DINESH JOSHI Vs. GOVIND SINGH DOTASARA

JUDGEMENT

(1.) - This election petition seeks to challenge validity of the election of respondent no.1 Govind Singh Dotasara to the Rajasthan Legislative Assembly as Member of the Rajasthan Legislative Assembly in 13th Vidhansabha Elections, 2008 from Laxmangarh Constituency (033) of Sikar District in the State of Rajasthan. The petitioner has also prayed for a direction to recount the votes and declare election of respondent no.1 as void and to declare himself duly elected. The petitioner contested the election as an independent candidate and the respondent no.1 Govind Singh was fielded by Indian National Congress as its candidate. Since the petitioner also prayed that he should be declared elected in place of respondent no.1, all other candidates have also been impleaded as respondent nos.2 to 14. Total number of electors in the said Constituency was 1,93,145, of which 1,27,898 cast their votes. While the petitioner secured 31,671 votes, respondent no.1 Govind Singh Dotasara, the returned candidate, got 31,705 votes and was therefore declared elected by a margin of 34 votes. After respondent no.1 filed reply to the election petition, as many as 10 issues were framed by this Court for trial of the election petition. Issue nos.7, 8 and 9 were framed on the basis of objections raised by the respondent-returned candidate, for which he also separately filed an application under Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure (for short-'the CPC'). When the matter was listed before this Court on 1.12.2011, learned counsel for the parties agreed that those issues and also the aforesaid application can be decided even without recording of evidence. This is how arguments were heard for deciding the aforesaid application and issue nos.7, 8 and 9, which for the facility of reference are reproduced hereunder:

(2.) I have heard Shri J.P. Goyal, learned Senior Advocate for the petitioner and Shri Parag Rastogi, learned counsel for respondent No.1.

(3.) Shri Parag Rastogi, learned counsel for the respondent has argued that validity of an election to the Legislative Assembly can be challenged by any person only when the case strictly falls within the exception clause (b) of Art. 329 of the Constitution, which inter alia provides that no such election shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature. The Parliament has in this connection enacted the Representation of the People Act, 1951 (hereinafter referred to as 'the Act'), which provides not only for the authority to whom the election petition is presented but also the manner in which such election petition can be presented. The election petition filed by the petitioner does not disclose any cause of action entitling him to get the inspection, scrutiny and recount of the votes and the voting machines or postal ballot papers requisitioned so as to violate secrecy of the ballot. Petitioner has to establish a prima-facie case that there has been improper reception, refusal or rejection of the votes or reception of any void votes, as envisaged by Sec. 100 (1)(d)(iii) of the Act of 1951 before the order of recount is made. No such material facts or particulars have been pleaded by the petitioner. Pleadings of the election petition are highly vague and general in nature. Facts mentioned in para no.1 to 12 and ground A to D do not at all disclose any cause of action. In order to bring home his point, Shri Parag Rastogi, learned counsel for the respondent-returned candidate extensively referred to pleadings in paragraph nos.5 to 10 and grounds A to D, which shall be appropriately dealt with in later part of this judgement.