ASHOK versus RAJENDRA BHAUSAHEB MULAK

Citation: [2012] 12 S.C.R. 463 · Decided: 18-10-2012 · Supreme Court of India · Bench: T.S. THAKUR · Disposal: Matter referred to larger bench

cites 1 · see the full citation network in Lexace

Judgment (excerpt)

[2012] 12 S.C.R. 463 
ASH OK 
v. 
RAJENDRA BHAUSAHEB MULAK 
(Civil Appeal No. 7591 of 2012) 
OCTOBER 18, 2012 
[T.S. THAKUR AND GYAN SUDHA MISRA, JJ.] 
Election Laws - Conduct of Election Rules, 1961 - r.39 
- Election petition - On ground of improper reception of votes 
A 
B 
-
Election to State Legislative Council -
Two main C 
contestants, appellant and respondent - Respondent won by 
a thin margin of 4 votes - Appellant filed election petition 
challenging the election of respondent on the plea of breach 
of the Election Rules stating that at least 5 out of 14 votes 
had been cast by such voters who were accompanied by o 
another person to the voting compartment at the time of 
actual casting of vote in the election which was in breach of 
r.39 (5) to 39 (8) and hence reception of such votes by 
including them at the time of counting of votes ought to be 
declared as illegal - Election petition dismissed by the High 
E 
Court at the threshold on thie ground that it failed to declare 
material particulars which could be held to have materially 
affecting the election result - Whether the election petition in 
question indicated absence of 'material particulars' which 
materially affected the result ol the election so as to entertain 
F 
a cha/ienge to the same - Matter referred to three Judge 
bench in view of conflicting views expressed by the two Hon'ble 
Judges. 
In the election to the Maharashtra State Legislative 
Council from the Nagpur Local Authorities Constituency, 
G 
there were two main contestants, namely the appellant 
and the r:ispondent. The appellant pnlled 198 votes as 
against 202 votes polled in favour of the respondent. The 
respondent thus won by a thin margin of 4 votes. 
463 
H 
464 
SUPREME COURT REPORTS 
[2012] 12 S.C.R. 
A 
The appellant filed an election petition challenging 
the election of the respondent on the plea of breach of 
the Conduct of Election Rules, 1961 stating that at least 
5 out of 14 votes had been cast by such voters who were 
accompanied by another person to the voting 
B compartment at the time of actual casting of vote in the 
election which was in breach of Rule 39 (5) to 39 (8) of 
the Election Rules and hence reception of such votes by 
including them at the time of counting of votes ought to 
be declared as illegal. The election petition was 
C dismissed by the High Court on the ground that it failed 
to declare material particulars which could be held to 
have materially affecting the election result. The High 
Court found the election petition deficient on account of 
the absence of a specific averment to the effect that the 
0 votes that were improperly received were cast in favour 
of the successful candidate i.e. the respondent. Hence 
the present appeal. 
Referring the matter to the larger Bench, the Court 
E 
HELD: 
Per T.S. Thakur, J. 
1.1. The averments made in the election petition 
sufficiently disclosed a cause of action inasmuch as the 
F essential, the pivotal and the basic facts relevant to the 
charge levelled by the appell;;nts had been stated with 
sufficient clarity by them in their respective election 
petitions. The question whether the votes improperly 
received were polled in favour of one or the other 
G candidate was not an essential or material fact the 
absence whereof could possibly result in the summary 
dismissal of the election petitions. [Para 8] [486-A-C] 
1.2. The interpretation of Section 100(1)(d) of the 
H Representation of People Act, 1951 and in particular the 
ASHOK v. RAJENDRA BHAUSAHEB MULAK 
465 
true import of the expression "the result of the election 
A 
in so far as it concerns a returned candidate has been 
materially affected" is a serious issue, which may arise 
for consideration but only after the election petition is 
tried by the High Court and after the parties have 
adduced whatever evidence may be available to them. 
B 
[Para 15] [493-D-E] 
1.3. There can indeed be fact situations where the 
Court may legitimately hold even in the absence of 
affirmative evidence, that the result of the election was 
C 
materially affected by improp~r acceptance of the 
nomination paper or the improper reception of votes. 
[Para 17] [496-C-D] 
1.4. Apart from the fact that the averments made in 
the election petitions in the present case are specific and 
D 
the individuals who have cast their votes have been 
named and reason given why the votes cast by them 
were improperly received, the petitioner has alleged that 
exclu

Excerpt shown. Read the full judgment & AI analysis in Lexace.