- (1.) THIS petition has been filed under Articles 226 and 227 of the Constitution of India challenging the order dated 21 -9 -2011 passed by Civil Judge (Senior Division) Fatehpur Shekhawati, District Sikar (herein after 'the Trial Court') in Election Petition No.1/2010. The trial court has dismissed the application under Order 7 Rule 11 CPC, filed by the returned candidate, the petitioner herein, seeking rejection of the election petition filed by the respondent No.2 (herein after "the election petitioner") under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (herein after '1994 Act') and the Rule 80 of the Rajasthan Panchyati Raj (Election) Rules, 1994 (herein after '1994 Rules') for having failed to disclose a cause of action.
(2.) THE facts of the case are that the petitioner (herein after the "returned candidate") contested election to the office of Sarpanch, Gram Panchayat Thimoli against the election petitioner and was declared elected on 31 -1 -2010 having secured the highest number of votes at election for the office of Sarpanch, Gram Panchayat Thimoli i.e. 968, as against the election petitioner who secured 957 votes. Aggrieved of the aforesaid election result the election petitioner filed an election petition under Section 43 of the 1994 Act read with Rule 80 of the 1994 Rules. In para No.4, 5 and 6 of the election petition it was stated that out of the 2899 polled votes cast for the office of Sarpanch, Gram Panchayat Thimoli the returned candidate purportedly having received 968 votes in his favour as against 957 votes in favour of the election petitioner was wrongly declared elected by a difference of 11 (eleven) votes. It was submitted that 13 (thirteen) votes cast in favour of the election petitioner were wrongly rejected and further that owing to a disruption in the electric supply at the counting of votes, 15 (fifteen) votes, purportedly cast in favour of the election petitioner, were wrongly accepted as having been casted in favour of the returned candidate. It was alleged that the Returning Officer complicit with the returned candidate fudged the counting of votes consequent whereto the returned candidate was wrongly declared having been elected to the office of Sarpanch, Gram Panchayat Thimoli. It was also stated that 42 votes cast at the election on 31 -1 -2010 for the office of Sarpanch, Gram Panchayat Thimoli were also wrongly declared invalid and further that in fact only 2897 votes were accounted for at the counting even while 2899 votes were casted without any explanation of the unaccounted for 2 votes. In para 6 of the election petition it was stated that the returning officer colluded with the returned candidate for the reason that he was under the influence of the Zonal Magistrate Hemendra Singh Rathore, who was stated to be related to the successful candidate. The further allegation in the election petition was that owing to nexus of the returned candidate with powers that be, the application of the election petitioner for re -counting of votes was not entertained by the Returning Officer resulting in an unfair outcome of election in issue. It was also stated that in the event there was a recounting of votes as prayed for by the election petitioner the irregularities in the counting of votes would be evident and the election petitioner be declared the winning candidate for the post of Sarpanch, Gram Panchayat Thimoli. On notice being served on the returned candidate, now the petitioner before this court, he filed reply to the election petition controverting the allegations made by the election petitioner. It was stated that the allegations were baseless; the election petition did not contain a concise statements of material facts with definitive allegations to make out a ground under Rule 80 (d) (iii) of the 1994 Rules but was based on surmises and conjectures and failed to disclose any cause of action consequent to which it was liable to be dismissed. The Returning Officer and Election Officer also filed reply to the election petition, even though subsequently they were got deleted from the array of parties in the election petition at the instance of the election petitioner. The petitioner as defendant in the election petition also moved an application under Order 7 Rule 11 CPC praying therein that the election petition be rejected at the threshold as it was bereft of material facts and in absence thereof did not make out any cause of action for a valid election petition under Section 43 of the 1994 Act and Rule 80 r/w 82 of the 1994 Rules. It was stated that the election petition was founded on vague and baseless allegations and was a mere meaningless and frivolous exercise at the instance of election petitioner piqued at having lost at the election. It was prayed that consequently the election petition was liable to be rejected at the very threshold without trial under Order 7 Rule 11 CPC. The election petitioner filed a reply to the application under Order 7 Rule 11 CPC stating therein that the allegations of election petitioner would be borne out from a mere re -counting of votes. The absence of cause of action was denied and reference was made to para 9 of the election petition, wherein it was alleged that there was mischief in counting of votes held on 31 -1 -2010. It was submitted that the cause of action was evident from the petition. It was further stated that in the course of trial it would be proved that 15 votes, cast in favour of election petitioner, had been wrongly counted in favour of the returned candidate, apart from 13 votes cast in his favour having been wrongly rejected. It was submitted that as a cause of action had been made out from the mere reading of the election petition, the application under Order 7 Rule 11 CPC was liable to be dismissed.
(3.) ON the matter coming before the trial court vide order dated 21 -9 -2011 it cryptically and perfunctorily held that allegations in election petition could not be said to have failed in disclosing a cause of action and that the grounds raised in Order 7 Rule 11 CPC application were determinable only on evidence being laid before it in the course of trial. The application under Order 7 Rule 11 CPC filed by the defendant?petitioner herein?was thus dismissed. Mr. S.K.Gupta, learned Advocate appearing on behalf of the petitioner has submitted that the order of the trial court is an unreasoned order and the court failed to address the specific case of the returned candidate that the cause of action for laying election petition in terms of under Section 43 of the 1994 Act and Rule 80 r/w 82 of the 1994 Rules was not made out as the concise statement of material facts to constitute a ground of challenge under Rule 80 (d) (iii) of the 1994 Rules had not been set out in the election petition. It is submitted that no details of 13 votes allegedly rejected wrongly qua the election petitioner, and the 15 votes allegedly wrongly accepted in favour of returned candidate had been averred in election petition consequent to which it was apparent that cause of action based on wrong counting of votes to the advantage of returned candidate was not made out. It has been submitted that an election petition to unseat a returned candidate elected through the democratic process is to be strictly regulated in terms of Section 43 of the 1994 Act read with Rule 80 and 82 of the 1994 Rules which inter alia provide that an election petition can be laid only in the prescribed manner and on the prescribed grounds and has necessarily to be founded upon a concise statement of material facts leading to a cause of action being made out. It has been submitted that the grounds on which election petition could be entertained have been limited in Rule 80 under Chapter 13 of the 1994 Rules. Counsel has further submitted that a bare perusal of election petition, which has been annexed to the writ petition, indicate in para No.5 that only bald and vague allegations have been made that 13 votes of election petitioner were wrongly rejected and 15 valid votes cast in favour of election petitioner had wrongly been counted in favour of the returned candidate. It has been submitted that even though a cause of action under sub -clause (iii) of Clause (d) of Rule 80 of the 1994 Rules was not made out, but even if it were to be assumed so for the sake of arguments the election petition was even otherwise incomplete on the ground that no allegation of the result of election having been materially affected has been made. It has been submitted that it was a mandatory requirement of law for a complete cause of action to be made out to allege that the result of election in so far as it concerned the returned candidate was materially affected by the improper refusal and reception of the votes cast. It was thus submitted that the election petition was not based on grounds enumerated in Rule 80 of the 1994 Rules and deserved dismissal at the threshold under Order 7 Rule 11 CPC. Counsel emphasised that Rule 82 (1) of the 1994 Rules required the election petition to contain a concise statement of material facts on which election petition has been filed. It was submitted that without a concise statement of material facts, a cause of action could not be made out and that bald, vague and general allegations of either improper reception of vote or improper rejection of votes sought to be proved on the basis of a roving inquiry was impermissible. It has been submitted that the election petitioner was under a duty, for setting up a case of improper reception/ rejection of votes affecting the outcome of the election, to detail the ballot numbers of the votes in issue. Mr. Gupta has referred to Rule 49 of the 1994 Rules to contend that the said rule provides for each candidate having a right to be present at the time of counting of the votes cast and avail of an opportunity to inspect ballot papers/ votes counted and record the offending ballot number and request for recounting of votes if aggrieved of any wrong doing. It has been submitted that nothing was done at the time of the count of votes and thereafter on a second mind a frivolous petition was laid based on vague averments. Mr. Gupta vehemently submitted that the trial court committed a serious error of law in cryptically dismissing the application under Order 7 Rule 11 CPC filed by the returned candidate in the aforesaid circumstances when no cause of action was made out. It is submitted that the order of the trial court is based on a misdirection that material facts not pleaded in the petition could be proved by evidence in the course of trial. It was submitted that even though provisions for laying of election petitions against invalid elections was for ensuring the purity of the election process, yet essential requirements had to be fulfilled to construct a competent petition entitled to be tried. It is submitted that and election petition could not be allowed to be an instrument of harassment/ oppression by a contesting candidate piqued at his loss at the election. ;