# ASH OK v. RAJENDRA BHAUSAHEB MULAK

- **Citation:** [2012] 12 S.C.R. 463
- **Court:** Supreme Court of India
- **Decided:** 2012-10-18
- **Case number:** Civil Appeal No. 7591 of 2012
- **Bench:** T.S. Thakur, Gyan Sudha Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ash-ok-v-rajendra-bhausaheb-mulak-28252
- **Pages:** 51

## Headnote

Election Laws - Conduct of Election Rules, 1961 - r.39
- Election petition - On ground of improper reception of votes
A
B
-
Election to State Legislative Council -
Two main C
contestants, appellant and respondent - Respondent won by
a thin margin of 4 votes - Appellant filed election petition
challenging the election of respondent on the plea of breach
of the Election Rules stating that at least 5 out of 14 votes
had been cast by such voters who were accompanied by o
another person to the voting compartment at the time of
actual casting of vote in the election which was in breach of
r.39 (5) to 39 (8) and hence reception of such votes by
including them at the time of counting of votes ought to be
declared as illegal - Election petition dismissed by the High
E
Court at the threshold on thie ground that it failed to declare
material particulars which could be held to have materially
affecting the election result - Whether the election petition in
question indicated absence of 'material particulars' which
materially affected the result ol the election so as to entertain
F
a cha/ienge to the same - Matter referred to three Judge
bench in view of conflicting views expressed by the two Hon'ble
Judges.
In the election to the Maharashtra State Legislative
Council from the Nagpur Local Authorities Constituency,
G
there were two main contestants, namely the appellant
and the r:ispondent. The appellant pnlled 198 votes as
against 202 votes polled in favour of the respondent. The
respondent thus won by a thin margin of 4 votes.
463
H
464
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A
The appellant filed an election petition challenging
the election of the respondent on the plea of breach of
the Conduct of Election Rules, 1961 stating that at least
5 out of 14 votes had been cast by such voters who were
accompanied by another person to the voting
B compartment at the time of actual casting of vote in the
election which was in breach of Rule 39 (5) to 39 (8) of
the Election Rules and hence reception of such votes by
including them at the time of counting of votes ought to
be declared as illegal. The election petition was
C dismissed by the High Court on the ground that it failed
to declare material particulars which could be held to
have materially affecting the election result. The High
Court found the election petition deficient on account of
the absence of a specific averment to the effect that the
0 votes that were improperly received were cast in favour
of the successful candidate i.e. the respondent. Hence
the present appeal.
Referring the matter to the larger Bench, the Court
E
HELD:
Per T.S. Thakur, J.
1.1. The averments made in the election petition
sufficiently disclosed a cause of action inasmuch as the
F essential, the pivotal and the basic facts relevant to the
charge levelled by the appell;;nts had been stated with
sufficient clarity by them in their respective election
petitions. The question whether the votes improperly
received were polled in favour of one or the other
G candidate was not an essential or material fact the
absence whereof could possibly result in the summary
dismissal of the election petitions. [Para 8] [486-A-C]
1.2. The interpretation of Section 100(1)(d) of the
H Representation of People Act, 1951 and in particular the
ASHOK v. RAJENDRA BHAUSAHEB MULAK
465
true import of the expression "the result of the election
A
in so far as it concerns a returned candidate has been
materially affected" is a serious issue, which may arise
for consideration but only after the election petition is
tried by the High Court and after the parties have
adduced whatever evidence may be available to them.
B
[Para 15] [493-D-E]
1.3. There can indeed be fact situations where the
Court may legitimately hold even in the absence of
affirmative evidence, that the result of the election was
C
materially affected by improp~r acceptance of the
nomination paper or the improper reception of votes.
[Para 17] [496-C-D]
1.4. Apart from the fact t

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[2012] 12 S.C.R. 463
ASH OK
v.
RAJENDRA BHAUSAHEB MULAK
(Civil Appeal No. 7591 of 2012)
OCTOBER 18, 2012
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]
Election Laws - Conduct of Election Rules, 1961 - r.39
- Election petition - On ground of improper reception of votes
A
B
-
Election to State Legislative Council -
Two main C
contestants, appellant and respondent - Respondent won by
a thin margin of 4 votes - Appellant filed election petition
challenging the election of respondent on the plea of breach
of the Election Rules stating that at least 5 out of 14 votes
had been cast by such voters who were accompanied by o
another person to the voting compartment at the time of
actual casting of vote in the election which was in breach of
r.39 (5) to 39 (8) and hence reception of such votes by
including them at the time of counting of votes ought to be
declared as illegal - Election petition dismissed by the High
E
Court at the threshold on thie ground that it failed to declare
material particulars which could be held to have materially
affecting the election result - Whether the election petition in
question indicated absence of 'material particulars' which
materially affected the result ol the election so as to entertain
F
a cha/ienge to the same - Matter referred to three Judge
bench in view of conflicting views expressed by the two Hon'ble
Judges.
In the election to the Maharashtra State Legislative
Council from the Nagpur Local Authorities Constituency,
G
there were two main contestants, namely the appellant
and the r:ispondent. The appellant pnlled 198 votes as
against 202 votes polled in favour of the respondent. The
respondent thus won by a thin margin of 4 votes.
463
H
464
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A
The appellant filed an election petition challenging
the election of the respondent on the plea of breach of
the Conduct of Election Rules, 1961 stating that at least
5 out of 14 votes had been cast by such voters who were
accompanied by another person to the voting
B compartment at the time of actual casting of vote in the
election which was in breach of Rule 39 (5) to 39 (8) of
the Election Rules and hence reception of such votes by
including them at the time of counting of votes ought to
be declared as illegal. The election petition was
C dismissed by the High Court on the ground that it failed
to declare material particulars which could be held to
have materially affecting the election result. The High
Court found the election petition deficient on account of
the absence of a specific averment to the effect that the
0 votes that were improperly received were cast in favour
of the successful candidate i.e. the respondent. Hence
the present appeal.
Referring the matter to the larger Bench, the Court
E
HELD:
Per T.S. Thakur, J.
1.1. The averments made in the election petition
sufficiently disclosed a cause of action inasmuch as the
F essential, the pivotal and the basic facts relevant to the
charge levelled by the appell;;nts had been stated with
sufficient clarity by them in their respective election
petitions. The question whether the votes improperly
received were polled in favour of one or the other
G candidate was not an essential or material fact the
absence whereof could possibly result in the summary
dismissal of the election petitions. [Para 8] [486-A-C]
1.2. The interpretation of Section 100(1)(d) of the
H Representation of People Act, 1951 and in particular the
ASHOK v. RAJENDRA BHAUSAHEB MULAK
465
true import of the expression "the result of the election
A
in so far as it concerns a returned candidate has been
materially affected" is a serious issue, which may arise
for consideration but only after the election petition is
tried by the High Court and after the parties have
adduced whatever evidence may be available to them.
B
[Para 15] [493-D-E]
1.3. There can indeed be fact situations where the
Court may legitimately hold even in the absence of
affirmative evidence, that the result of the election was
C
materially affected by improp~r acceptance of the
nomination paper or the improper reception of votes.
[Para 17] [496-C-D]
1.4. Apart from the fact that the averments made in
the election petitions in the present case are specific and
D
the individuals who have cast their votes have been
named and reason given why the votes cast by them
were improperly received, the petitioner has alleged that
exclusion of five votes cast by the persons named in the
petition would materially affect the result of the election.
E
The question whether any votes were improperly
received and if so, whether such reception had materially
affected the result of the election are matters to be
examined at the trial after the parties have adduced
evidence in support of their respective cases. Dismissal
F
of the election petitions at the threshold was in the facts
and circumstances not justified. In the result, the
judgment passed by the High Court is set aside and the
election petitions are restored to be tried by the High
Court on merits in accordance with law. [Para 18] [496G
G-H; 497-A-C]
Shiv Charan Singh S!o Angad Singh v. Chandra Bhan
Singh Slo Mahavir Singh and Ors. (1988) 2 SCC 12: 1988
(2) SCR 713 and T.H. Musthaffa v. M.P. Varghese (1999) 8
SCC 692: 1999 (3) Suppl. SCR 162 - distinguished.
H
466
SUPREME COURT REPORTS
(2012) 12 S.C.R.
A
Cheedi Ram v. Jhilmit Ram and Ors. (1984) 2 .sec 281:
1984 (1) SCR 966 - relied on.
Dipak Chandra Ruhidas v. Chandan Kumar Sarkar
(2003) 7 SCC 66: 2003 (2) Suppl. SCR 72; Deputy Collector,
B Northern Sub-Division Panaji v. Comunidade of Bambolim
(1995) 5 SCC 333: 1995 (2) Suppl. SCR 359; Virender Nath
Gautam v. Satpa/ singh and Ors. 2007 3 SCC 617: 2006 (10)
Suppl. SCR 413; Vashist Narain Sharma v. Dev Chandra
AIR (1954) SC 513: 1955 SCR 509: Swantraj and Ors. v.
State of Maharashtra (1975) 3 SCC 322: 1974 (3) SCR 287;
C Kanwar Singh v. Delhi Administration AIR 1965 SC 871: 1965
SCR 7; State of Tamil Nadu v. N.K. Kandaswami (1974) 4
SCC 745; Samant N. Ba/akrishna and Anr. v. George
Fernandez and Ors.(1969) 3 SCC 238: 1969 (3) SCR 603referred to.
D
E
F
G
.H
Heydon's case (1584) 76 E.R. 637; Seaford Court
Estates Ltd. v. Asher (1949) 2 All E.R. 155 and lnayatullah
v. Divanchand Mahajan 15 ELR 210 - referred to.
Maxwell on the Interpretation of Statutes - referred to.
Case Law Reference:
2003 (2) Suppl. SCR 72
referred to
Para 2, 5
1995 (2) Suppl. SCR 359
referred to
Para 5
2006 (10) Suppl. SCR 413
referred to
Para 8
1988 (2) SCR 713
distinguished Para 9
1999 (3) Suppl. SCR 162
distinguished Para 9, 18
1955 SCR 509
referred to
Para 9,11,
15
1974 (3) SCR 287
referred to
Para 12
(1584) 76 E.R. 637
referred to
Para 12
ASHOK v. RAJENDRA BHAUSAHEB MULAK
467
1965 SCR 7
referred to
Para 13
A
(1974) 4 sec 745
referred to
Para 14
(1949) 2 All E.R. 155
referred to
Para 14
1969 (3) SCR 603
referred to
Para 15
B
15 ELR 210
referred to
Para 15
1984 (1) SCR 966
relied on
Para 15
Per Gyan Sudha Misra. J. (dissenting)
c
1.1. On the prevailing facts, it is apparent. that the
petitioner/appellant is indulging in a process which
amounts to speculation and conjecture in absence of
material particulars; for instance, if it were the specific
plea of the petitioner that all 14 votes or at least 4 votes
D
which were cast in which the voters were alleged to have
been accompanied by another person were in fact polled
in favour of the respondent so as to influence the election
result, the plea of the petitioner could be held as
amounting to materially affecting the election result. But
E
in absence of this candid relevant and factual detail, the
election petition obviously is based only on such
averment, which will have to be held speculative and
conjectural in nature and can hardly be held to be
disclosing 'material facts with material particulars' so as
F
to conclude that it materially affected the result of the
election. Even assuming that the election petition were to
be allowed in spite of absence of such material
particulars, the net result would be the recounting of the
votes by declaring 14 votes as invalid which were alleged
G
to have been polled in breach of the election rules but
could hardly be identified or deciphered. [Para 16] [509D-H; 510-A]
1.2. In the absence of any identification mark of those
votes which are alleged to have been polled by voters
H
468
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A accompanied by another person and is alleged to be in
breach of the Rules cannot possibly be identified so as
to treat them as invalid votes and if that is so, the election
petition is clearly based on vague material and hence
would be unjust to allow the election to be questioned
B by entertaining the election petition where the losing
candidate/the petitioner had himself not alleged any
corrupt practice in holding the election but merely a
breach of the election rule in regard to which he had not
complained at all at the time of election or even thereafter
c but straightway filed the election petition challenging the
election on the basis of an alleged CD after the election
result was declared. Thus, the entertainment of an
election petition on such speculative material can hardly
be held to be disclosing material facts with material
0 particular which would justify the challenge to an election
by entertaining an election petition as the same does not
spell out material particulars which would affect the
election result. [Para 17] [510-C-F]
1.3. It is well settled legal position that no evidence
E can be led on a matter unless there is a pleading thereon.
Therefore, unless it was pleaded that the invalid votes
were cast in favour of the returned candidate, no
evidence can be led to that effect. In a petition seeking
to challenge an election on the ground stated in Section
F 100 (1) (d) (iii) and (iv) of the Representation of People Act,
1951, it was imperative for the petitioner to plead the most
crucial and vitally material fact that the invalid votes were
cast in favour of the returned candidate because then
alone could it be pleaded and proved that "the result of
G the election, in so far-as it concerns a returned candidate,
has been materially affected" within the meaning of
Section 100 (1) (d). The words "in so far as it concerns a
returned candidate" and "has been materially affected"
read with clauses (iii) and (iv) clearly show the legislative
H intent to place the burden of pleading and proving that
ASHOK v. RAJENDRA BHAUSAHEB MULAK
469
the improper reception of votes or violation of law in
A
regard to casting of votes benefited the returned
candidate and materially affected his election as a
returned candidate. It is not enough to show mere
improper reception of votes or reception of votes or noncompliance with law. In the present case, lack of pleading
B
that the votes were cast in favour of the respondent leads
to absence of cause of action for the petition for
invalidating the election under Section 10Q (1) (d) (iii) and
(iv). Merely because the margin of difference between the
winner and the loser was four votes and five votes were c
disputed by the petitioner would not give rise to any valid
cause of action. [Paras 18, 19] [510-G-H; 511-A-F]
1.4. There is substance in the view taken by the High
Court in the impugned judgment, that the election
petitioner only pointed out a possibility of result of D
election being different if 14 or 5 votes were to be
excluded from counting. The objection is only that those
votes ought not to have been taken into consideration
while counting the votes. In absence of identification of
those votes which are alleged to have been cast by the
E
voters in the company of another person, it would be
difficult to identify them so as to infer as to which are the
votes which ought not to have been reckoned for
counting by declaring them invalid. In that event even if
the petitioner's election petition were to be allowed, the
F
entire trial would result into an exercise in futility leading
the controversy nowhere. The election petition filed by
the petitioner indicates absence of 'material particulars'
which materially affected the result of the election so as
to entertain a challenge to the same. To contend that the
G
alleged breach of secrecy would render the entire
election result as void so as to order for a re-poll in spite
of absence of any objection by the defeated candidates
or his representative in this regard at the time of polling
would be an outrageous contention which is fit to
H
rejected outright. [Para 21] [512-E-H; 513-A·B]
A
B
c
470
SUPREME COURT REPORTS
[2012] 12 S.C.R.
1.5. The impugned judgment and order of the High
Court is not required to be interfered with and the election
petition was rightly held to be fit for rejection for want of
material facts and material particulars which could
materially affect the result of the election. [Para 22] [513-D]
Kalyan Kumar Gagoi v. Ashutosh Agnihotri, 2011 (1)
SCALE 516; Mu/ayam Singh Yadav v. Dharampa/ Yadav
(2001) SCC 98 and Vashisht Narain Sharma v. Dev Chandra
and others AIR 1954 S.C. 513: 1955 SCR 509 - relied on.
R.P. Moidutty v. P. T. Kunju Mohammad & Anr. 2000 (1)
SCC 481 and Jabar Singh v. Genda Lal (1964) SCR 54 -
referred to.
Mayar (HK) Ltd v. Owners & Parties (2006) 3 SCC 100:
0 2006 (1) SCR 860 - held inapplicable.
E
F
Case Law Reference:
2000 (1) sec 481
referred to
Para 3
2011 (1) SCALE 516
relied on
Para 4, 15
(2001) sec 98
relied on
Para 12
1955 SCR 509
relied on
Para 16
2006 (1) SCR 860
held inapplicablePara 19
(1964) SCR 54
referred to
Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7591 of 2012.
G
From the Judgment and Order dated 02.08.2010 of the
High Court of Judicature of Bombay Bench at Nagpur in
Election Petition No. 1 of 2010.
WITH
C.A. No. 7592 of 2012.
H
ASHOK v. RAJENDRA BHAUSAHEB MULAK
471
Ravi Shankar Prasad, PS Narasimha , Vined A Babde,
A
V.C. Daga, SS Shamshery, Vikramjeet Banerjee, Anil S. Killer,
R.C. Kohli, Shriram Parakkat, Kishor Lampat, Vishnu Shankar
Sain, Samab Samshery, Shally Bhasin Maheshwari, Kamna
Sagar, Shivaji M. Jadhav, SK Jain, Sarv Preet, Nitin Popli,
Jayant Bhatt for the Appearing Parties.
B
The Judgments and order of the Court was delivered by
T.S. THAKUR, J. 1. High Court of Judicature at Bombay,
Nagpur Bench has dismissed Election Petitions No.1 and 2 of
2010 filed by the appellants-petitioners in these appeals. The
C
High Court has taken the view that although the election
petitions did not allege the commission of any corrupt practice
against the returned candidate (respondent herein) and
although the petitions sufficiently established the authenticity of
thePage 3 documents relied upon by the petitioners yet the
D
petitions were deficient inasmuch as the same did not disclose
as to how the election of the returned candidate was materially
affected by the alleged improper reception of the votes polled
in the election. The hallmark of the order passed by the High
Court is a copious reference to the decisions of this Court no
E
matter some if not most of them had no or little relevance or
application to the facts of the case before it, in the process
adding to the bulk of the order under challenge. At the heart of
the conclusion arrived at by the High Court is the argument that
even when the election petitions contain specific averments
F
alleging improper reception of 14 votes with the names of those
who cast those votes, the same do not go furtherto state as to
in whose favour the said votes were actually polled. This,
according to the High Court, was an essential requirement for
disclosure of a cause of action inasmuch as in the absence of G
a statement that the improperly received votes were polled and '
counted in favour of the returned candidate, neither the election
petitions disclosed a cause of action nor was it possible to say
that the result of thePage 4 election was materially affected by
the narrow margin of the victory notwithstanding. We cannot do
H
472
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A better than extract from the judgment of the High Court the
passages from which the reasoning underlying the conclusion
drawn by the High Court can be deduced albeit with some
amount of difficulty. The High Court observed:
B
c
D
E
F
G
H
''The Election Petitioners here only point out a possibility
of result of election being different if 14 or 5 votes can be
excluded. It is not their case that said votes when displayed
revealed that they were in favour of Rajendra or not in favour
of Ashok. The Pssolling Agent of Petitioner at Kamptee
is not being quoted or relied upon by Shri Ashok Mankar.
Here, there are only two contestants and difference
between them is of 4 votes only. The objection is about
receipt of 14 or 5 votes. Several questions having bearing
on result of said election being materially affected in so
far as returned candidate is concerned, arise. The
Petitioners have not pointed out the beneficiary of those
14 or 5 votes. It is not their plea that all those voters cast
their vote in favour of Returned Candidate or did not vote
in favour of defeated candidate. There is no plea about
their political affinities either to associate or dis-associate
them with BJP or National Congress {I) political parties.
The said votes now can not be traced out & segregated.
Hence when "displayed" what was seen & the vote was
cast in whose favour ought to have been pleaded.
Election Petitioners can not seek rejection of 14
votes or 5 votes which according to them can be identified
and ask for recount without even asserting that those votes
or any number out of it has gone to Returned Candidate.
These votes may have been excluded only if they were
cancelled before they were inserted in ballot box as per
Rule 39 of 1961 Rules. Otherwise, those votes can then
be subjected only to Rule 56. If any violations or breaches
of their duties by staff at Polling Station at Kamptee is to
be alleged, it is apparent that adequate pleadings are
must for said purpose. nmely protest by agent of Ashok
ASHOK v. RAJENDRA BHAUSAHEB MULAK
473
[T.S. THAKUR, J.]
would have been one such fact. If any thing was displayed
A
and it was adverse to Ashok's interest, why objection was
not lodged then & there is again an important factor. It is
the result of election in so far as it concerns the returned
candidate which is required to be proved as materially
affected. Only possibility of election getting affected is not
B
sufficient to un-sit the elected candidate.
Section 100 (1 )(d)(iii) & (iv) requires pleading of
illegalities as also irregularities and also of facts indicating
material effect thereof on the election of the returned
candidate. Only after these pleadings.evidence in relation
C
thereto can come on record & not otherwise. Opinion of
High Court contemplated by S.100(1) is possible only after
due opportunity to returned candidate. Hence pleading of
this material fact of link between the victory & lacunae/
omissions is prerequisite to formation of this opinion. A
D
"triable issue" cannot be said to arise till then as no cause
of action surfaces. Election Petitions cannot in its absence
demonstrate how the result of election in so far as it
concerns returned candidate is materially affected.
Respondent's success with slender margin, in the absence
E
of specific plea of any connection between it & alleged
irregularities or illegalities and facts showing that
connection, by itself cannot be the material fact. Pleading
such link or connection cannot be pleading a material
particular. The Election Petitions cannot be said to be
F
"complete" without any whisper of such connection. Both
Election Petitioners have avoided to plead vital link
between the alleged breaches and the success of
Returned Candidate. This omission cannot be allowed to
be cured by amendment as limitation for filing Election
G
petition has long expired and "material facts" cannot be
now permitted to be added."
2. When these special leave petitions came up for hearing
before this Court on 3rd April, 2012, Mr. V.A. Bobde, learned
H
474
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A senior counsel for the respondents, raised a preliminary
objection to the maintainability of the petitions. It was contended
by Mr. Bobde that the impugned judgment and order of the
High Court dismissing the election petitions filed by the
petitioners being appealable under Section 116A of the
B Representation of People Act, 1950, the petitioners could not
maintain the special leave petitions under Article 136 of the
Constitution which deserves dismissal on that ground alone.
Reliance inPage 6 support was placed by Mr. Bobde upon a
decision of this Court in Dipak Chandra Ruhidas v. Chandan
c Kumar Sarkar (2003) 7 SCC 66.
3. Section 116A of the Representation of the People Act,
1951 provides for appeals to this Court both on facts as also
on questions of law from every order made by the High Court
under Section 98 or 99 of the Act. Sub-section (2) of Section
D 116A prescribes a period of 30 days for filing of such appeals
while proviso to sub-section (2) empowers this Court to
entertain an appeal even after the expiry of the said period if
the appellant shows sufficient cause for not preferring the
E
appeal within such period.
4. Section 98 of the Act provides for the orders that the
High Court shall make at the conclusion of the trial in an election
petition. These orders could be in the nature of dismissal of an
election petition or declaring the election of all or any of the
F returned candidates to be void or declaring the election of all
or any of the returned candidates to be void and the petitioner
or any other candidate to have been declared elected. Section
86 of the Act deals with the trial of election petitions and, inter
alia, provides that the HighPage 7 Court shall dismiss an
G election petition which does not comply with the provisions of
Sections 81 or 82 or Section 117 of the Act. Any such dismissal
may come after the parties go to trial or even at the threshold.
An election petition which does not call for dismissal on the
ground that the same violates any one of the three provisions,
H namely, Section 81 or 82 or 117 may still be dismissed
ASHOK v. RAJENDRA BHAUSAHEB MULAK
475
[T.S. THAKUR, J.]
summarily and without the parties going to trial on the merits
A
of the controversy under Order VII Rule 11 of CPC. Any such
order if may not be qualifying for a challenge before this Court
under Section 116A as an appeal is under that provision limited
to only such orders as are passed under Section 98 of the Act
at the conclusion of the trial of election petition. Strictly
B
speaking, it could well be said that an order which does not
fall within the four corners of Section 98 inasmuch as the same
is not passed at the conclusion of the trial of an election petition
may not qualify for being challenged in appeal under Section
116A including an order dismissing the petitions summarily c
under Section 86 of the Act for non-compliance of the provisions
of the Sections 81, 82 and 117. What is important and
whatPage 8 makes a difference is the presence of an
explanation under Section 86(1) that by a legal fiction makes
an order passed under Section 86 of the Act to be an order
0
under Section 98 thereof explanation reads :
"Explanation to Section 86: An order of the High Court
dismissing an election petition under this sub-section shall
be deemed to be an order made under clause (a) of
Section 98."
E
5. The fiction is, however, limited to orders passed under
Section 86(1) alone namely to cases where dismissal is for noncompliance with the provisiC?ns of Sections 81, 82 and 117 of
the Act. It does not extend to dismissal under Order VII Rule
F
11 of the CPC for non-compliance with the provisions of
Section 83 of the Act. In other words, if a petition does not state
the material facts on which the petitioner relies as required
under Section 83(1 )(a) and thereby fails to disclose any cause
of action and is consequently dismissed by the Court in
G
exercise of its powers under Order VII, Rule 11 CPC, such an
order of rejection of the petition is not in terms of Explanation
to Section 86 treated as an order made under Section 98 so
as to be appealable under Section 116A of the Act. Mr. Prasad
was, therefore, perfectly justified in arguing that since the High
H
476
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A Court has, in the instant case, dismissed the election petitions
not under Section 86 to which the Explanation appearing
thereunder is attracted but under Order VII Rule 11 for the
alleged failure of the petitioners to state the material facts on
which they relied, the order passed by the High Court was not
B appealable under Section 116A. The only difficulty which was
encountered by us in holding that the special leave petitions
were maintainable is a decision of this Court in Dipak Chandra
Ruhidas case (supra) where this Court has taken the view that
Section 116A must be interpreted liberally and an order
c dismissing the election petition on the ground that the
averments do not state material facts would be appealable
under Section 116A. With utmost respect to the Hon'ble Judges
comprising the Bench, we find that conclusion to be contrary
to the scheme of the Act. We were, therefore, inclined to make
0 a reference to a larger Bench for reconsideration of that view,
for the same, in our opinion, extends the fiction created under
the Explanation to Section 86 even to case where the Court
does not invoke Section 86 while passing an order of dismissal
but exercises its power of rejection of the plaint/petition under
Order VII Rule 11 CPC. It is noteworthy that an order under
E Order VII Rule 11 CPC by reason of Section 2(2) of the CPC
is a decree hence appealable under Section 96 of the Code.
Since, however, the right of appeal under the Representation
of the People Act is regulated by .section 116A, the fact that
an order rejecting a plaint under Order VII Rule 11 CPC would
F have been in the ordinary course appealable before the higher
Court hearing such appeals would not make any difference.
Inasmuch as the right of appeal is a creature of the statute, and
Section 116A does not provide for an appeal against an order
passed under Order VII Rule 11 CPC read with Section 83 of
G the Representation of the People Act, 1951 no resort can be
taken to that provision by a process of interpretation of the
Explanation to Section 86 or an artificial extension of the legal
fiction beyond the said provision. Mr. Prasad was not, however,
very keen to pursue his argument to its logical end for obvious
H reasons. A reference to a larger bench would inevitably delay
•
ASHOK v. RAJENDRA BHAUSAHEB MULAK
477
[T.S. THAKUR, J.]
the disposal of these appeals and even the election petitions.
A
Mr. Prasad, therefore, chose the alternative course available
to him and sought permission of this Court to convert the SLPs
into appeals under Section 116A of the Act. Two applications,
one seeking permission to convert the petitions into an appeal
under Section 116A and the other seeking condonation of
B
delay in the filing of the appeals were accordingly made by the
petitioner. Having heard learned counsel for the parties at some
length we are inclined to allow both these applications in both
the special leave petitions. Whether or not an appeal was
maintainable against the impugned order was and continues c
to be a highly debatable issue as seen in the foregoing
paragraphs. The petitioners appear to have been advised that
the orders could be challenged only by way of SLPs. That
advice cannot in the circumstances of the case, be said to be
a reckless piece of advice nor can the petitioners be accused
0
of lack of diligence in the matter when the SLPs were admittedly
filed within the period of limitation stipulated for the purpose.
The decision of this Court in Deputy Collector, Northern SubDivision Panaji v. Comunidade of Bambolim (1995) 5 SCC
333, recognizes a bonafide mistake on the part of the counsel
E
in pursuing a remedy as a good ground for condonation of delay
in approaching the right forum in the right kind of proceedings.
The limitation prescribed for filing an appeal under Section
116A is just about 30 days from the date of the order. There
is, therefore, a delay of nearly 20 days in the filing of the appeal
which deserves to be condoned. We accordingly allow the
F
applications for conversion and for condonation of delay in both
the special leave petitions and direct that the SLPs shall be
treated as appeals filed under Section 116A of the
Representation of the People Act.
G
6. That brings us to the merits of the controversy in the
election petitions filed by the appellants. The election petitions
specifically alleged improper reception of votes which had
according to the appellant materially affected the result of the
election. It is common ground that there were only two
H
478
SUPREME COURT REPORTS
[2012) 12 S.C.R.
A contestants namely the appellant-Ashok and the respondentRajend ra Bhausaheb Mulak. The election was to the
Maharashtra State Legislative Council from Nagpur Local
Authorities Constituency. Result of the election declared on 21st
January, 2010 showed that the appellant Ashok had polled 198
B ballots as against 202 votes polled in favour of the respondentRajendra Bhausaheb Mulak. The respondent thus won by a
margin of only four votes. The election-petitioners' case as set
out in the election petition was that the election was materially
affected by the improper reception of as many as 14 votes out
c of a total of 400 votes in the course of elections. Specific
averments, in regard to the votes so cast, were made in the
election petition including averments based on the CD
recording at each polling station obtained officially by the
electionpetitioner from the concerned authorities under the
D Right to Information Act, 2005. In para 11 to 17 of the election
petition, the petitioner made specific averments regarding
vig_Jption of the provisions of the Act and the Rules and
improper reception of as many as 14 votes by voters who were
named in these paragraphs. In para 17, the petitioner had
further asserted that the improper reception of the 14 votes had
E materially affected the result of the election. Para 11 to 17 may
at this stage be reproduced for ready reference:
"11 ............ On going through the said CD relating to
Kamptee Polling Station, that was supplied by the Office
F
of the Collector-cum-District Election Officer, Nagpur it
was found that a voter namely, Mrs. Begum Shehnaz
Begum Akhtar entered the polling station along with
another voter Shri Abdul Shakoor Usman Gani @ Shakoor
Nagani who had accompanied her to the Polling booth in
G
utter breach of the Election Rules and Handbook of the
Returning Officer issued by the Election Commission of
India under Art. 324 of the Constitution of India. Shri Abdul
Shakoor Usman Gani @ Shakoor Nagani marked the
ballot paper that had been issued to Mrs. Begum Shehnaz
H
Begum Akhtar and thereafter displayed the said ballot
ASHOK v. RAJENDRA BHAUSAHEB MULAK
4 79
[T.S. THAKUR, J.)
paper to those present in the room where the ballot box
A
had been kept and thereafter put the ballot paper in the
ballot box. This act is visible from the CD that has been
supplied to the petitioner by the Office of the Collector-cumDistrict election Officer, Nagpur. In accordance with Rule
39(4) of the Election Rules, no other voter can be allowed
B
to enter a voting compartment when another elector is
inside it. Thus, there has been violation of Rule 39 (4) of
the Election Rules as one voter Ms. Begum Shehnaz
Begum Akhtar was accompanied by another voter Shri
AbdulShakoor Usman Gani @ Shakir Nagani and both c
voters entered the voting compartment together. Thus,
there has also been a breach of Rule 39(5) to 39(8) of the
Election Rules where there is breach of secrecy by display
of the ballot paper, the vote in question is required to be
cancelled by making an endorsement to that effect on the
D
reverse of the ballot paper. However, the Returning Officer
failed in his boundened duty in cancelling the said vote
though its secrecy was qlatantly violated in his very
presence and permitted the same to be put in the ballot
box. The petitioner submits that from the CD supplied by
E
the Office of the respondent No.2 he has taken still
photographs. The copies of the aforesaid photographs are
filed along with the Election Petition as Document No.17.
12. The petitioner further submits that from the said CD, it
was further revealed that another lady voter Ms.Rashida
F
Khatoon Mohammed Tahir entered the polling booth at
Kamptee Police Station accompanied by one Shri Niraj
yadav, another voter at the said ele9tion. Both Ms.Rashida
Khatoon Mohammed Tahir and Shri Niraj Yadav together
went to the voting compartment along with the ballot paper G
that had been issued to Ms.Rashida Khatoon Mohammed
Tahir. This act of two voters going together in the voting
compartment at the same time was in violation of rule 39(4)
of the Election Rules. There Shri Niraj Yadav marked the
ballot paper that had been issued to Ms.Rashida Khatoon
H
A
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c
D
E
F
G
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480
SUPREME COURT REPORTS
[2012] 12 S.C.R.
Mohammed Tahir. Thereafter, Shri Niraj Yadav displayed
the marked ballot paper to others who were present in the
polling booth and thereafter put the ballot paper in the ballot
box. Thus, there was, again breach of secrecy of the vote
polled on behalf of Ms.Rashida Khatoon Mohammed Tahir.
As per the guidelines mentioned in the Handbook of the
Returning Officer, it was the duty of the Presiding Officer,
it was the duty of the Presiding officer to cancel the said
ballot paper on account of violation of its secrecy, the same
having been displayed to others and the voter being
accompanied by another voter. Though the Presiding
Office was very much present in the said room where this
entire exercise took place, he remained merely a mute
witness and failed to cancel the aforesaid vote as being
void. Thus, the vote cast by Ms.Rashida Khatoon
Mohammed Tahir was required to be cancelled and could
not be taken into consideration. Thus, there has been a
breach of Rule 39(5) to 39(8) of the Election Rules. The
petitioner submits that from the CD supplied by the Office
of the respondent No.2 he has taken still photographs. The
copies of the aforesaid photographs are filed along with
the Election Petition as Document No.18.
13. The petitioner further submits that it is clear from the
CD relating to Kamptee Poling Station that another voter
Shri Abdul Shakoor Usman Gani @ Shakoor Nagani,
thereafter, exercised his franchise by marking the ballot
paper issued to him. He, thereafter, came out of the voting
compartment without folding the ballot paper in violation
of rule 39(2)(c) of the Election Rules and, on the contrary,
displayed the marked ballot paper to the Presiding Officer
and others present there. Again, the Presiding Officer
failed to act in accordance with the provisions of Rule
39(5) to 39(8) of the Election Rules as well as the
guidelines prescribed in the Handbook of the Returning
Officer issued by the Election Commission of India and
failed to cancel the aforesaid vote on account of breach
ASHOK v. RAJENDRA BHAUSAHEB MULAK
481
[T.S. THAKUR, J.]
of its secrecy. On the contrary, the Presiding Officer A
allowed said Shri Abdul Shakoor Usman Gani @ Shakoor
Nagani to put his vote in the ballot box. On account of
breach of its secrecy the aforesaid vote of Shri Abdul
Shakoor Usman Gani @ Shakoor Nagani could not have
been taken into consideration as a valid vote. The
B
petitioner submits that from the CD supplied by the Office
of the respondent No.2 he has taken still photographs. The
copies of the aforesaid photographs are filed along with
the Election Petition as Document No.19.
14. The petitioner submits that after viewing the CD
C
supplied from the Office of the Collector-cum-District
Election Officer, Nagpur, it can be seen that another voter
Shri Niraj Yadav took his ballot paper to the voting
compartment and after marking the same, came out of the
voting compartment without folding the ballot paper. This
D
action was in breach of Rule 39(2) (c) of the Election Rules.
The said Shri Niraj Yadav displayed his marked ballot
paper to the Presiding Officer and others present in the
polling booth, thereby violating the secrecy of voting. The
Presiding Officer was very much present in the said room
E
but, instead of cancelling the said vote on account of
breach of its secrecy, permitted the said voter to put the
said vote in the ballot box. Therefore, on account of
violation of secrecy of the vote cast by Shri Niraj Yadav
the same was required t be cancelled and it could not have
F '
been enlisted as a valid vote. There was, thus, breach of
Rule 39(5) to 39(8) of the Election Rules. The petitioner
submits that from the CD supplied by the Office of the
respondent No.2 he has taken still photographs. The
copies of the aforesaid photographs are filed along with
G
the Election Petition as Document No.20.
15. The petitioner further submits that after viewing the CD
supplied by the Office of the Collector-cum-District Election
Officer, Nagpur, it is seen that another voter Shri Mushtaq
H
A
B
c
D
E
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G
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482
SUPREME COURT REPORTS
(2012] 12 S.C.R.
Ahmed Abdul Shakoor exercised his franchise by marking
his ballot paper. However before coming out of the voting
compartment, said Shri Mushtaq Ahmed Abdul Shakoor
did not fold the ballot paper as required by Rule 39(Z)(c)
of the Election Rules; but, on the contrary, he displayed the
marked ballot paper to the Presiding officer and others
who were present in the said room. The Presiding Officer
was required to have cancelled the aforesaid vote on
account of breach of its secrecy as required by rule 39(5)
to 39(8) of the Election Rules and the guidelines mentioned
in the Handbook of the Returning Officer issued by the
Election Commission of India. However, instead of
cancelling the aforesaid vote as invalid, the Presiding
Officer permitted Shri Mushtaq Ahmed Abdul Shakoor to
put the said ballot paper in the ballot box in violation of the
laid down voting procedure and in violation of Rule 39(2)(c)
of the Election Rules. Therefore, the vote cast by Shri
Mushtaq Ahmed Abdul Shakoor could not have been
enlisted as a valid vote as there was breach of secrecy
during the actual polling. The petitioner submits that from
the CD supplied by the Office of the respondent no.2 he
has taken still photographs. The copies of the aforesaid
photographs were filed along with the Election Petition as
Document No.21.
16.The petitioner submits that a perusal of the CD
supplied from the offie of the Collector-cum-District Election
Officer, Nagpur pertaining to Kamptee Polling Station, it
can be seen that various voters were carrying a spy pen
with in-built camera along with them. The said voters as
can be identified from the CD are Smt. Savita Sharma,
S/shri Siddartha Rangari, Moreshwar Patil, Dilip
Bandebuche, Prashant Nagarkar, Mukund Yadav,
Mohammed Arshad Mohd. Altaf, Ukesh Lehandas and
Smt. Pratibha Meshram. The aforesaid voters carried
articles other than those that were permitted to be carried
in the voting compartment in violation of the voting
ASHOK v. RAJENDRA BHAUSAHEB MULAK
483
[T.S. THAKUR, J.]
procedure and rules framed thereunder. In this regard, it
A
is submitted that Rule 39(2)(b) read with Rule 70 of the
Election Rules require an elector to record his vote on the
ballot paper with the article supplied by the authorities for
the said purpose. Under Rule 73(2)(e), a ballot paper
marked by an elector otherwise supplied for the said
B
purpose becomes invalid. It is submitted that each elector
was supplied with a marked pen so as to mark the ballot
paper.