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 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL     APPEAL     NO.     7591     OF     2012   

(Arising out of S.L.P. (C) No.28143 of 2010)

Ashok  …Appellant

Versus

Rajendra Bhausaheb Mulak …Respondent

With

CIVIL     APPEAL     NO.     7592     OF     2012   (Arising out of S.L.P. (C) No.28333 of 2010

O     R     D     E     R   

In view of conflicting views expressed by  

us, we refer this matter to a three Judge Bench for  

resolving the conflict.  The Registry shall place the  

record before Hon'ble the Chief Justice of India for  

constituting an appopriate Bench.

……………………………….………J.  (T.S. THAKUR)    

……………………………….………J.   (GYAN SUDHA MISRA)

New Delhi October 18, 2012

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REPORTABLE

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.       7591       OF     2012   (Arising out of S.L.P. (C) No.28143 of 2010)

Ashok  …Appellant

Versus

Rajendra Bhausaheb Mulak                 …Respondent

With       

CIVIL     APPEAL     NO.       7592       OF     2012   (Arising out of S.L.P. (C) No.28333 of 2010

J     U     D     G     M     E     N     T      

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 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 the

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documents relied upon by the petitioners yet the 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 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 alleging improper  

reception of 14 votes with the names of those who cast  

those votes, the same do not go further to 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 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 the

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election was materially affected by the narrow margin of  

the victory notwithstanding. We cannot do 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:

“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 Polling 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.  Timely  protest by agent of Ashok would have been one such fact.  If any  thing was displayed 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 sufficient to un-sit  the elected candidate.

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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 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 pre- requisite to formation of this opinion.  A “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  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 “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 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 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 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 in

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support was placed by Mr. Bobde upon a decision of this  

Court in Dipak Chandra Ruhidas v. Chandan 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 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 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 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 High

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Court shall dismiss an 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, namely,  

Section 81 or 82 or 117 may still be dismissed summarily  

and without the parties going to trial on the merits 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 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 under Section  

86 of the Act for non-compliance of the provisions of the  

Sections 81, 82 and 117.  What is important and what

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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 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.”    

5.The fiction is, however, limited to orders passed under  

Section 86(1) alone namely to cases where dismissal is for  

non-compliance with the provisions of Sections 81, 82 and  

117 of the Act.  It does not extend to dismissal under  

Order VII Rule 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 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

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since the High 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 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 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 a reference to a larger Bench for re-

consideration 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

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its power of rejection of the plaint/petition under Order VII  

Rule 11 CPC.   It is noteworthy that an order under 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 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 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 reasons.  A reference to a larger bench  

would inevitably delay the disposal of these appeals and  

even the election petitions.  Mr. Prasad, therefore, chose

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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  

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 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 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  

Sub-Division Panaji v. Comunidade of Bambolim  

(1995) 5 SCC 333, recognizes a bonafide mistake on the

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part of the counsel 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 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.  

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 contestants namely the appellant-Ashok and the  

respondent-Rajendra 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-

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Ashok had polled 198 ballots as against 202 votes polled in  

favour of the respondent-Rajendra 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 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 election-

petitioner from the concerned authorities under the Right  

to Information Act, 2005.   In para 11 to 17 of the election  

petition, the petitioner made specific averments regarding  

violation 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 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 of the Collector-cum-District

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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 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 Begum Akhtar and thereafter displayed the said ballot  paper to those present in the room where the ballot box 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-cum-District election Officer, Nagpur.  In  accordance with Rule 39(4) of the Election Rules, no other voter can  be allowed 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 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 reverse of the ballot  paper.  However, the Returning Officer failed in his boundened duty  in cancelling the said vote though its secrecy was blatantly 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 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 Khatoon  Mohammed Tahir entered the polling booth at Kamptee Police  Station accompanied by one Shri Niraj yadav, another voter at the  said election.  Both Ms.Rashida Khatoon Mohammed Tahir and Shri  Niraj Yadav together went to the voting compartment along with the  ballot paper 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 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

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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 of its  secrecy.  On the contrary, the Presiding Officer 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 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 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 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 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 been enlisted as a  valid vote.  There was, thus, breach of Rule 39(5) to 39(8) of the

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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.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 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(2)(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 procedure and  rules framed thereunder.  In this regard, it 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 purpose  becomes invalid.  It is submitted that each elector was supplied with  a marked pen so as to mark the ballot paper. The above-mentioned  voters carried a additional camera as can be seen from the CD  referred to above.  The spy pen is quite distinct from an ordinary  pen on account of its size, colour and design, so much so that it can

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easily be differentiated from an ordinary pen.  Thus, it is submitted  that the Election Rules especially Rule 39 (2)(b), Rule 70 & Rule  73(2)(e) were violated during the course of polling at Kamptee  Polling Station.  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.22. 17.The petitioner submits that the votes that were cast by Mrs.  Begum Shehaz Begum Akhtar and Ms. Rashida Khatoon Mohammed  Tahit at the Kamptee Polling Station with the aid of other voters,  namely, Shri Abdul Shakoor usman Gani @ Shakoor Nagani and Shri  Niraj Yadav respectively, were in violation of the provisions of Rule  39(4) of the Election Rules.  It is submitted that the said two voters,  namely, Mrs. Begum Shehnaz Begum Akhtar and Ms.Rashida  Khatoon Mohammed Tahir were neither illiterate, blind or infirm so  as to take the aid of any companion.  The report on the election  submitted by the Returning Officer under paragraph 3 of Chapter XV  of the said Act, especially Item No.16, indicates that there was no  such voter who was illiterate, blind or infirm who had voted with the  help of a companion.  In any event, a companion cannot be another  voter and Rule 39(4) of the Election Rules specifically prohibits one  elector from entering the voting compartment when another elector  is inside it.  Therefore the said two votes polled by Mrs. Begum  Shehnaz Begum Akhtar and Ms. Rashida Khatoon Mohammed Tahir  cannot be taken into consideration as valid voters.  Similarly, insofar  as the votes polled by Shri Abdul Shakoor Usman Gani @ Shakoor  Nagani, Niraj Yadav and Shri Mushtaq Ahmed Abdul Shakoor are  concerned, they are also required to be excluded from consideration  inasmuch as the said voters have displayed the marked ballot paper  before putting the same in the ballot box.  Rule 39(2)(c) requires  the voter to fold the ballot paper so as to conceal his vote after he  has marked the ballot paper.  There being breach of aforesaid rule,  the secrecy of voting has been violated.   Similarly, there is breach  of provision of Rules 39(5) to 39(8) of the Election Rules.  Therefore, the said votes are required to be excluded from being  considered as valid votes.  It is further submitted that as many as  nine voters, namely 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 having carried an article other than that which  was permissible to be carried in the voting compartment, have  breached the  provisions of Rule 39(2)(b) of said rules and there  being breach of provisions of Rules 39(5) to 39(8) of the Election  Rules, the votes polled by aforesaid nine voters also deserved to be  excluded from being considered as valid votes.  Similarly, the vote  of Smt. Nirmala Rahul Gajbe that was polled at Narkhed Polling  Station, where she was found carrying a spy-pen fitted with camera  also deserved to be excluded form being considered as a valid vote,

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there being breach of provisions of Rule 39(2)(b) read with Rule  39(5) to 39(8) of the Election Rules.  Therefore in all, said 14 votes  are required to be excluded from being considered as valid votes.  The result of the election has been materially affected.  Therefore,  the election of the returned candidate is required to be declared as  void under Section 100 (1)(d) (iii) and (iv) of the said Act and it  further needs to be declared that the petitioner is validly elected in  place of the returned candidate under section 100 (a) of the said  Act, the petitioner having received majority of the valid votes.  The  copy of the Handbook for Returning Officer issued by the Election  Commission of India and supplied to the petitioner from the Officer  of respondent No.2 is filed along with the Election Petition and  Marked as Document     No.23.  ”      7.The High Court has noticed the above averments and  

recorded a finding that the same satisfied the requirement  

of Section 83 of the Act inasmuch as the material facts in  

regard to the alleged improper reception of votes had been  

stated by the petitioner.  The High Court has said:

“In pleadings itself, authenticity of all these document is prima-facie  sufficiently established.  Essential facts to prove breaches of Rules  with relevant legal provisions are sufficiently brought on record by  him. “xxxxxxxxx” Here, in both Petitions case of wrongful receipt of invalid or void  votes sufficient in number to change the result is already pleaded.  As held in Laxmi     Kant     Bajpayi   vs. Haji     Yaqoob,   supra, where  election petition was under Section 83 read with Section 100 (1) (d) (iii) & (iv) of 1951 Act, & the pleadings in election Petitioner reveal  a clear complete picture of the circumstances and disclose a definite  cause of action, the election petition cannot be summarily  dismissed.”

8.The High Court all the same found the election petition  

deficient on account of the absence of a specific averment  

to the effect that the votes that were improperly received  

were cast in favour of the successful candidate.  We find

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that reason to be unsustainable. The averments made in  

the election petition, in our opinion, sufficiently disclosed a  

cause of action inasmuch as the essential, the pivotal and  

the basic facts relevant to the charge levelled by the  

appellants had been stated with sufficient clarity by the  

petitioners in their respective election petitions. The  

question whether the votes improperly received were  

polled in favour of one or the other candidate was not an  

essential or material fact the absence whereof could  

possibly result in the summary dismissal of the election  

petitions. We draw support for that view from the decision  

of this Court in Virender Nath Gautam v. Satpal Singh  

and Ors. (2007) 3 SCC 617.  That was also a case where  

the election-petitioner had been defeated by a narrow  

margin of 51 votes only.  The challenge to the election was  

founded on the plea that as many as 188 votes had been  

wrongly counted n spite of the fact that all those votes  

were invalid votes and that since the margin was only 51  

votes, wrong counting of 188 invalid votes materially  

affected the result of the election.  It was further alleged  

that 37 votes of dead persons had been cast and they were

Page 20

thus void and could not, therefore, have been counted. The  

petitioner gave names of all the 37 voters and annexed  

death certificates of 36 of such persons. So also there were  

allegations that there was double voting by 60 voters in  

violation of Section 62(4) of the Act.  Another 19 votes  

were challenged on the ground of being void as the voters  

had exercised their right to vote in two constituencies. In  

addition there were allegations of material irregularities in  

counting of postal ballot papers. The High Court had  

despite such assertions dismissed the election petition  

holding that there was nothing to show as to how many  

votes of dead persons had been cast in favour of the  

returned candidate.  The High Court also held that the  

election petition did not disclose as to how the petitioner  

came to know about dead persons casting their votes nor  

was it indicated as to how the petitioner came to know  

about the persons listed having voted in two different  

constituencies. Reversing the view taken by the High Court,  

this Court observed that the election petition stated all the  

requisite material facts and that the High Court committed  

an error in examining the correctness of the allegations at

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an intermediary stage which could be done only at the time  

of trial. As to whether the election-petitioner was required  

to make a statement that the void votes were polled in  

favour of the returned candidates this Court held that the  

same was not a material fact to be stated in the petition.  

This Court observed:

“49. On the basis of our conclusions and reasoning in respect of  paras 8(i) to (iii), the finding of the High Court on para 8(iv) also  cannot be said to be in consonance with law. Whether or not six  persons had been issued voting papers twice and whether or not  those voters had polled in favour of the returned candidate cannot  be said to be a material fact to be stated in the election petition.  What are required to be stated in the petition are material facts to  maintain the petition.”

9.The High Court has in support of its conclusion drawn  

support from the decisions of this Court in Shiv Charan  

Singh S/o Angad Singh v. Chandra Bhan Singh S/o  

Mahavir Singh and Ors.  (1988) 2 SCC 12 and T.H.  

Musthaffa v. M.P. Varghese (1999) 8 SCC 692 to hold  

that in order to succeed, the election-petitioners have to  

prove by adducing evidence, that the result of the election  

was materially affected by the improper reception of votes.  

There can be no quarrel with this proposition that in order  

to succeed the election petitioners have not only to prove

Page 22

by leading requisite evidence that votes were improperly  

received but also that such improper reception materially  

affected the result of the election in so far as the returned  

candidate was concerned.  The question is whether an  

election petition could be dismissed summarily on the  

ground that production of any such evidence was not  

possible. In Shiv Charan Singh’s case (supra), this Court  

was dealing with an appeal under Section 116A of the Act  

after the High Court had tried the election petition on  

merits and held the election of the returned candidate to be  

void with a direction to the election commission to hold a  

fresh election.  In that case, the margin of victory of the  

returned candidate was no more than 4497, over Roshan  

Lal, the candidate who polled the 2nd highest number of  

votes.  Kanhaya Lal, the candidate who had polled 17841  

votes was held ineligible to contest being less than 25  

years of age.  The High Court was of the view that since  

the number of votes polled by Kanhaya Lal whose  

nomination papers were wrongly accepted were far more  

than the margin of victory the election of the retuned  

candidate was materially affected by the improper

Page 23

acceptance of the nomination paper of Kanhaya Lal. This  

Court did not agree with that reasoning.  Relying upon the  

decision of this Court in Vashist Narain Sharma v. Dev  

Chandra AIR 1954 SC 513, this Court held that the  

margin of victory being less than the votes polled by an  

improperly nominated candidate did not by itself mean that  

the result of the election was materially affected. The  

election petitioner, observed this Court is required to lead  

evidence to prove as a fact that the result of the election  

was indeed materially affected, no matter it may be difficult  

and even impossible for the election petitioner to adduce,  

any such proof. This Court observed:  

“The result of the election can be affected only on the proof that the  votes polled by the candidate whose nomination paper had wrongly  been accepted would have been distributed in such a manner  amongst the remaining candidates that some other candidate (other  than the returned candidate) would have polled the highest number  of valid votes. In other words the result of the election of the  candidate cannot be held to have been materially affected unless it  is proved that in the absence of the candidate whose nomination  paper was wrongly accepted in the election contest, any other  candidate (other than the returned candidate) would have polled the  majority of valid votes. In the absence of any such proof the result  cannot be held to have been materially affected. The burden to  prove this material effect is difficult and many times it is almost  impossible to produce the requisite proof. But the difficulty in  proving this fact does not alter the position of law. The legislative  intent is clear that unless the burden howsoever difficult it may be,  is discharged, the election cannot be declared void. The difficulty of  proving the material effect was expressly noted by this Court in

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Vashist Narain Sharma and Paokai Haokip cases and the court  observed that the difficulty could be resolved by the legislature and  not by the courts. Since then the Act has been amended several  times, but Parliament has not altered the burden of proof placed on  the election petitioner under Section 100(1)(d) of the Act. Therefore  the law laid in the aforesaid decisions still holds the field. It is not  permissible in law to avoid the election of the returned candidate on  speculations or conjectures relating to the manner in which the  wasted votes would have been distributed amongst the remaining  validly nominated candidates. Legislative intent is apparent that the  harsh and difficult burden of proving material effect on the result of  the election has to be discharged by the person challenging the  election and the courts cannot speculate on the question. In the  absence of positive proof of material effect on the result of the  election of the returned candidate, the election must be allowed to  stand and the court should not interfere with the election on  speculation and conjectures.”

10. There are two dimensions to the above  

observations.  The first is that the election petition had  

been allowed by the High Court after a full fledged trial.  It  

was not a case of summary dismissal of an election petition  

on the ground that no evidence can be produced to prove  

that the result of the election in so far as the returned  

candidate was materially affected by improper reception of  

any vote as is the position in the case at hand. The High  

Court in the case at hand failed to notice that difference  

and hastened to conclude that the election petition could  

not be tried with whatever chances the petitioner may have  

had to avoid the election in question.  

Page 25

11. The second dimension is that although the legal  

position emerging from the decisions is of vintage value, it  

may have the effect of obliterating Section 100(1)(d)(i) and  

(iii) of the Act. We say it with utmost respect for the Judges  

who delivered the decisions in the two cases referred to  

above that the decisions require the election petitioners to  

produce evidence in what would be a totally hypothetical  

situation defying any attempt to show that the votes polled  

by a candidate whose nomination was improperly accepted  

would have been polled in his absence in a fashion that  

would have materially affected the result of the election so  

far as the elected candidate is concerned. So also it would  

be near impossible to satisfactorily prove in a given case  

that the improperly received votes would have gone to one  

or the other candidate.  The question is whether an election  

petitioner can be asked to prove something that is not  

amenable to proof and whether by doing so a ground that  

is recognised by the statute as a valid ground for declaring  

the election to be void can be rendered otiose or sterile.  

What is noteworthy is that the difficulty which would arise  

in giving effect to Section 100(1)d(i) and (iii) has been

Page 26

noticed by this Court in  Vashist Narain Sharma’s case  

(supra) but instead of finding an answer to the same the  

Court has left the issue to be resolved by the legislature, in  

the following words:

“It is impossible to accept the ipse dixit of witnesses coming from  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 that the  election must stand. Such result may operate harshly upon the  petitioner seeking to set aside the election on the ground of  improper acceptance of a nomination paper, but neither the  Tribunal, nor this Court is concerned with the inconvenience  resulting from the operation of the law. How this state of things can  be remedied is a matter entirely for the legislature to consider.”

12. In Swantraj and Ors. v. State of Maharashtra  

(1975) 3 SCC 322, this Court said that every legislation is  

a social document and judicial construction seeks to  

decipher the statutory mission, language permitting, taking  

cue from the rule in Heydon’s case (1584) 76 E.R. 637,  

of suppressing the evil and advancing the remedy. This  

Court held that what must tilt the balance is the purpose of  

the statute, its potential frustration and judicial avoidance  

of the mischief by a construction whereby the licensing

Page 27

meets the ends of ensuring pure and potent remedies for  

the people. This Court placed much reliance upon the  

following passage from Maxwell on the Interpretation  

of Statutes:  

“There is no doubt that ‘the office of the Judge is, to make such  construction as will suppress the mischief, and advance the remedy,  and to suppress all evasions for the continuance of the mischief. To  carry out effectively the object of a statute, it must be so construed  as to defeat all attempts to do, or avoid doing, in an indirect or  circuitous manner that which it has prohibited or enjoined: quando  aliquid prohibetur, prohibetur et omne pe quod devenitur ad illud. This manner of construction has two aspects. One is that the courts,  mindful of the mischief rule, will not be astute to narrow the  language of a statute so as to allow persons within its purview to  escape its net. The other is that the statute may be applied to the  substance rather than the mere form of transactions, thus defeating  any shifts and contrivances which parties may have devised in the  hope of thereby falling outside the Act. When the courts find an  attempt at concealment, they will, in the words of Wilmot, C.J.  ‘brush away the cobweb varnish, and shew the transactions in their  true light’.”

13. Reference may also be made to the decision of  

this Court in Kanwar Singh v. Delhi Administration  

(AIR 1965 SC 871), where this Court observed:

“It is the duty of the court in construing a statute to give effect to  the intention of the legislature. If, therefore, giving a literal  meaning to a word used by the draftsman, particularly in a penal  statute, would defeat the object of the legislature, which is to  suppress a mischief, the court can depart from the dictionary  meaning or even the popular meaning of the word and instead give  it a meaning which will ‘advance the remedy and suppress the

Page 28

mischief’.”

14. In State of Tamil Nadu v. N.K. Kandaswami  

(1974) 4 SCC 745, this Court held that while interpreting  

a penal provision which is also remedial in nature a  

construction that would defeat its purpose or have the  

effect of obliterating it from the statute book should be  

eschewed and that if more than one constructions are  

possible the Court ought to choose a construction that  

would preserve the workability and efficacy of the statute  

rather than an interpretation that would render the law  

otiose or sterile. This Court relied upon the following  

passage from the Seaford Court Estates Ltd. v. Asher  

[1949] 2 All E.R. 155 wherein Lord Denning, L.J.  

observed:

“The English language is not an instrument of mathematical  precision. Our literature would be much poorer if it were. This is  where the draftsmen of Acts of Parliament have often been unfairly  criticised. A judge, believing himself to be fettered by the supposed  rule that he must look to the language and nothing else, laments  that the draftsmen have not provided for this or that, or have been  guilty of some or other ambiguity. It would certainly save the  judges trouble if Acts of Parliament were drafted with divine  prescience and perfect clarity. In the absence of it, when a defect  appears a judge cannot simply fold his hands and blame the  draftsman. He must set to work on the constructive task of finding  the intention of Parliament, and he must do this not only from the

Page 29

language of the statute, but also from a consideration of the social  conditions which gave rise to it and of the mischief which it was  passed to remedy, and then he must supplement the written word  so as to give ‘force and life’ to the intention of the legislature. ... A  judge should ask himself the question how, if the makers of the Act  had themselves come across this ruck in the texture of it, they  would have straightened it out? He must then do so as they would  have done. A judge must not alter the material of which the Act is  woven, but he can and should iron out the creases.”        

15. The interpretation of Section 100(1)(d) and in  

particular the true import of the expression “the result of  

the election 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. All that we  

need to say for the present is that the decision of this Court  

in Vashist Narain Sharma’s case (supra) and Samant N.  

Balakrishna and Anr.  v. George Fernandez and Ors.  

(1969) 3 SCC 238, and Inayatullah v. Divanchand  

Mahajan 15 ELR 210, requiring positive proof of the  

adverse effect of the improper acceptance of a nomination  

paper or improper reception of votes, on the result of the  

election qua the returned candidate have been considered  

and explained by a three-Judge Bench of this Court in

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Cheedi Ram v. Jhilmit Ram and Ors. (1984) 2 SCC  

281. That was a case where the margin of victory was just  

about 373 votes, while the votes polled by the candidate  

whose nomination papers were improperly accepted were  

many times more. There was no evidence, as indeed there  

could be none, to show as to how those votes would have  

got distributed among the remaining candidates if the  

nomination papers had not been improperly accepted.  This  

Court held that a Court cannot lay down an impossible  

standard of proof and hold that the fact required to be  

proved was not proved on that standard.  This Court  

further held that in the facts of a given case, a Court could  

hold a fact as proved if a reasonable probability supported  

that conclusion.  Applying that test this Court held that the  

improper acceptance of the nomination papers of Moti  

Ram, one of the candidates, had materially affected the  

election of the returned candidate. Chinnappa Reddy J.  

speaking for the Court conceptualised three situations that  

would arise in such cases in the following words:

“….True, the burden of establishing that the result of the election  has been materially affected as a result of the improper acceptance  of a nomination is on the person impeaching the election. The

Page 31

burden is readily discharged if the nomination which has been  improperly accepted was that of the successful candidate himself.  On the other hand, the burden is wholly incapable of being  discharged if the candidate whose nomination was improperly  accepted obtained a less number of votes than the difference  between the number of votes secured by the successful candidate  and the number of votes secured by the candidate who got the next  highest number of votes. In both these situations, the answers are  obvious. The complication arises only in cases where the candidate,  whose nomination was improperly accepted, has secured a larger  number of votes than the difference between the number of votes  secured by the successful candidate and the number of votes got by  the candidate securing the next highest number of votes….”                   

16. The Court then dealt with the third situation out  

of the three mentioned above and held:

“…..In this situation, the answer to the question whether the result  of the election could be said to have been materially affected must  depend on the facts, circumstances and reasonable probabilities of  the case, particularly on the difference between the number of votes  secured by the successful candidate and the candidate securing the  next highest number of votes, as compared with the number of  votes secured by the candidate whose nomination was improperly  accepted and the proportion which the number of wasted votes (the  votes secured by the candidate whose nomination was improperly  accepted) bears to the number of votes secured by the successful  candidate. If the number of votes secured by the candidate whose  nomination was rejected is not disproportionately large as compared  with the difference between the number of votes secured by the  successful candidate and the candidate securing the next highest  number of votes, it would be next to impossible to conclude that the  result of the election has been materially affected. But, on the other  hand, if the number of votes secured by the candidate whose  nomination was improperly accepted is disproportionately large as  compared with the difference between the votes secured by the  successful candidate and the candidate securing the next highest  number of votes and if the votes secured by the candidate whose  nomination was improperly accepted bears a fairly high proportion  to the votes secured by the successful candidate, the reasonable  probability is that the result of the election has been materially  affected and one may venture to hold the fact as proved. Under the  Indian Evidence Act, a fact is said to be proved when after

Page 32

considering the matters before it, the court either believes it to exist  or considers its existence so probable that a prudent man ought,  under the circumstances of the particular case, to act upon the  supposition that it exists. If having regard to the facts and  circumstances of a case, the reasonable probability is all one way, a  court must not lay down an impossible standard of proof and hold a  fact as not proved. In the present case, the candidate whose  nomination was improperly accepted had obtained 6710 votes, that  is, almost 20 times the difference between the number of votes  secured by the successful candidate and the candidate securing the  next highest number of votes. Not merely that. The number of votes  secured by the candidate whose nomination was improperly  accepted bore a fairly high proportion to the number of votes  secured by the successful candidate — it was a little over one-third.  Surely, in that situation, the result of the election may safely be  said to have been affected.”

17. We find ourselves in respectful agreement with  

the above reasoning. 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  

materially affected by improper acceptance of the  

nomination paper or the improper reception of votes.  

Beyond that we do not wish to say anything on this aspect  

at this stage.     

18. In T.H. Musthaffa’s case (supra) relied upon by  

the High Court, also the election petition was tried on  

merits and on the basis of evidence adduced by the parties,  

the Court had eventually dismissed the same. In an appeal

Page 33

against the said order under Section 116 A of the Act, this  

Court noted that the allegations made in the course of the  

petition regarding acceptance of invalid votes was deficient  

inasmuch as the number of votes that were liable to be  

rejected was not stated.  This Court also noted that there  

was no indication as to how many of such votes had been  

polled in favour of the returned candidates to enable it to  

determine whether the same had materially affected the  

result of the election.  In the absence of any such plea, the  

High Court could not have, declared this Court, granted the  

relief of recount and the refusal of the High Court to do so  

was justified. There is nothing in that decision which  

advances the case of the respondent-returned candidate  

before us. Apart from the fact that the averments made in  

the election petitions in the present case are specific and  

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.  

Suffice it to say that the question whether any votes were

Page 34

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 of  

the election petitions at the threshold was in the facts and  

circumstances not justified. In the result, we allow these  

appeals, set aside the judgment and order passed by the  

High Court and restore the election petitions to be tried by  

the High Court on merits in accordance with law.  No costs.  

                                ……………………………….………J.                           (T.S. THAKUR)    

New Delhi October 18, 2012

Page 35

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO._7591     OF     2012   (Arising out of SLP (C) 28143 of 2010)

Ashok                   ..Appellant

Verus

Rajendra Bhausaheb Mulak                                ..Respondent    

WITH      

CIVIL     APPEAL     NO.      7592      OF     2012   (Arising out of SLP (C ) No. 28333/2010

J     U     D     G     E     M     E     N     T      

GYAN     SUDHA     MISRA,     J.   

1. Having deliberated over the arguments and counter  

arguments advanced on behalf of the appellant and the  

respondent in the light of the ratio of a catena of decisions as  

to what would constitute ‘material facts’  and ‘material  

particulars’  which could be held to be materially affecting the  

result of the election so as to entertain an election petition  

challenging the same, as also the reasonings assigned in the  

impugned judgment and order of the High Court, I have not  

been able to persuade  myself to take a view that the judgment  

and order dismissing the election petition of the appellant is fit  

to be set aside.  

Page 36

2. The petitioner had filed an election petition  

challenging the election of the respondent not on the ground of  

indulgence in corrupt practice in any manner but on the plea  

of breach of the Conduct of Election Rules, 1961 at the  

instance of a few voters and inaction of the Presiding Officer at  

the polling station by failing to mark them as invalid votes.  It  

has been alleged by the petitioner that at least 5 out of 14  

votes had been cast by such voters who were accompanied by  

another person to the voting 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.  It is for this purpose that he filed an  

election petition which has been dismissed on the ground that  

it failed to declare material particulars which could be held to  

have materially affecting the election result.   

3. Thus, this matter does not relate to a case where the  

respondent returned candidate is alleged to have indulged in  

corrupt practice but it is based specifically on the ground of  

breach of the Election Rules.  But even in cases where the  

election petition is filed on the ground of corrupt practice, this  

Court time and again has held that “the electoral process  in a

Page 37

democracy  undoubtedly  is too sacrosanct to be permitted or  

allowed to be  polluted by corrupt practice and if the court  

records a  finding   of commission of corrupt practice by a  

returned candidate or his election agent or by any other person  

with the consent of returned candidate or his  election agent,  

then the  election of the returned candidate shall be declared  

to be void and in that event challenge to such election  

obviously would be entertained.”   But at the same time it  

cannot be  overlooked  as was observed by the Supreme Court  

in the case of  R.P. Moidutty vs. P.T. Kunju Mohammad &  

Anr., 2000 (1) SCC 481 and a series of authorities too  

numerous to mention, that it is basic to  the law of election  

and election petition, that in a democracy, the mandate of the  

people expressed in the form of their ballot, must prevail and  

be respected by the Court and that is why the election of a  

successful candidate is not to be set aside lightly since the  

consequences flowing from  the allegation of  corrupt practice  

or alleged breach of any Rule affecting the election of a  

returned candidate is far more serious and hence the Supreme  

Court time and again has held that  utmost care and caution  

are required to be applied while dealing with the allegation of  

indulgence in corrupt practices  at the instance of the defeated  

candidate as in the process, misappreciation  of  evidence  and

Page 38

hence error of judgment   in coming to a definite conclusion  

cannot be ruled out.   

4. It is in this backdrop that the preliminary question  

as to whether the election petition filed by the respondent is fit  

to be  dismissed on the ground  of lack of  material facts with  

material particulars which materially affects the result of the  

election assumes great significance and hence are fit to be  

taken care of at the stage when the election petitions are  

entertained.  In this context, it is further apt to remember that  

this Court in the case of Kalyan Kumar Gagoi Vs. Ashutosh  

Agnihotri, 2011 (1) SCALE 516 has held – “that the election of  

the returned candidate should not normally be allowed to 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 Representation of People Act, 1961 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 cannot be  

voided unless and until it is proved that the result of the  

election in so far as it concerns a returned candidate is

Page 39

materially affected.  It is no doubt true  that such material  

facts and material particulars depend upon the facts of each  

case and no rule of universal  application can be applied to test  

the correctness of the  allegation that material facts clearly  

affect the result of the election and it is   the fact of each case  

which will be relevant  for determination as to whether the  

election petition  was fit to be rejected on the plea of lack of  

material facts and material particulars or it was fit to be  

entertained if the same disclosed a  cause of action for  

consideration by the court so as to entertain  the election  

petition.  But the language of Section 100 (1) (c) of the  

Representation of People Act, 1951 is too clear for any  

speculation about possibility.   

5. Fortunately, for the respondent/returned candidate,  

the basis of the election petition filed by the appellant in the  

instant matter is not on the allegation of indulgence in corrupt  

practice but breach of the rule of secrecy of the ballot by the  

voters and inaction on the part of the Presiding Officer to mark  

them as invalid votes as the specific allegation is improper  

reception and acceptance of at least 5 votes out of the 14 votes  

which according to the appellant has materially affected the  

result of the election due to which he had filed election petition  

challenging the election of the respondent who has won the

Page 40

election by a thin margin of 4 votes.   

6. Admittedly,  the common ground is that  there were  

mainly two contestants, namely, the appellant –Ashok and the  

respondent Rajendra Bhausaheb Mulak for the election to the  

Maharashtra State Legislative Council  from Nagpur  Local  

Authorities Constituency.  The result of the election which was  

declared on 21.1.2010 admittedly showed that the appellant  

Ashok had been polled 198  votes as against 202 votes polled  

in favour of the respondent-Rajendra Bhausaheb Mulak.  The  

respondent thus has won by  a  thin margin of 4 votes.  The  

election petitioner’s case as set out  in the election petition  

admittedly  was that the election was  materially affected by  

the improper reception of votes and as many as 14 votes out of  

a total of 400 votes were invalid which were polled in the  

course of the election by voters who were accompanied by  

another person to the voting compartment which was a breach  

of the election rules to the Representation of People Act, 1951.  

Specific averments in regard to  such polling of votes is that  

the voter namely Mrs. Begam Shehaz  Begum Akhtar  entered  

the polling station along with another  voter  Abdul Shakoor  

Usman Gani @ Shakoor Nagani  who had accompanied  her to  

the voting compartment  in utter breach  of  the election rules  

and hand book of the returning officer issued by the Election

Page 41

Commission of India  under Article  324 of the Constitution of  

India.  Similarly, another lady voter Ms. Rashida Khatoon  

Mohammed Tahir was alleged to have entered the polling booth  

at  Kamptee Polling Station accompanied by  one Shri Niraj  

Yadav, yet another voter at the said election was accompanied  

by Shri Niraj Yadav who went to the  voting compartment along  

with the ballot paper which had  been issued to  Ms. Rashida  

Khatoon Mohammed Tahir.  Further, two other voters namely  

Abdul Shakoor and Usman Gani were alleged to have voted  

and by showing their ballot to others on the polling booth and  

in all 14 votes polled by 14 voters were thus alleged as to have  

been polled by the voters in breach of   Rule 39(5) to 39(8) of  

the Election Rules, 1951 as the Presiding Officer did not cancel  

the said votes although the irregularities were clear and  

apparent which happened in front of him.  The  

petitioner/appellant thus took the categorical plea that “if 5  

votes are treated as cancelled and excluded from consideration  

then it can be said with certainty that the petitioner had  

received majority of the valid votes and therefore, petitioner  

deserved to be declared as elected.  The petitioner thus wanted  

the Court to assume that the said disputed votes were cast in  

favour of the respondent No.1, without specifically pleading  

this vital and material fact.  

Page 42

7. However, learned counsel for the petitioner  

conveniently ignored and overlooked that it is not the case of  

the  petitioner-appellant that all the 14 votes which were  

alleged to have been polled in breach of the Rules were polled  

in favour of the respondent.  In absence of this vital ‘material  

particular’, the plea of the petitioner  that inclusion of all such  

votes in which the  voter had been accompanied  by another  

person had materially affected  the result of the election, does  

not disclose a cause of action which would lead to the  

irresistible conclusion that it has materially affected the result  

of the election.  The petitioner however sought to fill in this  

material lacuna by raising pleas in this regard at a much later  

stage.

8. There is yet another important aspect of the matter  

regarding breach of the Rules admittedly, neither the petitioner  

nor any of his representative had raised any objection at the  

time of  polling that the voter was accompanied by another  

person while casting his vote or that the secrecy of the votes  

were breached.  The petitioner has taken this plea in the  

election petition for the first time that he had seen such  

accompaniment in the CD which he procured at a later stage  

after declaration of the election result completely overlooking

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that if no such plea or objection had been raised at the time of  

actual polling,  then after declaration   of   the  result,  breach  

of such rules  viz.      Rules 39 (5) to 39 (8) could not have been  

allowed to be raised straightaway by way of an election petition  

for the first time as that clearly amounts to absence of  

ingredients of such breach and absence  of material  

particulars in regard to the polling, relying merely on the CD  

which he claims to have procured later rendering the entire  

plea of materially affecting the result of the election to be  

speculative in nature and hence fit to be rejected outright.  

9. It is relevant in this context to refer to Rule 39 of The  

Conduct of Election Rules, 1961.  Relevant extracts of the said  

Rule is quoted hereinbefore for facility of reference.   

39.  Maintenance of secrecy of voting by electors within polling  

station and voting procedure. –  (1) Every elector to whom a  

ballot paper has been issued under rule 38 or under any other  

provision of these rules, shall maintain secrecy of voting within  

the polling station and for that purpose observe the voting  

procedure hereinafter laid down.

(2)  The elector on receiving the ballot paper shall forthwith –  

(a)  proceed to one of the voting compartments;

(b)  there make a mark on the ballot paper with the instrument  

supplied for the purpose on or near the symbol of the  

candidate for whom he intends to vote;

(c)  fold the ballot paper so as to conceal his vote;  

(4)  No elector shall be allowed to enter a voting compartment

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when another elector is inside it.

(5)  If an elector to whom a ballot paper has been issued,  

refuses, after warning given by the Presiding Officer, to observe  

the procedure as laid down in sub-rule (2), the ballot paper  

issued to him shall, whether he has recorded his vote thereon  

or not, be taken back from him by the Presiding Officer or a  

polling officer under the direction of the Presiding Officer.

(6)  After the ballot paper has been taken back, the Presiding  

Officer shall record on its back the words “Cancelled : voting  

procedure violated” and put his signature below those words.

(7)  All the ballot papers on which the words “Cancelled : voting  

procedure violated”  are recorded, shall be kept in a separate  

cover which shall bear on its face the words “Ballot papers :  

voting procedure violated”.

(8)  Without prejudice to any other penalty to which an elector,  

from whom a ballot paper has been taken back under sub-rule  

(5), may be liable, the vote, if any, recorded on such ballot  

paper shall not be counted.

10. It is clear on perusal of the aforesaid Rules  

that the procedure for casting of votes clearly envisages that if  

the voting procedure has been violated, an objection should  

have been raised by the candidate or his representative as the  

Presiding Officer under Rule 6 was required to mark  

“Cancelled: voting procedure violated”  and put his signature  

below those words.  Thereafter, all the ballot papers on which  

the words “Cancelled: voting procedure violated”  are recorded  

is required to be kept in separate cover which shall bear on its

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face the words “Ballot papers: voting procedure violated”.  

11. In continuation, Rule 8 further lays down  

that without prejudice to any other penalty to which an elector,  

from whom a ballot paper has been taken back under sub-rule  

(5), may be liable, the vote, if any, recorded on such ballot  

paper shall not be counted.  Thus, this Rule although does not  

envisage a penalty to the voter, it is clearly laid down that such  

ballot paper shall not be counted for the purpose of election.  

An inference can clearly be drawn from this Rule that the  

candidate or his representative is expected to raise objection at  

the time of actual polling regarding violation of Rules 5, 6, 7  

and 8 of Section 39 so that the votes which were alleged to  

have been polled in breach of the aforesaid Rules could be  

cancelled by the Presiding Officer. The election petitioner  

admittedly has not lodged any complaint anywhere regarding  

the inaction of the Presiding Officer by writing on the back of  

the ballot paper – “Cancelled : voting procedure violated”  and  

put his signature below those words.  If the Presiding Officer  

violates to discharge his duty in this regard obviously it must  

be construed that a complaint ought to have been registered  

somewhere for cancellation of such ballot papers and if the  

said action has been taken by the petitioner, then it was open  

for him to challenge the same by way of an election petition at

Page 46

the appropriate stage.  But the admitted position in the matter  

is that the petitioner or his representative or anyone else  

connected to the polling had nowhere complained of any such  

violation of the voting procedure and at later stage that he saw  

such violation on the CD which he had later procured from the  

Collector.  But in absence of any complaint by the candidate at  

the time of polling, is not capable of establishing as to how  

these rules could be alleged to have been violated expecting the  

Presiding Officer to cancel the votes on account of violation of  

the procedures and keep them in a separate packet so as to  

prevent them from counting.  The CD on which the petitioner  

was relied to prove violation of Rules 39 (5) to 39 (8) cannot  

possibly establish absence of any protest lodged by the  

candidate or his agent regarding violation of the procedure as  

the very basis of challenge alleging violation of Rule 39 is based  

on allegation but not supported by material particulars so as to  

establish violation of Rule 39 of The Election Rules, 1961.

12. It is further to be taken note that there was  

total non-compliance of the provisions of Section 81 (3) of the  

RP Act, 1951 as the original CD which formed an integral part  

of the Election Petition, was not produced along with the  

Election Petition and what was produced as Document No.11  

was merely a truncated, doctored and an edited copy thereof.

Page 47

Thus in absence of the original CD containing full video  

recording of the polling, there was non-compliance of Section  

81 (3) thereby making the petition liable to be dismissed.  In  

the case of Mulayam Singh Yadav Vs. Dharampal Yadav  

reported in (2001) SCC 98 this Hon’ble Court in a similar  

circumstance has held as follows:

“7.  The principal question, therefore, that we have to decide  

is whether Schedule 14 and the video cassette therein referred  

to are an integral part of the Election Petition and whether the  

failure to file the Original thereof in the court along with the  

Election Petition attracts Section 81 and therefore, Section 86  

(1) of the RP Act, 1951.

“11.  Whether or not schedule 14 is an integral part of the  

Election Petition does not depend on whether or not the  

draftsman of the Election Petition has so averred.  It has to be  

decided objectively, taking into account all relevant facts and  

circumstances.  Schedule 14 is one of 25 schedules which is,  

as a matter of fact, part of the bound Election Petition,…  

Clearly, the video cassette mentioned and verified in schedule  

14 is as much an integral part of the Election Petition as the  

papers and documents mentioned and verified in the other  

schedules…  Further, that the video cassette mentioned and  

verified in Schedule 14 is a part of the Election Petition and  

was intended to be such is evident from the affidavit of the first  

respondent verifying the allegation of corrupt practice made in  

the Election Petitioner.  Therein, the first respondent has  

verified the correctness of what is stated in para 83 of the  

election petition, which refers to schedule 14 and which has

Page 48

been quoted above and to schedule 14 itself.  Yet again, that  

the video cassette mentioned and verified in schedule 14 is and  

was intended to be a part of the Election Petition is shown by  

the fact that 15 video cassettes which were copies of the video  

cassettes mentioned and verified in schedule 14 were filed in  

the High Court along with the Election Petition for being served  

upon the respondents.”

“13.  We are, therefore, satisfied that the video cassettes  

mentioned and verified in schedule 14 is an integral part of the  

Election Petition and that it should have been filed in Court  

along with copies thereof for service upon the respondents to  

the Election Petition.  Whereas 15 copies thereof were filed for  

serving upon the respondents, the video cassette itself was not  

filed.  The Election Petition as filed was, therefore, not  

complete.”

13. It is further to be noted that in order to make  

out a cause of action for challenging the election under Section  

100 (1) (d) (iii) (iv) all the material facts have to be pleaded  

which are necessary to show that the election of the returned  

candidate was ‘materially affected’ by the improper reception of  

votes or improper reception of any vote which is void or by  

non-compliance of the provisions of the Constitution or of the  

Act or of the rules or orders made under the Act.  In the  

present case, petitioner’s only allegation is that certain votes  

were improperly accepted because of non-observance of the  

election rules.  According to the petitioner, these disputed  

votes which are more than the margin of votes between the

Page 49

returned candidate and the petitioner are required to be  

excluded from being considered as valid votes.  If these  

disputed votes, are treated as cancelled and excluded from  

consideration then according to the petitioner he receives  

majority of the valid votes and deserves to be declared as  

elected.  These allegations, as has been rightly held by the  

High Court, are not sufficient to demonstrate as to how the  

result of the election in so far it concerned the returned  

candidate is ‘materially affected’.  The High Court, in my  

opinion, has rightly held that The Election Petitioners only  

point out a possibility of the result of election being different if  

14 or 5 votes can be excluded.  It is not their case that the said  

votes when displayed revealed that they were in favour of  

Rajendra and not in favour of Ashok.  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 cast in favour of defeated  

candidate.  There is no plea about their political affinities  

either to associate or disassociate with any political party.  

The said votes now cannot be traced out or segregated.  Hence  

when ‘displayed’ what was seen and the vote was cast in whose  

favour ought to have been pleaded which is missing.   Thus,  

link between the victory and lacunae/omissions is pre-

Page 50

requisites to formation of this opinion.  A triable issue cannot  

be said to arise till then as no cause of action surfaces.   

14. In absence of any allegation that the disputed  

votes were cast in favour of the returned candidate, the  

petitioner failed to make out a case that the election was  

‘materially affected’  merely on the ground of alleged improper  

acceptance of the said votes.  The material fact which ought to  

have been pleaded in the Election Petition was not only that  

the disputed votes ought not to have been accepted, but those  

votes were cast in favour of respondent No.1 and if they were  

not so accepted, then the result of the election would be  

materially affected.  These facts become material in the present  

case especially because the petitioner had not alleged any  

corrupt practice against the respondent No.1 and the petitioner  

himself had come up with a case that the ballot papers were  

displayed to those present in the room were the ballot box had  

been kept.  Pleading these material facts for the first time at  

the stage in the SLP is impermissible and cannot be taken  

cognizance of.  Thus, the contention of the respondent that the  

material facts so as to make out a cause of action have not  

been pleaded stands vindicated.   

15. The present SLP is devoid of merits and

Page 51

substance also in view of the recent judgment of Kalyan  

Kumar Gagoi Vs. Ashutosh Agnihotri reported in 2011 (1)  

SCALE 516 wherein it was held as follows :

“14.  It may be mentioned here that in this case non-

compliance to the provisions of Representation of 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 in so far 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 in so far as it concerned 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 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 the 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

Page 52

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 cannot be  

voided unless and until it is proved that the result of the  

election in so far as it concerns a returned candidate is  

materially affected.”

16. It is further worthwhile to take note of the  

legal position reflected in the decision of the Court in the  

matter of Vashisht Narain Sharma Vs. Dev Chandra and  

others, AIR 1954 S.C. 513 wherein this Court observed as  

follows:

“It is not permissible in law to avoid the election of the  

returned candidate on speculation or conjectures relating to  

the manner in which the wasted votes would have been  

distributed amongst the remaining validly nominated  

candidates ………………  In the absence of positive proof of  

material effect on the result of the election of the returned  

candidate, the election must be allowed to stand and the Court  

should not interfere with the election on speculation and  

conjectures.”  

When the case of the petitioner/appellant is examined on the  

anvil of the aforesaid position and 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

Page 53

specific plea of the petitioner  that all 14 votes  or at least 4  

votes 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 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 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 to  

have been  polled in breach  of the election rules but could  

hardly be identified or deciphered.  To clarify it further, it may  

be stated that even if the election petition were to be allowed by  

declaring the 14 votes as invalid, it is inconceivable as to how  

those 14 votes  which were alleged to have been  polled by  

those voters who had been accompanied by another person  

could be identified so as to hold that the alleged invalid votes  

materially affected the result of the election.  

Page 54

17. What is sought to be emphasized is  that in  

the absence  of any identification  mark of those votes which  

are alleged to have been  polled  by voters 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 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 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 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.   

18. It is well settled legal position that no  

evidence can be led on a matter unless there is a pleading

Page 55

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 100 (1)  

(d) (iii) and (iv), 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 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 intent to place the burden of  

pleading and proving that the improper reception of votes or  

violation of law in 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 non-compliance with  

law.  In addition it has to be pleaded and proved that this  

materially affected the election in so far as it concerns the  

returned candidate.  The language of Section 100 (1) (d) (iii)  

and (iv) itself clearly indicates the requirement of pleading the  

vitally material fact that the votes were improperly or

Page 56

unlawfully cast in favour of the returned candidate.  In the  

present case, lack of pleading 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 100 (1) (d)  

(iii) and (iv).   

19. Thus, merely because the margin of  

difference between the winner and the loser was four votes and  

five votes were disputed by the petitioner would not give rise to  

any valid cause of action.  The petitioner’s contention in this  

regard is unsustainable in law.  Thus, the ratio of the  

judgment in the case of Mayar (HK) Ltd Vs. Owners &  

Parties, (2006) 3 SCC 100 is of no assistance to the petitioner  

as it is settled legal position that merely because the wasted  

votes or accepted or rejected votes are more than the margin, it  

cannot be said that the election has been materially affected.     

20. Since the petitioner had failed to plead  

material facts as contemplated under Section 83 (1) (a) of the  

RP Act, which alone could give cause of action for claiming that  

the election of the respondent was materially affected within  

the meaning of Section 100 (1) (d) (iii) and (iv), the petition was  

rightly dismissed.  In the matter of T.H. Musthaffa Vs. M.P.  

Varghese (Supra), this Court relying upon the ratio of this

Page 57

Court in Jabar Singh Vs. Genda Lal, (1964) SCR 54, it was  

held that the scope of the enquiry in a case under Section 100  

(1) (d) (iii) is to determine whether any votes had been  

improperly cast in favour of the returned candidate or any  

votes had been improperly refused or rejected in regard to any  

other candidate.  These are the only two matters which would  

be relevant for deciding whether the election of a returned  

candidate had been materially affected or not.  But, in view of  

the facts of this case where the petitioner has failed to disclose  

as to whether the alleged improper reception of 14 or 5 votes  

were cast in favour of which candidate, it is clear that the  

election petition failed to disclose material particulars in this  

regard so as to give rise to a cause of action apart from the fact  

that no objection was raised at the time of actual polling.

21. I thus find substance in the view taken by  

the High Court in the impugned judgment, that the election  

petitioner herein has only pointed out a possibility  of result of  

election being different if 14 or 5 votes were to be  excluded  

from counting.  The High Court  appears to be correct in my  

view while stating that the case of the petitioner  is not that the  

said votes  reveal that  they  were in favour of respondent -  

Rajendra  or not  in favour of petitioner - Ashok.  But the  

objection  is only that  those votes  ought not to have been

Page 58

taken into consideration while counting the votes.  As already  

stated in absence  of identification of those votes which are  

alleged to have been cast by the 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  

entire trial would result into an exercise in futility leading the  

controversy nowhere.  It is in view of this inevitable  

consequence that  I hold that 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 alleged breach of  

secrecy would render the entire election result as void so as to  

order for a repoll 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 in my view  

which is fit to rejected outright.  Fortunately, this is not even  

the contention of the petitioner and rightly so, as he has  

confined his challenge only to the extent of challenging the  

validity of 5 or 14 votes alleging breach of secrecy, which  

materially affected the election result.  This contention is  

extremely fragile and hence has no force for the reasoning

Page 59

recorded hereinbefore.

22. I am, therefore, conclusively of the view that 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.            

……………………………..J. (Gyan Sudha Misra)  

New Delhi October 18, 2012

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ITEM NO.1A               COURT NO.10         SECTION XVII [FOR JUDGMENT]

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      

C.A. No. 7591 of 2012 @ Petition(s) for Special Leave to Appeal (Civil) No(s).28143/2010 (From the judgement and order  dated 02/08/2010 in EP No.1/2010 of  The HIGH COURT OF BOMBAY AT NAGPUR)

ASHOK                                             Petitioner(s)                  VERSUS RAJENDRA BHAUSAHEB MULAK                          Respondent(s) WITH  C.A. No. 7592 of 2012 @ SLP(C) NO. 28333 of 2010

Date: 18/10/2012  This Petition was called on for JUDGMENT today.

COUSEL     FOR     THE     APPEARING     PARTIES  :

 Mr. S.S. Shamshery,Adv. Mr. Bharat Sood,Adv.  Mr. R.C. Kohli,Adv.

                   Mrs.Shally Bhasin Maheshwari

                   Mr. Shivaji M. Jadhav,Adv.

The Court made the following                                O R D E R  

Hon'ble Mr. Justice T.S. Thakur and Hon'ble Mrs. Justice  Gyan Sudha Misra pronounced separate judgments expressing their  conflicting views in the matter.

Leave granted.

The Hon'ble Court referred this matter to a three Judge  Bench for resolving the conflict.  The Registry shall place the  record before Hon'ble the Chief Justice of India for constituting  an appopriate Bench.The matters are referred to a larger Bench.

(N.K. Goel) Court Master

(Veena Khera) Court Master

(Signed Reportable Judgments and consent order are  placed on the file)