commission in 1973 and 1976 specify that the extent of 381 Meerut constituency shall be the same as the Meerut municipality. Had the intention of the Commission been to restrict the extent of the constituency to as it existed on the date of publication of such notification, it should have been clearly specified. There has been no subsequent amendment to the notifications and there has been no fresh delimitation carried out. The notification is still in force in its original form. Therefore the natural c???ollary to be derived is that the territory of 397 Meerut Assembly constituency (now 381 Meerut Assembly constituency) shall comprise all that area falling in the different Wards mentioned in the Delimitation Order as it exists on the date of making of the nomination for the election in question. In this regard we agree with the finding of the High Court. Therefore the contention of the appellant concerning Article 325 of the Constitution is nullified in light of the power vested in the State Government under the U.P Municipalities Act.
38. In the case of Samant v. George Farnandez, (1969) 3 SCC 238 : AIR 1969 SC 1201, it was stated:—
“The word ‘material’ shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the appellant. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the section because then the efficacy of the words ‘material facts’ will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement.”
30. Admittedly, no challenge was made by the petitioner before participating in the election with regard to the electoral rolls.
31. The issue has further been discussed in the case of Kalyan Kumar Gogoi v. Ashutosh Agnihotri (supra) referring to section 100(d)(iv) of the Representation of the People Act, 1951, the Court made the following observations:—
14. It may be mentioned that here in this case non-compliance with the provisions of the Representation of the People Act, 1951 and the Election Rules of 1961 was by the 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 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, insofar as it concerns a returned candidate, must have been materially affected. This means that if it is not proved to the satisfaction of the Court that the result of the election insofar as it concerns a returned candidate has been materially affected, the election of the returned candidate would not be liable to be declared void notwithstanding non-compliance with the provisions of the Constitution or of the Act 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 a returned candidate should not normally be set aside unless there 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 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 shall not be voided unless and until it is proved that the result of the election insofar as it concerns a returned candidate is materially affected. The volume of opinion expressed in judicial pronouncements, preponderates in favour of the view that the burden of proving that the votes not cast would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate lies upon one who objects to the validity of the election. Therefore, the standard of proof to be adopted, while judging the question whether the result of the election insofar as it concerns a returned candidate is materially affected, would be proof beyond reasonable doubt or beyond pale of doubt and not the test of proof as suggested by the learned counsel for the appellant. This part of the case depends upon the ruling of this Court in Vashisht Narain Sharma v. Dev Chandra, (1955) 1 SCR 509 : AIR 1954 SC 513. In that case, there was a difference of 111 votes between the returned candidate and the candidate who had secured the next higher number of votes. One candidate by name of Dudh Nath Singh was found not competent to stand election and the question arose whether the votes wasted on Dudh Nath Singh, if they had been polled in favour of remaining candidates, would have materially affected the fate of the election. Certain principles were stated as to how the probable effect upon the election of the successful candidate, of votes which were wasted (in this case effect of votes not cast) must be worked out. Two witnesses were brought to depose that if Dudh Nath Singh had not been a candidate for whom no voting had to be done, the voters would have voted for the next successful candidate. Ghulam Hasan, J. did not accept this kind of evidence.
It is observed as follows:—
“It is impossible to accept the ipse dixit of witnesses coming for 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 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 the election must stand.”
While interpreting the words “the result of the election has been materially affected” occurring in section 100(1)(c), this Court in the said case notified that these words have been the subject of much controversy before the Election Tribunals and the opinions expressed were not uniform or consistent. While putting the controversy at rest, it was observed as under:—
“These words seem to us to indicate that the result should not be judged by the mere increase or decrease in the total number of votes secured by the returned candidate but by proof of the fact that the wasted votes would have been distributed in such a manner between the contesting candidates as would have brought about the defeat of the returned candidate.”
In another para in the said decision it is observed:—
“It will not do merely to say that all or a majority of the wasted votes might have gone to the next highest candidate. The casting of votes at an election depends upon a variety of factors and it is not possible for any one to predicate how many or which proportion of the votes will go to one or the other of the candidates. While it must be recognized that the petitioner in such a case is confronted with a difficult situation, it is not possible to relieve him of the duty imposed upon him by section 100(1)(c) and hold without evidence that the duty has been discharged.”
32. In the case of Indrajeet Barua etc. v. Election Commission of India, (1985) 1 SCC 21 : AIR 1984 SC 1911 also the issue arose as to whether election held on the basis of unrevised electoral rolls can be challenged by way of election petition, the Constitutional Bench of the Supreme Court made the following observations:—
“The principal ground on which the validity of the elections has been challenged is that the electoral rolls were not revised before the elections in contravention of the provisions of section 21, sub-section (2)(a) of the Representation of the People Act, 1951 and the elections were held on the basis of the electoral rolls of 1979. Now it is undoubtedly true that the electoral rolls were not revised before the impugned elections were held but the Election Commission dispensed with the revision of the electoral rolls by an order dated 17th January, 1983 made under the opening part of section 21, sub-section (2) and this order has not been challenged in any of the Writ Petitions. Hence the impugned elections cannot be challenged on the ground that they were held on the basis of the electoral rolls of 1979 without revision of the electoral rolls. The petitioners also attacked the validity of the electoral rolls of 1979 on the ground that the Election Commission had, by the Press Note dated 18th September, 1979, erroneously directed the electoral authorities in charge of revision of the electoral rolls not to delete the names of any persons from the electoral rolls on the ground of lack of qualification of citizenship, since the question of citizenship was not one which could be decided by the electoral authorities and the electoral rolls of 1979 were therefore invalid and the impugned elections held on the basis of the electoral rolls of 1979 were void. We do not think there is any substance in this contention.
2. In the first place, Article 329(b) of the Constitution bars any challenge to the impugned elections by a writ petition under Article 226 as also on the ground that the electoral rolls on the basis of which the impugned elections were held were invalid. The petitioners sought to escape from the ban of Article 329(b) by contending that they are challenging the impugned elections as a whole and not any individual election and that the ban of Article 329(b) therefore does not stand in the way of the writ petitions filed by them challenging the impugned elections. But, we do not think this escape route is open to the petitioners. There is in the Representation of the Peoples Act, 1951 no concept of elections as a whole. What that Act contemplates is election from each constituency and it is that election which is liable to be challenged by filing an election petition. It may be that there is a common ground which may vitiate the elections from all the constituencies, but even so it is the election from each constituency which has to be challenged though the ground of challenge may be identical. Even where in form the challenge is to the elections as a whole, in effect and substance what is challenged is election from each constituency and Article 329(b) must therefore be held to be attracted.
3. We are of the view that once the final electoral rolls are published and elections are held on the basis of such electoral rolls, it is not open to any one to challenge the election from any constituency or constituencies on the ground that the electoral rolls were defective. That is not a ground available for challenging an election under section 100 of the Representation of the People Act, 1951. The finality of the electoral rolls cannot be assailed in a proceeding challenging the validity of an election held on the basis of such electoral rolls Vide Kabul Singh v. Kundan Singh. Article 329(b) in our opinion clearly bars any writ petition challenging the impugned elections on the ground that the electoral rolls of 1979 on the basis of which the impugned elections were held were invalid.
33. Thus, it is apparent that publication of an incorrect electoral roll cannot be the basis of filing of an election petition under section 100(d)(iv) of the Representation of the People Act, 1951. The correct remedy should have been to challenge the publication of the electoral roll before the Election Commission prior to holding of the elections.
34. The aforesaid view also flows from the judgment of the Hon'ble Supreme Court in the case of Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691 wherein the scope of election petition has been made limited i.e to be filed only in accordance with the provisions of the said Act and not in any other Act. The other aspect is that the violation must affect the result of the election materially for which as stated above there is no evidence on behalf of the petitioner.
35. Coming to the judgments cited on behalf of the petitioner, I may observe that as far as the first judgment i.e Baidyanath Panjira v. Sitaram Mahto, (1969) 2 SCC 447 : AIR 1970 SC 314 is concerned, is not applicable to the fact of this case more so when a Constitutional Bench judgment delivered in the case of Inderjeet Barua v. Election Commission of India (supra) “Even otherwise”, there is no evidence on record which may prove that how the election of the returning candidate has been materially affected on account of wrong publication of electoral rolls rather in the second judgment relied upon by the petitioner i.e Kabul Sing v. Kundansingh, (1969) 2 SCC 452 : AIR 1970 SC 340 it has been clearly laid down that once the electoral role is finally published, it cannot be challenged in a proceedings challenging validity of the election. Para 9 of the judgment delivered in Kabulsing's case is relevant which is reproduced hereunder:—
“It is not the case of the appellant that Tarsem Singh had incurred any of the disqualifications mentioned therein. No other provision of law in the Act or in any other law was brought to our notice disqualifying him from exercising his vote. The right to vote being purely a statutory right, the validity of any vote has to be examined on the basis of the provisions of the Act. We cannot travel outside those provisions to find out whether a particular vote was a valid vote or not. In view of section 30 of the 1950 Act, Civil Courts have no jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the electoral registration officer or any decision given by any authority appointed under that Act for the revision of any such roll. Part III of the 1950 Act deals with the preparation of rolls in a constituency. The provisions contained therein prescribe the qualifications for being registered as a voter (section 19), disqualifications which disentitle a person from being registered as a voter (section 16), revision of the rolls (section 21), correction of entries in the electoral rolls (section 22), inclusion of the names in the electoral rolls (section 23), appeals against orders passed by the concerned authorities under sections 22 and 23 (section 24). Sections 14 to 24 of the 1950 Act are integrated provisions. They form a complete code by themselves in the matter of preparation and maintenance of electoral rolls. It is clear from those provisions that the entries found in the electoral roll are final and they are not open to challenge either before a Civil Court or before a tribunal which considers the validity of any election. In B.M Ramaswamy v. B.M Krishnamurthy (1) this Court came to the conclusion that the finality of the electoral roll cannot be challenged in a proceeding challenging the validity of the election.”
36. Third judgment is also not applicable. The other judgments cited also have no application to this case.
Issue Nos. 1 and 2:—
37. From evidence on record it is apparent and clear that certain areas of other constituency were included in the 2 constituency No. 206-Indore-3 and some areas of other constituency was not shown in that constituency. Accordingly, both these issues are decided in favour of the petitioner.
Issue No. 3.
38. In view of what is discussed above, once electoral rolls are finally published and if they are not challenged before the election process, then wrong publication of electoral rolls, if finalized, cannot be a subject-matter of challenge in an election petition. This is also clear from the reading of section 100(1)(d)(iv) of the Representation of the People Act, 1951.
39. This issue is decided accordingly. Even otherwise there is no evidence available on record which may prove that election of returning candidate was materially affected.
Issue No. 4:—
40. There is no evidence which can establish that the changes of the areas affected the rights of the voters. The issues is therefore, decided against the petitioner.
Issues No. 5 and 6:—
41. There is no objection taken by any of the candidate of user of EVM which were provided to the Polling Officer. There is no evidence that any particular EVM had affected the casting and counting of votes adverse to the petitioner. Accordingly, both these issues are answered against the petitioner.
Issues No. 8 and 9:—
42. Taking all these facts into consideration and the submissions made by both the sides including the judgments relied upon, I am of the considered view that in this case despite wrong publication of electoral rolls which were not challenged before the election process by the petitioner, user of EVM about which there was no complaint and change of EVM at Polling Booth No. 24, it cannot be said that the election of the elected candidate has been materially affected or that process of election has been conducted contrary to provisions of the Act and in particular section 100(1)(d)(iv) of the Representation of the People Act, 1951. Thus, the petition is liable to be dismissed, as neither the petitioner has been able to make out a ground for setting aside the election under section 100(d)(iv) of the Representation of the People Act, 1951 either on the plea of publication of electoral roll or on account of change of EVM or its constituency as there is no objection available on record which may establish that change of EVM in any way was ever objected to or in any way affected the election materially. Even otherwise the wrong publication of electoral roll should not have been challenged before the Election Commission for the reasons stated above.
43. Consequently, the petition filed by the petitioner is dismissed with costs. Security deposited by the petitioner shall be disbursed to the respondent No. 1 as costs of the proceedings.
Petition dismissed.
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