- (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 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 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. 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 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.;