Civil Misc. Application No. 48545 of 2010, Paper No. A15, Civil Misc Application No. 48541 of 2010, Paper No. A14 and Civil Misc Application No. 48548 of 2010, Paper No. A16. Case: Sharad Tripathi Vs Bhishm Shanker Alias Kushal Tiwari and Ors.. High Court of Allahabad (India)
| Case Number | Civil Misc. Application No. 48545 of 2010, Paper No. A15, Civil Misc Application No. 48541 of 2010, Paper No. A14 and Civil Misc Application No. 48548 of 2010, Paper No. A16 |
| Judges | Sudhir Agarwal, J. |
| Issue | Representation of People Act, 1951 - Sections 25, 29, 46, 58, 58A, 61, 61A, 64, 64A, 66, 67, 81, 81(1), 81(3), 82, 83, 83(1), 86(1), 87, 100(1), 101 and 117; Indian Evidence Act - Section 151; Civil Procedure Code (CPC), 1908 - Order 6, Rule 16 - Order 7, Rule 11 |
| Judgement Date | September 21, 2011 |
| Court | High Court of Allahabad (India) |
Judgment:
Sudhir Agarwal, J.
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Heard Sri U.N. Sharma, learned Senior Advocate assisted by Sri Ravi Shankar Prasad and Sri Chandan Sharma for the applicant respondent and Sri K.R. Singh for the Petitioner.
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These are three applications filed on behalf of Respondent Bhishma Shankar in Election Petition No. 11 of 2009.
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Application No. 48541 of 2010, Paper No. A14 dated 15.2.2010 is under Order VI Rule 16 of Code of Civil Procedure (in short "Code of Code of Civil Procedure") for striking off paragraphs No. 5, 7 to 10, 21 to 23 and 25 to 34 of election petition being irrelevant, vague and fictitious.
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Second Application No. 48548 of 2010, Paper No. A16 dated 15.2.2010 is under Order VII Rule 11 Code of Civil Procedure praying for dismissal of election petition for non disclosure of cause of action.
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The third application No. 48545 of 2010, Paper No. A15, is under Section 86(1) of Representation of People Act, 1951 (hereinafter referred to as " 1951 Act") for dismissal of election petition for noncompliance of Sections 81(3) and 86(1) of 1951 Act.
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Petitioner Sharad Tripathi contested 15th Lok Sabha General Election from Lok Sabha Constituency No. 62, Sant Kabir Nagar, State of U.P. In the aforesaid election, Respondent Bhishma Shankar alias Kushal Tiwari was returned elected having secured 2,11,043 votes while the Petitioner was polled 1,81,547 votes. The Petitioner lost election by 29,496 votes.
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The Petitioner contested election on the symbol of 'lotus' having a ticket from Bhartiya Janta Party while Respondent No. 1 contested election on the ticket of Bahujan Samaj Party with the symbol of 'elephant'.
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The election petition runs in 50 paragraphs. The first three paragraphs relate to election notification in the Parliamentary Constituency Sant Kabir Nagar (U.P.), and the election schedule. Paragraph contains the averments of self acclaimed good reputation of Petitioner and his confidence of winning election. Para 5 in general alleges that there was improper refusal and reception of votes and noncompliance of provisions of 1951 Act, Rules and orders made thereunder including directions issued by Election Commission resulting in illegal declaration of election result in favour of Respondent No. 1. Para 6 refers to number of votes polled in favour of Petitioner and Respondent No. 1 and that there was a margin of only 29,496 votes. Para 7 contains grounds of challenge to election and three grounds mentioned therein are:
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Because the result of the election, in so for as it concerns the Respondent No. 1, has been materially affected by improper reception of votes in favour of Respondent No. 1, and other candidates and improper refusal of the votes of the Petitioner.
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Because the result of the election, in so far as it concerns the Respondent No. 1, has been materially affected due to non compliance of the provisions of the Act aforesaid and the rules and Orders made thereunder and the directions issued by the Election Commission.
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Because it is, in fact, the Petitioner who has received the majority of valid votes in the election in question and is entitle to be declared elected as a member of the Lok Sabha.
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Para 8 of election petition states concise statement of material facts with regard to grounds A, B and C and thereafter upto para 46 averments alleging to be material facts and particulars for challenging the election of Respondent No. 1 have been given.
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The applicant respondent has contended that paragraphs 5, 7, 8, 9, 10, 21, 22, 23, 25 to 34 in the election petition are vague, fictitious, irrelevant and be struck off under Order VI Rule 16 Code of Civil Procedure Hence, it would be relevant to reproduce the above paragraphs except 7:
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That as detailed in this election petition subsequently there was improper refusal and reception of votes and non 4 compliance of the provisions of the aforesaid Act and the rules and orders made there under and the directions issued by the Election Commission as a result of which the Respondent No. 1 was illegally declared elected in the election.
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That a concise statement of material facts and particulars with regard to grounds 'A', 'B' and 'C' are given herein below.
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That the Petitioner is a social and political worker and he is always available to public all the times for social service and is serving this constituency in particular since long. It is his soft spoken words, good behavior and all time availability for public service which has made the Petitioner popular in the entire constituency. The Respondent No. 1 was the Member of the Lok Sabha from this constituency and the public at large was annoyed by the rude behavior and non availability of Respondent No. 1. Thus it was almost sure from very beginning that the Respondent No. 1 was not going to win the election.
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That looking upon the Petitioner's popularity in the entire area and constituency and the Respondent No. 1 being an unpopular sitting Member of the Lok Sabha, the Respondent No. 1 knew it very well that he (the Respondent No. 1) could not with the election except by adopting unfair means.
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That thereafter the EVM was put to 'ON' condition so as to show the number of votes received by each candidate. The counting staff thereafter showed the EVM to the counting agents and allowed to note down the number of votes received by the respective candidates. The counting staff thereafter dictated the number of votes received by respective candidates so that the counting agents may tally and confirm the number of votes received by respective candidates which was noted down by them.
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That as the counting of votes of 3 Assembly segments was being done at Khalilabad (Sant Kabir Nagar), the Petitioner remained at Khalilabad to watch the process of counting of votes. The Petitioner frequently visited the counting halls of all the 3 Assembly segments at Khalilabad.
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That since very beginning of the counting it transpired that the margin of votes between the candidates was very narrow and as such the counting agents of Petitioner were very vigilant in the counting process. The counting agents used to confirm from the counting staff of the concerned counting table the number of votes received by respective candidates.
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That the Petitioner has provided to his counting agents a proforma of counting chart containing the names of all the candidates with the instruction to note down the number of votes received by each candidate as it contained in the EVM of the polling stations.
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That the counting agents of Petitioner were thus very vigilant and particular to note down the votes of all the candidates as contained in the EVM. The Petitioner's counting agents noted down the votes received by the different candidates including the Petitioner and the Respondent No. 1.
The counting agents noted down the votes correctly as contained in the EVM of each polling station. The Petitioner is filling the copies of counting charts prepared by the counting agents of table numbers 1, 4, 8, 11, 13 and 14 of Mehdawal Assembly and table numbers 1, 3, 5 and 14 of Khalilabad Assembly and table numbers 9 and 11 of Dhanghata Assembly segments as ANNEXURE1 to this election petition.
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That the number of votes received and got recorded in the EVM by respective candidates in the aforesaid Assembly segments at the aforesaid counting tables were not correctly incorporated in final tabulation chart in Form20 which was being prepared at the central table. The Petitioner is filing the Photostat copies of final tabulation chart in Form20 of 312Mehdawal, 313Khalilabad and 314Dhanghata Assembly segments as ANNEXURE2 to this election petition.
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That by the aforesaid incorrect incorporation of votes in Form20 the number of votes, in fact, received by Petitioner were reduced at different polling stations and were improperly added in the votes of Respondent No. 1 and other candidates.
These votes which were wrongly added in the votes of Respondent No. 1 and other candidates were not the votes, in fact, received by them but were the votes of Petitioner but they were wrongly added and shown for Respondent No. 1 and other candidates while preparing the Form20.
This was purposely done by the Returning Officer only in order to declare the Respondent No. 1 elected in the election who was a candidate of the ruling party in the State. The said irregularity was committed in Mehdawal, Khalilabad and Dhanghate Assembly segments in the manner as detailed below.
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That in the aforesaid 3 Assembly segments at least 25540 votes of Petitioner were reduced in different polling stations while preparing the final result sheet Form20.
The Petitioner has in fact received 2,07,087 votes. The particulars and details of such votes are contained in a schedule and the Petitioner is filing the same as SCHEDULE1 to this election petition which forms an integral part of it.
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That the Respondent No. 1 has in fact received much less votes than shown in Form20 by the Returning Officer. He has in fact received 1, 96,476 votes but while preparing Form20, 14567 votes has been illegally added to his account and he has been shown to have received 2,11,043 votes. The particulars and details of votes which were improperly added in the votes of Respondent No. 1 are contained in a schedule and the Petitioner is filing the same as SCHEDULE2 to this election petition which forms an integral part of it.
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That similarly 5087 votes of Petitioner were added in the vote account of Respondent No. 4 while preparing From20.
The particulars and details of such votes are contained in a schedule and the Petitioner is filing the same as SCHEDULE3 to this election petition which forms an integral part of it.
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That 670 votes of Petitioner were added in the vote account of Respondent No. 3 while preparing Form20.
The particulars and details of such votes are contained in a schedule and the Petitioner is filing the same as SCHEDULE4 to this election petition which forms an...
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