I.A.(Civil) 1499/2016. Gauhati High Court

Case NumberI.A.(Civil) 1499/2016
Judgement DateMarch 02, 2021
CourtGauhati High Court

Shri Kishor Nath,

S/ o Late Promesh Chandra Nath, Resident of Dudhpatil, Pt.-V,

P.O. Dudhpatil – 788003,

P.S. Silchar, District-Cachar, Assam.

.........Applicant/

Respondent No. 1

- Versus –

  1. Misbahul I slam Laskar,

    S/ o Late Kamrul I slam Laskar, Resident of GMC Road,

    P.O. & P.S. Silchar – 788001, District-Cachar, Assam.

    .......Opposite party No. 1/

    Election Petitioner

  2. Chunilal Bhattacharjee,

    S/ o Late Satish Chandra Bhattacharjee, R/ o Satsang Asram Road,

    P.O. Tarapur, P.S. Silchar, District-Cachar, Assam.

  3. Jaharul I slam Barbhuiya,

    S/ o Late Samsur Uddin Barbhuiya, R/ o Chesri, P.O. – Borkhola – 788110, District Cachar, Assam.

  4. Dr. Rumi Nath,

    D/ o Shri Trailakshya Bhusan Nath,

    El. Petition No.1/2016 Page

    P.S. Arunachal, District-Cachar, Assam.

  5. Nazmul Haque Laskar,

    S/ o Nimar Ali Laskar,

    R/ o Buribali, P.S. Borkhola, District-Cachar, Assam – 788025.

  6. Badrul I slam Mazumdar,

    S/ o Late Anfor Ali Mazumdar,

    R/ o Durgapur, P.O. Borjatrapur-788110, P.S. Borkhola, District-Cachar, Assam.

  7. Shri A.K. Bhattacharyya,

    Returning Officer Cum Addl. Deputy Commissioner, Cachar, Assam.

    ........Respondents

    For the Applicant/ Respondent No. 1 : Mr. B.D. Das, Sr. Advocate,

    Mr. H.K. Sarma,

    Mrs. R. Deka,

    Mr. D. Nath,

    Advocates.

    For the Election Petitioner/ Opposite : Mr. A. Choudhury, Party No. 1 Mr. E. Ahmed,

    Mr. N.H. Laskar,

    Mr. R.A. Choudhury,

    Advocates.

    For the Opposite Party No. 8 : Mr. B.N. Sarma,

    Advocate.

    El. Petition No.1/2016 Page

    Date of Judgment & Order : 02.03.2017

    JUDGMENT & ORDER

    By this I nterlocutory Application under Order 6 Rule 16 read with Order 7 Rule 11 of the Code of Civil Procedure, for short, the Code, the applicant, who is arrayed as respondent No. 1 in the election petition and who was elected from No. 14 Borkhola Legislative Assembly Constituency as a candidate of the Bharatiya Janata Party (BJP) in the election held in the year 2016, has prayed for striking out paragraph Nos. 3, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the Election Petition and for rejection of the petition for want of cause of action.

  8. The election petitioner, who contested the election as an independent candidate, by filing the Election Petition under Section 80 and 81 of the Representation of People Act, 1951, for short, the R.P. Act, had called into question the election of the applicant, herein after referred to as the returned candidate, result of which was declared on

    19.5.2016.

  9. The returned candidate polled 36482 votes while the election petitioner polled 36440 votes and thus, the margin of defeat was 42 votes.

  10. I have heard Mr. B.D. Das, learned senior counsel for the returned candidate, Mr.

    1. Choudhury, learned counsel as well as Mr. E. Ahmed, learned counsel for the election petitioner as well as Mr. B.N. Sarma, learned counsel appearing for respondent No. 8 in the election petition i.e. the Returning Officer. I n view of their submissions, as recorded in the order dated 10.11.2016, notice to opposite party Nos. 2 to 7 was not issued.

  11. Mr. B.D. Das, learned senior counsel has submitted that allegations made in the election petition, taken as a whole, are vague and without any material facts and particulars necessary to constitute a cause of action for filing the election petition. According to him, bed-rock of allegations in respect of corrupt practice is spelt out in

    El. Petition No.1/2016 Page

    swearing of the affidavit, Annexure-3, to the effect that averments are true to the best of his knowledge, even otherwise, cannot be relied upon. With regard to the anomalies in counting, it is submitted by Mr. Das that there is no pleading that defective EVMs were used for recording of votes and even if all the allegations made in connection with irregular counting are taken at the face value to be true, the same would not materially affect the result of the election in as much as alleged discrepancies were in respect of only 7 votes whereas the returned candidate was declared elected by a margin of 42 votes. He submits that, in fact, there is no pleading that because of the alleged anomalies in the counting, result of the election was materially affected. He has submitted that the election petitioner did not file any complaint before declaration of the result of the election and the complaint dated 20.5.2016, which is cryptic and without any material particulars, is the result of an after-thought. The learned senior counsel submits that the paragraphs in question are liable to be struck out being frivolous, vexatious and abuse of the process of the Court and consequentially, for lack of cause of action, the election petition is liable to be rejected under Order 7 Rule 11 CPC. The learned senior counsel has placed reliance on the following judgments:(i) Azhar Hussain vs. Rajiv Gandhi, reported in 1986 (Suppl) SCC 315; (ii) Satya Narain Dudhani vs. U.K. Singh and or s, reported in 1993 (Suppl) (2) SCC 82;(iii) M.R. Gopalakrisknan vs. Tachady Prabhakaran and ors., reported in 1995 (Suppl) (2) SCC 101; (iv) Anil Vasudev Salgaonkar vs. Naresh Kushali Srigaonkar , reported in (2009) 9 SCC 310; (v) Charan Dass vs. Surinder Kumar and ors., reported in 1995 (Suppl) (3) SCC 318; (vi) Md. Usuf and anr. vs. Bhairon Singh Shekhawat , reported in AI R 1995 (Raj) 239.

  12. Mr. A. Choudhury as well as Mr. E. Ahmed, learned counsel have submitted that material facts and particulars have been duly pleaded in the election petition and there is no lack of primary facts necessary to constitute a complete cause of action. They also submit that submission advanced on the basis of the interlocutory application that paragraph Nos. 3, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the election

    El. Petition No.1/2016 Page

    trial and the interlocutory application is liable to be dismissed. Mr. Choudhury has submitted that pleadings in none of the paragraphs in respect of which this I nterlocutory Application has been filed for striking out are unnecessary, scandalous, frivolous, and vexatious or tend to prejudice, embarrass or delay the fair trial of the election petition or otherwise is an abuse of the process of the Court. Apart from placing reliance in the case of Azhar Hussain (supra), they have also relied upon in the case of D. Ramachandran vs. R.V. Janakiraman and ors., reported in (1993) 3 SCC 267.

  13. Mr. B.N. Sarma, learned counsel appearing for respondent No. 8 has submitted that in view of the cryptic nature of the complaint dated 20.5.2016 no case was made out for recounting of votes. He has also submitted that at no point of time during the process of counting of votes, the election petitioner lodged any complaint and furthermore, Rule 63 of the Conduct of Election Rules, 1961, for short, the 1961 Rules does not provide for recounting of votes after declaration of result.

  14. I have considered the submission of the learned counsel for the parties and have perused the pleadings in the election petition as well as the interlocutory application and the objection filed thereto.

  15. Section 80 under Chapter I I of Part VI of the R.P. Act lays down that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. The election referred to under Section 80, in view of Section 2(d) of the R.P. Act, means the election to fill a seat or seats in either House of Parliament or in the House or either House of the Legislature of a State other than the State of Jammu and Kashmir.

  16. Section 83 of the R.P.Act deals with the contents of the election petition and while Section 83(1)(a) provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies, Section 83(1)(b) provides that an election petition shall set forth full particulars of any corrupt practice that the petitioner

    El. Petition No.1/2016 Page

    prescribed form in support of the allegations of such corrupt practice and the particulars thereof. Section 83(2) states that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.

  17. Chapter I I I of Part VI of the R.P. Act is on the subject of trial of election petitions. Section 86(1) of the R.P. Act mandates that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act. While Section 81 of the R.P. Act deals with presentation of petitions, Section 82 of the R.P. Act deals with parties to the petition. Section 117 of the R.P. Act, which is under Chapter V, is in respect of deposit of security for cost.

  18. Section 87(1) of the R.P. Act provides that an election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code to the trial of suits, subject to the provisions of R.P. Act or any rules made there under. I n view of the provisions contained in Section 87, the provisions of the Code in respect of trial of a suit are applicable to the trial of an election petition. As a result, the provisions contained under Order 6 Rule 16 and Order 7 Rule 11 of the Code are also applicable to an election petition.

    13 Thus, even though Section 86 of the R.P. Act provides for dismissal of the election petition for non-compliance of the provisions contained in Section 81 or Section 82 or Section 117 of the R.P. Act, the election petition can be rejected where it does not disclose a cause of action.

  19. Under Order 6 Rule 16 of the Code, the Court is empowered to strike out a pleading - (a) which may be unnecessary, scandalous, frivolous or vexatious; or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit or (c) which is otherwise an abuse of the process of the Court.

  20. Order 7 Rule 11 of the Code enjoins a Court to reject the plaint, amongst others, where it does not disclose a cause of action.

    El. Petition No.1/2016 Page

    Assembly Constituency and also praying for a...

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