The Mizoram Health & Family Welfare Department (Group ‘B’ Non Gazetted post) Recruitment Rules, 2015.
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008Re. 1/- per pageVOL - XLIV Aizawl, Tuesday 10.2.2015 Magha 21, S.E. 1936, Issue No. 67 NOTIFICATIONNo. A.12018/17/2013-P&AR(GSW), the 4th February, 2015. In exercise of the powers conferred by the proviso to Article 309 of t he Constitution of India, the Governor of Mizoram is pleased to make the following rules regulating the method of recruitment to the post(s) of P hysiotherapy under Health & Fa mily Welfare Department, Government of Mizor am, namely :- 1.Shor t title and (1) These Rules may be called the Mizoram Health & Family Welfare Commencement Department (Group ‘B’ Non Gazetted post) Recruitment Rules, 2015. (2) They shall come into force from the date of their publication in the Official Gazette. 2. Application These rules shall apply to the posts specified in Column 1 of the Schedule annexed to these ru les. 3. Number of posts, The number of the said post(s), their classification, pay b and and grade classification, pa y ba nd pay/pay scale attached thereto sha ll be as specified in columns 2 to and grade pa y/pay scale 4 of the Schedule aforesaid. 4. Method of r ecruitment, The method of recruitment to the sa id posts, age limit, qualifica tion age limit, and other matters relating thereto shall be as specified in columns 5 qualifications, etc. to 14 of the said Schedule. Provided that the upper age limit prescribed for direct recruitment may be relaxed in t he case of candidates belonging to the Scheduled Castes/the Scheduled Tribes and other special ca tegories of persons in a ccordance with the or ders issued by the Central Government or the Government of Mizoram, as the case may be, from time to time. 5. Disqualification No person- (a ) who, has entered into or contracted a marr iage with a person having a spouse living; or - 2 - Ex-67/2015 (b) who, having a spouse living, ha s entered into or contracted a marriage with any other person, shall be eligible for appointment to t he said post(s); Provided that the Governor may, if satisfied that such marriage is permissible under the personal law applicable to such person and to the other party to the marriage and that there are other grounds for doing so, exempt any such person from the operation of this r ule. 6.Training and Departmental Every Gover nment s ervant recruited under these rules s hall undergo Examination. such training or pass such Departmental Exa mination(s) as may b e pr escribed from t ime to t ime. 7. Powers to trans fer Notwithstanding anything contained in these rules, the Governor of Mizoram, in public interest, shall have power to transfer any officer(s) so r ecruited under these rules to a ny other post or position which is equivalent in rank or gr ade. 8. Power to relax Where the Governor is of the opinion that it is necessary or expedient so to do, he may, by order and for reasons to be recorded in writing thr ough the Depar tment of Personnel & Administra tive Refor ms, relax any of the pr ovisions of these rules with respect to any class or category of persons. 9. Reservation and other Nothing in these rules shall affect any reservation relaxation of age concessions limit and other concessions required to be provided for the Scheduled Castes/the Schedu led Tribes and ot her ca tegor ies of persons in accordance with the orders issued by the Central Government or the Government of Mizoram from time to time in this regard. By order s, etc. Lalsangpuii, Additional Secreta ry to the Govt. of Mizoram, Depa rtment of Personnel & Administrative Reforms. - 3 -Ex-67/2015Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/100SCHEDULE(See Rule 2, 3 & 4)RECRUITMENT RULES FOR THE POST OF PHYSIOTHERAPY TECHNOLOGIST IN THE DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVT. OF MIZORAMName of postNo. of postClassificationPay Band and Grade Pay/Pay ScaleWhether Selection post or Non-selection post12345 SelectionWhether benefit of added years of service admissible under Rule 30 of the CCS (Pension) Rules, 1972Age limit for direct recruitsEducational and other qualif ications required for direct recruitsWhether age and educa tional qualifications prescribed for direct recruits will apply in the case of promoteesPeriod of probation, if any67 8910 Not applicableBetween 18 and 35 years. Upper age limit is relaxable upto 5(five) years in case of candidates belonging to Scheduled Castes/ Scheduled TribesNot applicable Essential 1. HSSLC(Sc) with B.Sc in Physiotherapy from recognized Institute. 2. Knowledge of Mizo language at least Middle School standard. Desireable : Master Degree in Physio- th era py from recog nized Institute2(two) yearsMethod of recruitment, whether by direct recruitment or by promotion or by deputation/transfer and percentage of P ost to be filled by various meth odsIn case of recruitment by promotion/transfer/deputation, grades from which promotion/ deputation/transfer to be madeIf a DPC exist, what is its composition ?Circumstances in which MPSC is to be consulted in making recruitment.11121314As per Mizoram Public Service Commission (Limitation of Functions) Regulations, 1994 and as amended from time to time. Mizoram Public Service Commission or as constituted by the Government of M izoram f rom time to time. Physiotherapy Technologist1(one) post or as sanctioned by the Government from time to timeGeneral State Service (Group ‘B’ post) (Non-Gazetted) (Non-Ministerial)PB-2 ^ 9300-34800/- + Grade Pay ^ 4600/- PROMOTION : From Physiotherapist with not less than 5(five) years regular service in the grade having Diploma /Bachelor Degree in Physiotherapy from recognised Institute. 100% by promotion failing which by direct recruitment
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008Re. 1/- per pageVOL - XLIV Aizawl, Tuesday 10.2.2015 Magha 21, S.E. 1936, Issue No. 67 NOTIFICATIONNo. A.12018/17/2013-P&AR(GSW), the 4th February, 2015. In exercise of the powers conferred by the proviso to Article 309 of t he Constitution of India, the Governor of Mizoram is pleased to make the following rules regulating the method of recruitment to the post(s) of P hysiotherapy under Health & Fa mily Welfare Department, Government of Mizor am, namely :- 1.Shor t title and (1) These Rules may be called the Mizoram Health & Family Welfare Commencement Department (Group ‘B’ Non Gazetted post) Recruitment Rules, 2015. (2) They shall come into force from the date of their publication in the Official Gazette. 2. Application These rules shall apply to the posts specified in Column 1 of the Schedule annexed to these ru les. 3. Number of posts, The number of the said post(s), their classification, pay b and and grade classification, pa y ba nd pay/pay scale attached thereto sha ll be as specified in columns 2 to and grade pa y/pay scale 4 of the Schedule aforesaid. 4. Method of r ecruitment, The method of recruitment to the sa id posts, age limit, qualifica tion age limit, and other matters relating thereto shall be as specified in columns 5 qualifications, etc. to 14 of the said Schedule. Provided that the upper age limit prescribed for direct recruitment may be relaxed in t he case of candidates belonging to the Scheduled Castes/the Scheduled Tribes and other special ca tegories of persons in a ccordance with the or ders issued by the Central Government or the Government of Mizoram, as the case may be, from time to time. 5. Disqualification No person- (a ) who, has entered into or contracted a marr iage with a person having a spouse living; or - 2 - Ex-67/2015 (b) who, having a spouse living, ha s entered into or contracted a marriage with any other person, shall be eligible for appointment to t he said post(s); Provided that the Governor may, if satisfied that such marriage is permissible under the personal law applicable to such person and to the other party to the marriage and that there are other grounds for doing so, exempt any such person from the operation of this r ule. 6.Training and Departmental Every Gover nment s ervant recruited under these rules s hall undergo Examination. such training or pass such Departmental Exa mination(s) as may b e pr escribed from t ime to t ime. 7. Powers to trans fer Notwithstanding anything contained in these rules, the Governor of Mizoram, in public interest, shall have power to transfer any officer(s) so r ecruited under these rules to a ny other post or position which is equivalent in rank or gr ade. 8. Power to relax Where the Governor is of the opinion that it is necessary or expedient so to do, he may, by order and for reasons to be recorded in writing thr ough the Depar tment of Personnel & Administra tive Refor ms, relax any of the pr ovisions of these rules with respect to any class or category of persons. 9. Reservation and other Nothing in these rules shall affect any reservation relaxation of age concessions limit and other concessions required to be provided for the Scheduled Castes/the Schedu led Tribes and ot her ca tegor ies of persons in accordance with the orders issued by the Central Government or the Government of Mizoram from time to time in this regard. By order s, etc. Lalsangpuii, Additional Secreta ry to the Govt. of Mizoram, Depa rtment of Personnel & Administrative Reforms. - 3 -Ex-67/2015Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/100SCHEDULE(See Rule 2, 3 & 4)RECRUITMENT RULES FOR THE POST OF PHYSIOTHERAPY TECHNOLOGIST IN THE DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVT. OF MIZORAMName of postNo. of postClassificationPay Band and Grade Pay/Pay ScaleWhether Selection post or Non-selection post12345 SelectionWhether benefit of added years of service admissible under Rule 30 of the CCS (Pension) Rules, 1972Age limit for direct recruitsEducational and other qualif ications required for direct recruitsWhether age and educa tional qualifications prescribed for direct recruits will apply in the case of promoteesPeriod of probation, if any67 8910 Not applicableBetween 18 and 35 years. Upper age limit is relaxable upto 5(five) years in case of candidates belonging to Scheduled Castes/ Scheduled TribesNot applicable Essential 1. HSSLC(Sc) with B.Sc in Physiotherapy from recognized Institute. 2. Knowledge of Mizo language at least Middle School standard. Desireable : Master Degree in Physio- th era py from recog nized Institute2(two) yearsMethod of recruitment, whether by direct recruitment or by promotion or by deputation/transfer and percentage of P ost to be filled by various meth odsIn case of recruitment by promotion/transfer/deputation, grades from which promotion/ deputation/transfer to be madeIf a DPC exist, what is its composition ?Circumstances in which MPSC is to be consulted in making recruitment.11121314As per Mizoram Public Service Commission (Limitation of Functions) Regulations, 1994 and as amended from time to time. Mizoram Public Service Commission or as constituted by the Government of M izoram f rom time to time. Physiotherapy Technologist1(one) post or as sanctioned by the Government from time to timeGeneral State Service (Group ‘B’ post) (Non-Gazetted) (Non-Ministerial)PB-2 ^ 9300-34800/- + Grade Pay ^ 4600/- PROMOTION : From Physiotherapist with not less than 5(five) years regular service in the grade having Diploma /Bachelor Degree in Physiotherapy from recognised Institute. 100% by promotion failing which by direct recruitmentAffidavit of Lalrinthanga S/o Dara (L) Tuikual South, Aizawl
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Friday 13.2.2015 Magha 24, S.E. 1936, Issue No. 74 AFFIDAVITI,Lalrinthanga S/o Dara (L),permanent resident of Tuikual South, Aizawl, Mizoram do hereby solemnly affirm as hereunder :- 1.That I am a bonafide citizen of India and I am competent to swear this affidavit. That I am working as IVth Grade under SAD, Govt. of Mizoram, Aizawl. 2.That my name has been inadvertently written and recorded asRinthanga in myService Book under SAD, Govt. of Mizoram whereas it has been written and recorded asLalrinthanga in my Voter ’s ID, Ration Card and all my other documents. 3.That I hereby declare that the aforementioned namesLalrinthanga andRinthanga do not signify different persons but refer to one and the same person which is me. 4.That the purpose of this affidavit is to declare thatLalrinthanga andRinthanga are one and the same person. 5.That the statements made in para 1 to 3 are true and correct to the best of my knowledge and belief and therefore, nothing materials has been concealed therefrom. IN WITNESS WHEREOF I swear and signed this affidavit on this 3rd day of February, 2015. Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.Identified by me: H.LALCHHUANAWMA ADVOCATESigned befor e me: LALRAMHLUNA Advocate Notary Public Aizawl : Mizoram Notarial Registration No 1/2 Date 3/2/15DEPONENT
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Friday 13.2.2015 Magha 24, S.E. 1936, Issue No. 74 AFFIDAVITI,Lalrinthanga S/o Dara (L),permanent resident of Tuikual South, Aizawl, Mizoram do hereby solemnly affirm as hereunder :- 1.That I am a bonafide citizen of India and I am competent to swear this affidavit. That I am working as IVth Grade under SAD, Govt. of Mizoram, Aizawl. 2.That my name has been inadvertently written and recorded asRinthanga in myService Book under SAD, Govt. of Mizoram whereas it has been written and recorded asLalrinthanga in my Voter ’s ID, Ration Card and all my other documents. 3.That I hereby declare that the aforementioned namesLalrinthanga andRinthanga do not signify different persons but refer to one and the same person which is me. 4.That the purpose of this affidavit is to declare thatLalrinthanga andRinthanga are one and the same person. 5.That the statements made in para 1 to 3 are true and correct to the best of my knowledge and belief and therefore, nothing materials has been concealed therefrom. IN WITNESS WHEREOF I swear and signed this affidavit on this 3rd day of February, 2015. Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.Identified by me: H.LALCHHUANAWMA ADVOCATESigned befor e me: LALRAMHLUNA Advocate Notary Public Aizawl : Mizoram Notarial Registration No 1/2 Date 3/2/15DEPONENTThe Thirteenth Finance Commission, target of Service Level Benchmark during 2015-2016 for Urban Local Bodies in respect of 4 (four) Service Sectors viz. Water Supply, Sewerage, Storm Water Drainage and Solid Waste Management under Urban Development. & Poverty Alleviation Department
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Thursday 19.2.2015 Magha 30, S.E. 1936, Issue No. 78 NOTIFICATIONNo.B.13019/4/2011-UD&PA(13FC) the 18th February, 2015.As pr escribed under Chapter 10.16 (viii) of the Reports and Recommendations of the Thirteenth Finance Commission, target of Service Level Benchmark during 2015-2016 for Urban Local Bodies in respect of 4 (four) Service Sectors viz. Water Supply, Sewerage, Storm Water Drainage and Solid Waste Management under Urban Development & Poverty Alleviation Department is hereby notified as shown in the ‘Annexure’ enclosed for information. R.Lalvena, Secretry to the Govt. of Mizoram, Urban Development & Poverty Alleviation Department. ‘ANNEXURE’ SERVICE LEVEL BENCHMARKS FOR 2015-2016 (As prescribed under Chapter 10.161 (viii) of the Reports & Recommendations of the Thirteenth Finance Commission) [Benchmarks indicate the service levels to be ultimate achieved by the ULB/State Government in provision of urban civic services as prescribed by the Ministry of Urban Development, Government of India. Baseline Level indicates the Level of services provided as at end of 2010-11, Current Level indicates level of services provided as at end of current year 2014-2015 and Targets for 2015-2016 indicate the level of services expected of services expected to be achieved by end of 2015-2016] 1.WATER SUPPLY Sl.No. Proposed IndicatorBenchBeselineCurrent Target for markLevelLev el 2015-16 1Coverage of water supply connections100%54%67%75% 2Per capita supply of water135 1pcd70.27 1pcd751pcd 85% 3Extent of metering of water connections 100%91%100%100% 4Extent of non-revenue water (NRW)20%40%40%30% 5Continuity of water supply24 hours8 Min.10 Min. 15% 6Quality of water supplied100%100%100%100% 7Efficiency in redressal of customer80%50%75%80% Complaint 8Cost of recovery in water supply services 100%11%20%30% 9Efficiency in collection of water supply90%75%80%90% related charges. Notes : 1.The extent of coverage of water supply connections has been worked out on the basis of water supply connections and the number of families projected for the years at the end of 2010, 2012, 2013 and 2014. 2.Metering of water connections is one of the ongoing activities of SIPMIU under the ADB- assisted NERCCDIP, With the bulk procurement of water meters and provision of the same to the customers, it is expected to achieve 100% metering. 3.Continuity of water supply indicates the average period during which the water supply is provided to the customers daily. However, the existing system of water distribution is on a weekly basis. 4.Computerised billing system for Aizawl Water Distributions Division is implemented under the ADB-assisted MPRMP. With the use of this new system, efficiency in collection of water supply related charges is expected to improve to 90% 5.WSS Component under the ADB Assistant NERCCDIP, as and when completed is expected to significantly help in reducing NRW in water supply 6.Higher level of cost recovery in Water Supply is possible due to upward revision of water tariff in December 2014.Ex-78/20152 2.SEWARAGE Sl.No. Proposed IndicatorB ench B e s e li ne Current Target for mark LevelLev el 2015-16 1Coverage of toilets100%98.95%98.95% 98.95% 2Coverage of sewage network services100%0%20%50% 3Collection efficiency of the sewage network100%0%10%20% 4Adequacy of treatment capacity100%0%20%20% 5Quality of sewage treatment100%0%0%0% 6Extent of reuse and recycling of sewage20%0%0%0% 7Efficiency in redressal of customer complaints80%0%0%0% 8Extent of cost recovery in sewage management 100%0%0%0% 9Efficiency in collection of sewage charges90%0%0%0% Notes : 1.The level of coverage of toilets is based on survey conducted by SIPMIU in 2011 2.Scientific treatment of waste water (STP) and laying of sewer pipes (Sewerage Network) are being started in 2014. And 30% of the population in the southern, eastern part of Aizawl City only is proposed to be covered with sewerage system under ADB-assisted NERCCDIP Project- 2 which is commence in 2013-14 and target to be completed by the year 2016-17. 3.Septage Management for Aizawl City on a Pilot Basis will be taken up for some uncovered area of Sewerage scheme under Technical Assistance from the ADB which will be taken under Tranche- 3. 3.STORM WATER DRAINAGE Sl.No. Proposed IndicatorB ench B e s e li ne Current Target for mark LevelLev el 2015-16 1Coverage of storm water drainage network100%40%65%85% 2Incidence of water logging/flooding0000 Notes :- Incidence of water logging could be 0% as the city is located at a hill station with quick surface water run off. 4.SOLID WASTE MANAGEMENT Sl.No. Proposed IndicatorB ench B e s e li ne Current Target for mark LevelLev el 2015-16 1Household level coverage of solid waste100% 70%85%88% management services 2Efficiency of collection of minicipal solid waste100% 60%80%83% 3Extent of segregation of municipal solid waste100% 0%10%10% 4Extent of minicipal solid waste recovered80%0%0%5% 5Extent of scientific disposal of municipal solid waste 100% 0%0%5% 6Efficiency in redressal of customer complaints80%60%70%73% 7Extent of cost recovery in SWM services100% 10%20%22%Ex-78/2015 3 8Efficiency in collection of SWM charges90%60%75%78% Note :- 1.Collection and transportation of Municipal Solid Waste in Aizawl City is carried out by a modified form of PPP where the Aizawl Municipal Council, in partnership with Local Councils, managed the collection and transportation in an efficient manner. 2.Segregation of Wastes at source (dry & wet) was introduced since September 2014 in five local councils out of 83 local councils on a pilot basis and will simultaneously be enhance to other areas of the Aizawl Municipal Council. The bio-degradable waste segregated at source is treated and converted into compost through vermin-composting. The dry wastes (recyclable wastes) are recovered at the newly constructed Solid Waste Resource Management Centre and sold to recycle waste handlers for recycling. 3.A scientific Solid Waste Management Centre is proposed to be taken up under ADB assisted NERCCDIP, the DPR amounting to Rs 3308 lakhs of which was approved on November, 201`4 by Ministry of Urban Development, Government of India. The project is expected to bring in scientific handling and disposal of municipal solid waste. Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.Ex-78/20154
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Thursday 19.2.2015 Magha 30, S.E. 1936, Issue No. 78 NOTIFICATIONNo.B.13019/4/2011-UD&PA(13FC) the 18th February, 2015.As pr escribed under Chapter 10.16 (viii) of the Reports and Recommendations of the Thirteenth Finance Commission, target of Service Level Benchmark during 2015-2016 for Urban Local Bodies in respect of 4 (four) Service Sectors viz. Water Supply, Sewerage, Storm Water Drainage and Solid Waste Management under Urban Development & Poverty Alleviation Department is hereby notified as shown in the ‘Annexure’ enclosed for information. R.Lalvena, Secretry to the Govt. of Mizoram, Urban Development & Poverty Alleviation Department. ‘ANNEXURE’ SERVICE LEVEL BENCHMARKS FOR 2015-2016 (As prescribed under Chapter 10.161 (viii) of the Reports & Recommendations of the Thirteenth Finance Commission) [Benchmarks indicate the service levels to be ultimate achieved by the ULB/State Government in provision of urban civic services as prescribed by the Ministry of Urban Development, Government of India. Baseline Level indicates the Level of services provided as at end of 2010-11, Current Level indicates level of services provided as at end of current year 2014-2015 and Targets for 2015-2016 indicate the level of services expected of services expected to be achieved by end of 2015-2016] 1.WATER SUPPLY Sl.No. Proposed IndicatorBenchBeselineCurrent Target for markLevelLev el 2015-16 1Coverage of water supply connections100%54%67%75% 2Per capita supply of water135 1pcd70.27 1pcd751pcd 85% 3Extent of metering of water connections 100%91%100%100% 4Extent of non-revenue water (NRW)20%40%40%30% 5Continuity of water supply24 hours8 Min.10 Min. 15% 6Quality of water supplied100%100%100%100% 7Efficiency in redressal of customer80%50%75%80% Complaint 8Cost of recovery in water supply services 100%11%20%30% 9Efficiency in collection of water supply90%75%80%90% related charges. Notes : 1.The extent of coverage of water supply connections has been worked out on the basis of water supply connections and the number of families projected for the years at the end of 2010, 2012, 2013 and 2014. 2.Metering of water connections is one of the ongoing activities of SIPMIU under the ADB- assisted NERCCDIP, With the bulk procurement of water meters and provision of the same to the customers, it is expected to achieve 100% metering. 3.Continuity of water supply indicates the average period during which the water supply is provided to the customers daily. However, the existing system of water distribution is on a weekly basis. 4.Computerised billing system for Aizawl Water Distributions Division is implemented under the ADB-assisted MPRMP. With the use of this new system, efficiency in collection of water supply related charges is expected to improve to 90% 5.WSS Component under the ADB Assistant NERCCDIP, as and when completed is expected to significantly help in reducing NRW in water supply 6.Higher level of cost recovery in Water Supply is possible due to upward revision of water tariff in December 2014.Ex-78/20152 2.SEWARAGE Sl.No. Proposed IndicatorB ench B e s e li ne Current Target for mark LevelLev el 2015-16 1Coverage of toilets100%98.95%98.95% 98.95% 2Coverage of sewage network services100%0%20%50% 3Collection efficiency of the sewage network100%0%10%20% 4Adequacy of treatment capacity100%0%20%20% 5Quality of sewage treatment100%0%0%0% 6Extent of reuse and recycling of sewage20%0%0%0% 7Efficiency in redressal of customer complaints80%0%0%0% 8Extent of cost recovery in sewage management 100%0%0%0% 9Efficiency in collection of sewage charges90%0%0%0% Notes : 1.The level of coverage of toilets is based on survey conducted by SIPMIU in 2011 2.Scientific treatment of waste water (STP) and laying of sewer pipes (Sewerage Network) are being started in 2014. And 30% of the population in the southern, eastern part of Aizawl City only is proposed to be covered with sewerage system under ADB-assisted NERCCDIP Project- 2 which is commence in 2013-14 and target to be completed by the year 2016-17. 3.Septage Management for Aizawl City on a Pilot Basis will be taken up for some uncovered area of Sewerage scheme under Technical Assistance from the ADB which will be taken under Tranche- 3. 3.STORM WATER DRAINAGE Sl.No. Proposed IndicatorB ench B e s e li ne Current Target for mark LevelLev el 2015-16 1Coverage of storm water drainage network100%40%65%85% 2Incidence of water logging/flooding0000 Notes :- Incidence of water logging could be 0% as the city is located at a hill station with quick surface water run off. 4.SOLID WASTE MANAGEMENT Sl.No. Proposed IndicatorB ench B e s e li ne Current Target for mark LevelLev el 2015-16 1Household level coverage of solid waste100% 70%85%88% management services 2Efficiency of collection of minicipal solid waste100% 60%80%83% 3Extent of segregation of municipal solid waste100% 0%10%10% 4Extent of minicipal solid waste recovered80%0%0%5% 5Extent of scientific disposal of municipal solid waste 100% 0%0%5% 6Efficiency in redressal of customer complaints80%60%70%73% 7Extent of cost recovery in SWM services100% 10%20%22%Ex-78/2015 3 8Efficiency in collection of SWM charges90%60%75%78% Note :- 1.Collection and transportation of Municipal Solid Waste in Aizawl City is carried out by a modified form of PPP where the Aizawl Municipal Council, in partnership with Local Councils, managed the collection and transportation in an efficient manner. 2.Segregation of Wastes at source (dry & wet) was introduced since September 2014 in five local councils out of 83 local councils on a pilot basis and will simultaneously be enhance to other areas of the Aizawl Municipal Council. The bio-degradable waste segregated at source is treated and converted into compost through vermin-composting. The dry wastes (recyclable wastes) are recovered at the newly constructed Solid Waste Resource Management Centre and sold to recycle waste handlers for recycling. 3.A scientific Solid Waste Management Centre is proposed to be taken up under ADB assisted NERCCDIP, the DPR amounting to Rs 3308 lakhs of which was approved on November, 201`4 by Ministry of Urban Development, Government of India. The project is expected to bring in scientific handling and disposal of municipal solid waste. Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.Ex-78/20154Published in the Mizoram Gazette issue No.8 dated 13.1.2015 the Village Council Constituencies in respect of “Serchhip VC-IX and Serchhip VC-X” may be read as “New Serchhip South and New Serchhip North”.
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Thursday 19.2.2015 Magha 30, S.E. 1936, Issue No. 79 CORRIGENDUMNo.B.14016/8/2012-LAD/VC, the 18th February, 2015.In exer cise of the powers conferred by Section 3(1) of the Lushai Hills District (Village Councils) Act, 1953, as amended from time to time, and as published in the Mizoram Gazette issue No.8 dated 13.1.2015 the Village Council Constituencies in respect of“Serchhip VC-IX and Serchhip VC-X” may be read as“New Serchhip South and New Serchhip North”. Further, the new boundaries of Serchhip VC-V, New Serchhip South and New Serchhip North as approved is enclosed at Annexure. C. Thatkunga, Secretary to the Govt. of Mizoram, Local Administration Department. ANNEXURE BOUNDARY DESCRIPTION IN VILLAGE COUNCIL AREAS Chhim lam : Pu Rokima In huamin Auditorium panna Medical Compound chin zelah a phei ang a. Tuizem Dum kawn panna step-ah chhovin Tuizem Dum kawnah VC-I a ri ang. Hmar lam : Tuikhur leh Thlanmual huama rawn pheiin kawrpui a rawn pawh ang. Chhuah lam : Kawrpui atanga rawn chhovin Pu Rokima In leh Pu Lalrammuana In inkarah Ramthlun Road a rawn pawh ang. Tlak lam : Tuizem Dum kawn atangin Field Road zawhin Pu Sanghmingthanga luah Medical Quarter huamin Field Road chung Zoram Road/Footpath-ah pheiin Pu Zachhunga In huamin VC-I a ri ang. Bilzel lui zawh thlain Bukpui lui a pawh ang. Bukpui lui pawh chho zelin Pu Zothansanga huan kawrte zawh chhoin Pu PC Lalhleia In leh Pu R.Zakapa huan Inkar kawrte rawn zawh chho zelin Pi Vanlawmi In leh Pu Hrangmana in inkarah rawh chhovin NH-54 a tan tlang ang. Supply Godown leh Supply Inspector Quar- ters inkarah chhukin Pu Vanlalmuana leh Pu H.Zonuntluanga te In Inkar kawrte zawh thlain Tlangpuilui a pawh ang. Tlangpui lui atangin Khawtetlang kawrte man chhovin DC Bangla leh SP Quarter Inkar kawnah chhuak chhovin NLUP Link Road zawh thlain Khawtetlang Thlanmual huam lovin NLUP Link Road zu pawh lehin Pu F.Zahleia huan kawr chhuk zawnga zawh zelin Tuikum lui a fin a. Tuikum lui chu chhim zawnga zawhin Tlangpui lui a fin a, Tlangpui lui zawh chhovin Quary Road a pawh a, heta tang hian Pi Vanlalhruaii in leh SP Quarters hlui inkarah rawn chhovin P&E kawng a zawh thla a, Tlangnuam kawngah zawh chho lehin Bilzelah NH-54 a rawn pawh ang. Pi Vanlawmi lo leh Pu Hrangmana In inkar Starting point-ah hmangin heta tang hian Pu PC Lalhleia in leh Pu R.Zakapa huan inkar kawrteah chhukin Pu Zothansanga huan kawrte zawh thlain Bukpui lui a fin a, Bukpui lui zawh thlain Hmawngawn lui a fin a, heta tang hian Mat lui finin hmar zawnga zawh chhovin Vaube lui a pawh a. Vaube lui peng thuam hmar lamah zawh chhovin NH-54 a tan tlang ang a, lui mawng lam zawh thlain Zalreng lui a fin ang. Zalreng lui chu khawchhak zawnga zawh chhovin Tuikum lui a fin ang. Heta tang hian Pu F.Zahleia huan kawra h za wh chhovin NLUP Link Roa d za wh chho zelin Kha wtetla ng Thlanmual huamin NLUP Link Road zawh lehin DC Bangla leh SP Quarters inkar kawnah a lo chhuak ang a, tlak lamah kawrte zawh thla in T langpui lui a fin thla a, T langpui lui a tangin kawrte za wh chhovin Pu Vanlalmua na In leh Pu H.Zonuntluanga In inkar kawrteah lo chhovin Supply Godown leh Supply Inspec- tor Quarater inkarah lo chhovin Pi Vanlawmi In leh Pu Hrangmana In inkar Start- ing Point a pawh ang.NAME OF VILLAGE COUNCIL SERCHHIP - VNEW SERCHHIP SOUTH NEW SERCHHIP NORTH Ex-79/20152 Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Thursday 19.2.2015 Magha 30, S.E. 1936, Issue No. 79 CORRIGENDUMNo.B.14016/8/2012-LAD/VC, the 18th February, 2015.In exer cise of the powers conferred by Section 3(1) of the Lushai Hills District (Village Councils) Act, 1953, as amended from time to time, and as published in the Mizoram Gazette issue No.8 dated 13.1.2015 the Village Council Constituencies in respect of“Serchhip VC-IX and Serchhip VC-X” may be read as“New Serchhip South and New Serchhip North”. Further, the new boundaries of Serchhip VC-V, New Serchhip South and New Serchhip North as approved is enclosed at Annexure. C. Thatkunga, Secretary to the Govt. of Mizoram, Local Administration Department. ANNEXURE BOUNDARY DESCRIPTION IN VILLAGE COUNCIL AREAS Chhim lam : Pu Rokima In huamin Auditorium panna Medical Compound chin zelah a phei ang a. Tuizem Dum kawn panna step-ah chhovin Tuizem Dum kawnah VC-I a ri ang. Hmar lam : Tuikhur leh Thlanmual huama rawn pheiin kawrpui a rawn pawh ang. Chhuah lam : Kawrpui atanga rawn chhovin Pu Rokima In leh Pu Lalrammuana In inkarah Ramthlun Road a rawn pawh ang. Tlak lam : Tuizem Dum kawn atangin Field Road zawhin Pu Sanghmingthanga luah Medical Quarter huamin Field Road chung Zoram Road/Footpath-ah pheiin Pu Zachhunga In huamin VC-I a ri ang. Bilzel lui zawh thlain Bukpui lui a pawh ang. Bukpui lui pawh chho zelin Pu Zothansanga huan kawrte zawh chhoin Pu PC Lalhleia In leh Pu R.Zakapa huan Inkar kawrte rawn zawh chho zelin Pi Vanlawmi In leh Pu Hrangmana in inkarah rawh chhovin NH-54 a tan tlang ang. Supply Godown leh Supply Inspector Quar- ters inkarah chhukin Pu Vanlalmuana leh Pu H.Zonuntluanga te In Inkar kawrte zawh thlain Tlangpuilui a pawh ang. Tlangpui lui atangin Khawtetlang kawrte man chhovin DC Bangla leh SP Quarter Inkar kawnah chhuak chhovin NLUP Link Road zawh thlain Khawtetlang Thlanmual huam lovin NLUP Link Road zu pawh lehin Pu F.Zahleia huan kawr chhuk zawnga zawh zelin Tuikum lui a fin a. Tuikum lui chu chhim zawnga zawhin Tlangpui lui a fin a, Tlangpui lui zawh chhovin Quary Road a pawh a, heta tang hian Pi Vanlalhruaii in leh SP Quarters hlui inkarah rawn chhovin P&E kawng a zawh thla a, Tlangnuam kawngah zawh chho lehin Bilzelah NH-54 a rawn pawh ang. Pi Vanlawmi lo leh Pu Hrangmana In inkar Starting point-ah hmangin heta tang hian Pu PC Lalhleia in leh Pu R.Zakapa huan inkar kawrteah chhukin Pu Zothansanga huan kawrte zawh thlain Bukpui lui a fin a, Bukpui lui zawh thlain Hmawngawn lui a fin a, heta tang hian Mat lui finin hmar zawnga zawh chhovin Vaube lui a pawh a. Vaube lui peng thuam hmar lamah zawh chhovin NH-54 a tan tlang ang a, lui mawng lam zawh thlain Zalreng lui a fin ang. Zalreng lui chu khawchhak zawnga zawh chhovin Tuikum lui a fin ang. Heta tang hian Pu F.Zahleia huan kawra h za wh chhovin NLUP Link Roa d za wh chho zelin Kha wtetla ng Thlanmual huamin NLUP Link Road zawh lehin DC Bangla leh SP Quarters inkar kawnah a lo chhuak ang a, tlak lamah kawrte zawh thla in T langpui lui a fin thla a, T langpui lui a tangin kawrte za wh chhovin Pu Vanlalmua na In leh Pu H.Zonuntluanga In inkar kawrteah lo chhovin Supply Godown leh Supply Inspec- tor Quarater inkarah lo chhovin Pi Vanlawmi In leh Pu Hrangmana In inkar Start- ing Point a pawh ang.NAME OF VILLAGE COUNCIL SERCHHIP - VNEW SERCHHIP SOUTH NEW SERCHHIP NORTH Ex-79/20152 Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.R.Lalengliana S/o Zuithanga (L) Durtlang, Aizawl, Mizoram
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Thursday 19.2.2015 Magha 30, S.E. 1936, Issue No. 80 AFFIDAVITI,R.Lalengliana S/o Zuithanga (L),resident of Durtlang, Aizawl, Mizoram do hereby solemnly affirm as hereunder :- 1.That I am a bonafide citizen of India and I am eligible to swear this affidavit. 2.That my name has been written and recorded asLalengliana in my Government Service Book, Government of Mizoram; whereas it has been written and recorded asR.Lalengliana in my other documents. 3.That I hereby declare that the aforementioned namesR.Lalengliana andLalenglianado not signify different persons but refer to one and the same person which is me, R.Lalengliana. 4.That this affidavit shall be used as a piece of evidence. 5.That the statements made in para 1 to 4 are true to the best of my knowledge and belief. IN WITNESS WHEREOF I put my signature hereto on this 21st day of January, 2015. Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.Identified by me: Sd/- LALRINKIMA ADVOCATE Aizawl : MizoramSigned befor e me: Sd/- Judicial Magistrate 1st Class Aizawl Judicial District Mizoram : AizawlSd/- DEPONENT
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Thursday 19.2.2015 Magha 30, S.E. 1936, Issue No. 80 AFFIDAVITI,R.Lalengliana S/o Zuithanga (L),resident of Durtlang, Aizawl, Mizoram do hereby solemnly affirm as hereunder :- 1.That I am a bonafide citizen of India and I am eligible to swear this affidavit. 2.That my name has been written and recorded asLalengliana in my Government Service Book, Government of Mizoram; whereas it has been written and recorded asR.Lalengliana in my other documents. 3.That I hereby declare that the aforementioned namesR.Lalengliana andLalenglianado not signify different persons but refer to one and the same person which is me, R.Lalengliana. 4.That this affidavit shall be used as a piece of evidence. 5.That the statements made in para 1 to 4 are true to the best of my knowledge and belief. IN WITNESS WHEREOF I put my signature hereto on this 21st day of January, 2015. Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.Identified by me: Sd/- LALRINKIMA ADVOCATE Aizawl : MizoramSigned befor e me: Sd/- Judicial Magistrate 1st Class Aizawl Judicial District Mizoram : AizawlSd/- DEPONENTThe Mizoram School Education Department (Group ‘B’ posts) Recruitment Rules, 2015.
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Thursday 19.2.2015 Magha 30, S.E. 1936, Issue No. 83 (1) These rules may be called the Mizoram School Education Depart- ment (Group ‘B’ posts) Recruitment Rules, 2015. (2) They shall come into force from the date of their publication in the Official Gazette. These rules shall apply to the posts specified in column 1 of the Sched- ule annexed hereto. The number of the said post(s), their classification, pay band and grade pay/ pay scale attached thereto shall be as specified in in col- umns 2 to 4 of aforesaid Schedule. The method of recruitment to the said post, age limit, qualification and other matters relating thereto shall be as specified in columns 5 to 14 of the aforesaid Schedule. Provided that the upper age limit prescribed for direct re- cruitment may be relaxed in the case of candidates belonging to the Scheduled Castes/ the Scheduled Tribes and other special categories of persons in accordance with the orders issued by the Central Gov- ernment or the Government of Mizoram from time to time. No person - (a)who has entered into or contracted a marriage with a per- son having a spouse living; or NOTIFICATIONNo.A. 12018/9/2003 - PAR(GSW), the 16th February, 2015.In exer cise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Mizoram is pleased to make the following rules regulating the method of recruitment to the post(s) ofTechnician (Mizoram EDUSAT Network, SCERT)underSchool Education Department,Government of Mizoram, namely :- 1. Short title and commencement- 2. Application- 3. Number of posts, classification pay band and grade pay/ pay scale- 4. Method of recruitment, age limit, qualifications, etc- 5. Disqualification- (b) who, having a spouse living, has entered into or contracted a marriage with any other person shall be eligible for appoint- ment to the said post(s); Provided that the Governor may, if satisfied that such marriage is permissible under the personal law applicable to such person and to the other party to the marriage and that there are other grounds for doing so, exempt any such person from the operation of this rule. Every Government servant r ecruited under these rules sha ll un- dergo such training or pass such Departmental Examination(s) as may be prescribed from time to time. Notwithstanding anything contained in these rules, the Governor of Mizoram in public interest, shall have power to transfer any officer so re- cruited under these rules to any other post or position which is equivalent in rank or grade. Where the Governor is of the opinion that it is necessary or expe- dient to do so, he may, by order and for reasons to be recorded in writing and in consultation with the Mizoram Public Service Commission through the Department of Personnel & Administrative Reforms, relax any of the provisions of these rules with respect to any class or category of persons. Nothing in these rules shall affect reservation relaxation of age and other concessions required to be provided for the Scheduled Castes / the Scheduled Tribes and other categories of persons in accordance with the orders issued by the Central Government or the Government of Mizoram from time to time in this regard. By orders, etc Lalsangpuii Addl. Secretary to the Govt. of Mizoram, Deptt. of Personnel & Administrative Reforms. 6. Training and Departmental Examination- 7. Powers to transfer- 8. Power to relax- 9. Reservation and other concessions- Ex-83/20152 3 Name of post No.ofpost Classification Pay Band and Grade Pay/ Pay Scale W hether Selec- tion postor Non-Selection post W hether benefitof added years ofservice admissible underrule 30 ofthe CCS (Pen- sion)Rules, 1972 Agelimitfor directre- cruits Educationaland otherqualifica- tions required fordirectre- cruits Technician 1(one)postor assanctioned bythe Government from time totime GeneralState Service(Group ‘B’ post)(Non- Gazetted) (Non-Ministerial) PB -2 ^.9,300-34800/- Gradepay^ 4,200/- Notapplicable Notapplicable Between18to 35years.Upper agelimitis relaxableby 5(five)yearsfor SC/ST 1.HSLCwith2(two) yearsCertificate CourseinElectronics/ ComputerHardware/ RadioandTelevision/ InformationTechnol- ogyandElectronics System Maintenance (IT&ESM)from recognizedInstitute. 2.Workingknowledge ofMizolanguageat leastMiddleSchool standard. 1 2 3 4 5 6 7 8 SCHEDULE (SeeRule2,3and 4) RECRUITM ENT RULES FOR THE POST OF TECHNICIAN IN THE DEPARTM ENT OF SCHOOL EDUCATION (SCERT), GOVT.OF M IZORAM Name of post No.ofpost Classification Pay Band and Grade Pay/ Pay Scale W hether Selec- tion postor Non-Selection post W hether benefitof added years ofservice admissible underrule 30 ofthe CCS (Pen- sion)Rules, 1972 Agelimitfor directre- cruits Educationaland otherqualifica- tions required fordirectre- cruits 1 2 3 4 5 6 7 8 Ex-83/2015 3 W hetherage and educationalqualifi- cations prescribed fordirectrecruits willapply in the case ofpromotees Period of probation, ifany M ethod ofrecruit- mentwhetherby directrecruitment orby promotion orby deputation/ transferand percen- tage ofpoststo be filled by various methods In case ofrecruitment by promotion/transfer/ deputation,grades from which promotion/ deputation/transferis to be made Ifa DPC exist,whatisits composition? Circumstances in which M PSC isto be consulted in making recruitment. Notapplicable MizoramPublicService Commission. AsperMizoram PublicService Commission(Limita- tionofFunctions) Regulations,1994 andasamendedfrom timetotime 9 10 11 12 13 14 100% direct recruitment Ex-83/2015 4 2(two)years PublishedandIssuedbytheController,Printing&Stationery,Mizoram PrintedattheMizoramGovernmentPress,AizawlC-100 Notapplicable
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Thursday 19.2.2015 Magha 30, S.E. 1936, Issue No. 83 (1) These rules may be called the Mizoram School Education Depart- ment (Group ‘B’ posts) Recruitment Rules, 2015. (2) They shall come into force from the date of their publication in the Official Gazette. These rules shall apply to the posts specified in column 1 of the Sched- ule annexed hereto. The number of the said post(s), their classification, pay band and grade pay/ pay scale attached thereto shall be as specified in in col- umns 2 to 4 of aforesaid Schedule. The method of recruitment to the said post, age limit, qualification and other matters relating thereto shall be as specified in columns 5 to 14 of the aforesaid Schedule. Provided that the upper age limit prescribed for direct re- cruitment may be relaxed in the case of candidates belonging to the Scheduled Castes/ the Scheduled Tribes and other special categories of persons in accordance with the orders issued by the Central Gov- ernment or the Government of Mizoram from time to time. No person - (a)who has entered into or contracted a marriage with a per- son having a spouse living; or NOTIFICATIONNo.A. 12018/9/2003 - PAR(GSW), the 16th February, 2015.In exer cise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Mizoram is pleased to make the following rules regulating the method of recruitment to the post(s) ofTechnician (Mizoram EDUSAT Network, SCERT)underSchool Education Department,Government of Mizoram, namely :- 1. Short title and commencement- 2. Application- 3. Number of posts, classification pay band and grade pay/ pay scale- 4. Method of recruitment, age limit, qualifications, etc- 5. Disqualification- (b) who, having a spouse living, has entered into or contracted a marriage with any other person shall be eligible for appoint- ment to the said post(s); Provided that the Governor may, if satisfied that such marriage is permissible under the personal law applicable to such person and to the other party to the marriage and that there are other grounds for doing so, exempt any such person from the operation of this rule. Every Government servant r ecruited under these rules sha ll un- dergo such training or pass such Departmental Examination(s) as may be prescribed from time to time. Notwithstanding anything contained in these rules, the Governor of Mizoram in public interest, shall have power to transfer any officer so re- cruited under these rules to any other post or position which is equivalent in rank or grade. Where the Governor is of the opinion that it is necessary or expe- dient to do so, he may, by order and for reasons to be recorded in writing and in consultation with the Mizoram Public Service Commission through the Department of Personnel & Administrative Reforms, relax any of the provisions of these rules with respect to any class or category of persons. Nothing in these rules shall affect reservation relaxation of age and other concessions required to be provided for the Scheduled Castes / the Scheduled Tribes and other categories of persons in accordance with the orders issued by the Central Government or the Government of Mizoram from time to time in this regard. By orders, etc Lalsangpuii Addl. Secretary to the Govt. of Mizoram, Deptt. of Personnel & Administrative Reforms. 6. Training and Departmental Examination- 7. Powers to transfer- 8. Power to relax- 9. Reservation and other concessions- Ex-83/20152 3 Name of post No.ofpost Classification Pay Band and Grade Pay/ Pay Scale W hether Selec- tion postor Non-Selection post W hether benefitof added years ofservice admissible underrule 30 ofthe CCS (Pen- sion)Rules, 1972 Agelimitfor directre- cruits Educationaland otherqualifica- tions required fordirectre- cruits Technician 1(one)postor assanctioned bythe Government from time totime GeneralState Service(Group ‘B’ post)(Non- Gazetted) (Non-Ministerial) PB -2 ^.9,300-34800/- Gradepay^ 4,200/- Notapplicable Notapplicable Between18to 35years.Upper agelimitis relaxableby 5(five)yearsfor SC/ST 1.HSLCwith2(two) yearsCertificate CourseinElectronics/ ComputerHardware/ RadioandTelevision/ InformationTechnol- ogyandElectronics System Maintenance (IT&ESM)from recognizedInstitute. 2.Workingknowledge ofMizolanguageat leastMiddleSchool standard. 1 2 3 4 5 6 7 8 SCHEDULE (SeeRule2,3and 4) RECRUITM ENT RULES FOR THE POST OF TECHNICIAN IN THE DEPARTM ENT OF SCHOOL EDUCATION (SCERT), GOVT.OF M IZORAM Name of post No.ofpost Classification Pay Band and Grade Pay/ Pay Scale W hether Selec- tion postor Non-Selection post W hether benefitof added years ofservice admissible underrule 30 ofthe CCS (Pen- sion)Rules, 1972 Agelimitfor directre- cruits Educationaland otherqualifica- tions required fordirectre- cruits 1 2 3 4 5 6 7 8 Ex-83/2015 3 W hetherage and educationalqualifi- cations prescribed fordirectrecruits willapply in the case ofpromotees Period of probation, ifany M ethod ofrecruit- mentwhetherby directrecruitment orby promotion orby deputation/ transferand percen- tage ofpoststo be filled by various methods In case ofrecruitment by promotion/transfer/ deputation,grades from which promotion/ deputation/transferis to be made Ifa DPC exist,whatisits composition? Circumstances in which M PSC isto be consulted in making recruitment. Notapplicable MizoramPublicService Commission. AsperMizoram PublicService Commission(Limita- tionofFunctions) Regulations,1994 andasamendedfrom timetotime 9 10 11 12 13 14 100% direct recruitment Ex-83/2015 4 2(two)years PublishedandIssuedbytheController,Printing&Stationery,Mizoram PrintedattheMizoramGovernmentPress,AizawlC-100 NotapplicableAffidavit of Lalrinpuii D/o Shri. B.Chalmawia permanent resident of Armed Veng South, Aizawl, Mizoram.
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Tuesday 24.2.2015 Phalguna 5, S.E. 1936, Issue No. 87 AFFIDAVITI,LalrinpuiiD/o Shri. B.Chalmawiapermanent resident of Armed Veng South, Aizawl, Mizoram, India Date of birth 25.07.1979 do hereby solemnly affirm and state as follows :- 1.That I am a bona fide citizen of India belonging to Scheduled tribe community of Mizo. 2.That in my Service record book, my name has been written and recorded asB. Lalrinpuii. 3.That my tr ue and cor rect name is Lalrinpuii. I fu rther declared tha t my name written as B.Lalrinpuiiand Lalrinpuii is one and the same person,which belongs to me. 4.That the purpose of this affidavit is to declare that the said B.LalrinpuiiandLalrinpuiiis one and the same person and which is me. However, from now onward my name shall be written and recorded as Lalrinpuii in all respect. 5.That the statements made in pargraphs 1 to 4 are true and correct to the best of my knowledge and belief and nothing materials has been concealed therein. IN WIT NESS WHEREOF I have hereunto put my signature on this 14th day of January, 2015. Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.Identified by me: R.LALHMINGMAWIA ADVOCATE Chaltlang, Aizawl, Mizoram.Signed befor e me: R.Thangkanglova Advocate & Notary Public Aizawl : Mizoram Notarial Registration No 120/1 Date 14/1/15DEPONENT
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Tuesday 24.2.2015 Phalguna 5, S.E. 1936, Issue No. 87 AFFIDAVITI,LalrinpuiiD/o Shri. B.Chalmawiapermanent resident of Armed Veng South, Aizawl, Mizoram, India Date of birth 25.07.1979 do hereby solemnly affirm and state as follows :- 1.That I am a bona fide citizen of India belonging to Scheduled tribe community of Mizo. 2.That in my Service record book, my name has been written and recorded asB. Lalrinpuii. 3.That my tr ue and cor rect name is Lalrinpuii. I fu rther declared tha t my name written as B.Lalrinpuiiand Lalrinpuii is one and the same person,which belongs to me. 4.That the purpose of this affidavit is to declare that the said B.LalrinpuiiandLalrinpuiiis one and the same person and which is me. However, from now onward my name shall be written and recorded as Lalrinpuii in all respect. 5.That the statements made in pargraphs 1 to 4 are true and correct to the best of my knowledge and belief and nothing materials has been concealed therein. IN WIT NESS WHEREOF I have hereunto put my signature on this 14th day of January, 2015. Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.Identified by me: R.LALHMINGMAWIA ADVOCATE Chaltlang, Aizawl, Mizoram.Signed befor e me: R.Thangkanglova Advocate & Notary Public Aizawl : Mizoram Notarial Registration No 120/1 Date 14/1/15DEPONENTAffidavit of Janette Lalkhumi, M/o Kelly Rinsiami Sethi Tuikhuahtlang, Aizawl, Mizoram.
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Tuesday 24.2.2015 Phalguna 5, S.E. 1936, Issue No. 88 AFFIDAVITI,Janette Lalkhumi,M/o Kelly Rinsiami Sethi, apermanent resident of Tuikhuahtlang, Aizawl, Mizoram, aged about 50 years and Christian by faith do hereby solemnly affirms and declare as under: 1.That my name has been in advertently recorded as Janette L.K.Sethi in my daughters Second- ary School Examination, CBSE Course 2011-2013. 2.That however my name should be recorded as Janette Lalkhumi in my said daughter ’s docu- ments. 3.That hence forth my name should be recorded as Janette Lalkhumi and not Janette L.K.Sethi in my official documents as well as my daughter ’s document. 4.That the purpose of this affidavit is to prove that my true and correct name is Janette Lalkhumi. 5.That the statements made in paragraphs 1 - 4 are true and correct to the best of my personal knowledge and belief and nothing materials has been concealed therein. IN WITNESS WHEREOF I have hereunto subscribed my hand and put my signature on this 19th day of February, 2015. Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.Identified by me: HAULIANTHANGA ADVOCATE Aizawl, Mizoram.Signed befor e me: R.Thangkanglova Advocate & Notary Public Aizawl : Mizoram Notarial Registration No 15/2 Date 15/2/15DEPONENT
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Tuesday 24.2.2015 Phalguna 5, S.E. 1936, Issue No. 88 AFFIDAVITI,Janette Lalkhumi,M/o Kelly Rinsiami Sethi, apermanent resident of Tuikhuahtlang, Aizawl, Mizoram, aged about 50 years and Christian by faith do hereby solemnly affirms and declare as under: 1.That my name has been in advertently recorded as Janette L.K.Sethi in my daughters Second- ary School Examination, CBSE Course 2011-2013. 2.That however my name should be recorded as Janette Lalkhumi in my said daughter ’s docu- ments. 3.That hence forth my name should be recorded as Janette Lalkhumi and not Janette L.K.Sethi in my official documents as well as my daughter ’s document. 4.That the purpose of this affidavit is to prove that my true and correct name is Janette Lalkhumi. 5.That the statements made in paragraphs 1 - 4 are true and correct to the best of my personal knowledge and belief and nothing materials has been concealed therein. IN WITNESS WHEREOF I have hereunto subscribed my hand and put my signature on this 19th day of February, 2015. Published and Issued by the Controller, Printing & Stationery, Mizoram Printed at the Mizoram Govt. Press, Aizawl. C-50.Identified by me: HAULIANTHANGA ADVOCATE Aizawl, Mizoram.Signed befor e me: R.Thangkanglova Advocate & Notary Public Aizawl : Mizoram Notarial Registration No 15/2 Date 15/2/15DEPONENTElection Commission of India Election Petition
- 1 -Ex-81/2015 The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Thursday 19.2.2015 Magha 30, S.E. 1936, Issue No. 81 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 6th January, 2015 16 Pausha, 1936 (Saka) NOTIFICATION No. 82/MIZ-L A/01/20U:- In p ursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.80 of 2014 in Election Petition No. 01 of 2014. (HERE PRINT THE JUDGMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 80 OF 2014 IN ELECTION PETITION NO. 1 OF 2014 APPLICANT/RESPONDENT : Sh. T. Sangkunga. By Advocates: Mr. A.K. Rokhum, Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Zoramtha nga. - 2 - Ex-81/2015- 2 - .... Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 25 - Ea st Tuipui (ST) AC, Champhai, Mizorarn. .... Profor ma resp ondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv, Mr. K. Laldinliana, Mr. Zoramchhana, Ms. Lalramsangzuali, Ms. Ruth Lalrinliani, Mr. Johny L. Tochhawng for O.P No.l. Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4, BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By this application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant respondent No. 1 is pr aying for dismissal of the election petition on primarily the following three grounds :- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be decla red as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 {hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits - 3 -Ex-81/2015 that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992, b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Tha da and Ors reported in AIR 1990 SC 1731, c)Dhartipakar Madan Lai Agarwal-vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, d)V.S. Achuthanandan-vs-PJ. Francis and Anr. reported in (2001) 3 SCC 81, e)Azhar Hussain -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315, f)Ram Sukh-vs- Dinesh Aggarwal reported in (2009) 10 SCC 541, g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194. 4.The Opposite Party No. I/election petitioner has filed written objection against the present application. Mr, C. Lalra mzauva, learned senior counsel for the elect ion petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Laisawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (Supra), it ha s been held by the Apex Cour t that if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election - 4 - Ex-81/2015 in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the r esult of the election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not b e decla red elected fr om the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Zoramthanga, S/o Dar phunga (L), R/o Ramhlun Veng, Mizoram. ..... Petitioner. -Vrs- 1. Sh. T. Sangkunga, S /o Chalpianga (L), R/o Dinthar, Aizawl. .. ... Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl, 4. Returning Officer, 25 - Ea st Tuipui (ST) AC, Champhai, Mizoram. ..... Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under;- “8.. ....... Section 86 confers p ower on the High Court to dismiss an election petition which does not comply with the pr ovisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any r ules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the tria i of suit s under the Code of C ivil Pr ocedure, 1908. Since provisions of C ivil Pr ocedure Code apply to t he t ria l of an election petition, O. VI, R .I6 and O. VI, R.I7 a re applicable to the proceedings relating to the trial of a n election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is apparent that those par as of a petition which do not disclose any ca use of action, are lia ble to be struck off under 0. VI, R. 16, as the Cour t is empowered at any stage of the proceedings to str ike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair tria l of the petition or suit It is the duty of the cour t to exa mine the piaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any ca use of action it would be - 5 -Ex-81/2015justified in striking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings a t any stage of the pr oceedings which may even be before the filing of the written statement by the r espondent or commencement of the tr ial. If the Court is satisfied that the election petition does not make out any ca use of action a nd that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the writ ten statement instead it can proceed to hear the preliminary object ions and strike out the pleadings. If a fter striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R.11” 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 provides as under;- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other tha n the petitioner, and where no such fur ther declaration is claimed, all the returned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petit ioner is also seeking for a declar ation to declar e the elect ion of t he applicant/respondent No. 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constit uency should have been made party respondents in the election petition. This has-not been done in the present election petition and the same amounts to non¬fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 6 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 7th January, 2015 17 Pausha, 1936 (Saka) NOTIFICATION No. 82/MIZ-LA/02/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.81 of 2014 in Election Petition No. 02 of 2014. (HERE PRINT THE JUDGMENT/ORDER ATTACHED) By or der, Sd/- (ANUH JAIPURIAR) S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADE S H) AIZAWL BENCH CM. APPL NO. 81 OF 2014 IN ELECTION PETITION NO, 2 OF 2014 APPLICANT/RESPONDENT: Sh. K. Lairintha nga. By Advocates: Mr. A.K. Rokhum, Mr. Lalsawirema, OPPOSITE PARTY/PETITIONER: 1.Sh. Lalhmingliana. .....Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 6-Serlui (ST) Kolasib, Mizoram. ... ..Proforma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv, Mr. K. Laldinliana, Mr. Zoramchhana, Ms. Lalramsangzuali, Ms. Ruth Latrinliani, Mr. Johny L. Tochhawng for O.P No.l. - 7 -Ex-81/2015 Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4. BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing :16.09.2014. Date of Judgment :16.09.2014. JUDGMENT & ORDER (ORAL)By this application under Order VII Rule 11 of Code of Civil . Procedure, 1908, the applicant respondent No. 1 is pra ying for dismissal of the ejection petition on prima rily the following thr ee grounds:- a)The election petit ion does not constitute any cause of action to proceed with the trial of the election petit ion. b)The prayer in the election petition is beyond the relief which can be granted to an election petitioner and, c)As the elect ion petitioner has pra yed for a declaration that the elect ion of the returned candidate be declar ed as void and that the elect ion petitioner should also be declared as the elected candida te, ail the other contesting candidates of the particular constituency should have been made par ties which has not been done so in the election petition and the same is a viola tion of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lairamza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agarwal-vs-Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 g)K.D. Deshmukh -vs- Amritlai Jayaswai reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 - 8 - Ex-81/2015 4.The Opposite Party No. 1/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose ma terial facts. Averments must be adequate, dear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. 10. The reliefs sought for by the election petitioner is quoted herein below:-(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and - 9 -Ex-81/2015(ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Laihmingliana, S/o Chhunkhuma, R/o Ramtha r Veng, Aizawl, Mizoram. .....Petitioner. -Vrs- 1. Sh. K. Lalrinthanga , MIA S /o Thanchhinga (L), R/o Zottang, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 6- Serlui (ST) AC, Kolasib, Mizoram. .......Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8.. ....... .Section 86 confers power on the High Court to dismiss an election petition which does not comply with the pr ovisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules ma de thereunder, every elect/on petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the tria l of suit s ‘ under the C ode of Civil Pr ocedure, 1908. Since provisions of C ivil Procedure Code apply to the trial of an election petition, 0. VI, R.I6 and O. VI, R.I7 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act . On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is apparent that those paras of a petition which do not disclose any cause of action, are liable t o be st ruck off under O. VI, R .I6, as the Court is empowered at any stage of the proceedings to str ike out or delete pleading which is u nnecessa ry, scandalous, frivolous or vexatious or which may tend to prejudice, emba rrass or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written sta tement and points out the defects. If the court on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 it self empowers the Court to str ike out pleadings at any sta ge of the proceedings which may even be before the filing of the written statement by t he resp ondent or commencement of the trial. If the Court Is satisfied tha t the election petition does not make out any cause of action and that the trial would prejudice, embarr ass and delay t he proceedings, the court need not wait for the filing of the writ ten sta tement Instead it can proceed to hear the preliminary objections and strike out the pleadings. If aft er striking out the pleadings the court finds that no triable Issues rema in to be considered, it has power to reject the election petition under O. VI, R.11" - 10 - Ex-81/2015 13. Further in the case of Ra m Sukh (Supra), it ha s been held tha t by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to t he tria l of an election petit ion and the High Court trying an election petition ca n invoke powers under the Civil Procedure Code including the powers tinder Order VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion that it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :-“82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of t he elect ion petitioner, all the contesting ca ndidates of the particular constituency should have been made party r espondents in the election petition. This ha s not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost Sd/- L.S. JAMIR JUDGE - 11 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 7th January, 2015 17 Pausha, 1936 (Saka) NOTIFICATION No. 82/MIZ-LA/03/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 1 6th September, 201 4 of the Gauhati High Court in CM Application No.82 of 2014 in Election Petition No. 03 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRAD E S H ) AIZAWL BENCH CM. APPL NO, 82 OF 2014 IN ELECTION PETITION NO. 3 OF 2014 APPLICANT/RESPONDENT : Sh, Lalsawta. By Advocates: Mr. A.K. Rokhum, Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Sailothanga Sailo. ......Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 14-Aizawl East II (ST) AC, Aizawl, Mizoram. .......Proforma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv, Mr. K. Laldinliana, Mr. Zoramchhana, Ms. Lalramsangzuali, Ms. Ruth Lalrinliani, - 12 - Ex-81/2015 Mr. Johny L. Tochhawng for O.P No.l. Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4. BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primarily the following three grounds :- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Actof1951) 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawir ema, learned ounsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992, b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Tha da and Ors reported in AIR 1990 SC 1731, c)Ohartipakar Madan Lai Agarwal-vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, d)V.S. Achuthanandan -vs- PJ. Francis and Anr. reported in (2001) 3 SCC 81, e)Azhar Hussain -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315, f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541, - 13 -Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. I/election petitioner has Hied written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception/ refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 14 - Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Sailothanga Sailo, S /o Lalthanzama S ailo (L), R/o Chhinga Veng, Mizoram. .....Petitioner. -Vrs- 1. Sh. Lalsawta, S/o Bawichhuaka (L), R/o Mission Vengthlang, Aizawl. .....Respondent 2. Election Commission of India through its Secretary, Nirvachan Sadan f Ashoka Road, New Delhi, 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 14- Aizawl East II (ST) AC, Aizawl, Mizoram, .....Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal — vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Court to dismiss an elect ion petition which does not comply wit h the provisions of S s. 81 and 82 or S.117. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any r ules made thereunder, every election petition shall be tried by the High Court as nearly as maybe in accordance with the procedure a pplicable to the tria l of suit s under the Code of C ivil Pr ocedure, 1908. Since provisions of C ivil Pr ocedure Code apply to t he t ria l of an election petition, O. VI, R .I6 and O. VI, R.I7 a re applicable to the proceedings relating to the trial of a n election petition subject to the pr ovisions of the Act On a combined reading of Ss. 81, 83, 86 and 87 of the Act, It is apparent that those par as of a petition which do not disclose any ca use of action, are lia ble to be struck off under O. VI, R. 16, as the Cour t is empowered at any stage of the proceedings to str ike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair tria l of the petition or suit It is the duty of the cour t to exa mine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any ca use of action it would be justified in striking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings a t any stage of the pr oceedings which may even be before the filing of the written statement by the r espondent or commencement of the tr ial. If the Court is satisfied that the election petition does not make out any ca use of action a nd that the trial would prejudice, - 15 -Ex-81/2015embarrass and delay the proceedings, the court need not wait for the filing of the writ ten statement instead it can proceed to hear the preliminary object ions and strike out the pleadings. If a fter striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the elect ion petition under 0. VI, R.11" 13. Further in the case of Ra m Sukh (Supra), it ha s been held tha t by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to t he tria l of an election petit ion and the High Court trying an election petition ca n invoke powers under the Civil Procedure Code including the powers under Order VI Rule 16 and Or der VII Rule 11, This being the position, the Cour t is of the opinion tha t it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil P rocedur e Code for rejection of the election petition if it does not disclose a ny cause of action. 14. Section 82 of the Act of 1951 p rovides as under:- “82. Parties to the petit ion.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, ail t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The elect ion petitioner is also seeking for a declaration to declare the election of the applicant/respondent No. 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constituency should have been made party respondents in the election petition. This has not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JANIR JUDGE - 16 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 21st January, 2015 1 Magha, 1936 (Saka) NOTIFICATION No. 82/MIZ-LA/04/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No. 102 of 2014 in Election Petition No. 04 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 102 OF 2014 IN ELECTION PETITION NO. 4 OF 2014 APPLICANT/RESPONDENT:Sh. P.C. La ithanliana. By Advocates: Mr. A.K. Rokhiim, Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Dr. K. Vanlallawma. .....Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 30- Lunglei Nor th (ST) AC, Lunglei, Mizoram. ... ..Proforma respondents/Opposite Parties. By Advocates : Mr. C. Lalramzauva, Sr. Adv, Mr. K. Laldinliana, Mr. Zoramchhana, Ms. Lairamsangzuali, Ms. Ruth Lalrinliani, - 17 -Ex-81/2015 Mr. Johny L , Tochhawng for O.P No.l. Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4. BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL)By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and tha t the election p etitioner should also be declared as the elec ted candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lairamzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appear ing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner, is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constit uency a s party respondent which is )mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agar wal-vs-Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan-vs-PJ. Francis and Anr. reported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 18 - Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. 1/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In Jitu Patnark (Supra), it has been held that all basic or primary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 19 -Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended b y the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the resuit of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the Findings of the exp ert committee why the election of t he resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Dr. K. Vaniallawma, S/o K. Hrangkhuma (L), R/o Serkawn, Mizoram. .....Petitioner. -Vrs- 1. Sh.P.C Lalthantiana, S/o Za nghlnga (L), R/o Bazar Veng, Lung lei. .....Respondent. 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 30- Lungiei Nor th (ST) AC, Lunglei, Mizoram. .....Proforma Respondents.” 12. As r egard the objection to the applicability of the provisions cont ained in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipa kar Madan Lai Agarwal -vs- Shri Rajiv Gandhi repor ted in AIR 1987 SCC 1577 has held at paragraph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the thai of the election petit ion and it iays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, 0. VI, R.I6 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it Is appa rent that those paras of a petition which do not disclose any cause of action, are liable to be struck off under Q.VI, R.16, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 20 - Ex-81/2015proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the elect ion petition under O. VI, R.11" 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action, 14. Section 82 of the Act of 1951 p rovides as under:- “82. Parties to the petition,- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of ail or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other tha n the petitioner, and where no such fur ther declaration is claimed, all the returned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in t he opinion of this Court is beyond the scope of Section 98 of the Act of 1 951, The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of t he elect ion petitioner, ail the contesting ca ndidates of the particular constituency should have been made party r espondents in the election petition. This ha s not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 21 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 21st January, 2015 1 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/05/2014 :- In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.98 of 2014 in Election Petition No. 05 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 98 OF 2014 IN ELECTION PETITION NO. 5 OF 2014 APPLICANT/RESPONDENT: Sh. T.T. Zothansa nga. By Advocates: Mr. A.K. Rokhum, Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. T.C. Kaphmingtha nga. ......Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 23-Cha mphai North, AC, Mizoram. ... ...Pr ofor ma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv. Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani - 22 - Ex-81/2015 Mr. Johny L. Tochhawng for O.P No.l. Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4. BEFORE HON’BLE MR. JUSTICE L S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL)By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agar wal-vs-Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azhar Hussain -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 23 -Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. 1/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory -nature of Section 98 of the Act of 1951, a n election petition cannot be rejected at the. preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise statement of the material facts. A “perusal of t he election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 24 - Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended b y the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. T.C. Kaphmingthanga, S/o Lia nzinga (L), R/o Zarkawt, Aizawi. .....Petitioner. -Vrs- 1. Sh. T. T. Zothansa nga, S /o Chawnthuta (L), R/o Champha i, Mizoram. .....Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mtzoram, Aizawl. 4. Returning Officer, 23-Champhai North, AC , Mizor am. ......Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’bie Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Court to dismiss an elect ion petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the procedure to be followed In the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tr ied by the High Court as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of C ivil Procedure Code apply to the tria l of an election petition, 0. VI, R.16 and O. VI, R.17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appar ent tha t those paras of a petition which do not disclose any ca use of action, are liable to be struck off under O. VI, R.16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecess ary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit It is the duty of the court to examine the pla int and it need not wa it till the defendant files written statement and points out the defects. If the court on examina tion of t he plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Cour t to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the resp ondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and - 25 -Ex-81/2015that the tr ial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and str ike out the pleadings. If after str iking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R.ll” 13. Further in the case of Ra m Sukh (Supra), ‘it ha s been held tha t by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petit ioner is also seeking for a declar ation to declar e the elect ion of t he applicant/respondent No, 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constituency should have been made party respondents in the election petition. This has not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed In those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 26 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 7th January, 2015 17 Pausha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/06/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.83 of 2014 in Election Petition No. 06 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 83 OF 2014 IN ELECTION PETITION NO. 6 OF 2014 APPLICANT/ RESPON DENT: Sh. K.S.Tha nga. By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Tawnluia. ......Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 20- Aizawl South III (ST) AC, Aizawl, Mizoram. ... ...Pr ofor ma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv, Mr. K. Laldinliana, Mr. Zoramchhana, Ms. Lalramsangzuali, - 27 -Ex-81/2015 Ms. Ruth Lalrinliani, Mr. Johny L. Tochhawng for O.P No.1. Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4. BEFORE HON’BLE MR. JUSTICE L S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL)By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and tha t the election p etitioner should also be declared as the elec ted candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 {hereinafter the Actof1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Laisawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agar wal -vs- Shri Rajiv Ga ndhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azhar Hussain -vs- Rajiv Gandhi reported in 1986 (Supp)SCC315 - 28 - Ex-81/2015 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 g)K.D. Deshmukh -vs- AmritlaE Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. I/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, teamed senior counsel for the election petitioner s ubmits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act Of 1951 and, therefore, the elect ion petition should be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, dear and specific averments are made. The whole election petition is based on the election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 29 -Ex-81/2015 10. The relief ’s sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Tawnluia, S/o Hrangkhupa (L), R/o Kanan Veng, Mizoram. ......Petitioner. -Vrs- 1. Sh. K.S. Thanga, S/o Bualtuma (I), R/o Venghlui, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 20- Aizawl South III (ST) AC, Aizawl, Mizoram. ......Proforma Respondents,” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply with the provisions of S s. 81 a nd 82 or S.117. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.I6 and 0. VI, R. 17 a re applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act On a combined reading of Ss, 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any cause of act ion, ar e liable to be struck off under O. VI, R.I6, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action It would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 30 - Ex-81/2015proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable Issues remain to be considered, it has power to reject the elect ion petition under O. VI, R.11" 13. Further in the case of Ra m Sukh (Supra), it ha s been held tha t by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to t he tria l of an election petit ion and the High Court trying an election petition ca n invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion that it would be open to the returned candidate to file application under Order VII Rule 11 of t he Civil Procedure Code for r ejection of the election petition if it does not disclose a ny cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petit ion.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of alt or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, ail the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petit ioner is also seeking for a declar ation to declar e the elect ion of t he applicant/respondent No. 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constituency should have been made party respondents in the election petition. This has not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 31 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 22nd January, 2015 02 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/07/2014: In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.84 of 2014 in Election Petition No. 07 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 84 OF 2014 IN ELECTION PETITION NO. 7 OF 2014 APPLICANT/RESPONDENT: Sh. Nihar Kanti Chakma By Advocates: Mr. A.K. Rokhum . Mr. Lalsawirema OPPOSITE PARTY/PETITIONER: 1.Sh. Priti Ra njan Cha kma. .....Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 35-West Tuipui (ST), AC, Lunglei, Mizoram. ... ..Proforma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv. Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani - 32 - Ex-81/2015 Mr. Johny L Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. Mr. Lalfakawma Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL)By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhartipakar Madan Lai Agarwal -vs- Shri Rajiv Gandhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 33 -Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. 1/eiection petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the applicant can ra ise the issues .at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise statement of the material facts. A -perusal of t he election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 34 - Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Priti Ra n/an Cha kma S/o C hitta Ra njan Cha kma, R/o Puankha i, Mizoram. ......Petitioner. -Vrs- 1. Sh. Nihar K anti Chakma, S/o H.K. Chakma (L), R/o Nunsury, Mizoram. .. .. .. Respondent . 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4, Returning Officer, 35- West Tuipui (ST) AC, Lunglei, Mizoram. .. .. ..P rofor ma Respondent s. 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Rajiv Gandhi reported in AIR 1987 SCC 1577 has held at paragraph 8. as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.I6 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any caus e of act ion, ar e liable to be struck off under O. VI , R.16, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant His writ ten sta tement a nd points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 35 -Ex-81/2015proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R. 11" 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of ail or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, a ll the contest ing candidates other t han the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of the election petitioner, all the cont esting candidates of the particular constituency should “Tiave been made party respondents in the election petition. This ha s not been done in the present election petition and the sa me amounts to non-fulfillment of the requir ements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has aiso dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the-securit y deposit of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 36 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 7th January, 2015 17 Pausha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/08/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 1 6lh September, 201 4 of the Gauhati High Court In CM Application No.85 of 2014 in Election Petition No. 08 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 85 OF 2014 IN ELECTION PETITION NO. 8 OF 2014 APPLICANT/RESPONDENT: Sh. R. La lzirliana By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema OPPOSITE PARTY/PETITIONER: 1.Smt. Lalmaisawmi. .....Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 9-Tawi (ST) AC, Aizawl, Mizoram. ... ..Proforma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuaii Ms. Ruth Lalrinliani - 37 -Ex-81/2015 Mr. Johny L. Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. Mr. Lalfakawma Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL)By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. 1/eiection petitioner as well as Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agarwal -vs- Shri Rajiv Ga ndhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 38 - Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. I/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural requirements as required under Sections 81, 8. 2.and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 39 -Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Smt Lalmalsawmi, D/o Lalthanseia (L), R/o A-39, Zarkawt, Aizawl, Mizoram, .....Petitioner. -Vrs- 1. Sh. R. Lalzirliana, S/o Thansanga (L), R/o Armed Veng N, Aizawl. .....Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 9- Tawi(ST),AC, Aizawl, Mizoram. .....Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, 0. VI, R.I6 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any cause of action, are liable to be struck off under O.VI, R.16, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied tha t the election petit/on does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 40 - Ex-81/2015proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the election petition under 0. VI, R.ll” 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition,” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petit ioner is also seeking for a declar ation to declar e the elect ion of t he applicant/respondent No. 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constituency should have been made party respondents in the election petition. This has not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 41 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 23rd January, 2015 3 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/09/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 1 6th September, 2014 of the Gauhati High Court in CM Application No.86 of 2014 in Election Petition No. 09 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 86 OF 2014 IN ELECTION PETITION NO. 9 OF 2014 APPLICANT/RESPONDENT: Sh. R.L Pianmawia. By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema OPPOSITE PARTY/PETITIONER: 1.Sh. Gogo Lalremtlua nga. .....Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Electoral Officer, Mizora m, Aiza vyl. 4.Returning Officer, 7- Tuivawl (ST) AC, Champhai, Mizoram. .... .Proforma respondents/opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani - 42 - Ex-81/2015 Mr. Johny L. Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. Mr. Lalfakawma Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agarwal -vs- Shri Rajiv Ga ndhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 43 -Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik-vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. I/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 44 - Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Gogo La lremtlua nga, S/o J. Tha nghuama (L), R/o M ission Veng, Mizoram. .....Petitioner. -Vrs- 1. Sh. R.L Pianmawia, S/o Vanlaltawna (L), R/o Daria wn. .....Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 7- Tuivawl (ST) AC, Champhai, Mizoram. .....Proforma Respondents. 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.16 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any caus e of act ion, ar e liable to be struck off under O. VI , R.16, as the Court is empowered at a ny stage of the proceedings t o strike out or delete pleading which is unnecessa ry,, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it wouid be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 45 -Ex-81/2015proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the elect ion petition under 0. VI, R.11" 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code 4ft€kJding the powers under Order VI Rule 16 a nd Order VII Rule 11. This being the position, the Court is of the opinion that it would be open to the returned candidate to file a pplication under Or der VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contest ing candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of t he elect ion petitioner, all the contesting ca ndidates of the particular constituency should have been made party r espondents in the election petition. This ha s not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the pr ovision of Section 82 of. the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 46 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 23rd January, 2015 3 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/10/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.99 of 2014 in Election Petition No. 10 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 99 OF 2014 IN ELECTION PETITION NO. 10 OF 2014 APPLICANT/RESPONDENT: Sh. P.C. Zor amsangliana. By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Lalchamliana. ......Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 5- Kolasib (ST) AC, Kolasib, Mizoram. ... ...Pr ofor ma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv Mr. K. Laldinliana Mr, Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani Mr. Johny L Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. - 47 -Ex-81/2015 Mr. Lalfakawma Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and tha t the election p etitioner should also be declared as the elec ted candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 {hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Laisawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Laiit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SG 1731 c)Dhartipakar Madan Lai Agarwal -vs- Shri Rajiv Gandhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. r eported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 - 48 - Ex-81/2015 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. 1/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned Senior counsel for the elect ion petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Kussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 49 -Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Lalchamliana, S/o Ex Jem. Parala (L), R/o Electr ic Veng, Mizoram. .....Petitioner. -Vrs- 1. Sh. P.C. Zor amsangliana S/o Vanhlira (L), R/o Dawrpui Vengthar, Aizawl. .....Respondent. 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Electoral Officer, Mizoram, Aizawl. 4. Returning Officer, 5- Kolasib (ST) AC, Kolasib, Mizoram. .....Proforma Respondents. 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartrpakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be t ried by the High Court: as near ly as maybe in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.I6 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any cause of act ion, ar e liable to be struck off under O. VI, R.I6, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 50 - Ex-81/2015proceedings, the court need not watt for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable Issues remain to be considered, it has power to reject the election petition under O. VI, R. 11" 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates Is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other tha n the petitioner, and where no such fur ther declaration is claimed, all the returned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of the election .petitioner, all the contesting candidates of the pa rticular constituency should have been made party respondents in the election petition. This ha s not been done in the present election petition and the sa me amounts to non-fulfillment of the requir ements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 51 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 28th January, 2015 8 Magha, 1936 (Saka) NOTIFICATION No.82/M1Z-LA/11/2014: In pursuance of Section 06 of the Representation of the People Act, 1 951 (43 of 1951), the Election Commission of India, hereby, publis hes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.94 of 2014 in Election Petition No. 11 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 94 OF 2014 IN ELECTION PETITION NO. 11 OF 2014 APPLICANT/RESPONDENT: Sh. Laithanzara. By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Lalchhandama Ralte. .....Opposite Party/Petitioner 2.Election Commission of India, 3.Chief Elect oral Officer, Mizoram, Aizawi. 4.Returning Officer, 12- Aizawl North III (ST) AC, Aizawl, Mizoram. ... ..Proforma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani - 52 - Ex-81/2015 Mr. Johny L Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. Mr. Lalfakawma Mr. Rosangzuaia Raite for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a ) The election petit ion does not constitute any cause of action to proceed wit h the trial of the elect ion petition. b) The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and c ) As t he election petitioner has p rayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Actof1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submit its t hat a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who-had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agarwal -vs- Shri Rajiv Ga ndhi reported in AIR 1987 SCC 1577 d)V,S. Achuthanandan -vs- P J. Francis and Anr. r eported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 53 -Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. 1/eiection petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as t here is no compliance of procedural “r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear }and specific averments ar e made. The whole election p etition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 54 - Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below: -(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency. ” 11. The parties in the cause title of the election petition are also as under:- “Sh. Lalchhandama Ralte, S/o R.B. Laitawla, R/o Chanmari W, Mizoram. ......Petitioner. -Vrs- 1. Sh. Lalthanzara, S/o H.P. Sailo (L), R/o Zarkawt, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Electoral Officer, Mizoram, Aizawl. 4. Returning Officer, 12- Aizawl North III (ST) AC, Aizawl, Mizoram. .. .. ..P rofor ma Respondent s. 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under;- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.16 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appar ent that those paras of a petition which do not disclose any caus e of act ion, ar e liable to be struck off under O. VI , R.16, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or - 55 -Ex-81/2015commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the proceedings, the court need not wait for the filing of the written statement Instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R. 11" 13. Further in the case of Ra m Sukh (Supra), it ha s been held tha t by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to t he tria l of an election petit ion and the High Court trying an election petition ca n invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion that it would be open to the returned candidate to file application under Order VII Rule 11 of t he Civil Procedure Code for r ejection of the election petition if it does not disclose a ny cause of action. 14. Section 82 of the Act of 1951 p rovides as under:- n82. Parties to the petition.- A petitioner shall join as resp ondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of t he elect ion petitioner, all the contesting ca ndidates of the particular constituency should have been made party r espondents in the election petition. This ha s not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down by the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another — vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 56 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 28th January, 2015 8 Magha, 1936 (Saka) NOTIFICATION No.82/MI2-LA/12/2014:- In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.87 of 2014 in Election Petition No. 12 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 87 OF 2014 IN ELECTION PETITION NO. 12 OP 2014 APPLICANT/RESPONDENT: Sh. Lt. Col. Zosangzu ala. By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema OPPOSITE PARTY/PETITIONER: 1.Sh. R. Tlanghmingtha nga. ......Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 19- Aizawl South II, AC, Aizawl, Mizoram. ... ...Pr ofor ma respondents/Opposite Parties. By Advocates: Mr. C. Lairamzauva, Sr. Adv Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinilani - 57 -Ex-81/2015 Mr. Johny L. Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. Mr, Lalfakawma Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992, b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Tha da and Ors reported in AIR 1990 SC 1731, c)Dhar tipakar Madan Lai Agarwal -vs- Shri R ajiv Gandhi reported in AIR 1987 SCC 1577, d)V.S. Achuthanandan -vs- PJ. Francis and Anr. reported in (2001) 3 SCC 81, e)Azhar Hussain -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315, f)Ram Sukh -vs- Dinesh Aggarwai reported in (2009) 10 SCC 541, - 58 - Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. I/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory “nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 59 -Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“( i) An enquiry committee consisting of experts recommended by the petitioner as well as by the respondents shall not be constituted for the pur pose of scrutinizing the correctness of the resu lt of the election by checking the EVM s concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elect ed from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. R. T langhmingthanga, S/o Rev. Liandova (L), R/o Venghlui Aizawl. ......Petitioner. -Vrs- 1. Lt. Col. Zosangzuala , S/o Chalhnuna (L), R/o Mission Veng, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi, 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 19- Aizawl South-II, AC, Aizawl, Mizoram. ......Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply with the provisions of S s. 81 a nd 82 or S.117, Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.I’6 and O. VI, R.17 are applicable to the pr oceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any cause of action, are liable to be struck off under O.VI, R.I6, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not - 60 - Ex-81/2015make out any cause of action and that the trial would prejudice, emba rrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R. 11" 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 p rovides as under:- “82, Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other ca ndidate against whom allegations of any corrupt practice are ma de In the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petit ioner is also seeking for a declar ation to declar e the elect ion of t he applicant/respondent No. 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constituency should have been made party respondents in the election petition. This has not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 61 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 28th January, 2015 8 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/13/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.88 of 2014 in Election Petition No. 13 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 88 OF 2014 IN ELECTION PETITION NO. 13 OF 2014 APPLICANT/ RESPONDENT: Sh. H. Rohluna. By Advocates: Mr. A.K. Rokhum, Mr. Lalsawirema, RESPONDENTS: 1.Sh. L Thangma wia. ......Opposite Party/Petitioner. 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl, 4.Retur ning Officer, Champhai (ST). ... ...Pr ofor ma respondents/Opposite Parties. By Advocates: Mr. C. Lalrarnzauva, Sr. Adv Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani Mr. Johny L Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. - 62 - Ex-81/2015 Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Laisawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior cou nsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act’). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, ail the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition ca nnot be said to be beyond t he scope of the law. T hough in the election petition, the election petitioner has made further pr ayer for declaring him as the elected candidate after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant (returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is-:beyond the scope and ambit of an election petition. He fur ther submits that the pr ayer of the election p etitioner to declare him as the elected candidate a fter declaring the| election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency “ought to - 63 -Ex-81/2015 have been made respondents in the election petition which is a mandatory requirement Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applica nt can be gone into at the final- Sear ing of the election petition and not at the threshold. 7In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enunciation of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior “counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot Unsettling a n electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I have hear d the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition;-“Sh. L. Tha ngmawia S/o Dammunga (L) R/o Mission Vengthlang, Aizawl. ......Petitioner. -Vrs- 1. H.Rohluna S/o H.Laldawla (L) R/o Ramthar Veng, Aizawl ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. - 64 - Ex-81/20153. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 21-Lengteng, AC, Champhai, Mizoram. ......Proforma Respondents.’ The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:- “5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies, Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, ma nufactured by the ECU Company, there occurr ed a dra stic change in t he result. T hough the MNF Party had won in 2 0 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L unglei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlai District The result as per the postal ballot and the EVM in all the constituencies being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the instance of the winning P arty i. e. INC P arty by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Constituencies within Aizawl Cit y where WPAT system were used in pla ce of EVMs. It is not known why the ECIL Company could provide WPAT only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the MLA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. - 65 -Ex-81/20156. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering t he election results. As per the Finding of the experts in the field published in a n Article/Paper - ‘Security Analysis of India’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect with no need for technological improvement, the expert team in their said Paper had, after through scr utiny and analysis of the EVM, had come to the finding tha t the EVMs used in India are not tamper-proof and are succeptible to a r ange of a tta cks a nd that while the use of paperless DRE (Direct Recor ding Electr onic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should Inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the s aid Article Dt 29/7/2010 is at Annexur e-7. 9. That In this connection it may humbly b e stated that the respondent has been declared elected in the said General MLA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding the manipulation and hacking/r igging of the EVMs as well as the VVPAT Systems during the process of Election. To add salt to his already Injured and suspicious mind, one Mr. K. Chhawnthuama (a s Phantom,) owner of K.V. Multipurpose (English Medium) High School - 66 - Ex-81/2015and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhlp (ST) Assembly Constituency Immediately after he was decla red elected. The text mess ages read as under : To win an election based upon the manipulated CPU supported EVM Is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who Is more corrupted than you. You are so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM I continue to know who you are - the dirty and despicable CM who had gone to t he extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exposed. You a re bringing disgrace upon yourself for acting in such a manner. How you ha ve manipulated the EVM will be exposed with the help of p hotogra phs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messages, the police had registered a case (i.e. Crl.Tr. No.2195 of 2013: Azl. PS. Case No. 373 of 2013 u/s 171GIPC r/w 66 A (a) (b) IT Act) against the author who ha d sent the said messages. The said t ext messages have been published in the Zaien weekly local newspaper on 22/12/2013. Copies of the text messages and their English tra nslations are at Annexures-8 and 9 respectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result as per the EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, it is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position.” 12. Since the election petitioner ha s raised objection bout applicabilit y of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dhartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported In AIR 1987 SCC 1577, the Hon’ble Supreme Court cons idered the question as to whether the High C ourt ha d the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 t hereof at the preliminary st age. T he Apex Court clearly held tha t both Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Pr ocedure are applicable to proceedings relating to trial of an election - 67 -Ex-81/2015 petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been heid that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Pr ocedure Code including the powers under Or der 6 R ule. 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Couit accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil P rocedur e Code to seek rejection of the elect ion^ petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out. Provisions of Section 87 has already been noticed above. Under Section 98 f at t he conclusion of the trial of an election petition, the High Court can either dismiss the election petition or I declare the election of the retur ned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declar ing an election: to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applicant on ground 100 (1) (d)(iii) i. e., the election of the applicant has been materially affected by the impr oper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election petitioner has to be deposit costs in the High Court at the time of present ation of the elect ion petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examine the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the - 68 - Ex-81/2015 Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions contained in Section 82 (a) of the Act In view of the clear language of Section 86 of the Act, there is no other alternative but t o dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Rann Sukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entir e grievance of the election petitioner is structur ed on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected beca use of the impr oper reception, refusal or rejection of any valid vote or by the r eception of any void vote. Suspicion and a pprehension howsoever great those may be, cannot be construed as material facts as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUY JUDGE - 69 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/14/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.95 of 2014 in Election Petition No. 14 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED} By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 95 OF 2014 IN ELECTION PETITION NO. 14 OF 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. 1/election petitioner. Also hear d Mr. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an application under Order 7 Rule 11 of the Civil Procedur e Code, 1908 for rejection of the election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act’). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose material facts % to constitute a cause of action to warrant trial of the election petition. Secondly, the prayer made in the election petition is beyond the relief which ca n be - 70 - Ex-81/2015 granted to a n elect ion petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candida te be declared as void, he should also be declared as the elected ca ndidate, all t he other contesting ca ndidates of the constituency should have been made parties to the election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the election petition, the election petitioner has made further pr ayer for decla ring him as the elected candidate after declaring the election of the applicant as void, he is not press ing the same and would be satisfied if the first par t of tiie prayer is granted i.e. if the election of the applicant (returned candidate) is declared as void. Misc. applica tion should, therefore, b e dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely based on suspicion and apprehension of the election petitioner about: the fairness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result or applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, ill the candidates who were in the electoral fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition,, He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. - 71 -Ex-81/2015 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition, , Mr. M, Zotha nkhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I ha ve heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset Election petitioner has challenged the election of the applicant as MLA in the legislative assembly elections to the Mizoram State Legislative Assemby, 2013. As can be seen from the cause title, the following a re the parties to the election petition:-“Sh. H.B, Lianmunga, S/o Lalringaia (L), R/o Chhinga Veng, Mizoram, ......Petitioner. -Vrs- 1. Sh. John Rotluangliana, S /o Isr ael Sna gkhuma (L), R/o Electric Veng, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 26-Mamit (ST), AC, Mamit, Mizor am. .. .. ..P rofor ma Respondent s. The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constit uted for the purpose of scrutinizing the correctness of the resu lt of t he elect ion by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be declared to be 11. void and why the petitioner shall not be decla red elected from the s aid constituency,” Regarding the substance of the allegation and the ground for challenging the election of t he applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says that if the High Court is of the opinion tha t the result of the election in so fa r it: concerns a retur ned candidate has been materially - 72 - Ex-81/2015 affected by improper reception, r efusal or rejection of any vote or by the r eception of any vote which is void, the High C ourt sha ll declare the election of the returned candidate to be void. In support of the above ground of challenge, the election petitioner ha s put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that In t he 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballot®, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies. Similarly, in t he 2003 MIA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd In 2 1 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, ma nufactured by the ECU Company, there occurr ed a dra stic change In the result. Though the MNF Party had won in 20 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L ungiei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlai District . The r esult a s per t he posta l ballot and the EVM in all the constituencies being so contradictory, the same had ted to a strong s uspicion against the correctness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the instance of the winning P arty i. e. INC P arty by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Cons tituenc ies within Aiza wl City wher e VVPAT s ystem were used in pla ce of EVMs. It is not known why the ECU Company could provide WPAT only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the MLA Elections, 1998, 200,% 2008 & 2013 are at Annexures -3,4,5, & 0 respectively. 6. That at this stage, It may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election results. As per the finding of the experts In the field published in a n Article/Paper - ‘Security Analysis of India’s Electronic Machines’? it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and t hat the machines were perfect with no need for technological improvement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted - 73 -Ex-81/2015that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is complet ely err or -free. It was fou nd b y the said expert team tha t the EVM fir mware Is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built In to the CPUs, the changes could be difficult to detect. Similarly even the engineer resp onsible compiling the source and tr ansmitting It to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed Image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the s aid Article Dt 29/7/2010 is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MIA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECU Company came to Mizoram and stationed themselves a t different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVM’s for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding t he manipulation and hacking/rigging of the EVMs as well a s the WPAT Systems during the process of Election. To add salt to his already injured 7"and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K.V. Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed,, you have failed to take proper care bringing disgrace to yourself. PHANTOM - 74 - Ex-81/2015I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Crl. Tr. No.2195 of 2Q13: Azl. PS. Case No. 373 of 2013 u/s 171GIPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspa per on 22/12/2013. Copies of t he text messages and their English transla tions a re at Annexures-8 a nd 9 respectively. 10. ‘T hat at this sta ge, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result a s per the EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, it is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position.” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accorda nce with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dhartipakar Madan Lai Agarwal -vs~Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court cons idered the question as to whether the High C ourt ha d the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of C ivil Pr ocedure and to reject the election petit ion under Order 7 Rule 11 thereof at the preliminary stage. The Apex C ourt clearly held tha t both Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure are applicable to proceedings relating to trial of an election petition. Court ha s the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclos e a cause of action it should be rejected at the initial sta ge. Cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the Act. This view has been r eiterated in R am Sukh-vs- Dinesh Aggarwal reported in (2009) 10 SCC 541. It has been held that undoubtedly by virtue of Section 87 of the Act, the provisions of the Civil Procedure Code applied to the tria l of an election petition and the High Court trying an election petition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 a nd Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to pr ove abortive should not be permitted to occupy the judicial time of the Courts. In view of the above authoritative pronouncements of the Apex Court the objection raised by the election petitioner - 75 -Ex-81/2015 on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out. Pr ovisions of Section 87 has already b een noticed above. Under Section 98, at the conclusion of t he tria l of an election petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 iays down the grounds for declaring a n election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applica nt on gr ound 1 0 0 (1 ) (d) (iii) i. e. , t he elect i on of t he a p p lica nt h a s b een ma t er ia lly a f fect ed b y t he imp r op er r ecep t ion, refusal or r ejection of any vote or the reception of a ny vote which is void. Under Section 117, the elect ion petitioner has to be deposit costs in the High Court at the time of presentation of the election petit ion. 14. Having, noticed the above, we ma y now turn to Section 86 of the Act which has a decisive bearing on the case. As per S ection 86 of the Act) the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs, Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected candidate. If tha t is the prayer, under Section 82 of the; Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which has not been done. Thus, there is ‘ho compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dis miss the elect ion petition for non-compliance of Section 8 2 of the Act Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. - 76 - Ex-81/2015 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - FUnga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the p laintiffs cause of act ion or the defendant’s defence depends. In Jitu Pa tnaik -vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of the averments made in the election petition as extracted hereinabove, if: is more than clear that the entir e grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected beca use of the impr oper reception, r efusal or rejection of any va lid vote or by the reception of any void vote. Suspicion and appr ehension howsoever great those may be, cannot be construed as material facts as is understood i n l a w. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 77 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/15/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951], the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.97 of 2014 in Election Petition No. 15 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. Appl. No. 97 of 2014 in Election Petition No. 15 of 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. 1/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the P eople Act, 1951 (for shor t We Act). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition-Secondly, the pra yer made in the elect ion petition is beyond the relief which can be gra nted - 78 - Ex-81/2015 to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the r eturned candidate be declared as void, he should a lso be ‘declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No, 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be said to be beyond the scope of the law. Though In t he elect ion petition, the election petit ioner has made further pr ayer for decla ring him as the elected candidate after declaring the election of the applicant as void, he is not press ing the same a nd would be satisfied if the first pa rt of the prayer is granted i.e. if the election of the applicant (returned candidate) is declared as void. Misc. applica tion should, therefore, b e dismissed. 5.Mr. Lalsawirerna, learned counsel for the applicant by referring to the averments made in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been -pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. Johny L. Tochha wng, learned counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the ejection petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr, Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted, In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. - 79 -Ex-81/2015 8.Though the Election Commission of India is neither a necessar y party nor a proper party in an election petition in view of the clear enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I ha ve heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. C Lalramzauva S/o C. Kapchawla (L), R/o New Serchhip, Mizoram ......Petitioner. -Vrs- 1. Sh. Lal Tha nhawla S/o Hmartawnphunga (L), R/o Zarkawt, AizawL ......Respondent. 2. Election Commission of India thr ough its Secretary, Nirvachan Sa dan, Ashoka Roa d, New Delhi 3. Chief Electoral Officer, Mizoram, Aizawl 4. Returning Officer, 26-Serchhip (ST), AC, Serchhip, Mizoram. ......Proforma Respondents.” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constit uted for the purpose of scrutinizing the correctness of the, resu lt of t he elect ion by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the exp ert committee why the election of the respondent No, 1 shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been - 80 - Ex-81/2015 materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won. in 29 Constituencies, Similarly, in the 2003 MIA Gener al Election in which the MNF Party had fou ght singly, it had won in 23 C onstituencies a s per the Postal Ballot and in 21 C onstituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, manufactured b y the ECU Compa ny there occurr ed a drastic change in the resu lt. Though the MNF Party had won in 20 Constituencies as per the resu lt of the Posta l Ballot, the r esult of the EVM had s hown that the MNF Party could win only in 3 Constituencies s uch as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L ungiei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlai District The result as per the postal ballot and the EVM in all the constituencies being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the insta nce of the winning Par ty i.e. INC Par t]^ by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Constituencies within Aizawl Cit y where WPAT system were used in pla ce of EVMs. It is not known why the ECIL Company could provide VVPAT only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the MIA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conducting Elections, from different corners, a number of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect’ with no need for technological impr ovement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted - 81 -Ex-81/2015that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that-counts the voles dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the s aid Article Dt 29/7/2010 is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MIA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner r and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency, At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a committee, to enquire into the allegation made her ein and the said committee will have to function with the help of those having expertise in the Held. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECU Company came to Mizor am and stationed . themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of cou nting of Vote:.’ at different counting stations. T hough the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding the manipulation and ha cking/r igging of the EVMs as well as the VVPA T Systems during the process of Election. To add sa lt to his already inju red and suspicious mind, or®. Mr. K.Chhawnthua ma (as Phantom, ) owner of K. V.Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM - 82 - Ex-81/2015I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. T he highest form of corruption,, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have ma nipula ted the EVM wilt be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Crl. Tr. N G.2195 of 2013: Azl. PS. Case No. 373 of 2013 u/s 171G IPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen ‘weekly local newspaper on 22/12/2013. Copies of the text messages and their English translations are at Annexures-8 and 9 r espectively. 10. That at this stage f since the Petitioner is having a serious and legitimate doubt about the correctness of the result as per the EVMs, and since the experts in the Held have already come to the conclusion that EVMs in India are vulnerable to fraud a s already highlight ed by those experts in the Paper enclosed herein above, and in view of the fact that the results of the Election in the EVMs are highly contr adictory to the results of postal ballots, it Is necessa ry and in the interest of justice to enquire into the ma tter so as to bring out the true factual position.” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dftartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of t he Code of Civil Procedure and to reject the election petit ion under Order 7 Rule 11 thereof at the preliminar y stage, The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act, This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is . rejected. This Court accordingly holds that it would be open to the returned candidate to - 83 -Ex-81/2015 file application under Or der 7 Rule 11 of the Civil Pr ocedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific, It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt pr actice, full particulars of corrupt practice alleged are to be set out. Provisions of Section 87 has already been noticed above. Under Section 98, at the conclusion of the trial of an election petition, the High Court ca n either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the elect ion of the applicant on ground 100 (1) (d)(iii) i. e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election p etitioner has to be deposit costs in the High Cour t at: the time of presentation of the election petition. 14, Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bear ing- on the case. As per Section 86 of the Act , the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us exam in the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents In t he elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. in view of the clear la nguage of Section 86 of the Act, there is no other alternative but t o dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner tha t he has given up the second prayer Lei to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. - 84 - Ex-81/2015 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs~ Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo ~vs- Ranga Math Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material fact s. Averments must be a dequate, clear and specific. In Ram S ukh (supra) f it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action, “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanatan Moheikud and Others reported in (2012) 4 SCC 194, it has been held that all basic or primary facts which must be proved at the trial for establishing caue of act ion or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of the averments made in the election petition as extracted hereinabove, it is more than clear that the entire grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fa ct has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected because of the improper reception, refusal or rejection of any valid vote or by the reception of any void vote. Suspicion and apprehension howsoever great those may be, cannot be construed as material facts as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under S ection 82 of the Act a nd also does not disclose: material facts to hold tria l to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 85 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/16/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.100 of 2014 in Election Petition No. 16 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 100 OF 2014 IN ELECTION PETITION NO. 16 OF 2014 BEFORE HON’BLE MR. JUSTICE UJJAL Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel foe Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election - 86 - Ex-81/2015 petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should: have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the election petition, the election petitioner has made further pr ayer for decla ring him as the elected candidate after declaring the election of the applicant as void, he is not press ing the same a nd would be satisfied if the first pa rt of the prayer is granted i.e. if the election of the applicant (returned candidate) is declared as void. Misc. applica tion should, therefore, b e dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. LaIr amzauva , (earned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner has a lready declared that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold, 7.In reply, Mr. Lalsawirema, learned counsel for the applicant submits that after the statutory period of 45 days of filing election petition u nder Section 81 of the Act is over, there is no question of a mendment of the election p etition. Amendment as suggested, if granted, would change the very nature and character of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for amendment, such an oral - 87 -Ex-81/2015 prayer of the election petitioner cannot be accepted, tha t too, after the technical defects in the election petition were pointed out in the misc. application. 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enunciation of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v, Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I ha ve heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause titie, the following are the parties to the election petition:-“Sh. Rasik Mohan Chdkma, S/o S hukra Moni Cha kma, R/o Kamlanagar. ......Petitioner. -Vrs- 1. Dr. B.D. Chakma, S /o Guna ban Cha kma, R/o Burapansuri-L ......Respondent. 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 36-Tuichawng, AC, Lunglei, Mizoram. ......Proforma Respondents.” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” - 88 - Ex-81/2015 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the preceding MLA Elections held in Mizoram, the result of Postal Ballots used to be unfailing indicators for the final outcome of the election results. In this connection, it may briefly he stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined hands in which as per the result of the Postal Ballot, the two Parties together ha d won in 124 Constituencies and in the final result, they had won in 29 Constituencies. Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies a s per the Posta l Ballot and in 21 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India ha d decided to switch over to t he EVM, manufa ctured by the ECIL Company, there occurred a drastic change in the r esult. Though the MNF Party had won in 20 Constituencies as per the r esult of the P ostal Ba llot, the result of the EVM ha d shown that the MNF P arty could win only in 3 Constituencies such as in the 25-Ea st Tuipui AC(S T) in the undivided Aiza wl District, in the 3 2-Lungiei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of La wngtlai District The result a s per the postal ballot and the EVM in all the constituencies being so contra dictory, the same ha d led to a strong suspicion a ga inst the corr ectness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Par ty had come to its own conclusion t hat there was wide spread manipulation/ rigging of t he EVMs at the instance of the winning Party i.e. IN C Party by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling booths in all the Constituencies except in the 10 Constituencies within Aizawl City where WPAT system were used in pla ce of EVMs. It is not known why the ECIL Company could provide WPAT only for 10 Constituencies of Aizawl City while the rema ining 30 Constituencies were left with no other option but to use the same EVMs used ear lier and against which the MNF Party had ma de a number of complaint s of their being hacked/manipulated. Copies of the Abstract of Postal Ballot record in different constituencies in the MIA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conducting Elections, from different corners, a number of {Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for alt ering the election results. As per the finding of the experts in the field published in a n Article/Paper - ‘Security Analysis of India’s electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect ‘with no need for technological impr ovement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, - 89 -Ex-81/2015Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a back door with little chance of being- caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in t he EVM, A copy of the said Article Dt 29/7/ioiO is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MIA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and , manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting station^ Though the Petitioner did not ra ise any object ions to the presence of those personnel/however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding t he manipulation .and hacking/rigging of the EVMs a s well a s the WPAT Systems \dur ing the process of Election. To add salt to his already injured land suspicious mind, one Mr. K.Chhawnthuama (as Phantom,) owner of K. V. Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! - 90 - Ex-81/2015There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Crl. Tr. No,2195 of 2013: Azi. PS, Case No. 373 of 2013 u/s 17 1G IPC r/w 66 A (a) (b) IT Act) against the author Who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspaper on 22/12/2013. Copies of the text mess ages and their English anslations are at Annexures~8 and 9 r espectively. 10. that at this stage, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result as per the EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, it is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position,” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dhartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can - 91 -Ex-81/2015 invoke power s under the Civil Procedure Code including t he power s under Ordep6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view; of the above authoritative pronouncements of the Apex rejected. This Court a ccordingly holds that it would be open to the returned candidate to file applica tion under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not disclose any cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition, Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no su ch addit ional declaration is sought for, only the returned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out. Pr ovisions of Section 87 has already b een noticed above. Under Section 98, at the conclusion of t he tria l of an election petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring a n election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applica nt on gr ound 1 0 0 (1 ) (d) (iii) i. e. , t he elect i on of t he a p p lica nt h a s b een ma t er ia lly a f fect ed b y t he imp r op er r ecep t ion, refusal or rejection of a ny vote or the reception of any vote which is void. Under Section 117, the election petitioner has to be deposit cos ts in the High Court at the time of pr esentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is “ shall”, which denotes mandatory consequence of non-compliance of Sections 81,82 or 117. 15. Keeping the above in mind, let us examine the objection of the applicant regarding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs, Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. - 92 - Ex-81/2015 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are; not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, dear and specific. In Ram S ukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In 3itu P atnaik-vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entire grievance of the elect ion: petitioner is structured on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected beca use of the impr oper reception, r efusal or rejection of any va lid vote or by the reception of any void vote. Suspicion and appr ehension howsoever great those may be, cannot be construed as material facts as is understood i n l a w. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 93 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No. 82/M1Z-LA/17/2014 - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.89 of 2014 in Election Petition No. 17 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 89 OF 2014 IN ELECTION PETITION NO. 17 OF 2014 BEFORE HON’BLE MR. JUSTICE UJKJAL BHUXAN Dates of hea ring:3.09,2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No, 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior cou nsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the P eople Act, 1951 (for shor t We Act). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l fads to constitute a cause of action to war rant tr ial of the election - 94 - Ex-81/2015 petition, S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as thu elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of S ection 82 of the Act 4.Opposite Par ty No. 1 i.e. t he election petitioner has filed writ ter objection. It is contended that t here is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the elect ion petition, the election petitioner has made further pr ayer for declaring him as the elected candidate after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant (returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the ‘correctness of the election r esult: by checking the Electr onic Voting Machine; (EVMs) is beyond the scop e and a mbit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would a ttract the provision:; of Section 82 of the Act In the face of such prayer, till the candidates who were in the electoral fra y in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at tho preliminar y stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the trial, the High Court can pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr, Lalsawirema, lear ned counsel for the applicant-submit s that after the statutory period of 45 days of filing election petition under S ection 81 of the Act is over, there is no question of amendment of the election petition. Amendment as suggested, if granted, would change the very nature and character of the election petition, which ca nnot be permit ted. In any ca se, he submits that in the absence of a ny formal application for amendment, such a n oral prayer of the election petitioner - 95 -Ex-81/2015 cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enunciation of law by t he Hon’ble, Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its official respondents in t he election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I ha ve heard the rival submissions and also perused the materials on record. 10. To apprecia te the rival contentions, it would be apposite to “briefly refer to the election petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. Dr. R. Laitha ngliana , S/o R . Dengchhunga (L), R/o Kanan, Aizawl. ......Petitioner. -Vrs- 1. Sh. Chalrosa nga Ralte S/o Rothangpuia, R/o Tuikuai South, Aizawi, ......Respondent 2. Section Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 32-Lunglei West, AC, Mizor am, ......Pro forma Respondents.” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (if) on the ba sis of the findings of the expert committee why the elect ion of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” - 96 - Ex-81/2015 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the Final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Pasty and the MPC Party had joined ha nds in which as per the result of the Postal Ballot^ , the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies, Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd In 2 1 Constituencies in the final result However, in the 2008 MLA General Election in which the Election Commission of India had decided to switch over to the EVM, ma nufactur ed by the ECIL Company, there occurr ed a dra stic change in t he resu lt Though the MNF Patty had won in 20 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(5T) in the undivided Aizawl District, in the 32- L u nglei Wes t AC (S T ) in L u ng lei Dis t r ict a nd in t he 3 7 - L a wngt la i Wes t ; AC (S T ) of L a wngt la i District The result as per the postal ballot and the EVM in all the cons tituencies being so cont radictoty, the same ha d led to a str ong suspicion a gainst the cor rectness of the EVM by all the Parties other than the INC Par ty. It may be stated here that the MNF Party had come to its own conclusion that there was wide spread manipulation/r igging of the EVMs at the instance of t he winning Party i.e. INC Party by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling booths in all t he Constituencies except in the 10 Constituencies within Aizawl City where VVPA T system were used in place of EVMs. It is not known why the ECU Company could provide VVPAT only for 10 Constituencies of Aizawl City while the rema ining 30 Constituencies were left with no other option but to use the same EVMs used earlier and against which the MNF Party had made a number of complaints of their being hacked/manipulated. Copies of the Abstra ct of P ostal Ballot r ecord in different constituencies in the MIA Elections, 1998, 2003 f 2008 & 2013 are at Annexures —3,4,5, & 6 respectively. 6. Wat at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of ‘India ’s Electronic Machines”, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect with no need for technological improvement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately - 97 -Ex-81/2015review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was mod/fled before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tra nsmitting it to the’ CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it In to the chips. It was also highlighted that attacker, might tiy to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the said Article PL 29/7/2010 is at Annexur e-7, 9. That in this connection it may humbly be stated that the respondent has been declared elected In the said Genera l ML A % Election, 2013 held on 25/11/2013 on the ba sis of reception of the winning votes which were void. In other words, the act ual and valid votes so polled in favour of the respondent were fees than the votes so polled in favour of the Petitioner, and We resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECU Company came to M izoram and stationed themselves a t different places where counting took pla ce, Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in any around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting station^ Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding t he manipulation and hacking/rigging of the EVMs as well a s the WPAT Systems during the process of Election. To add salt to his already injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K. V.Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : To win an election based upon the manipulated CPU suppoited EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. - 98 - Ex-81/2015Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself: PHANTOM I continue to know who you are - the duty and despicable CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help cf manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed wit h the help cf photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Cri.Tr. No,2195 of 2013: Azl. PS. Case No. 373 of 2013 u/s 171GIPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. The said text messages have been published in the Zalen weekly local newspa per on 22/12/2013. Copies of t he text messages and their English translations am at Annexures-8 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result as per the EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, it is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position”. 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dliartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to proye - 99 -Ex-81/2015 abor tive should not: be p ermitted to occupy the judicial time “of t he Cour ts I In view of the above authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of elect ion petition in tht High Cour t and the manner of its presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out Provisions of Section 87 has already been noticed above. Under Section 98, at the conclusion of t he tria l of an election petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring a n election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applica nt on gr ound 1 0 0 (1 ) (d) (iii) i. e. , t he elect i on of t he a p p lica nt h a s b een ma t er ia lly a f fect ed b y t he imp r op er r ecep t ion, refusal or rejection of a ny vote or the reception of any vote which is void. Under Section 117, the election petitioner has to be deposit cos ts in the High Court at the time of pr esentation of the election petition. 14. Having noticed the above, we may now tu rn to Section 86 of the Act which has a decisive bearing, on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is ‘’shall”, which denotes manda tory consequence of non-compliance of Sections 81,82 or 117, 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as resp ondents in the election petition, which has not been done. T hus, there is no compliance of the provisions contained in Section 82 (a) of the Act. In view of the clear language of Section 86 of the Act, them is no other alternative but to dismiss the election petition for non-compliance of Section 82 of the Act Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candida te and that he should be allowed to a mend the election petition cannot be a cceded t o at this stage, more so, when there is no formal a pplication to that effect. - 100 - Ex-81/2015 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others r eported in AIR 200JL S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the -phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of facts which would constitute a complete cause of a ction. “Material fact s” are facts upon- which the plaintiff ’s cause of a ction or the defendant’s defence depends. In Jitu Patnaik -vs- Sana t a n M oha ku d a nd Ot her s r ep or t ed i n (2 0 1 2 ) 4 S C C 1 9 4 , i t ha s b een hel d t ha t a ll b a s i c or p r ima r y f a ct s which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure of state even a single material fact will entail dismissal of an election petition 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entire grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fa ct ha s been pleaded by the elect ion petitioner Which Would constitute the ground that the election of the applicant has been materially affected because of the improper reception, r efusal or rejection of any va lid vote or by the reception of any void vote. Suspicion and apprehension howsoever great those may be, cannot be construed a s material fact s as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 12 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant 20. Accordingly and in view of the discussions made above, this misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 101 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/18/2014: In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.90 of 2014 in Election Petition No. 18 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 90 OF 2014 IN ELECTION PETITION NO. 18 OP 20 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. La lsawirema, lear ned cou nsel for tie applicant/respondent No. 1 (returned ca ndidate) and Mr. C. Lalr amzauva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Pa rty No. 1/election petitioner. Also heard Mr. M. Zothankhuma, learned senior cou nsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of cause of action a nd for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose material fact s to constitute a cause of a ction to warra nt tria l of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration - 102 - Ex-81/2015 that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 I.e. the election petitioner has filed writ ten objection. It is contended that there is no necessity to enterta in and decide is misc. applica tion at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition ca nnot be said to be beyond t he scope of the law. T hough in the election petition, the election petitioner has made further pr ayer for declaring him as the elected candidate after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant (returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has bean pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subject-id to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at: the preliminar y stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the trial, the High Court can pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner has already declared that he does not: seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhoid. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any for mal application for a mendment, such oral prayer of the election petitioner ca nnot be accepted, that too, after the technica l defect s in the election petition were point ed out in the misc. application. - 103 -Ex-81/2015 8.Though the Election Commission of India is neither a necessar y party nor a proper party in an election petition in view of the clear enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Section Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I have heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. Joseph Lalzawmliana, S/o Z.D. Malsawma, R/o Electric Veng, Lung lei. ......Petitioner. -Vrs- 1. Sh. Zodintluanga, S/o Rothangpuia, R/o Tuikual South, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 34-T horang, AC, Mizoram. ......Proforma Respondents.” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the Findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion tha t the r esult of the election in so far it concerns a returned candidate has been - 104 - Ex-81/2015 materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the ejection of the returned candidate to be void, In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MFC Party had Joined hands in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies. Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, ma nufactur ed by the ECIL Company, there occurr ed a dra stic change in the resu lt Though the MNF Party had won in 20 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC (ST) in the undivided Aizawl Distr ict, in the 32-Lunglei West AC (ST) In Lunglei District and in the 3/ - Lawngtlai West AC (ST) of Lawngtlai District The result as per the postal ballot and the EVM in all the constituencies being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by ail the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the instance of the winning P arty i. e. INC P arty by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Constituencies within Aizawl Cit y where WPAT system were used in pla ce of EVMs, It is not known why the ECIL Company could provide VVPAT only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the MIA Elections, 1998, 2003/^2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were perfect’ with no need for technological improvement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system - 105 -Ex-81/2015that provides greater securities and tra nsparency. In the said Paper it was dearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y Inside the microcont roller chips, and there is no provision for extracting it or verifying its Integrity, This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tra nsmitting it to the CPU manufacturer could substit ute, a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the complied progr ammed Image before bur ning it in to the chips. It was also highlighted that attackers might t/y to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recor ded in the EVM . A copy of the said Article Dt 29/7/2010 is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MLA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency, At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’bie Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent-event had confirmed his suspicion regarding the manipulation and hacking/r igging of the EVMs as well as the VVPAT Systems during the process of Election. To add salt to his alr eady injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K. V.Muitipurpose (English Medium) High School and ordained Eider of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected fr om the 26-Serchhip (5T) Assembly Constit uency immediately after he was decla red elected. The text mess ages read a s under : “To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM - 106 - Ex-81/2015I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messages, the police had registered case (i.e. Cri.Tr. No.2195 of 2013: Azi. P.S. Case No. 373 Of 2013 u/s 171G IPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. The said text messages have been published in the Zalen weekiy local newspaper on 22/12/2013. Copies of the text messages and their English translations are at Annexures-8 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result as per the EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, It is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position,” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial ofsuits. In Dhartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2009) X0 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file - 107 -Ex-81/2015 application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt: practice, full particulars of corrupt practice alleged are to be set out. Provisions of Section 87 has already been noticed above. Under Section 98, at the conclusion of the trial of an election petition, the High Court ca n either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void, As already noticed, in the related election petition, the election petitioner has challenged the elect ion of the applicant on ground 100 (1) (d)(iii) i. e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election p etitioner has to be deposit costs in the High Court at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, then; is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. - 108 - Ex-81/2015 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that: if essential particulars are not pleaded election petit ion is t o be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of the averments made in the election petition as extracted hereinabove, it is more than dear that the entire grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fa ct has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected because of the improper reception, refusal or rejection of any valid vote or by the reception of any void vote. Suspicion and apprehension howsoever great those may be, cannot be construed as material facts as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant 20. Accordingly and in view of the discussions made above, this Misapplication is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 109 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/19/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.91 of 2014 in Election Petition No. 19 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL HO. 91 OF 2014 IN ELECTION PETITION NO. 19 OF 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. 1/election p etitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an application under Order 7 Rule 11 of the Civil Procedur e Code, 1908 for rejection of the election petition for want of cause of a ction and for non-compliance of the manda tory pr ovisions of the Representation of the P eople Act, 1951 (for shor t We Act). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act, Thirdly, since the election petitioner has sought for a declaration - 110 - Ex-81/2015 that not only the election of the returned candidate be declared as void, he should a lso be declared as the elected candidate, all the other contesting candidates of the constituency should have been made patties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the election petition, the election petitioner has made further pr ayer for decla ring him as the elected candidate after declaring the election of the applicant as void, he is not press ing the same a nd would be satisfied if the first pa rt of the prayer is granted i.e. if the election of the applicant (returned candidate) is declared as void. Misc. applica tion should, therefore, b e dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged, On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize :he correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, ail the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would, entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of tie elect ion petition. Amendment as suggested, if gr anted, would cha nge t he ver y nature a nd char acter of the election petition, which cannot: be permitted. In any case, he s ubmits that in the absence of any formal application for amendment, such a n oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. - 111 -Ex-81/2015 8.Though the Election Commission of India is neither a necessar y party nor a proper party in an election petition in view of the char enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1993. Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I have heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. Vanupa Zathang S/o Zaduna (L), R/o Chanmari, Lawngtlai. ......Petitioner. -Vrs- 1. Sh. H. Zothangllana 5/o H. Hrangchunga (L), R/o Chanmar i L-IV, Lawngtlai. ......Respondent. 2. Election Commission Of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3, Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 38-La wngtlai East, AC, Mizoram. .. .. ..P rofor ma Respondent s. The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the expert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been - 112 - Ex-81/2015 materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies, Similarly, in the 2003 MIA General Election in which the MNF Par ty had, fought singly, it ha d won in 23 Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result However, in the 2008 MIA General Election, in which the Election C ommission of India had decided to switch over to the EVM, ma nufactur ed by the ECIL Company, there occurr ed a dra stic change in the resu lt Though the MNF Party had won in 20 Constituencies as per the result of the Postal Ballot, the result of the EVM had shown that the MNF Parly could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L unglei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlaj District The result as per the postal ballot end the EVM in all the constituencies being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by all the Parties Other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the instance of the winning P arty i. e. INC P arty by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Constituencies within Aizawl Cit y where WPAT system were used in pla ce of EVMs. It is not known why the EC IL Company cou ld provide VVPA T only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the NLA Elections, 1998, 2003 M 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect’ with no need for technological impr ovement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the security procedures now in place and should inspect ail EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system - 113 -Ex-81/2015that provides greater securities and tra nsparency, In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect. Similarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed Image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recor ded in the EVM . A copy of the said Article Dt 29/7/2010 is at Amwxur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MIA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency, At this stage it may be humbly submitted that since it is not-possible on the part of t he petit ioner to produce any documentary evidence In support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when p olling was over those personnel continued tm be pr esent in Aizawl and again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding the manipulation and hacking/r igging of the EVMs as well as the VVPAT Systems during the process of Election. To add salt to his already Injured and suspicious mind, one Mr, K.Chhawnthua ma (as Phantom, ) owner of K.V. Muitipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately alter he was decla red elected. The text messa ges rea d as under ; To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mlzos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM - 114 - Ex-81/2015I continue to know who you are - the dirty and despicable CM who had gone to t he extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exposed. You a re bringing disgrace upon yourself for acting in such a manner. How you ha ve manipulated the EVM will be exposed with the help of p hotogra phs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Cri. Tr. No.2195 of 2013: Azl. PS. Case No, 373 of 2013 u/s 171GIPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspa per on 22/12/2013. Copies of t he text messages and their English translations are at Annexures-3 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the correctness of the result as per the EVMs, and since the experts in the field have already come to the conclusion that EVMs in India are vulnerable to fraud a s already highlight ed by those experts in the Paper enclosed herein above, and in view of the fact that the results of the Election in the EVMs are highly contr adictory to the results of postal ballots, it is necessa ry and in the interest of justice to enquire into the ma tter so as to bring out the true factual position.” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the tr ial of suits. In Phar tiipaka r Madam Lai Agarwai -vs-Shri Rajiv Gandhi reported in AIR 1907 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can Invoke power s under the Civil Procedure Code including the power s under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file - 115 -Ex-81/2015 application under Order 7 Rule II of t he Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, iet us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of, the constituency are required to be ma de resp ondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt pr actice, full par ticulars of corrupt practice alleged are to be set out. Provisions of Section 87 has already been noticed above. Under Section 98, at the conclusion of the trial of an election petition, the High Court ca n either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the elect ion of the applicant on ground 100 (1) (d)(iii) i. e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election p etitioner has to be deposit costs in the High Court at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs, Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. - 116 - Ex-81/2015 17. As a lready noticed., Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain ~vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if in-essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo -vs- Ranga Math Mishra and Others reported in AIR 2001 SCC 2992, the Apex Court made it clear that an election petition mus t disclose material fa cts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the phrase “materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik ~vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entir e grievance of the election petitioner is structur ed on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected beca use of the impr oper reception, refusal or rejection of any valid vote or by the r eception of any void vote. Suspicion and appr ehension howsoever great those may be, cannot be construed as material facts as is understood i n l a w. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. . Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 117 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/20/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhafi High Court in CM Application No.92 of 2014 in Election Petition No. 20 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 92 OF 2014 IN ELECTION PETITION NO. 20 OF 2014 BEFORE IN HONBLE MR. JUS TICE UJJAL BHUYAM Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09/2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior cou nsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an application under Order 7 Rule 11 of the Civil Procedur e Code, 1908 for rejection of the election petition for want of cause of action a nd for non-compliance of the ma ndatory provisions of the Representation of the People Act, 1951 (for short ‘the Act’). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration - 118 - Ex-81/2015 that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition ca nnot be said to be beyond t he scope of the law. T hough in the election petition, the election petit ioner has ma de fur ther prayer for decla ring him as the elected and date after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant (returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act, In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. - 119 -Ex-81/2015 8.Though the Election Commission of India is neither a necessiary par ty nor a proper pa rty in an election petition in view of the clear enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving w de ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would result .in dismissal of the election petition, he submits. 9,I ha ve heard the rival submissions and also perused the materials on record. 10. To a pprecia te the rival contentions, it would be apposite to “briefly “refer to the election petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. R.K. Lianzuala, S/o Sawichhunga (L), R/o Bethlehem, Aizawl. ......Petitioner. -Vrs- 1. Sh. R. Vanlalvena, S/o R. Chaiha uva, R/o Bethlehem, Aizawl. .. .. .. Respondent . 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 18-Aizawl South-I, AC, Aizawl, Mizoram. .. .. ..P rofor ma Respondent s. The reliefs sought for by the election petitioner are as under:- “ (i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the expert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been - 120 - Ex-81/2015 materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies, Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, ma nufactur ed by the ECIL Company, there occurr ed a dra stic change in the resu lt Though the MNF Party had won in 20 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L unglei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of LawngtIai District The result as per the postal ballot and the EVM in ail the constituencies - being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the instance of the winning P arty i. e. INC P arty by hacking the said EVMs with the help of some expert s In the field. The same EVM s which were kept by t he Elec tion Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Cons tituenc ies within Aiza wl City wher e WPA T s ystem were used in pla ce of EVMs. It is not known why the ECU Company cou ld provide WPA T only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the MIA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect’ with no need for technological impr ovement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless ORE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it a nd it is high time tha t they should Immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system - 121 -Ex-81/2015that provides greater securities and tra nsparency, In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed In masked read-only memor y Inside the microcont roller chips, and there is no provision for extract ing it . or verifying its integrity. T his means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect. Similarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could alter the compiled progr ammed Image before bur ning It In to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the s aid Article DL 29/7/2010 is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MLA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce any documentar y evidence in support of his contention as required, the Hon rble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the Held. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECU Company came to Mizoram and stationed themselves a t different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVM’s for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding t he manipulation and hacking/rigging of the EVMs as well a s the WPAT Systems during the process of Election. To add salt to his already injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K. V.Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who has been elected from the 26-Serchhip (ST) Assembly Constituency/ immediately after he was decla red elected. The t ext messages read asunder : ‘To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM - 122 - Ex-81/2015I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Crl.Tr. No.2195 of 2013: Azl. PS. Case No. 373 of 2013 u/s 171GIPCr/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspaper on 22/12/2013. Copies of the text messages and their English translations are at Annexures-8 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result as per “ he EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, it is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position.” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dhartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file - 123 -Ex-81/2015 application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out. Pr ovisions of Section 87 has already b een noticed above. Under Section 98, at the conclusion of the trial of an elect ion petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void a nd can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applicant on ground 100 (1) (d)(iii) i.e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election petitioner has to be deposit costs in the High Court at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is ‘’shall”, which denotes mandatory consequence of non-compliance of Sections 81,82 or 117, 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dis miss the elect ion petition for non-compliance of Section 8 2 of the Act Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. - 124 - Ex-81/2015 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanatan MohakucI and Others reported in (2012) 4 SCC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entir e grievance of the election petitioner is structur ed on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected beca use of the impr oper reception, refusal or rejection of any valid vote or by the r eception of any void vote. Suspicion and appr ehension howsoever great those may be, cannot be construed as material facts as is understood i n l a w. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 125 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/21/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/or der dated 6th September, 2014 of the Gauhati High Court in CM Applica tion No.103 of 2 014 in Election Petition No. 21 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 103 OF 2014 IN ELECTION PETITION NO. 21 OF 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lairamza uva, learned senior cou nsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr, M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of cause of a ction a nd for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act’). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted - 126 - Ex-81/2015 to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite No. 1 i.e. the election p etitioner has filed wr itten objection. It is contended that there is no necessity to ent ertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the elect ion petition, the election petitioner has made further pr ayer for declaring him as the elected candidate after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant (returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. - 127 -Ex-81/2015 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enunciation of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp.(2) SCC 624, the Court: has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petitioner has himself made the Election Commission of India and its officials respondents in the election petition. Mr. M. Zotha nkhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the electoral process while maintaining the secrecy of ballot. Unsettling an electoral verdict being a serious matter having wide ramification, law ma ndates that there should be strict compliance of procedural requirements. Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would result in dismissal of the election petition, he submits. 9.I ha ve heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following .are the parties to the election petition :-“Sh. C. Ramhluna, 5/o Mangiura (L)’ R/o M-8, Shivaji Tillah, Aizawl Mizoram. ......Petitioner. -Vrs- 1. Sh. C. Ngunlianchu nga, S /o Thathmunga (L), R/o La wngtlai, Mizoram. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 37-iawngtlai West (ST )AC, Lawngtlai, Mizoram. ......Proforma Respondents.” The reliefs sought for by tj^ e election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the expert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” - 128 - Ex-81/2015 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion t hat the result : of the elect ion in so far it concerns a r eturned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Patty and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies. Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd In 2 1 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, ma nufactured by the ECU Company, there occurr ed a dra stic change in t he result. T hough the MNF Party had won in 2 0 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-Lunglei West AC (ST) in Lunglei District and in the 37 - Lawntlai West AC (ST) of Lawngtlai District The result as per the postal ballot and the EVM in ail the cons tituencies being so cont radictory, the same ha d led to a str ong suspicion a gainst the cor rectness of the EVM by ail the Parties other than the INC Par ty. It may be stated here that the MNF Party had come to its own conclusion that there was wide spread manipulation/r igging of the EVMs at the instance of t he winning Party i.e. INC Party by hacking the said EVMs with the help of some experts in the Held. The same EVMs which were kept by the Election Department in their safe custody wer e again used in all t he polling booths in all the Constituencies except in the 10 Constituencies within Aiza wl City where WPAT system were used in place of EVMs. It is not known why the ECU Company could provide WPAT only for 10 Constit uencies of Aizawl City while the rema ining 30 Constituencies were left with no other option but to use the same EVMs used earlier and against which the MNF P arty had made a number of complaints of their being hacked/manipulated. Copies of the Abstract of Postal Ballot record in different constituencies in the MLA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ^Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and t hat the machines were perfect with no need for technological improvement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVM s used in India are not tamper-proof and ar e susceptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Nether lands a nd Germany, - 129 -Ex-81/2015Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recor ded in the EVM . A copy of the said Article Dt 29/7/2010 is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MLA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’bie Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVM’s for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding t he manipulation and hacking/rigging of the EVMs as well a s the WPAT Systems during the process of Election. To add salt to his already Injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K.V. Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Proofs would come with photographs! - 130 - Ex-81/2015There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed,, you have failed to take proper care bringing disgrace to your self PHA NTOM I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Cri. Tr. No.2195 of 2013: Azl. PS. Case No, 373 of 2013 u/s 171G IPCr/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspa per on 22/12/2013. Copies of t he text messages and their English translations are at Annexures-8 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the correctness of the result as per the EVMs, and since the experts in the field have already come to the conclusion that EVMs in India are vulnerable to fraud a s already highlight ed by those experts in the Paper enclosed herein above,, and in view of the fact that the results of the Election in the EVMs are highly contr adictory to the results of postal ballots, it is necessa ry and in the interest of justice to enquire into the ma tter so as to bring out the true factual position,” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Ruie 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dhartipakar Madan Lai Agarwal -vs-Sihri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court cons idered the question as to whether the High C ourt ha d the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 t hereof at the preliminary stage. The Apex Court clearly held tha t both Order 6 Ru!e 16 and Order 7 Rule 11 of the Code of Civil Pr ocedure are applicable to proceedings relating to trial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can - 131 -Ex-81/2015 invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of elect ion petition in the High Court and the mariner of its presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an ejection petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates “what should be the contents of an election petition. First and foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt: practice, full particulars of corrupt practice alleged are to be set out. Pr ovisions of Section 87 has already b een noticed above. Under Section 98, at the conclusion of the trial of an elect ion petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void a nd can also declare the petitioner to be the elected candidate, Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applicant on ground 100 (1) (d)(iii) i.e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election petitioner has to be deposit costs in the High Court at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is “ shall”, which denotes mandatory consequence of non-complia nce of S ections 81 f82 or 117. 15. Keeping the above in mind, let us examin the objection . of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. - 132 - Ex-81/2015 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appropriate to address the same. 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp,) SCC 315, it has been held by the Apex Court that: if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo ~vs™ Ranga Nath Mishra and Others reported in AIR 2001 SCC 2992, the Apex Court made it clear that an election petition mus t disclose material fa cts. Averments must be adequate, clear end sp ecific. In Ram Sukh (supra), it has been held that since the phrase “materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanalan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of the averments made in the election petition as extracted hereinabove, it is more than clear that the entire grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fa ct has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected because of the improper reception, refusal or rejection of any valid vote or by the reception of any void vote. Suspicion and apprehension howsoever great those may be, cannot be construed as material facts as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 133 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/22/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/or der dated 6th September, 2014 of the Gauhati High Court in CM Application No.93 of 2014 in Election Petition No. 22 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 93 OF 2014 IN ELECTION PETITION NO. 22 OF 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior cou nsel assisted by Mr, Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of cause of a ction and for non-compliance of the ma ndatory provisions of the Representation of the People Act, 1951 (for short ‘the Act’). - 134 - Ex-81/2015 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No, 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the elect ion petition, the election petitioner has made further pr ayer for declaring him as the elected candidate after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant [returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshold. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and - 135 -Ex-81/2015 char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. 8.Though the Election Commission of India is neither a necessary party nor a proper party in an election petition in view of t he clear enunciation of law by the Hon’ble Supreme Court in the case of B. Sunda ra Rami Reddy v. Elect ion Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition, Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral process while maintaining the secrecy of ballot,, Unsettling a n electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I have heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. Saikapthianga, S/o Lalhuliana (L), R/o Zotlang, Mizoram. ......Petitioner. -Vrs- 1. Sh. Lalrinmawia Ralte S/o Lalthansanga (L), R/o New Secretariat Complex, Khatla, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, I-Hachhek (ST), AC, Mamit, Mizor am, ......Proforma Respondents,” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and - 136 - Ex-81/2015(ii) on the basis of the findings of the expert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:- “5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies. Similarly, in t he 2003 MIA Genera! Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result. However, in the 2008 MLA Gener al Elect ion, In which the Election Commission of India had decided to switch over to the EVM, manufactured by the ECI.L Company, there occurred a drastic change in the result Though the MN F Party-had won in 20 Constituencies a s per the result of the Postal Ballot, the result of t he EVM had shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-Lunglei West: AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlai District The result as per the postal ballot and the EVM in all the constituencies being so contradictory, the same had ted to a strong s uspicion against the correctness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion that there was wide spread manipulation/rigging of the EVMs at the instance of the winning Party i.e. INC Party by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Depar tment in their safe custody were aga in used in all the polling booths in all the Constituencies except in the 10 Constituencies within Aiza wl City where WPAT system were used in place of EVMs. It is not known why the ECU Company could pr ovide WPAT only for 10 Constituencies of Aizawl City while the remaining 30 Constituencies were left with no other op tion but to use the same EVMs used earlier and against which the MNF Par ty had made a number of complaints of their being hacked/manipula ted. Copies of the Abstract of Postal Ballot record in different constit uencies in the MLA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively, 6. T hat at t his sta ge, it may be p ertinent to sta te that due to a number of complaints against the EVM, as a device for conducting Elections, from different corners, a number of Scientists of different countries worked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect with no need for technological improvement, the - 137 -Ex-81/2015expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVM s used in India are not tamper-proof and ar e susceptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the said Article Dt 29/7/2010 is atAnnexure-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General Mi A Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency, At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding the manipulation and hacking/rigging of the EVMs as well as theVVPAT Systems during the process of Election. To add salt to his already injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K.V. Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : - 138 - Ex-81/2015To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to your self PHANTOM I continue to know who you are — the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Crl.Tr. No.2195 of 2013: AzI. PS. Case No. 373 of 2013 u/s 171GIPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspaper on 22/12/2013. Copses of the text-messages and their English translations are at Annexures-8 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the correctness of the result as per the EVMs, and since the experts in the field have already come to the conclusion that EVMs in India are vulnerable to fraud a s already highlight ed by those experts in the Paper enclosed herein above, and in view of the fact that the results of the Election in the EVMs are highly contr adictory to the results of postal ballots, it is necessa ry and in the interest of Justice to enquire into the ma tter so as to bring out the true factual position.” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908tothe trialof suits.InDhartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Courtconsidered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition, Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action - 139 -Ex-81/2015 in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates “whit should be the contents of an election petition. F irst and for emost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt pr actice, full par ticulars of corrupt practice alleged are to be set out. Provisions of Section 87 has already been noticed above. Under Section 98, at the conclusion of the trial of an election petition, the High Court ca n either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the elect ion of the applicant on ground 100 (1) (d)(iii) i. e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election p etitioner has to be deposit costs in the High Court at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of the “Act the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act, Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, ail the contesting candidates of the particular constituency ought to have been joined as respondents in t he elect ion petition, which ha s not been done. Thus, there is “no compliance of the provisions - 140 - Ex-81/2015 cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected ca ndida te and that he should be allowed to amend the election petition cannot: be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain ~vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra)? it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action, “Material fa cts” ar e facts upon which the plaintiffs cause of act ion or the defendant’s defence depends. In Jitu Pa tnaik -~vs~ Sanatan MotiakMd and Others reported in (2 012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of the averments made in the election petition as extracted hereinabove, it is more than clear that the entire grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fa ct has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected because of the improper reception, refusal or rejection of any valid vote or by the reception of any void vote. Suspicion and apprehension howsoever great those may be, cannot be construed as material facts as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 141 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/23/2014: - In pursuance of Section 106 oftheRepresentation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/or der dated 6th September,2014oftheGauhati High Court in CM Application No.101 of 2014 in Election Petition No. 23 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM, APPL. NO. 101 OF 201 IN ELECTION PETITION NO. 23 OF 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring :3.09.2014 & 5.9.2014. Date of Judgment :6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr, C. Lalramza uva, learned senior cou nsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. 1/election petitioner. Also heard Mr. M, Zothankhuma, S eamed senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Procedur e Code, 1908 for rejection of |he election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act’). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election - 142 - Ex-81/2015 petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for 3 declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the election petition, the election petitioner has made further pr ayer for decla ring him as the elected candidate after declaring the election of the applicant as void, he is not press ing the same a nd would be satisfied if the first pa rt of the prayer is granted i.e. if the election of the applicant (returned candidate) is declared as void. Misc. applica tion should, therefore, b e dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalramzauva , learned senior counsel for the election petitioner on t he other hand s ubmits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only aft er conclusion of the trial, the High Court can pa ss either: of the 3 or ders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr, Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and chara cter of the: election petition, which cannot be permitted. In any ca se; he submits that in the absence of a ny formal application for amendment, such an oral prayer of the election petitioner - 143 -Ex-81/2015 cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I have heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013, As can be seen from the cause title, the following are the parties to the election petition:-“Dr. K. Pachhunga, S/o K. Hramluia (L), R/o Lung lawn, Mizoram. ......Petitioner. -Vrs- 1. Sh. S. Laldingllana S/o Lalchungnunga (L), R/o Chanmani I, Lunglei. .. .. .. Respondent . 2. Election Commission of India through its Secretary, Nirvachan Sadan f Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawi. 4. Returning Officer, 33-Lunglei South (ST), AC, Lunglei, Mizoram. ......Proforma Respondents.” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (it) on the basis of the findings of the exp ert committee why the election of the respondent No. 1 shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” - 144 - Ex-81/2015 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (HI) of the Act which says tha t if the High Court is of the opinion that the result of the election in s o far it concerns a returned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5, That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MIA General Election, the MNF Party and the MPC Party had joined ha nds In which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result they had won in 29 Constituencies. Similarly, in t he 2003 MLA General Election In which the MNF Pasty had fought singly, it had won in PJ Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result However, in the 2008 MLA Gener al Elect ion, In which the Election Commission of India had decided to switch over to the EVM, ma nufactur ed by the ECIL Company, there occurr ed a dra stic change in t he result. T hough the MNF Party had won in 2 0 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L unglei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlai District. The result as per the postal ballot and the EVM in all the. constituencies being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by ail the Parties other than the INC Party, It may be stated here that the MNF Party had come to its own conclusion that there was wide spread manipulation/rigging of the EVMs at the instance of the winning Part]/ i.e. INC Party by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Depar tment in their safe custody were aga in used in all the polling booths in all the Constituencies except in the 10 Constituencies within Aizawl City where WPA T system were used in place of EVMs. It is not known why the ECU Company could pr ovide VVPAT only for 1.0 Constituencies of Aizawl City while the r emaining 30 Constituencies were left with no other op tion but to use the same EVMs used earlier and against which the MNF P art}’ had made a number of complaints of their being hacked/manipulated. Copies of the Abstract of Postal Ballot record in different constit uencies in the MLA Elections, 1998, 2003, 2008 & 20X3 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compliant against the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India’s Electronic Machines’,, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fuliykamper- pivof and that the machines were ‘perfect’ with no need for technological impr ovement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless ORE (Dir ect Recording Electronic) voting machines ha s been discont inued In California, Florida , Ireland, the Nether lands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately - 145 -Ex-81/2015review the securit y procedures now in place and should inspect ail EVMs for evidence of fraud. Moving forward, they had suggested that India should adopt a different-voting system that .provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed In masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before It was built in to the CPUs, the changes could be difficult to detect. Similarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could alter the compiled pr ogrammed image before burning it in to the chip.It was also highlighted that atta ckers might try to substitute look-alike CPUs conta ining software that counts the votes dishonest ly. And that anytime between t he start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the said Article Dt. 29/7/2010 is at Amwxure-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said Genera! MLA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECU Company came to Mizoram and stationed themselves a t different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding the manipulation and hacking/r igging of the EVMs as well as the VVPAT Systems during the process of Election. To add salt to his already injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K. V.Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the pr esent Chief Minist er who ha s b een elect ed fr om, t he 26-Ser chhip (S T) Ass embly Cons tituency immediately a fter he was dec la red elected. The tex t messa ges read as under : To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high, It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. - 146 - Ex-81/2015Considering the degr ee of crime you have committed f you ha ve failed to take proper care bringing disgrace to your self PHANTOM I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Cri.Tr. No.2195 of 2013: Azi. P.S. Case No, 373 of 2013 u/s 17 1G IPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspa per on 22/12/2013. Copies of t he text messages and their English t ranslations are at Annexures-8 and 9 r espectively, 10. That at t his stage, since the Petitioner is having a serious -and legitimate doubt about the correctness of the result as per the EVMs, and since the experts in the field have already come to the conclusion that EVMs in India are vulnerable to fraud a s already highlight ed by those experts in the Paper enclosed herein above, and in view of the fact that the results of the Election in the EVMs are highly contr adictory to the results of postal ballots, it is necessa ry and in the interest of justice to enquire into the ma tter so as to bring out the true factual position,” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said issue may be taken up first for consideration. Under Order 7 Rule; 11 (a) of the Civil Procedure Code, a plaint shall be rejected where it does not disclose a cause of act ion,. Section 87 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dha ttipaka r Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y, of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and - 147 -Ex-81/2015 Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court; the Object ion1 raised by the election pet itioner on this ground is rejected. T his Court ‘accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does; not disclose a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition In the High Cour t and the manner of it s presentation. Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, , also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should: be the contents of an Election petition. First and foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out. Pr ovisions of Section 87 has already b een noticed above. Under Section 98, at the conclusion of t he tria l of an election petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applicant on ground 100 (1) (d)(iii). i.e., the election of the applica nt has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election pet itioner has to b e deposit costs in the High Cour t at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply “with the provisions of Section 81 or Section 82 or Section 117 of the Act, The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents ar id seeking relief beyond the ambit a nd scop e of an election petit ion. Since both these issues a re interrelated, those are ta ken up together, As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. - 148 - Ex-81/2015 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same, 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not: pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entir e grievance of the election petitioner is structur ed on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the elect ion of the applicant has been materially affected because of the impr oper reception, refusal or rejection of any valid vote or by the r eception of any void vote. Suspicion and appr ehension howsoever great .those may be, cannot be construed as material facts as is understood i n l a w. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGEPublished and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50
- 1 -Ex-81/2015 The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Thursday 19.2.2015 Magha 30, S.E. 1936, Issue No. 81 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 6th January, 2015 16 Pausha, 1936 (Saka) NOTIFICATION No. 82/MIZ-L A/01/20U:- In p ursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.80 of 2014 in Election Petition No. 01 of 2014. (HERE PRINT THE JUDGMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 80 OF 2014 IN ELECTION PETITION NO. 1 OF 2014 APPLICANT/RESPONDENT : Sh. T. Sangkunga. By Advocates: Mr. A.K. Rokhum, Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Zoramtha nga. - 2 - Ex-81/2015- 2 - .... Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 25 - Ea st Tuipui (ST) AC, Champhai, Mizorarn. .... Profor ma resp ondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv, Mr. K. Laldinliana, Mr. Zoramchhana, Ms. Lalramsangzuali, Ms. Ruth Lalrinliani, Mr. Johny L. Tochhawng for O.P No.l. Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4, BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By this application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant respondent No. 1 is pr aying for dismissal of the election petition on primarily the following three grounds :- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be decla red as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 {hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits - 3 -Ex-81/2015 that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992, b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Tha da and Ors reported in AIR 1990 SC 1731, c)Dhartipakar Madan Lai Agarwal-vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, d)V.S. Achuthanandan-vs-PJ. Francis and Anr. reported in (2001) 3 SCC 81, e)Azhar Hussain -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315, f)Ram Sukh-vs- Dinesh Aggarwal reported in (2009) 10 SCC 541, g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194. 4.The Opposite Party No. I/election petitioner has filed written objection against the present application. Mr, C. Lalra mzauva, learned senior counsel for the elect ion petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Laisawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (Supra), it ha s been held by the Apex Cour t that if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election - 4 - Ex-81/2015 in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the r esult of the election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not b e decla red elected fr om the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Zoramthanga, S/o Dar phunga (L), R/o Ramhlun Veng, Mizoram. ..... Petitioner. -Vrs- 1. Sh. T. Sangkunga, S /o Chalpianga (L), R/o Dinthar, Aizawl. .. ... Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl, 4. Returning Officer, 25 - Ea st Tuipui (ST) AC, Champhai, Mizoram. ..... Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under;- “8.. ....... Section 86 confers p ower on the High Court to dismiss an election petition which does not comply with the pr ovisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any r ules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the tria i of suit s under the Code of C ivil Pr ocedure, 1908. Since provisions of C ivil Pr ocedure Code apply to t he t ria l of an election petition, O. VI, R .I6 and O. VI, R.I7 a re applicable to the proceedings relating to the trial of a n election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is apparent that those par as of a petition which do not disclose any ca use of action, are lia ble to be struck off under 0. VI, R. 16, as the Cour t is empowered at any stage of the proceedings to str ike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair tria l of the petition or suit It is the duty of the cour t to exa mine the piaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any ca use of action it would be - 5 -Ex-81/2015justified in striking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings a t any stage of the pr oceedings which may even be before the filing of the written statement by the r espondent or commencement of the tr ial. If the Court is satisfied that the election petition does not make out any ca use of action a nd that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the writ ten statement instead it can proceed to hear the preliminary object ions and strike out the pleadings. If a fter striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R.11” 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 provides as under;- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other tha n the petitioner, and where no such fur ther declaration is claimed, all the returned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petit ioner is also seeking for a declar ation to declar e the elect ion of t he applicant/respondent No. 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constit uency should have been made party respondents in the election petition. This has-not been done in the present election petition and the same amounts to non¬fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 6 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 7th January, 2015 17 Pausha, 1936 (Saka) NOTIFICATION No. 82/MIZ-LA/02/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.81 of 2014 in Election Petition No. 02 of 2014. (HERE PRINT THE JUDGMENT/ORDER ATTACHED) By or der, Sd/- (ANUH JAIPURIAR) S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADE S H) AIZAWL BENCH CM. APPL NO. 81 OF 2014 IN ELECTION PETITION NO, 2 OF 2014 APPLICANT/RESPONDENT: Sh. K. Lairintha nga. By Advocates: Mr. A.K. Rokhum, Mr. Lalsawirema, OPPOSITE PARTY/PETITIONER: 1.Sh. Lalhmingliana. .....Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 6-Serlui (ST) Kolasib, Mizoram. ... ..Proforma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv, Mr. K. Laldinliana, Mr. Zoramchhana, Ms. Lalramsangzuali, Ms. Ruth Latrinliani, Mr. Johny L. Tochhawng for O.P No.l. - 7 -Ex-81/2015 Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4. BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing :16.09.2014. Date of Judgment :16.09.2014. JUDGMENT & ORDER (ORAL)By this application under Order VII Rule 11 of Code of Civil . Procedure, 1908, the applicant respondent No. 1 is pra ying for dismissal of the ejection petition on prima rily the following thr ee grounds:- a)The election petit ion does not constitute any cause of action to proceed with the trial of the election petit ion. b)The prayer in the election petition is beyond the relief which can be granted to an election petitioner and, c)As the elect ion petitioner has pra yed for a declaration that the elect ion of the returned candidate be declar ed as void and that the elect ion petitioner should also be declared as the elected candida te, ail the other contesting candidates of the particular constituency should have been made par ties which has not been done so in the election petition and the same is a viola tion of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lairamza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agarwal-vs-Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 g)K.D. Deshmukh -vs- Amritlai Jayaswai reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 - 8 - Ex-81/2015 4.The Opposite Party No. 1/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose ma terial facts. Averments must be adequate, dear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. 10. The reliefs sought for by the election petitioner is quoted herein below:-(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and - 9 -Ex-81/2015(ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Laihmingliana, S/o Chhunkhuma, R/o Ramtha r Veng, Aizawl, Mizoram. .....Petitioner. -Vrs- 1. Sh. K. Lalrinthanga , MIA S /o Thanchhinga (L), R/o Zottang, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 6- Serlui (ST) AC, Kolasib, Mizoram. .......Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8.. ....... .Section 86 confers power on the High Court to dismiss an election petition which does not comply with the pr ovisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules ma de thereunder, every elect/on petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the tria l of suit s ‘ under the C ode of Civil Pr ocedure, 1908. Since provisions of C ivil Procedure Code apply to the trial of an election petition, 0. VI, R.I6 and O. VI, R.I7 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act . On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is apparent that those paras of a petition which do not disclose any cause of action, are liable t o be st ruck off under O. VI, R .I6, as the Court is empowered at any stage of the proceedings to str ike out or delete pleading which is u nnecessa ry, scandalous, frivolous or vexatious or which may tend to prejudice, emba rrass or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written sta tement and points out the defects. If the court on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 it self empowers the Court to str ike out pleadings at any sta ge of the proceedings which may even be before the filing of the written statement by t he resp ondent or commencement of the trial. If the Court Is satisfied tha t the election petition does not make out any cause of action and that the trial would prejudice, embarr ass and delay t he proceedings, the court need not wait for the filing of the writ ten sta tement Instead it can proceed to hear the preliminary objections and strike out the pleadings. If aft er striking out the pleadings the court finds that no triable Issues rema in to be considered, it has power to reject the election petition under O. VI, R.11" - 10 - Ex-81/2015 13. Further in the case of Ra m Sukh (Supra), it ha s been held tha t by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to t he tria l of an election petit ion and the High Court trying an election petition ca n invoke powers under the Civil Procedure Code including the powers tinder Order VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion that it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :-“82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of t he elect ion petitioner, all the contesting ca ndidates of the particular constituency should have been made party r espondents in the election petition. This ha s not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost Sd/- L.S. JAMIR JUDGE - 11 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 7th January, 2015 17 Pausha, 1936 (Saka) NOTIFICATION No. 82/MIZ-LA/03/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 1 6th September, 201 4 of the Gauhati High Court in CM Application No.82 of 2014 in Election Petition No. 03 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRAD E S H ) AIZAWL BENCH CM. APPL NO, 82 OF 2014 IN ELECTION PETITION NO. 3 OF 2014 APPLICANT/RESPONDENT : Sh, Lalsawta. By Advocates: Mr. A.K. Rokhum, Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Sailothanga Sailo. ......Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 14-Aizawl East II (ST) AC, Aizawl, Mizoram. .......Proforma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv, Mr. K. Laldinliana, Mr. Zoramchhana, Ms. Lalramsangzuali, Ms. Ruth Lalrinliani, - 12 - Ex-81/2015 Mr. Johny L. Tochhawng for O.P No.l. Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4. BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primarily the following three grounds :- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Actof1951) 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawir ema, learned ounsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992, b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Tha da and Ors reported in AIR 1990 SC 1731, c)Ohartipakar Madan Lai Agarwal-vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, d)V.S. Achuthanandan -vs- PJ. Francis and Anr. reported in (2001) 3 SCC 81, e)Azhar Hussain -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315, f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541, - 13 -Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. I/election petitioner has Hied written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception/ refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 14 - Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Sailothanga Sailo, S /o Lalthanzama S ailo (L), R/o Chhinga Veng, Mizoram. .....Petitioner. -Vrs- 1. Sh. Lalsawta, S/o Bawichhuaka (L), R/o Mission Vengthlang, Aizawl. .....Respondent 2. Election Commission of India through its Secretary, Nirvachan Sadan f Ashoka Road, New Delhi, 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 14- Aizawl East II (ST) AC, Aizawl, Mizoram, .....Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal — vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Court to dismiss an elect ion petition which does not comply wit h the provisions of S s. 81 and 82 or S.117. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any r ules made thereunder, every election petition shall be tried by the High Court as nearly as maybe in accordance with the procedure a pplicable to the tria l of suit s under the Code of C ivil Pr ocedure, 1908. Since provisions of C ivil Pr ocedure Code apply to t he t ria l of an election petition, O. VI, R .I6 and O. VI, R.I7 a re applicable to the proceedings relating to the trial of a n election petition subject to the pr ovisions of the Act On a combined reading of Ss. 81, 83, 86 and 87 of the Act, It is apparent that those par as of a petition which do not disclose any ca use of action, are lia ble to be struck off under O. VI, R. 16, as the Cour t is empowered at any stage of the proceedings to str ike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair tria l of the petition or suit It is the duty of the cour t to exa mine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any ca use of action it would be justified in striking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings a t any stage of the pr oceedings which may even be before the filing of the written statement by the r espondent or commencement of the tr ial. If the Court is satisfied that the election petition does not make out any ca use of action a nd that the trial would prejudice, - 15 -Ex-81/2015embarrass and delay the proceedings, the court need not wait for the filing of the writ ten statement instead it can proceed to hear the preliminary object ions and strike out the pleadings. If a fter striking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the elect ion petition under 0. VI, R.11" 13. Further in the case of Ra m Sukh (Supra), it ha s been held tha t by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to t he tria l of an election petit ion and the High Court trying an election petition ca n invoke powers under the Civil Procedure Code including the powers under Order VI Rule 16 and Or der VII Rule 11, This being the position, the Cour t is of the opinion tha t it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil P rocedur e Code for rejection of the election petition if it does not disclose a ny cause of action. 14. Section 82 of the Act of 1951 p rovides as under:- “82. Parties to the petit ion.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, ail t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The elect ion petitioner is also seeking for a declaration to declare the election of the applicant/respondent No. 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constituency should have been made party respondents in the election petition. This has not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JANIR JUDGE - 16 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 21st January, 2015 1 Magha, 1936 (Saka) NOTIFICATION No. 82/MIZ-LA/04/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No. 102 of 2014 in Election Petition No. 04 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 102 OF 2014 IN ELECTION PETITION NO. 4 OF 2014 APPLICANT/RESPONDENT:Sh. P.C. La ithanliana. By Advocates: Mr. A.K. Rokhiim, Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Dr. K. Vanlallawma. .....Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 30- Lunglei Nor th (ST) AC, Lunglei, Mizoram. ... ..Proforma respondents/Opposite Parties. By Advocates : Mr. C. Lalramzauva, Sr. Adv, Mr. K. Laldinliana, Mr. Zoramchhana, Ms. Lairamsangzuali, Ms. Ruth Lalrinliani, - 17 -Ex-81/2015 Mr. Johny L , Tochhawng for O.P No.l. Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4. BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL)By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and tha t the election p etitioner should also be declared as the elec ted candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lairamzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appear ing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner, is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constit uency a s party respondent which is )mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agar wal-vs-Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan-vs-PJ. Francis and Anr. reported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 18 - Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. 1/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In Jitu Patnark (Supra), it has been held that all basic or primary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 19 -Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended b y the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the resuit of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the Findings of the exp ert committee why the election of t he resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Dr. K. Vaniallawma, S/o K. Hrangkhuma (L), R/o Serkawn, Mizoram. .....Petitioner. -Vrs- 1. Sh.P.C Lalthantiana, S/o Za nghlnga (L), R/o Bazar Veng, Lung lei. .....Respondent. 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 30- Lungiei Nor th (ST) AC, Lunglei, Mizoram. .....Proforma Respondents.” 12. As r egard the objection to the applicability of the provisions cont ained in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipa kar Madan Lai Agarwal -vs- Shri Rajiv Gandhi repor ted in AIR 1987 SCC 1577 has held at paragraph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the thai of the election petit ion and it iays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, 0. VI, R.I6 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it Is appa rent that those paras of a petition which do not disclose any cause of action, are liable to be struck off under Q.VI, R.16, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 20 - Ex-81/2015proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the elect ion petition under O. VI, R.11" 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action, 14. Section 82 of the Act of 1951 p rovides as under:- “82. Parties to the petition,- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of ail or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other tha n the petitioner, and where no such fur ther declaration is claimed, all the returned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in t he opinion of this Court is beyond the scope of Section 98 of the Act of 1 951, The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of t he elect ion petitioner, ail the contesting ca ndidates of the particular constituency should have been made party r espondents in the election petition. This ha s not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 21 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 21st January, 2015 1 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/05/2014 :- In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.98 of 2014 in Election Petition No. 05 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 98 OF 2014 IN ELECTION PETITION NO. 5 OF 2014 APPLICANT/RESPONDENT: Sh. T.T. Zothansa nga. By Advocates: Mr. A.K. Rokhum, Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. T.C. Kaphmingtha nga. ......Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 23-Cha mphai North, AC, Mizoram. ... ...Pr ofor ma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv. Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani - 22 - Ex-81/2015 Mr. Johny L. Tochhawng for O.P No.l. Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4. BEFORE HON’BLE MR. JUSTICE L S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL)By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agar wal-vs-Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azhar Hussain -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 23 -Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. 1/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory -nature of Section 98 of the Act of 1951, a n election petition cannot be rejected at the. preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise statement of the material facts. A “perusal of t he election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 24 - Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended b y the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. T.C. Kaphmingthanga, S/o Lia nzinga (L), R/o Zarkawt, Aizawi. .....Petitioner. -Vrs- 1. Sh. T. T. Zothansa nga, S /o Chawnthuta (L), R/o Champha i, Mizoram. .....Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mtzoram, Aizawl. 4. Returning Officer, 23-Champhai North, AC , Mizor am. ......Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’bie Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Court to dismiss an elect ion petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the procedure to be followed In the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tr ied by the High Court as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of C ivil Procedure Code apply to the tria l of an election petition, 0. VI, R.16 and O. VI, R.17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appar ent tha t those paras of a petition which do not disclose any ca use of action, are liable to be struck off under O. VI, R.16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecess ary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit It is the duty of the court to examine the pla int and it need not wa it till the defendant files written statement and points out the defects. If the court on examina tion of t he plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Cour t to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the resp ondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and - 25 -Ex-81/2015that the tr ial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and str ike out the pleadings. If after str iking out the pleadings the court finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R.ll” 13. Further in the case of Ra m Sukh (Supra), ‘it ha s been held tha t by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petit ioner is also seeking for a declar ation to declar e the elect ion of t he applicant/respondent No, 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constituency should have been made party respondents in the election petition. This has not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed In those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 26 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 7th January, 2015 17 Pausha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/06/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.83 of 2014 in Election Petition No. 06 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 83 OF 2014 IN ELECTION PETITION NO. 6 OF 2014 APPLICANT/ RESPON DENT: Sh. K.S.Tha nga. By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Tawnluia. ......Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 20- Aizawl South III (ST) AC, Aizawl, Mizoram. ... ...Pr ofor ma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv, Mr. K. Laldinliana, Mr. Zoramchhana, Ms. Lalramsangzuali, - 27 -Ex-81/2015 Ms. Ruth Lalrinliani, Mr. Johny L. Tochhawng for O.P No.1. Mr. M. Zothankhuma, Sr. Adv., Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4. BEFORE HON’BLE MR. JUSTICE L S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL)By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and tha t the election p etitioner should also be declared as the elec ted candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 {hereinafter the Actof1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Laisawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agar wal -vs- Shri Rajiv Ga ndhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azhar Hussain -vs- Rajiv Gandhi reported in 1986 (Supp)SCC315 - 28 - Ex-81/2015 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 g)K.D. Deshmukh -vs- AmritlaE Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. I/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, teamed senior counsel for the election petitioner s ubmits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act Of 1951 and, therefore, the elect ion petition should be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, dear and specific averments are made. The whole election petition is based on the election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 29 -Ex-81/2015 10. The relief ’s sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Tawnluia, S/o Hrangkhupa (L), R/o Kanan Veng, Mizoram. ......Petitioner. -Vrs- 1. Sh. K.S. Thanga, S/o Bualtuma (I), R/o Venghlui, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 20- Aizawl South III (ST) AC, Aizawl, Mizoram. ......Proforma Respondents,” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply with the provisions of S s. 81 a nd 82 or S.117. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.I6 and 0. VI, R. 17 a re applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act On a combined reading of Ss, 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any cause of act ion, ar e liable to be struck off under O. VI, R.I6, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit. It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action It would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 30 - Ex-81/2015proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable Issues remain to be considered, it has power to reject the elect ion petition under O. VI, R.11" 13. Further in the case of Ra m Sukh (Supra), it ha s been held tha t by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to t he tria l of an election petit ion and the High Court trying an election petition ca n invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion that it would be open to the returned candidate to file application under Order VII Rule 11 of t he Civil Procedure Code for r ejection of the election petition if it does not disclose a ny cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petit ion.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of alt or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, ail the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petit ioner is also seeking for a declar ation to declar e the elect ion of t he applicant/respondent No. 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constituency should have been made party respondents in the election petition. This has not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 31 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 22nd January, 2015 02 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/07/2014: In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.84 of 2014 in Election Petition No. 07 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 84 OF 2014 IN ELECTION PETITION NO. 7 OF 2014 APPLICANT/RESPONDENT: Sh. Nihar Kanti Chakma By Advocates: Mr. A.K. Rokhum . Mr. Lalsawirema OPPOSITE PARTY/PETITIONER: 1.Sh. Priti Ra njan Cha kma. .....Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 35-West Tuipui (ST), AC, Lunglei, Mizoram. ... ..Proforma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv. Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani - 32 - Ex-81/2015 Mr. Johny L Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. Mr. Lalfakawma Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL)By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhartipakar Madan Lai Agarwal -vs- Shri Rajiv Gandhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 33 -Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. 1/eiection petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the applicant can ra ise the issues .at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise statement of the material facts. A -perusal of t he election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 34 - Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Priti Ra n/an Cha kma S/o C hitta Ra njan Cha kma, R/o Puankha i, Mizoram. ......Petitioner. -Vrs- 1. Sh. Nihar K anti Chakma, S/o H.K. Chakma (L), R/o Nunsury, Mizoram. .. .. .. Respondent . 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4, Returning Officer, 35- West Tuipui (ST) AC, Lunglei, Mizoram. .. .. ..P rofor ma Respondent s. 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Rajiv Gandhi reported in AIR 1987 SCC 1577 has held at paragraph 8. as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.I6 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any caus e of act ion, ar e liable to be struck off under O. VI , R.16, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant His writ ten sta tement a nd points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 35 -Ex-81/2015proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R. 11" 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of ail or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, a ll the contest ing candidates other t han the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of the election petitioner, all the cont esting candidates of the particular constituency should “Tiave been made party respondents in the election petition. This ha s not been done in the present election petition and the sa me amounts to non-fulfillment of the requir ements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has aiso dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the-securit y deposit of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 36 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 7th January, 2015 17 Pausha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/08/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 1 6lh September, 201 4 of the Gauhati High Court In CM Application No.85 of 2014 in Election Petition No. 08 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 85 OF 2014 IN ELECTION PETITION NO. 8 OF 2014 APPLICANT/RESPONDENT: Sh. R. La lzirliana By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema OPPOSITE PARTY/PETITIONER: 1.Smt. Lalmaisawmi. .....Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 9-Tawi (ST) AC, Aizawl, Mizoram. ... ..Proforma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuaii Ms. Ruth Lalrinliani - 37 -Ex-81/2015 Mr. Johny L. Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. Mr. Lalfakawma Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL)By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. 1/eiection petitioner as well as Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agarwal -vs- Shri Rajiv Ga ndhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 38 - Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. I/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural requirements as required under Sections 81, 8. 2.and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 39 -Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Smt Lalmalsawmi, D/o Lalthanseia (L), R/o A-39, Zarkawt, Aizawl, Mizoram, .....Petitioner. -Vrs- 1. Sh. R. Lalzirliana, S/o Thansanga (L), R/o Armed Veng N, Aizawl. .....Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 9- Tawi(ST),AC, Aizawl, Mizoram. .....Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, 0. VI, R.I6 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any cause of action, are liable to be struck off under O.VI, R.16, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied tha t the election petit/on does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 40 - Ex-81/2015proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the election petition under 0. VI, R.ll” 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition,” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petit ioner is also seeking for a declar ation to declar e the elect ion of t he applicant/respondent No. 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constituency should have been made party respondents in the election petition. This has not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 41 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 23rd January, 2015 3 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/09/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 1 6th September, 2014 of the Gauhati High Court in CM Application No.86 of 2014 in Election Petition No. 09 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 86 OF 2014 IN ELECTION PETITION NO. 9 OF 2014 APPLICANT/RESPONDENT: Sh. R.L Pianmawia. By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema OPPOSITE PARTY/PETITIONER: 1.Sh. Gogo Lalremtlua nga. .....Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Electoral Officer, Mizora m, Aiza vyl. 4.Returning Officer, 7- Tuivawl (ST) AC, Champhai, Mizoram. .... .Proforma respondents/opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani - 42 - Ex-81/2015 Mr. Johny L. Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. Mr. Lalfakawma Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agarwal -vs- Shri Rajiv Ga ndhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. reported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 43 -Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik-vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. I/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 44 - Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Gogo La lremtlua nga, S/o J. Tha nghuama (L), R/o M ission Veng, Mizoram. .....Petitioner. -Vrs- 1. Sh. R.L Pianmawia, S/o Vanlaltawna (L), R/o Daria wn. .....Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 7- Tuivawl (ST) AC, Champhai, Mizoram. .....Proforma Respondents. 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.16 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any caus e of act ion, ar e liable to be struck off under O. VI , R.16, as the Court is empowered at a ny stage of the proceedings t o strike out or delete pleading which is unnecessa ry,, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it wouid be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 45 -Ex-81/2015proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the elect ion petition under 0. VI, R.11" 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code 4ft€kJding the powers under Order VI Rule 16 a nd Order VII Rule 11. This being the position, the Court is of the opinion that it would be open to the returned candidate to file a pplication under Or der VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contest ing candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of t he elect ion petitioner, all the contesting ca ndidates of the particular constituency should have been made party r espondents in the election petition. This ha s not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the pr ovision of Section 82 of. the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 46 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 23rd January, 2015 3 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/10/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.99 of 2014 in Election Petition No. 10 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 99 OF 2014 IN ELECTION PETITION NO. 10 OF 2014 APPLICANT/RESPONDENT: Sh. P.C. Zor amsangliana. By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Lalchamliana. ......Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 5- Kolasib (ST) AC, Kolasib, Mizoram. ... ...Pr ofor ma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv Mr. K. Laldinliana Mr, Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani Mr. Johny L Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. - 47 -Ex-81/2015 Mr. Lalfakawma Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and tha t the election p etitioner should also be declared as the elec ted candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 {hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Laisawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Laiit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SG 1731 c)Dhartipakar Madan Lai Agarwal -vs- Shri Rajiv Gandhi reported in AIR 1987 SCC 1577 d)V.S. Achuthanandan -vs- P J. Francis and Anr. r eported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 - 48 - Ex-81/2015 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. 1/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned Senior counsel for the elect ion petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Kussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 49 -Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. Lalchamliana, S/o Ex Jem. Parala (L), R/o Electr ic Veng, Mizoram. .....Petitioner. -Vrs- 1. Sh. P.C. Zor amsangliana S/o Vanhlira (L), R/o Dawrpui Vengthar, Aizawl. .....Respondent. 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Electoral Officer, Mizoram, Aizawl. 4. Returning Officer, 5- Kolasib (ST) AC, Kolasib, Mizoram. .....Proforma Respondents. 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartrpakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be t ried by the High Court: as near ly as maybe in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.I6 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any cause of act ion, ar e liable to be struck off under O. VI, R.I6, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the - 50 - Ex-81/2015proceedings, the court need not watt for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable Issues remain to be considered, it has power to reject the election petition under O. VI, R. 11" 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 pr ovides as under :- “82. Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates Is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other tha n the petitioner, and where no such fur ther declaration is claimed, all the returned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of the election .petitioner, all the contesting candidates of the pa rticular constituency should have been made party respondents in the election petition. This ha s not been done in the present election petition and the sa me amounts to non-fulfillment of the requir ements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 51 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 28th January, 2015 8 Magha, 1936 (Saka) NOTIFICATION No.82/M1Z-LA/11/2014: In pursuance of Section 06 of the Representation of the People Act, 1 951 (43 of 1951), the Election Commission of India, hereby, publis hes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.94 of 2014 in Election Petition No. 11 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 94 OF 2014 IN ELECTION PETITION NO. 11 OF 2014 APPLICANT/RESPONDENT: Sh. Laithanzara. By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema. OPPOSITE PARTY/PETITIONER: 1.Sh. Lalchhandama Ralte. .....Opposite Party/Petitioner 2.Election Commission of India, 3.Chief Elect oral Officer, Mizoram, Aizawi. 4.Returning Officer, 12- Aizawl North III (ST) AC, Aizawl, Mizoram. ... ..Proforma respondents/Opposite Parties. By Advocates: Mr. C. Lalramzauva, Sr. Adv Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani - 52 - Ex-81/2015 Mr. Johny L Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. Mr. Lalfakawma Mr. Rosangzuaia Raite for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L. S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a ) The election petit ion does not constitute any cause of action to proceed wit h the trial of the elect ion petition. b) The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and c ) As t he election petitioner has p rayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Actof1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submit its t hat a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who-had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992 b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Thada and Ors reported in AIR 1990 SC 1731 c)Dhar tipakar Madan Lai Agarwal -vs- Shri Rajiv Ga ndhi reported in AIR 1987 SCC 1577 d)V,S. Achuthanandan -vs- P J. Francis and Anr. r eported in (2001) 3 SCC 81 e)Azha r Hussa in -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315 f)Ram Sukh -vs- Dinesh Aggarwal reported in (2009) 10 SCC 541 - 53 -Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. 1/eiection petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as t here is no compliance of procedural “r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear }and specific averments ar e made. The whole election p etition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 54 - Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below: -(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency. ” 11. The parties in the cause title of the election petition are also as under:- “Sh. Lalchhandama Ralte, S/o R.B. Laitawla, R/o Chanmari W, Mizoram. ......Petitioner. -Vrs- 1. Sh. Lalthanzara, S/o H.P. Sailo (L), R/o Zarkawt, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Electoral Officer, Mizoram, Aizawl. 4. Returning Officer, 12- Aizawl North III (ST) AC, Aizawl, Mizoram. .. .. ..P rofor ma Respondent s. 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under;- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply wit h the provisions of Ss. 81 and 82 or S.I 17. Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.16 and O. VI, R.I7 ar e applicable to the proceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appar ent that those paras of a petition which do not disclose any caus e of act ion, ar e liable to be struck off under O. VI , R.16, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or - 55 -Ex-81/2015commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, emba rrass and delay the proceedings, the court need not wait for the filing of the written statement Instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R. 11" 13. Further in the case of Ra m Sukh (Supra), it ha s been held tha t by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to t he tria l of an election petit ion and the High Court trying an election petition ca n invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion that it would be open to the returned candidate to file application under Order VII Rule 11 of t he Civil Procedure Code for r ejection of the election petition if it does not disclose a ny cause of action. 14. Section 82 of the Act of 1951 p rovides as under:- n82. Parties to the petition.- A petitioner shall join as resp ondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other candidate against whom allegations of any cor rupt pr actice are made in the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petitioner is also seeking for a declara tion to declar e the election of the applicant/ resp ondent No. 1 a s void and fur ther to declar e him a s the elected candida te. This being the pr ayer of t he elect ion petitioner, all the contesting ca ndidates of the particular constituency should have been made party r espondents in the election petition. This ha s not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down by the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another — vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 56 - Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 28th January, 2015 8 Magha, 1936 (Saka) NOTIFICATION No.82/MI2-LA/12/2014:- In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 16th September, 2014 of the Gauhati High Court in CM Application No.87 of 2014 in Election Petition No. 12 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 87 OF 2014 IN ELECTION PETITION NO. 12 OP 2014 APPLICANT/RESPONDENT: Sh. Lt. Col. Zosangzu ala. By Advocates: Mr. A.K. Rokhum Mr. Lalsawirema OPPOSITE PARTY/PETITIONER: 1.Sh. R. Tlanghmingtha nga. ......Opposite Party/Petitioner 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl. 4.Returning Officer, 19- Aizawl South II, AC, Aizawl, Mizoram. ... ...Pr ofor ma respondents/Opposite Parties. By Advocates: Mr. C. Lairamzauva, Sr. Adv Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinilani - 57 -Ex-81/2015 Mr. Johny L. Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. Mr, Lalfakawma Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BLE MR. JUSTICE L S. JAMIR Date of hearing:16.09.2014. Date of Judgment:16.09.2014. JUDGMENT & ORDER (ORAL) By t his application under Order VII Rule 11 of Code of Civil Procedure, 1908, the applicant/ resp ondent No. 1 is praying for dismissa l of the election petition on primar ily the following three grounds:- a)The election petit ion does not constitute any cause of action to proceed wit h the t rial of the elect ion petition. b)The prayer in the election petit ion is beyond the relief which can be granted to an election petitioner and, c)As t he election petitioner has prayed for a declaration that the election of the returned candidate be declared as void and that the election petitioner should also be declared as the elected candidate, all the other contesting candidates of the particular constituency should have been made parties which has not been done so in the election petition and the same is a violation of the mandatory provision of Section 82 of the Representation of the People Act, 1951 (hereinafter the Act of 1951). 2.Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramzauva, learned senior counsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner as well as M r. M. Zothankhuma, learned senior counsel for Election Commission of India. 3.Mr. Lalsawirema, learned counsel appearing for the applicant/respondent No. 1 submits that a plain reading of the election petition would show that the averments made therein are purely on suspicion and apprehension of the election p etitioner about the fa irness of the electoral process and in particular the alleged misuse of the Electronic Voting Machines (EVMs). There is no pleadings of any material fact and the same being made on vague a llegation, no further proceeding of the election p etition can be done. He also submits that the election petitioner is praying for constitution of an enquiry committee of experts to scrutinize the correctness of the election result by checking the Electronic Voting Machines (EVMs). This, he submits, is beyond the scope and ambit of an election petition. He further submits that when the election petitioner is pra ying for a declaration to declare him as the elected candidate after decla ring the election of the returned ca ndidate/applicant as void, he should have made all the candidates who had contested in the par ticular constituency as party respondent which is mandatory. This has not been done and therefore the election petition requires dismissa l on this ground only. He ha s pla ced reliance in t he cas e of a)Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Ors reported in AIR 2001 SC 2992, b)Lalit Kishore Chaturvedi -vs- Jagdish Pr asad Tha da and Ors reported in AIR 1990 SC 1731, c)Dhar tipakar Madan Lai Agarwal -vs- Shri R ajiv Gandhi reported in AIR 1987 SCC 1577, d)V.S. Achuthanandan -vs- PJ. Francis and Anr. reported in (2001) 3 SCC 81, e)Azhar Hussain -vs- Rajiv Gandhi reported in 1986 (Supp) SCC 315, f)Ram Sukh -vs- Dinesh Aggarwai reported in (2009) 10 SCC 541, - 58 - Ex-81/2015 g)K.D. Deshmukh -vs- Amritlal Jayaswal reported in AIR 1992 SC 164 and h)Jitu Patnaik -vs- Sanatan Mohakud and Ors reported in (2012) 4 SCC 194 4.The Opposite Party No. I/election petitioner has filed written objection against the present application. Mr. C. Lalra mzauva, learned senior counsel for the election petitioner submits that in view of the mandatory “nature of Section 98 of the Act of 1951, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order VII Rule 11 of the Civil Procedure Code. He also submits that this Court can p ass eit her of t he 3 or ders pr ovided under Section 98 only after conclusion of the trial. Further submission has been made by the learned senior counsel appearing for the election petitioner that the election petitioner ha s already abandoned his prayer by declaring that he does not seek a declar ation t hat he is the returned candidate and further submits that instead of proceeding with the present application, the a pplicant can ra ise the issues at the time of the final hear ing of the election petition. He also submits that as the election petitioner is not praying for seeking a declaration to the effect tha t he should be the returned candidate, he may be permitted to amend the election petition. 5.Mr. Lalsawirema, learned counsel, in reply, submits that the statutory period of 45 days has expired under Section 81 of the Act of 1951 and therefore the question of amendment of the election petition does not ar ise. If such a mendment is allowed, it would amount to cha nging t he very nature and char acter of the election petition which is also not permissible. 6.Mr. M. Zotha nkhuma, learned senior counsel appear ing for the Election Commission of India submits that the scheme of the election law is to uphold the purity a nd sanctity of the electoral process and also to maintain secrecy of ballot . He, t herefor e, submits that unsettling an elector al verdict would be very serious having wide ranging effect. He also submits that the election petition is defective inasmuch as there is no compliance of procedural r equirements as required under Sections 81, 82 and 117 of the Act of 1951 and, therefore, t he elect ion petition s hould be dismissed. 7.I ha ve heard learned counsel appear ing for the parties. 8.In Azhar Hussain (S upra), it has been held by the Apex C ourt tha t if essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo (Supra), the Hon’ble Supreme Cour t held that an election petition must disclose material facts. Averments must be adequate, clear and specific. In J itu Patnaik (Supra), it has been held that all basic or pr imary facts which must be proved at t he trial for establishing cause of action or defence are ma terial facts, which would however depend on facts of each case. Ba re allegations are never treated as materia l facts. Failu re to state even a single material fact will entail dismissal of an election petition. 9.Relying on Section 100 (l)(d)(iii) of the Act of 1951, the election petitioner is challenging the election of the applicant, which provides that if the High Court is of the opinion that the result of the election in so far it concerns a returned candida te has been materially affected by improper reception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declare the election of the returned candida te to be void. Such averments are found at paragra phs 5, 6, 9 and 10 of t he elect ion petition. S ection 83 of the Act of 1951 provides that an election petit ion sha ll conta in a concise sta tement of the material facts. A perusal of the election petition would indicate that no such adequate, clear and specific averments a re made. The whole election petition is based on t he election petitioner ’s suspicion and apprehensions. There is no pleading of material fa cts. Therefore, this Court is of the opinion that the requir ements of Section 83 of the Act of 1951 has not been fulfilled. - 59 -Ex-81/2015 10. The reliefs sought for by the election petitioner is quoted herein below:-“( i) An enquiry committee consisting of experts recommended by the petitioner as well as by the respondents shall not be constituted for the pur pose of scrutinizing the correctness of the resu lt of the election by checking the EVM s concerned with the help of a scientific device, and (ii) On the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elect ed from the said constituency.” 11. The parties in the cause title of the election petition are also as under:- “Sh. R. T langhmingthanga, S/o Rev. Liandova (L), R/o Venghlui Aizawl. ......Petitioner. -Vrs- 1. Lt. Col. Zosangzuala , S/o Chalhnuna (L), R/o Mission Veng, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi, 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 19- Aizawl South-II, AC, Aizawl, Mizoram. ......Proforma Respondents.” 12. As r egard the objection t o the a pplicability of the pr ovisions conta ined in Order VII Rule 11 of the Civil Procedure Code, the Hon’ble Supreme Court in the case of Dhartipakar Madan La i Agarwal - vs- Shri Ra jiv Gandhi reported in AIR 1987 SCC 1577 ha s held at para graph 8 as under:- “8. Section 86 confers power on the High Cour t to dismiss a n election petition which does not comply with the provisions of S s. 81 a nd 82 or S.117, Section 87 deals with the pr ocedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition sha ll be tried by the High Court as nearly as ma y be in accorda nce with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, O. VI, R.I’6 and O. VI, R.17 are applicable to the pr oceedings relating to the tr ial of an election petition subject to the pr ovisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is appa rent that those paras of a petition which do not disclose any cause of action, are liable to be struck off under O.VI, R.I6, as the Court is empowered at a ny stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which ma y tend to prejudice, embarra ss or delay the fair trial of the petition or suit It is the duty of the court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the cour t on exa mination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in str iking out the pleadings. Order VI, R. 16 itself empowers the Court to strike out pleadings at a ny stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not - 60 - Ex-81/2015make out any cause of action and that the trial would prejudice, emba rrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the cour t finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R. 11" 13. Further in the case of Ra m Sukh (Supra), it has been held that by virtue of Section 87 of the Act of 1951, the provisions of the Civil Procedure Code applied to the trial of an election petition and the High C ourt trying an election petition can invoke powers under the Civil Procedure Code including the powers under Or der VI Rule 16 and Order VII Rule 11. This being the position, the Court is of the opinion t hat it would be open to the returned candidate to file application under Order VII Rule 11 of the Civil Procedure Code for rejection of the election petition if it does not disclose any cause of action. 14. Section 82 of the Act of 1951 p rovides as under:- “82, Parties to the petition.- A petitioner sha ll join as respondents to this petit ion- a) Wher e the petitioner, in a ddition to claiming declaration that the election of all or any of the returned ca ndidates is void, claims a fur ther declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, a nd where no such further declar ation is claimed, all t he retur ned candidates; and b) Any other ca ndidate against whom allegations of any corrupt practice are ma de In the petition.” 15. In t he present election petition, the elect ion petitioner is praying for a direction to constitute an enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Such relief, in the opinion of this Court is beyond the scope of Section 98 of the Act of 1 951. The election petit ioner is also seeking for a declar ation to declar e the elect ion of t he applicant/respondent No. 1 a s void and further to declare him as the elected candidate. This being the prayer of the election petitioner, all the contesting candidates of the particular constituency should have been made party respondents in the election petition. This has not been done in the present election petition and the same amounts to non-fulfillment of the requirements of the provision of Section 82 of the Act of 1951. 16. A Co-ordina te Bench of this Court has also dismissed connected elect ion petition. T his Court being in agreement with the judgment and order pa ssed in those election petitions and also following the r atio laid down b y the Hon’ble Supreme Court in the ca se of S andhya Educational Society and Another - vs- Union of India and Others reported in (2014) 7 SCC 701 has also followed the judgment pa ssed by the Co-or dinate Bench of this Court. 17. In view of the above, this CM application is allowed and the connected election petition is dismissed. However, it is provided that the securit y depos it of Rs. 2000/- may be allowed to be withdrawn by the election petitioner. No cost. Sd/- L.S. JAMIR JUDGE - 61 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 28th January, 2015 8 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/13/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.88 of 2014 in Election Petition No. 13 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 88 OF 2014 IN ELECTION PETITION NO. 13 OF 2014 APPLICANT/ RESPONDENT: Sh. H. Rohluna. By Advocates: Mr. A.K. Rokhum, Mr. Lalsawirema, RESPONDENTS: 1.Sh. L Thangma wia. ......Opposite Party/Petitioner. 2.Election Commission of India. 3.Chief Elect oral Officer, Mizoram, Aizawl, 4.Retur ning Officer, Champhai (ST). ... ...Pr ofor ma respondents/Opposite Parties. By Advocates: Mr. C. Lalrarnzauva, Sr. Adv Mr. K. Laldinliana Mr. Zoramchhana Ms. Lalramsangzuali Ms. Ruth Lalrinliani Mr. Johny L Tochhawng for O.P No.l Mr. M. Zothankhuma, Sr. Adv. - 62 - Ex-81/2015 Mr. Lalfakawma, Mr. Rosangzuala Ralte for O.P Nos. 2 to 4 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Laisawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior cou nsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act’). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, ail the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition ca nnot be said to be beyond t he scope of the law. T hough in the election petition, the election petitioner has made further pr ayer for declaring him as the elected candidate after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant (returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is-:beyond the scope and ambit of an election petition. He fur ther submits that the pr ayer of the election p etitioner to declare him as the elected candidate a fter declaring the| election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency “ought to - 63 -Ex-81/2015 have been made respondents in the election petition which is a mandatory requirement Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applica nt can be gone into at the final- Sear ing of the election petition and not at the threshold. 7In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enunciation of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior “counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot Unsettling a n electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I have hear d the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition;-“Sh. L. Tha ngmawia S/o Dammunga (L) R/o Mission Vengthlang, Aizawl. ......Petitioner. -Vrs- 1. H.Rohluna S/o H.Laldawla (L) R/o Ramthar Veng, Aizawl ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. - 64 - Ex-81/20153. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 21-Lengteng, AC, Champhai, Mizoram. ......Proforma Respondents.’ The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:- “5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies, Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, ma nufactured by the ECU Company, there occurr ed a dra stic change in t he result. T hough the MNF Party had won in 2 0 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L unglei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlai District The result as per the postal ballot and the EVM in all the constituencies being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the instance of the winning P arty i. e. INC P arty by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Constituencies within Aizawl Cit y where WPAT system were used in pla ce of EVMs. It is not known why the ECIL Company could provide WPAT only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the MLA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. - 65 -Ex-81/20156. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering t he election results. As per the Finding of the experts in the field published in a n Article/Paper - ‘Security Analysis of India’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect with no need for technological improvement, the expert team in their said Paper had, after through scr utiny and analysis of the EVM, had come to the finding tha t the EVMs used in India are not tamper-proof and are succeptible to a r ange of a tta cks a nd that while the use of paperless DRE (Direct Recor ding Electr onic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should Inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the s aid Article Dt 29/7/2010 is at Annexur e-7. 9. That In this connection it may humbly b e stated that the respondent has been declared elected in the said General MLA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding the manipulation and hacking/r igging of the EVMs as well as the VVPAT Systems during the process of Election. To add salt to his already Injured and suspicious mind, one Mr. K. Chhawnthuama (a s Phantom,) owner of K.V. Multipurpose (English Medium) High School - 66 - Ex-81/2015and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhlp (ST) Assembly Constituency Immediately after he was decla red elected. The text mess ages read as under : To win an election based upon the manipulated CPU supported EVM Is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who Is more corrupted than you. You are so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM I continue to know who you are - the dirty and despicable CM who had gone to t he extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exposed. You a re bringing disgrace upon yourself for acting in such a manner. How you ha ve manipulated the EVM will be exposed with the help of p hotogra phs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messages, the police had registered a case (i.e. Crl.Tr. No.2195 of 2013: Azl. PS. Case No. 373 of 2013 u/s 171GIPC r/w 66 A (a) (b) IT Act) against the author who ha d sent the said messages. The said t ext messages have been published in the Zaien weekly local newspaper on 22/12/2013. Copies of the text messages and their English tra nslations are at Annexures-8 and 9 respectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result as per the EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, it is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position.” 12. Since the election petitioner ha s raised objection bout applicabilit y of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dhartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported In AIR 1987 SCC 1577, the Hon’ble Supreme Court cons idered the question as to whether the High C ourt ha d the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 t hereof at the preliminary st age. T he Apex Court clearly held tha t both Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Pr ocedure are applicable to proceedings relating to trial of an election - 67 -Ex-81/2015 petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been heid that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Pr ocedure Code including the powers under Or der 6 R ule. 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Couit accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil P rocedur e Code to seek rejection of the elect ion^ petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out. Provisions of Section 87 has already been noticed above. Under Section 98 f at t he conclusion of the trial of an election petition, the High Court can either dismiss the election petition or I declare the election of the retur ned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declar ing an election: to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applicant on ground 100 (1) (d)(iii) i. e., the election of the applicant has been materially affected by the impr oper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election petitioner has to be deposit costs in the High Court at the time of present ation of the elect ion petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examine the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the - 68 - Ex-81/2015 Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions contained in Section 82 (a) of the Act In view of the clear language of Section 86 of the Act, there is no other alternative but t o dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Rann Sukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entir e grievance of the election petitioner is structur ed on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected beca use of the impr oper reception, refusal or rejection of any valid vote or by the r eception of any void vote. Suspicion and a pprehension howsoever great those may be, cannot be construed as material facts as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUY JUDGE - 69 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/14/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.95 of 2014 in Election Petition No. 14 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED} By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 95 OF 2014 IN ELECTION PETITION NO. 14 OF 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. 1/election petitioner. Also hear d Mr. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an application under Order 7 Rule 11 of the Civil Procedur e Code, 1908 for rejection of the election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act’). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose material facts % to constitute a cause of action to warrant trial of the election petition. Secondly, the prayer made in the election petition is beyond the relief which ca n be - 70 - Ex-81/2015 granted to a n elect ion petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candida te be declared as void, he should also be declared as the elected ca ndidate, all t he other contesting ca ndidates of the constituency should have been made parties to the election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the election petition, the election petitioner has made further pr ayer for decla ring him as the elected candidate after declaring the election of the applicant as void, he is not press ing the same and would be satisfied if the first par t of tiie prayer is granted i.e. if the election of the applicant (returned candidate) is declared as void. Misc. applica tion should, therefore, b e dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely based on suspicion and apprehension of the election petitioner about: the fairness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result or applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, ill the candidates who were in the electoral fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition,, He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. - 71 -Ex-81/2015 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition, , Mr. M, Zotha nkhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I ha ve heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset Election petitioner has challenged the election of the applicant as MLA in the legislative assembly elections to the Mizoram State Legislative Assemby, 2013. As can be seen from the cause title, the following a re the parties to the election petition:-“Sh. H.B, Lianmunga, S/o Lalringaia (L), R/o Chhinga Veng, Mizoram, ......Petitioner. -Vrs- 1. Sh. John Rotluangliana, S /o Isr ael Sna gkhuma (L), R/o Electric Veng, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 26-Mamit (ST), AC, Mamit, Mizor am. .. .. ..P rofor ma Respondent s. The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constit uted for the purpose of scrutinizing the correctness of the resu lt of t he elect ion by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be declared to be 11. void and why the petitioner shall not be decla red elected from the s aid constituency,” Regarding the substance of the allegation and the ground for challenging the election of t he applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says that if the High Court is of the opinion tha t the result of the election in so fa r it: concerns a retur ned candidate has been materially - 72 - Ex-81/2015 affected by improper reception, r efusal or rejection of any vote or by the r eception of any vote which is void, the High C ourt sha ll declare the election of the returned candidate to be void. In support of the above ground of challenge, the election petitioner ha s put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that In t he 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballot®, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies. Similarly, in t he 2003 MIA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd In 2 1 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, ma nufactured by the ECU Company, there occurr ed a dra stic change In the result. Though the MNF Party had won in 20 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L ungiei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlai District . The r esult a s per t he posta l ballot and the EVM in all the constituencies being so contradictory, the same had ted to a strong s uspicion against the correctness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the instance of the winning P arty i. e. INC P arty by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Cons tituenc ies within Aiza wl City wher e VVPAT s ystem were used in pla ce of EVMs. It is not known why the ECU Company could provide WPAT only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the MLA Elections, 1998, 200,% 2008 & 2013 are at Annexures -3,4,5, & 0 respectively. 6. That at this stage, It may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election results. As per the finding of the experts In the field published in a n Article/Paper - ‘Security Analysis of India’s Electronic Machines’? it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and t hat the machines were perfect with no need for technological improvement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted - 73 -Ex-81/2015that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is complet ely err or -free. It was fou nd b y the said expert team tha t the EVM fir mware Is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built In to the CPUs, the changes could be difficult to detect. Similarly even the engineer resp onsible compiling the source and tr ansmitting It to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed Image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the s aid Article Dt 29/7/2010 is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MIA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECU Company came to Mizoram and stationed themselves a t different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVM’s for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding t he manipulation and hacking/rigging of the EVMs as well a s the WPAT Systems during the process of Election. To add salt to his already injured 7"and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K.V. Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed,, you have failed to take proper care bringing disgrace to yourself. PHANTOM - 74 - Ex-81/2015I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Crl. Tr. No.2195 of 2Q13: Azl. PS. Case No. 373 of 2013 u/s 171GIPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspa per on 22/12/2013. Copies of t he text messages and their English transla tions a re at Annexures-8 a nd 9 respectively. 10. ‘T hat at this sta ge, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result a s per the EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, it is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position.” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accorda nce with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dhartipakar Madan Lai Agarwal -vs~Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court cons idered the question as to whether the High C ourt ha d the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of C ivil Pr ocedure and to reject the election petit ion under Order 7 Rule 11 thereof at the preliminary stage. The Apex C ourt clearly held tha t both Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure are applicable to proceedings relating to trial of an election petition. Court ha s the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclos e a cause of action it should be rejected at the initial sta ge. Cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the Act. This view has been r eiterated in R am Sukh-vs- Dinesh Aggarwal reported in (2009) 10 SCC 541. It has been held that undoubtedly by virtue of Section 87 of the Act, the provisions of the Civil Procedure Code applied to the tria l of an election petition and the High Court trying an election petition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 a nd Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to pr ove abortive should not be permitted to occupy the judicial time of the Courts. In view of the above authoritative pronouncements of the Apex Court the objection raised by the election petitioner - 75 -Ex-81/2015 on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out. Pr ovisions of Section 87 has already b een noticed above. Under Section 98, at the conclusion of t he tria l of an election petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 iays down the grounds for declaring a n election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applica nt on gr ound 1 0 0 (1 ) (d) (iii) i. e. , t he elect i on of t he a p p lica nt h a s b een ma t er ia lly a f fect ed b y t he imp r op er r ecep t ion, refusal or r ejection of any vote or the reception of a ny vote which is void. Under Section 117, the elect ion petitioner has to be deposit costs in the High Court at the time of presentation of the election petit ion. 14. Having, noticed the above, we ma y now turn to Section 86 of the Act which has a decisive bearing on the case. As per S ection 86 of the Act) the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs, Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected candidate. If tha t is the prayer, under Section 82 of the; Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which has not been done. Thus, there is ‘ho compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dis miss the elect ion petition for non-compliance of Section 8 2 of the Act Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. - 76 - Ex-81/2015 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - FUnga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the p laintiffs cause of act ion or the defendant’s defence depends. In Jitu Pa tnaik -vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of the averments made in the election petition as extracted hereinabove, if: is more than clear that the entir e grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected beca use of the impr oper reception, r efusal or rejection of any va lid vote or by the reception of any void vote. Suspicion and appr ehension howsoever great those may be, cannot be construed as material facts as is understood i n l a w. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 77 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/15/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951], the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.97 of 2014 in Election Petition No. 15 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. Appl. No. 97 of 2014 in Election Petition No. 15 of 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. 1/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the P eople Act, 1951 (for shor t We Act). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition-Secondly, the pra yer made in the elect ion petition is beyond the relief which can be gra nted - 78 - Ex-81/2015 to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the r eturned candidate be declared as void, he should a lso be ‘declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No, 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be said to be beyond the scope of the law. Though In t he elect ion petition, the election petit ioner has made further pr ayer for decla ring him as the elected candidate after declaring the election of the applicant as void, he is not press ing the same a nd would be satisfied if the first pa rt of the prayer is granted i.e. if the election of the applicant (returned candidate) is declared as void. Misc. applica tion should, therefore, b e dismissed. 5.Mr. Lalsawirerna, learned counsel for the applicant by referring to the averments made in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been -pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. Johny L. Tochha wng, learned counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the ejection petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr, Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted, In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. - 79 -Ex-81/2015 8.Though the Election Commission of India is neither a necessar y party nor a proper party in an election petition in view of the clear enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I ha ve heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. C Lalramzauva S/o C. Kapchawla (L), R/o New Serchhip, Mizoram ......Petitioner. -Vrs- 1. Sh. Lal Tha nhawla S/o Hmartawnphunga (L), R/o Zarkawt, AizawL ......Respondent. 2. Election Commission of India thr ough its Secretary, Nirvachan Sa dan, Ashoka Roa d, New Delhi 3. Chief Electoral Officer, Mizoram, Aizawl 4. Returning Officer, 26-Serchhip (ST), AC, Serchhip, Mizoram. ......Proforma Respondents.” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constit uted for the purpose of scrutinizing the correctness of the, resu lt of t he elect ion by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the exp ert committee why the election of the respondent No, 1 shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been - 80 - Ex-81/2015 materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won. in 29 Constituencies, Similarly, in the 2003 MIA Gener al Election in which the MNF Party had fou ght singly, it had won in 23 C onstituencies a s per the Postal Ballot and in 21 C onstituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, manufactured b y the ECU Compa ny there occurr ed a drastic change in the resu lt. Though the MNF Party had won in 20 Constituencies as per the resu lt of the Posta l Ballot, the r esult of the EVM had s hown that the MNF Party could win only in 3 Constituencies s uch as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L ungiei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlai District The result as per the postal ballot and the EVM in all the constituencies being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the insta nce of the winning Par ty i.e. INC Par t]^ by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Constituencies within Aizawl Cit y where WPAT system were used in pla ce of EVMs. It is not known why the ECIL Company could provide VVPAT only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the MIA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conducting Elections, from different corners, a number of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect’ with no need for technological impr ovement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted - 81 -Ex-81/2015that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that-counts the voles dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the s aid Article Dt 29/7/2010 is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MIA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner r and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency, At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a committee, to enquire into the allegation made her ein and the said committee will have to function with the help of those having expertise in the Held. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECU Company came to Mizor am and stationed . themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of cou nting of Vote:.’ at different counting stations. T hough the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding the manipulation and ha cking/r igging of the EVMs as well as the VVPA T Systems during the process of Election. To add sa lt to his already inju red and suspicious mind, or®. Mr. K.Chhawnthua ma (as Phantom, ) owner of K. V.Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM - 82 - Ex-81/2015I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. T he highest form of corruption,, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have ma nipula ted the EVM wilt be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Crl. Tr. N G.2195 of 2013: Azl. PS. Case No. 373 of 2013 u/s 171G IPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen ‘weekly local newspaper on 22/12/2013. Copies of the text messages and their English translations are at Annexures-8 and 9 r espectively. 10. That at this stage f since the Petitioner is having a serious and legitimate doubt about the correctness of the result as per the EVMs, and since the experts in the Held have already come to the conclusion that EVMs in India are vulnerable to fraud a s already highlight ed by those experts in the Paper enclosed herein above, and in view of the fact that the results of the Election in the EVMs are highly contr adictory to the results of postal ballots, it Is necessa ry and in the interest of justice to enquire into the ma tter so as to bring out the true factual position.” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dftartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of t he Code of Civil Procedure and to reject the election petit ion under Order 7 Rule 11 thereof at the preliminar y stage, The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act, This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is . rejected. This Court accordingly holds that it would be open to the returned candidate to - 83 -Ex-81/2015 file application under Or der 7 Rule 11 of the Civil Pr ocedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific, It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt pr actice, full particulars of corrupt practice alleged are to be set out. Provisions of Section 87 has already been noticed above. Under Section 98, at the conclusion of the trial of an election petition, the High Court ca n either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the elect ion of the applicant on ground 100 (1) (d)(iii) i. e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election p etitioner has to be deposit costs in the High Cour t at: the time of presentation of the election petition. 14, Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bear ing- on the case. As per Section 86 of the Act , the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us exam in the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents In t he elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. in view of the clear la nguage of Section 86 of the Act, there is no other alternative but t o dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner tha t he has given up the second prayer Lei to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. - 84 - Ex-81/2015 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs~ Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo ~vs- Ranga Math Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material fact s. Averments must be a dequate, clear and specific. In Ram S ukh (supra) f it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action, “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanatan Moheikud and Others reported in (2012) 4 SCC 194, it has been held that all basic or primary facts which must be proved at the trial for establishing caue of act ion or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of the averments made in the election petition as extracted hereinabove, it is more than clear that the entire grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fa ct has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected because of the improper reception, refusal or rejection of any valid vote or by the reception of any void vote. Suspicion and apprehension howsoever great those may be, cannot be construed as material facts as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under S ection 82 of the Act a nd also does not disclose: material facts to hold tria l to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 85 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/16/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.100 of 2014 in Election Petition No. 16 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 100 OF 2014 IN ELECTION PETITION NO. 16 OF 2014 BEFORE HON’BLE MR. JUSTICE UJJAL Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel foe Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election - 86 - Ex-81/2015 petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should: have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the election petition, the election petitioner has made further pr ayer for decla ring him as the elected candidate after declaring the election of the applicant as void, he is not press ing the same a nd would be satisfied if the first pa rt of the prayer is granted i.e. if the election of the applicant (returned candidate) is declared as void. Misc. applica tion should, therefore, b e dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. LaIr amzauva , (earned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner has a lready declared that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold, 7.In reply, Mr. Lalsawirema, learned counsel for the applicant submits that after the statutory period of 45 days of filing election petition u nder Section 81 of the Act is over, there is no question of a mendment of the election p etition. Amendment as suggested, if granted, would change the very nature and character of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for amendment, such an oral - 87 -Ex-81/2015 prayer of the election petitioner cannot be accepted, tha t too, after the technical defects in the election petition were pointed out in the misc. application. 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enunciation of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v, Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I ha ve heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause titie, the following are the parties to the election petition:-“Sh. Rasik Mohan Chdkma, S/o S hukra Moni Cha kma, R/o Kamlanagar. ......Petitioner. -Vrs- 1. Dr. B.D. Chakma, S /o Guna ban Cha kma, R/o Burapansuri-L ......Respondent. 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 36-Tuichawng, AC, Lunglei, Mizoram. ......Proforma Respondents.” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” - 88 - Ex-81/2015 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the preceding MLA Elections held in Mizoram, the result of Postal Ballots used to be unfailing indicators for the final outcome of the election results. In this connection, it may briefly he stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined hands in which as per the result of the Postal Ballot, the two Parties together ha d won in 124 Constituencies and in the final result, they had won in 29 Constituencies. Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies a s per the Posta l Ballot and in 21 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India ha d decided to switch over to t he EVM, manufa ctured by the ECIL Company, there occurred a drastic change in the r esult. Though the MNF Party had won in 20 Constituencies as per the r esult of the P ostal Ba llot, the result of the EVM ha d shown that the MNF P arty could win only in 3 Constituencies such as in the 25-Ea st Tuipui AC(S T) in the undivided Aiza wl District, in the 3 2-Lungiei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of La wngtlai District The result a s per the postal ballot and the EVM in all the constituencies being so contra dictory, the same ha d led to a strong suspicion a ga inst the corr ectness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Par ty had come to its own conclusion t hat there was wide spread manipulation/ rigging of t he EVMs at the instance of the winning Party i.e. IN C Party by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling booths in all the Constituencies except in the 10 Constituencies within Aizawl City where WPAT system were used in pla ce of EVMs. It is not known why the ECIL Company could provide WPAT only for 10 Constituencies of Aizawl City while the rema ining 30 Constituencies were left with no other option but to use the same EVMs used ear lier and against which the MNF Party had ma de a number of complaint s of their being hacked/manipulated. Copies of the Abstract of Postal Ballot record in different constituencies in the MIA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conducting Elections, from different corners, a number of {Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for alt ering the election results. As per the finding of the experts in the field published in a n Article/Paper - ‘Security Analysis of India’s electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect ‘with no need for technological impr ovement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, - 89 -Ex-81/2015Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a back door with little chance of being- caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in t he EVM, A copy of the said Article Dt 29/7/ioiO is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MIA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and , manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting station^ Though the Petitioner did not ra ise any object ions to the presence of those personnel/however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding t he manipulation .and hacking/rigging of the EVMs a s well a s the WPAT Systems \dur ing the process of Election. To add salt to his already injured land suspicious mind, one Mr. K.Chhawnthuama (as Phantom,) owner of K. V. Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! - 90 - Ex-81/2015There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Crl. Tr. No,2195 of 2013: Azi. PS, Case No. 373 of 2013 u/s 17 1G IPC r/w 66 A (a) (b) IT Act) against the author Who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspaper on 22/12/2013. Copies of the text mess ages and their English anslations are at Annexures~8 and 9 r espectively. 10. that at this stage, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result as per the EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, it is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position,” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dhartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can - 91 -Ex-81/2015 invoke power s under the Civil Procedure Code including t he power s under Ordep6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view; of the above authoritative pronouncements of the Apex rejected. This Court a ccordingly holds that it would be open to the returned candidate to file applica tion under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not disclose any cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition, Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no su ch addit ional declaration is sought for, only the returned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out. Pr ovisions of Section 87 has already b een noticed above. Under Section 98, at the conclusion of t he tria l of an election petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring a n election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applica nt on gr ound 1 0 0 (1 ) (d) (iii) i. e. , t he elect i on of t he a p p lica nt h a s b een ma t er ia lly a f fect ed b y t he imp r op er r ecep t ion, refusal or rejection of a ny vote or the reception of any vote which is void. Under Section 117, the election petitioner has to be deposit cos ts in the High Court at the time of pr esentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is “ shall”, which denotes mandatory consequence of non-compliance of Sections 81,82 or 117. 15. Keeping the above in mind, let us examine the objection of the applicant regarding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs, Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. - 92 - Ex-81/2015 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are; not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, dear and specific. In Ram S ukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In 3itu P atnaik-vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entire grievance of the elect ion: petitioner is structured on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected beca use of the impr oper reception, r efusal or rejection of any va lid vote or by the reception of any void vote. Suspicion and appr ehension howsoever great those may be, cannot be construed as material facts as is understood i n l a w. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 93 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No. 82/M1Z-LA/17/2014 - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.89 of 2014 in Election Petition No. 17 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 89 OF 2014 IN ELECTION PETITION NO. 17 OF 2014 BEFORE HON’BLE MR. JUSTICE UJKJAL BHUXAN Dates of hea ring:3.09,2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No, 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior cou nsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the P eople Act, 1951 (for shor t We Act). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l fads to constitute a cause of action to war rant tr ial of the election - 94 - Ex-81/2015 petition, S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as thu elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of S ection 82 of the Act 4.Opposite Par ty No. 1 i.e. t he election petitioner has filed writ ter objection. It is contended that t here is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the elect ion petition, the election petitioner has made further pr ayer for declaring him as the elected candidate after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant (returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the ‘correctness of the election r esult: by checking the Electr onic Voting Machine; (EVMs) is beyond the scop e and a mbit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would a ttract the provision:; of Section 82 of the Act In the face of such prayer, till the candidates who were in the electoral fra y in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at tho preliminar y stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the trial, the High Court can pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr, Lalsawirema, lear ned counsel for the applicant-submit s that after the statutory period of 45 days of filing election petition under S ection 81 of the Act is over, there is no question of amendment of the election petition. Amendment as suggested, if granted, would change the very nature and character of the election petition, which ca nnot be permit ted. In any ca se, he submits that in the absence of a ny formal application for amendment, such a n oral prayer of the election petitioner - 95 -Ex-81/2015 cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enunciation of law by t he Hon’ble, Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its official respondents in t he election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I ha ve heard the rival submissions and also perused the materials on record. 10. To apprecia te the rival contentions, it would be apposite to “briefly refer to the election petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. Dr. R. Laitha ngliana , S/o R . Dengchhunga (L), R/o Kanan, Aizawl. ......Petitioner. -Vrs- 1. Sh. Chalrosa nga Ralte S/o Rothangpuia, R/o Tuikuai South, Aizawi, ......Respondent 2. Section Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 32-Lunglei West, AC, Mizor am, ......Pro forma Respondents.” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (if) on the ba sis of the findings of the expert committee why the elect ion of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” - 96 - Ex-81/2015 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the Final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Pasty and the MPC Party had joined ha nds in which as per the result of the Postal Ballot^ , the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies, Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd In 2 1 Constituencies in the final result However, in the 2008 MLA General Election in which the Election Commission of India had decided to switch over to the EVM, ma nufactur ed by the ECIL Company, there occurr ed a dra stic change in t he resu lt Though the MNF Patty had won in 20 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(5T) in the undivided Aizawl District, in the 32- L u nglei Wes t AC (S T ) in L u ng lei Dis t r ict a nd in t he 3 7 - L a wngt la i Wes t ; AC (S T ) of L a wngt la i District The result as per the postal ballot and the EVM in all the cons tituencies being so cont radictoty, the same ha d led to a str ong suspicion a gainst the cor rectness of the EVM by all the Parties other than the INC Par ty. It may be stated here that the MNF Party had come to its own conclusion that there was wide spread manipulation/r igging of the EVMs at the instance of t he winning Party i.e. INC Party by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling booths in all t he Constituencies except in the 10 Constituencies within Aizawl City where VVPA T system were used in place of EVMs. It is not known why the ECU Company could provide VVPAT only for 10 Constituencies of Aizawl City while the rema ining 30 Constituencies were left with no other option but to use the same EVMs used earlier and against which the MNF Party had made a number of complaints of their being hacked/manipulated. Copies of the Abstra ct of P ostal Ballot r ecord in different constituencies in the MIA Elections, 1998, 2003 f 2008 & 2013 are at Annexures —3,4,5, & 6 respectively. 6. Wat at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of ‘India ’s Electronic Machines”, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect with no need for technological improvement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately - 97 -Ex-81/2015review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was mod/fled before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tra nsmitting it to the’ CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it In to the chips. It was also highlighted that attacker, might tiy to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the said Article PL 29/7/2010 is at Annexur e-7, 9. That in this connection it may humbly be stated that the respondent has been declared elected In the said Genera l ML A % Election, 2013 held on 25/11/2013 on the ba sis of reception of the winning votes which were void. In other words, the act ual and valid votes so polled in favour of the respondent were fees than the votes so polled in favour of the Petitioner, and We resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECU Company came to M izoram and stationed themselves a t different places where counting took pla ce, Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in any around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting station^ Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding t he manipulation and hacking/rigging of the EVMs as well a s the WPAT Systems during the process of Election. To add salt to his already injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K. V.Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : To win an election based upon the manipulated CPU suppoited EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. - 98 - Ex-81/2015Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself: PHANTOM I continue to know who you are - the duty and despicable CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help cf manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed wit h the help cf photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Cri.Tr. No,2195 of 2013: Azl. PS. Case No. 373 of 2013 u/s 171GIPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. The said text messages have been published in the Zalen weekly local newspa per on 22/12/2013. Copies of t he text messages and their English translations am at Annexures-8 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result as per the EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, it is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position”. 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dliartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to proye - 99 -Ex-81/2015 abor tive should not: be p ermitted to occupy the judicial time “of t he Cour ts I In view of the above authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of elect ion petition in tht High Cour t and the manner of its presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out Provisions of Section 87 has already been noticed above. Under Section 98, at the conclusion of t he tria l of an election petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring a n election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applica nt on gr ound 1 0 0 (1 ) (d) (iii) i. e. , t he elect i on of t he a p p lica nt h a s b een ma t er ia lly a f fect ed b y t he imp r op er r ecep t ion, refusal or rejection of a ny vote or the reception of any vote which is void. Under Section 117, the election petitioner has to be deposit cos ts in the High Court at the time of pr esentation of the election petition. 14. Having noticed the above, we may now tu rn to Section 86 of the Act which has a decisive bearing, on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is ‘’shall”, which denotes manda tory consequence of non-compliance of Sections 81,82 or 117, 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as resp ondents in the election petition, which has not been done. T hus, there is no compliance of the provisions contained in Section 82 (a) of the Act. In view of the clear language of Section 86 of the Act, them is no other alternative but to dismiss the election petition for non-compliance of Section 82 of the Act Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candida te and that he should be allowed to a mend the election petition cannot be a cceded t o at this stage, more so, when there is no formal a pplication to that effect. - 100 - Ex-81/2015 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others r eported in AIR 200JL S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the -phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of facts which would constitute a complete cause of a ction. “Material fact s” are facts upon- which the plaintiff ’s cause of a ction or the defendant’s defence depends. In Jitu Patnaik -vs- Sana t a n M oha ku d a nd Ot her s r ep or t ed i n (2 0 1 2 ) 4 S C C 1 9 4 , i t ha s b een hel d t ha t a ll b a s i c or p r ima r y f a ct s which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure of state even a single material fact will entail dismissal of an election petition 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entire grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fa ct ha s been pleaded by the elect ion petitioner Which Would constitute the ground that the election of the applicant has been materially affected because of the improper reception, r efusal or rejection of any va lid vote or by the reception of any void vote. Suspicion and apprehension howsoever great those may be, cannot be construed a s material fact s as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 12 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant 20. Accordingly and in view of the discussions made above, this misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 101 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/18/2014: In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.90 of 2014 in Election Petition No. 18 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 90 OF 2014 IN ELECTION PETITION NO. 18 OP 20 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. La lsawirema, lear ned cou nsel for tie applicant/respondent No. 1 (returned ca ndidate) and Mr. C. Lalr amzauva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Pa rty No. 1/election petitioner. Also heard Mr. M. Zothankhuma, learned senior cou nsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of cause of action a nd for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose material fact s to constitute a cause of a ction to warra nt tria l of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration - 102 - Ex-81/2015 that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 I.e. the election petitioner has filed writ ten objection. It is contended that there is no necessity to enterta in and decide is misc. applica tion at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition ca nnot be said to be beyond t he scope of the law. T hough in the election petition, the election petitioner has made further pr ayer for declaring him as the elected candidate after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant (returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has bean pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subject-id to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at: the preliminar y stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the trial, the High Court can pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner has already declared that he does not: seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhoid. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any for mal application for a mendment, such oral prayer of the election petitioner ca nnot be accepted, that too, after the technica l defect s in the election petition were point ed out in the misc. application. - 103 -Ex-81/2015 8.Though the Election Commission of India is neither a necessar y party nor a proper party in an election petition in view of the clear enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Section Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I have heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. Joseph Lalzawmliana, S/o Z.D. Malsawma, R/o Electric Veng, Lung lei. ......Petitioner. -Vrs- 1. Sh. Zodintluanga, S/o Rothangpuia, R/o Tuikual South, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 34-T horang, AC, Mizoram. ......Proforma Respondents.” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the Findings of the exp ert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion tha t the r esult of the election in so far it concerns a returned candidate has been - 104 - Ex-81/2015 materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the ejection of the returned candidate to be void, In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MFC Party had Joined hands in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies. Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, ma nufactur ed by the ECIL Company, there occurr ed a dra stic change in the resu lt Though the MNF Party had won in 20 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC (ST) in the undivided Aizawl Distr ict, in the 32-Lunglei West AC (ST) In Lunglei District and in the 3/ - Lawngtlai West AC (ST) of Lawngtlai District The result as per the postal ballot and the EVM in all the constituencies being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by ail the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the instance of the winning P arty i. e. INC P arty by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Constituencies within Aizawl Cit y where WPAT system were used in pla ce of EVMs, It is not known why the ECIL Company could provide VVPAT only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the MIA Elections, 1998, 2003/^2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were perfect’ with no need for technological improvement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system - 105 -Ex-81/2015that provides greater securities and tra nsparency. In the said Paper it was dearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y Inside the microcont roller chips, and there is no provision for extracting it or verifying its Integrity, This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tra nsmitting it to the CPU manufacturer could substit ute, a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the complied progr ammed Image before bur ning it in to the chips. It was also highlighted that attackers might t/y to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recor ded in the EVM . A copy of the said Article Dt 29/7/2010 is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MLA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency, At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’bie Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent-event had confirmed his suspicion regarding the manipulation and hacking/r igging of the EVMs as well as the VVPAT Systems during the process of Election. To add salt to his alr eady injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K. V.Muitipurpose (English Medium) High School and ordained Eider of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected fr om the 26-Serchhip (5T) Assembly Constit uency immediately after he was decla red elected. The text mess ages read a s under : “To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM - 106 - Ex-81/2015I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messages, the police had registered case (i.e. Cri.Tr. No.2195 of 2013: Azi. P.S. Case No. 373 Of 2013 u/s 171G IPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. The said text messages have been published in the Zalen weekiy local newspaper on 22/12/2013. Copies of the text messages and their English translations are at Annexures-8 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result as per the EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, It is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position,” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial ofsuits. In Dhartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2009) X0 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file - 107 -Ex-81/2015 application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt: practice, full particulars of corrupt practice alleged are to be set out. Provisions of Section 87 has already been noticed above. Under Section 98, at the conclusion of the trial of an election petition, the High Court ca n either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void, As already noticed, in the related election petition, the election petitioner has challenged the elect ion of the applicant on ground 100 (1) (d)(iii) i. e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election p etitioner has to be deposit costs in the High Court at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, then; is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. - 108 - Ex-81/2015 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that: if essential particulars are not pleaded election petit ion is t o be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of the averments made in the election petition as extracted hereinabove, it is more than dear that the entire grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fa ct has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected because of the improper reception, refusal or rejection of any valid vote or by the reception of any void vote. Suspicion and apprehension howsoever great those may be, cannot be construed as material facts as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant 20. Accordingly and in view of the discussions made above, this Misapplication is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 109 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/19/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhati High Court in CM Application No.91 of 2014 in Election Petition No. 19 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL HO. 91 OF 2014 IN ELECTION PETITION NO. 19 OF 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior counsel assisted by Mr. Johny L Tochhawng, learned counsel appearing for the Opposite Party No. 1/election p etitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an application under Order 7 Rule 11 of the Civil Procedur e Code, 1908 for rejection of the election petition for want of cause of a ction and for non-compliance of the manda tory pr ovisions of the Representation of the P eople Act, 1951 (for shor t We Act). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act, Thirdly, since the election petitioner has sought for a declaration - 110 - Ex-81/2015 that not only the election of the returned candidate be declared as void, he should a lso be declared as the elected candidate, all the other contesting candidates of the constituency should have been made patties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the election petition, the election petitioner has made further pr ayer for decla ring him as the elected candidate after declaring the election of the applicant as void, he is not press ing the same a nd would be satisfied if the first pa rt of the prayer is granted i.e. if the election of the applicant (returned candidate) is declared as void. Misc. applica tion should, therefore, b e dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged, On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize :he correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, ail the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would, entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of tie elect ion petition. Amendment as suggested, if gr anted, would cha nge t he ver y nature a nd char acter of the election petition, which cannot: be permitted. In any case, he s ubmits that in the absence of any formal application for amendment, such a n oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. - 111 -Ex-81/2015 8.Though the Election Commission of India is neither a necessar y party nor a proper party in an election petition in view of the char enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1993. Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I have heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. Vanupa Zathang S/o Zaduna (L), R/o Chanmari, Lawngtlai. ......Petitioner. -Vrs- 1. Sh. H. Zothangllana 5/o H. Hrangchunga (L), R/o Chanmar i L-IV, Lawngtlai. ......Respondent. 2. Election Commission Of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3, Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 38-La wngtlai East, AC, Mizoram. .. .. ..P rofor ma Respondent s. The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the expert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been - 112 - Ex-81/2015 materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies, Similarly, in the 2003 MIA General Election in which the MNF Par ty had, fought singly, it ha d won in 23 Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result However, in the 2008 MIA General Election, in which the Election C ommission of India had decided to switch over to the EVM, ma nufactur ed by the ECIL Company, there occurr ed a dra stic change in the resu lt Though the MNF Party had won in 20 Constituencies as per the result of the Postal Ballot, the result of the EVM had shown that the MNF Parly could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L unglei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlaj District The result as per the postal ballot end the EVM in all the constituencies being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by all the Parties Other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the instance of the winning P arty i. e. INC P arty by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Constituencies within Aizawl Cit y where WPAT system were used in pla ce of EVMs. It is not known why the EC IL Company cou ld provide VVPA T only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the NLA Elections, 1998, 2003 M 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect’ with no need for technological impr ovement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the security procedures now in place and should inspect ail EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system - 113 -Ex-81/2015that provides greater securities and tra nsparency, In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect. Similarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed Image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recor ded in the EVM . A copy of the said Article Dt 29/7/2010 is at Amwxur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MIA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency, At this stage it may be humbly submitted that since it is not-possible on the part of t he petit ioner to produce any documentary evidence In support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when p olling was over those personnel continued tm be pr esent in Aizawl and again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding the manipulation and hacking/r igging of the EVMs as well as the VVPAT Systems during the process of Election. To add salt to his already Injured and suspicious mind, one Mr, K.Chhawnthua ma (as Phantom, ) owner of K.V. Muitipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately alter he was decla red elected. The text messa ges rea d as under ; To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mlzos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM - 114 - Ex-81/2015I continue to know who you are - the dirty and despicable CM who had gone to t he extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exposed. You a re bringing disgrace upon yourself for acting in such a manner. How you ha ve manipulated the EVM will be exposed with the help of p hotogra phs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Cri. Tr. No.2195 of 2013: Azl. PS. Case No, 373 of 2013 u/s 171GIPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspa per on 22/12/2013. Copies of t he text messages and their English translations are at Annexures-3 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the correctness of the result as per the EVMs, and since the experts in the field have already come to the conclusion that EVMs in India are vulnerable to fraud a s already highlight ed by those experts in the Paper enclosed herein above, and in view of the fact that the results of the Election in the EVMs are highly contr adictory to the results of postal ballots, it is necessa ry and in the interest of justice to enquire into the ma tter so as to bring out the true factual position.” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the tr ial of suits. In Phar tiipaka r Madam Lai Agarwai -vs-Shri Rajiv Gandhi reported in AIR 1907 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can Invoke power s under the Civil Procedure Code including the power s under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file - 115 -Ex-81/2015 application under Order 7 Rule II of t he Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, iet us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of, the constituency are required to be ma de resp ondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt pr actice, full par ticulars of corrupt practice alleged are to be set out. Provisions of Section 87 has already been noticed above. Under Section 98, at the conclusion of the trial of an election petition, the High Court ca n either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the elect ion of the applicant on ground 100 (1) (d)(iii) i. e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election p etitioner has to be deposit costs in the High Court at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs, Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. - 116 - Ex-81/2015 17. As a lready noticed., Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain ~vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if in-essential particulars are not pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo -vs- Ranga Math Mishra and Others reported in AIR 2001 SCC 2992, the Apex Court made it clear that an election petition mus t disclose material fa cts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the phrase “materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik ~vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entir e grievance of the election petitioner is structur ed on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected beca use of the impr oper reception, refusal or rejection of any valid vote or by the r eception of any void vote. Suspicion and appr ehension howsoever great those may be, cannot be construed as material facts as is understood i n l a w. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. . Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 117 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/20/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/order dated 6th September, 2014 of the Gauhafi High Court in CM Application No.92 of 2014 in Election Petition No. 20 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 92 OF 2014 IN ELECTION PETITION NO. 20 OF 2014 BEFORE IN HONBLE MR. JUS TICE UJJAL BHUYAM Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09/2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior cou nsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an application under Order 7 Rule 11 of the Civil Procedur e Code, 1908 for rejection of the election petition for want of cause of action a nd for non-compliance of the ma ndatory provisions of the Representation of the People Act, 1951 (for short ‘the Act’). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration - 118 - Ex-81/2015 that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition ca nnot be said to be beyond t he scope of the law. T hough in the election petition, the election petit ioner has ma de fur ther prayer for decla ring him as the elected and date after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant (returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act, In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. - 119 -Ex-81/2015 8.Though the Election Commission of India is neither a necessiary par ty nor a proper pa rty in an election petition in view of the clear enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving w de ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would result .in dismissal of the election petition, he submits. 9,I ha ve heard the rival submissions and also perused the materials on record. 10. To a pprecia te the rival contentions, it would be apposite to “briefly “refer to the election petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. R.K. Lianzuala, S/o Sawichhunga (L), R/o Bethlehem, Aizawl. ......Petitioner. -Vrs- 1. Sh. R. Vanlalvena, S/o R. Chaiha uva, R/o Bethlehem, Aizawl. .. .. .. Respondent . 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 18-Aizawl South-I, AC, Aizawl, Mizoram. .. .. ..P rofor ma Respondent s. The reliefs sought for by the election petitioner are as under:- “ (i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the expert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been - 120 - Ex-81/2015 materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies, Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, ma nufactur ed by the ECIL Company, there occurr ed a dra stic change in the resu lt Though the MNF Party had won in 20 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L unglei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of LawngtIai District The result as per the postal ballot and the EVM in ail the constituencies - being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion tha t there was wide spread manipulation/rigging of the EVMs at the instance of the winning P arty i. e. INC P arty by hacking the said EVMs with the help of some expert s In the field. The same EVM s which were kept by t he Elec tion Department in their safe custody were again used in all the polling b ooths in all the Constituencies except in the 10 Cons tituenc ies within Aiza wl City wher e WPA T s ystem were used in pla ce of EVMs. It is not known why the ECU Company cou ld provide WPA T only for 10 Constituencies of Aiza wl City while the rema ining 3 0 Constituencies were left with no other option but to use the same EVMs u sed ear lier and against which the MNF Party had made a number of compla ints of their being hacked/manipulated. Copies of the Abstr act of Postal Ballot r ecord in different constituencies in the MIA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect’ with no need for technological impr ovement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless ORE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it a nd it is high time tha t they should Immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system - 121 -Ex-81/2015that provides greater securities and tra nsparency, In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed In masked read-only memor y Inside the microcont roller chips, and there is no provision for extract ing it . or verifying its integrity. T his means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect. Similarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could alter the compiled progr ammed Image before bur ning It In to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the s aid Article DL 29/7/2010 is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MLA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce any documentar y evidence in support of his contention as required, the Hon rble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the Held. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECU Company came to Mizoram and stationed themselves a t different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVM’s for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding t he manipulation and hacking/rigging of the EVMs as well a s the WPAT Systems during the process of Election. To add salt to his already injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K. V.Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who has been elected from the 26-Serchhip (ST) Assembly Constituency/ immediately after he was decla red elected. The t ext messages read asunder : ‘To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to yourself. PHANTOM - 122 - Ex-81/2015I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Crl.Tr. No.2195 of 2013: Azl. PS. Case No. 373 of 2013 u/s 171GIPCr/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspaper on 22/12/2013. Copies of the text messages and their English translations are at Annexures-8 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the corr ectness of the result as per “ he EVMs, and since the experts in the field have alr eady come to the conclusion that EVMs in India are vulnerable to fraud as alr eady highlighted by those experts in the Paper enclosed herein above, and in view of the fa ct that the results of the Election in the EVMs are highly contradictory to the results of posta l ballots, it is necessary and in the interest of justice to enquire into the matter so as to bring out the true factual position.” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dhartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file - 123 -Ex-81/2015 application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should be t he cont ents of an election petition. First a nd foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out. Pr ovisions of Section 87 has already b een noticed above. Under Section 98, at the conclusion of the trial of an elect ion petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void a nd can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applicant on ground 100 (1) (d)(iii) i.e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election petitioner has to be deposit costs in the High Court at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is ‘’shall”, which denotes mandatory consequence of non-compliance of Sections 81,82 or 117, 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dis miss the elect ion petition for non-compliance of Section 8 2 of the Act Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. - 124 - Ex-81/2015 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanatan MohakucI and Others reported in (2012) 4 SCC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entir e grievance of the election petitioner is structur ed on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected beca use of the impr oper reception, refusal or rejection of any valid vote or by the r eception of any void vote. Suspicion and appr ehension howsoever great those may be, cannot be construed as material facts as is understood i n l a w. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 125 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/21/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/or der dated 6th September, 2014 of the Gauhati High Court in CM Applica tion No.103 of 2 014 in Election Petition No. 21 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 103 OF 2014 IN ELECTION PETITION NO. 21 OF 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lairamza uva, learned senior cou nsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr, M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of cause of a ction a nd for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act’). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted - 126 - Ex-81/2015 to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite No. 1 i.e. the election p etitioner has filed wr itten objection. It is contended that there is no necessity to ent ertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the elect ion petition, the election petitioner has made further pr ayer for declaring him as the elected candidate after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant (returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. - 127 -Ex-81/2015 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enunciation of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp.(2) SCC 624, the Court: has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petitioner has himself made the Election Commission of India and its officials respondents in the election petition. Mr. M. Zotha nkhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the electoral process while maintaining the secrecy of ballot. Unsettling an electoral verdict being a serious matter having wide ramification, law ma ndates that there should be strict compliance of procedural requirements. Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would result in dismissal of the election petition, he submits. 9.I ha ve heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following .are the parties to the election petition :-“Sh. C. Ramhluna, 5/o Mangiura (L)’ R/o M-8, Shivaji Tillah, Aizawl Mizoram. ......Petitioner. -Vrs- 1. Sh. C. Ngunlianchu nga, S /o Thathmunga (L), R/o La wngtlai, Mizoram. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, 37-iawngtlai West (ST )AC, Lawngtlai, Mizoram. ......Proforma Respondents.” The reliefs sought for by tj^ e election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (ii) on the basis of the findings of the expert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” - 128 - Ex-81/2015 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion t hat the result : of the elect ion in so far it concerns a r eturned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Patty and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies. Similarly, in the 2003 MLA General Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd In 2 1 Constituencies in the final result However, in the 2008 MLA General Election, in which the Election Commission of India had decided to switch over to the EVM, ma nufactured by the ECU Company, there occurr ed a dra stic change in t he result. T hough the MNF Party had won in 2 0 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-Lunglei West AC (ST) in Lunglei District and in the 37 - Lawntlai West AC (ST) of Lawngtlai District The result as per the postal ballot and the EVM in ail the cons tituencies being so cont radictory, the same ha d led to a str ong suspicion a gainst the cor rectness of the EVM by ail the Parties other than the INC Par ty. It may be stated here that the MNF Party had come to its own conclusion that there was wide spread manipulation/r igging of the EVMs at the instance of t he winning Party i.e. INC Party by hacking the said EVMs with the help of some experts in the Held. The same EVMs which were kept by the Election Department in their safe custody wer e again used in all t he polling booths in all the Constituencies except in the 10 Constituencies within Aiza wl City where WPAT system were used in place of EVMs. It is not known why the ECU Company could provide WPAT only for 10 Constit uencies of Aizawl City while the rema ining 30 Constituencies were left with no other option but to use the same EVMs used earlier and against which the MNF P arty had made a number of complaints of their being hacked/manipulated. Copies of the Abstract of Postal Ballot record in different constituencies in the MLA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compla ints aga inst the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ^Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and t hat the machines were perfect with no need for technological improvement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVM s used in India are not tamper-proof and ar e susceptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Nether lands a nd Germany, - 129 -Ex-81/2015Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recor ded in the EVM . A copy of the said Article Dt 29/7/2010 is at Annexur e-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General MLA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’bie Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVM’s for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding t he manipulation and hacking/rigging of the EVMs as well a s the WPAT Systems during the process of Election. To add salt to his already Injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K.V. Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Proofs would come with photographs! - 130 - Ex-81/2015There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed,, you have failed to take proper care bringing disgrace to your self PHA NTOM I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Cri. Tr. No.2195 of 2013: Azl. PS. Case No, 373 of 2013 u/s 171G IPCr/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspa per on 22/12/2013. Copies of t he text messages and their English translations are at Annexures-8 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the correctness of the result as per the EVMs, and since the experts in the field have already come to the conclusion that EVMs in India are vulnerable to fraud a s already highlight ed by those experts in the Paper enclosed herein above,, and in view of the fact that the results of the Election in the EVMs are highly contr adictory to the results of postal ballots, it is necessa ry and in the interest of justice to enquire into the ma tter so as to bring out the true factual position,” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Ruie 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dhartipakar Madan Lai Agarwal -vs-Sihri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court cons idered the question as to whether the High C ourt ha d the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 t hereof at the preliminary stage. The Apex Court clearly held tha t both Order 6 Ru!e 16 and Order 7 Rule 11 of the Code of Civil Pr ocedure are applicable to proceedings relating to trial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can - 131 -Ex-81/2015 invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of elect ion petition in the High Court and the mariner of its presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an ejection petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates “what should be the contents of an election petition. First and foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt: practice, full particulars of corrupt practice alleged are to be set out. Pr ovisions of Section 87 has already b een noticed above. Under Section 98, at the conclusion of the trial of an elect ion petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void a nd can also declare the petitioner to be the elected candidate, Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applicant on ground 100 (1) (d)(iii) i.e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election petitioner has to be deposit costs in the High Court at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is “ shall”, which denotes mandatory consequence of non-complia nce of S ections 81 f82 or 117. 15. Keeping the above in mind, let us examin the objection . of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. - 132 - Ex-81/2015 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appropriate to address the same. 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp,) SCC 315, it has been held by the Apex Court that: if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo ~vs™ Ranga Nath Mishra and Others reported in AIR 2001 SCC 2992, the Apex Court made it clear that an election petition mus t disclose material fa cts. Averments must be adequate, clear end sp ecific. In Ram Sukh (supra), it has been held that since the phrase “materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanalan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of the averments made in the election petition as extracted hereinabove, it is more than clear that the entire grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fa ct has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected because of the improper reception, refusal or rejection of any valid vote or by the reception of any void vote. Suspicion and apprehension howsoever great those may be, cannot be construed as material facts as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 133 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/22/2014: - In pursuance of Section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/or der dated 6th September, 2014 of the Gauhati High Court in CM Application No.93 of 2014 in Election Petition No. 22 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM. APPL NO. 93 OF 2014 IN ELECTION PETITION NO. 22 OF 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring:3.09.2014 & 5.9.2014. Date of Judgment:6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr. C. Lalramza uva, learned senior cou nsel assisted by Mr, Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. I/election petitioner. Also heard Mr. M. Zothankhuma, learned senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Pr ocedure Code, 1908 for rejection of the election petition for want of cause of a ction and for non-compliance of the ma ndatory provisions of the Representation of the People Act, 1951 (for short ‘the Act’). - 134 - Ex-81/2015 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for a declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No, 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the elect ion petition, the election petitioner has made further pr ayer for declaring him as the elected candidate after decla ring the election of the applicant a s void, he is not pressing the same and would be satisfied if the first par t of the prayer is granted i.e. if the election of t he applicant [returned candidate) is declar ed as void. Misc. application should, therefore, be dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalr amzauva , learned senior counsel for the election petitioner on the other hand submits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only after conclusion of the tr ial, the High C ourt ca n pass either of the 3 orders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshold. 7.In r eply, Mr. Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and - 135 -Ex-81/2015 char acter of the election petition, which cannot be permitted. In any case, he submits that in the absence of any formal application for a mendment, such an oral prayer of the election petitioner cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. 8.Though the Election Commission of India is neither a necessary party nor a proper party in an election petition in view of t he clear enunciation of law by the Hon’ble Supreme Court in the case of B. Sunda ra Rami Reddy v. Elect ion Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition, Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral process while maintaining the secrecy of ballot,, Unsettling a n electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I have heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013. As can be seen from the cause title, the following are the parties to the election petition:-“Sh. Saikapthianga, S/o Lalhuliana (L), R/o Zotlang, Mizoram. ......Petitioner. -Vrs- 1. Sh. Lalrinmawia Ralte S/o Lalthansanga (L), R/o New Secretariat Complex, Khatla, Aizawl. ......Respondent 2. Election Commission of India through its Secretary, Nirvachan Sa dan, Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawl. 4. Returning Officer, I-Hachhek (ST), AC, Mamit, Mizor am, ......Proforma Respondents,” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and - 136 - Ex-81/2015(ii) on the basis of the findings of the expert committee why the election of the resp ondent No.l shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (iii) of the Act which says tha t if the High C ourt is of the opinion that the result of the election in s o far it concerns a returned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:- “5. That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MLA General Election, the MNF Party and the MPC Party had joined ha nds in which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result, they had won in 29 Constituencies. Similarly, in t he 2003 MIA Genera! Election in which the MNF Party had fought singly, it had won in 23 Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result. However, in the 2008 MLA Gener al Elect ion, In which the Election Commission of India had decided to switch over to the EVM, manufactured by the ECI.L Company, there occurred a drastic change in the result Though the MN F Party-had won in 20 Constituencies a s per the result of the Postal Ballot, the result of t he EVM had shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-Lunglei West: AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlai District The result as per the postal ballot and the EVM in all the constituencies being so contradictory, the same had ted to a strong s uspicion against the correctness of the EVM by all the Parties other than the INC Party. It may be stated here that the MNF Party had come to its own conclusion that there was wide spread manipulation/rigging of the EVMs at the instance of the winning Party i.e. INC Party by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Depar tment in their safe custody were aga in used in all the polling booths in all the Constituencies except in the 10 Constituencies within Aiza wl City where WPAT system were used in place of EVMs. It is not known why the ECU Company could pr ovide WPAT only for 10 Constituencies of Aizawl City while the remaining 30 Constituencies were left with no other op tion but to use the same EVMs used earlier and against which the MNF Par ty had made a number of complaints of their being hacked/manipula ted. Copies of the Abstract of Postal Ballot record in different constit uencies in the MLA Elections, 1998, 2003, 2008 & 2013 are at Annexures -3,4,5, & 6 respectively, 6. T hat at t his sta ge, it may be p ertinent to sta te that due to a number of complaints against the EVM, as a device for conducting Elections, from different corners, a number of Scientists of different countries worked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India ’s Electronic Machines’, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fully tamper- proof and that the machines were ‘perfect with no need for technological improvement, the - 137 -Ex-81/2015expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVM s used in India are not tamper-proof and ar e susceptible to a range of attacks a nd that while the use of paperless DRE (Dir ect Recording Electronic) voting machines ha s been discont inued in California, Florida , Ireland, the Netherlands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately review the securit y procedures now in place and should inspect all EVMs for evidence of fraud. Moving forward, they had su ggested that India should adopt a different voting system that provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed in masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before it was built in to the CPUs, the changes could be difficult to detect S imilarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could a lter the compiled progr ammed image before bur ning it in to the chips. It was also highlighted that attackers might try to substitute look-alike CPUs containing soft ware that counts the votes dishonestly. And that anytime between the start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the said Article Dt 29/7/2010 is atAnnexure-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said General Mi A Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency, At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECIL Compa ny came to Mizoram and stationed themselves at different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding the manipulation and hacking/rigging of the EVMs as well as theVVPAT Systems during the process of Election. To add salt to his already injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K.V. Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the present Chief Minister who ha s been elected from the 26-Serchhip (ST) Assembly Constituency immediately after he was decla red elected. The text mess ages read a s under : - 138 - Ex-81/2015To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high. It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. Considering the degree of crime you have committed, you have fa iled to take proper care bringing disgrace to your self PHANTOM I continue to know who you are — the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Crl.Tr. No.2195 of 2013: AzI. PS. Case No. 373 of 2013 u/s 171GIPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspaper on 22/12/2013. Copses of the text-messages and their English translations are at Annexures-8 and 9 r espectively. 10. That at this stage, since the Petitioner is having a serious and legitimate doubt about the correctness of the result as per the EVMs, and since the experts in the field have already come to the conclusion that EVMs in India are vulnerable to fraud a s already highlight ed by those experts in the Paper enclosed herein above, and in view of the fact that the results of the Election in the EVMs are highly contr adictory to the results of postal ballots, it is necessa ry and in the interest of Justice to enquire into the ma tter so as to bring out the true factual position.” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said is sue may be taken up first for consideration. Under Order 7 Rule 11 (a) of the Civil Procedure Code, a plaint shall be rejected wher e it does not disclose a cause of action. Section 8 7 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908tothe trialof suits.InDhartipakar Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Courtconsidered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition, Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action - 139 -Ex-81/2015 in questioning the validit y of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court, the objection raised by the election petitioner on this ground is rejected. This Court accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does not dis close a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition in the High Cour t and the manner of it s presentation, Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates “whit should be the contents of an election petition. F irst and for emost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt pr actice, full par ticulars of corrupt practice alleged are to be set out. Provisions of Section 87 has already been noticed above. Under Section 98, at the conclusion of the trial of an election petition, the High Court ca n either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the elect ion of the applicant on ground 100 (1) (d)(iii) i. e., the election of the applicant has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election p etitioner has to be deposit costs in the High Court at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of the “Act the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act. The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents and seeking relief beyond the ambit a nd scope of an election petit ion. Since both these issues a re interrelated, those are ta ken up together. As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act, Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, ail the contesting candidates of the particular constituency ought to have been joined as respondents in t he elect ion petition, which ha s not been done. Thus, there is “no compliance of the provisions - 140 - Ex-81/2015 cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected ca ndida te and that he should be allowed to amend the election petition cannot: be acceded to at this stage, more so, when there is no formal application to that effect. 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same. 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain ~vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not pleaded, election petit ion is to be dismissed. In Ananga Uday Singh Deo -vs - Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra)? it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action, “Material fa cts” ar e facts upon which the plaintiffs cause of act ion or the defendant’s defence depends. In Jitu Pa tnaik -~vs~ Sanatan MotiakMd and Others reported in (2 012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of the averments made in the election petition as extracted hereinabove, it is more than clear that the entire grievance of the election petitioner is structured on the basis of his suspicion and apprehension. No material fa ct has been pleaded by the election petitioner which would constitute the ground that the election of the applicant has been materially affected because of the improper reception, refusal or rejection of any valid vote or by the reception of any void vote. Suspicion and apprehension howsoever great those may be, cannot be construed as material facts as is understood in law. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGE - 141 -Ex-81/2015 ELECTION COMMISSION OF INDIA Nirvachan Sadan, Ashoka Road, New Delhi - 110001 Dated : 30th January, 2015 10 Magha, 1936 (Saka) NOTIFICATION No.82/MIZ-LA/23/2014: - In pursuance of Section 106 oftheRepresentation of the People Act, 1951 (43 of 1951), the Election Commission of India, hereby, publishes the judgement/or der dated 6th September,2014oftheGauhati High Court in CM Application No.101 of 2014 in Election Petition No. 23 of 2014. (HERE PRINT THE JUDGEMENT/ORDER ATTACHED) By or der, Sd/- ANUJ JAIPUR IAR S EC RE TARY ELECTION COMMISSION OF INDIA IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) AIZAWL BENCH CM, APPL. NO. 101 OF 201 IN ELECTION PETITION NO. 23 OF 2014 BEFORE HON’BL E M R. JUST ICE UJJAL BHUYAN Dates of hea ring :3.09.2014 & 5.9.2014. Date of Judgment :6.09.2014. JUDGMENT & ORDER (CAV) Hear d Mr. Lalsawir ema, learned counsel for the applica nt/resp ondent No. 1 (r eturned candidate) and Mr, C. Lalramza uva, learned senior cou nsel assisted by Mr. Johny L. Tochhawng, learned counsel appearing for the Opposite Party No. 1/election petitioner. Also heard Mr. M, Zothankhuma, S eamed senior counsel for Election Commission of India. 2.This is an applica tion under Order 7 Rule 11 of the Civil Procedur e Code, 1908 for rejection of |he election petition for want of ca use of action and for non-compliance of the manda tory pr ovisions of the Representation of the People Act, 1951 (for short ‘the Act’). 3.Rejection of the election petition has been sought for primarily on three grounds. Firstly, the election petition does not disclose materia l facts to constitute a cause of action to warrant tr ial of the election - 142 - Ex-81/2015 petition. S econdly, the pr ayer ma de in the election petition is beyond the r elief which can be gra nted to an election petitioner under the Act. Thirdly, since the election petitioner has sought for 3 declaration that not only the election of the returned candidate be declar ed as void, he should also be declared as the elected candidate, all the other contesting candidates of the constituency should have been made parties to t he election petition, which has not been done. This is a violation of the mandatory provision of Section 82 of the Act. 4.Opposite Par ty No. 1 i.e. the election petitioner has filed writ ten objection. It is contended that there is no necess ity to entertain and decide the misc. application at a preliminary stage. It is a sserted that material fa cts have been pleaded in the election petition. Reliefs sought for in the election petition cannot be sa id to be beyond the scope of the law. Though in the election petition, the election petitioner has made further pr ayer for decla ring him as the elected candidate after declaring the election of the applicant as void, he is not press ing the same a nd would be satisfied if the first pa rt of the prayer is granted i.e. if the election of the applicant (returned candidate) is declared as void. Misc. applica tion should, therefore, b e dismissed. 5.Mr. Lalsawirema, learned counsel for the applicant by referring to t he averments ma de in the election petition submits that even a cursory reading of the averments would show tha t the election petition is entirely ba sed on suspicion a nd a pprehension of the election petitioner a bout the fair ness of the electoral pr ocess, particularly about the alleged misuse of the Electronic Voting Machines (EVMs). Not a single material fact has been pleaded to suppor t the ground urged. On the basis of such vague allegation, there can be no trial and the result of applicant’s election cannot be subjected to enquiry. He also submits that the first pr ayer ma de in the election petition is for constitution of an enquiry committee of experts to scrutinize the correctness of the election r esult by checking the Electr onic Voting Machines (EVMs) is beyond the scop e and ambit of an election petition. He further submits that the pr ayer of the election petitioner to declare him as the elected candidate after declaring the election of the applicant as void would attract the provisions of Section 82 of the Act. In the face of such prayer, all the candidates who were in the elector al fray in the particular constituency ought to have been made respondents in the election petition which is a mandatory requirement. Non-compliance with such mandatory requirement would entail automatic dismissal of the election petition. He therefore submits tha t the election petition suffers from fundamental technica l defects and as such proceeding further with the election petition would be totally unwarranted. 6.Mr. C. Lalramzauva , learned senior counsel for the election petitioner on t he other hand s ubmits that keeping in mind the mandatory nature of Section 98 of the Act, an election petition cannot be rejected at the preliminary stage by invoking the provisions of Order 7 Rule 11 of the Civil Procedure Code. It is only aft er conclusion of the trial, the High Court can pa ss either: of the 3 or ders mentioned in Section 98. He submits that since election petitioner ha s already decla red that he does not seek a declaration to the effect that he is the returned candidate, he may be permitted to amend the election petition. He finally submits that all the issues raised by the applicant can be gone into at the final hear ing of the election petition and not at the threshhold. 7.In r eply, Mr, Lalsa wirema, learned counsel for the applicant submits that aft er the statutor y period of 45 days of filing election petition under Section 81 of the Act is over, there is no question of amendment of the election petit ion. Amendment as suggested, if granted, would change the very nature and chara cter of the: election petition, which cannot be permitted. In any ca se; he submits that in the absence of a ny formal application for amendment, such an oral prayer of the election petitioner - 143 -Ex-81/2015 cannot be accepted, that too, after the technical defects in the election petit ion were pointed out in the misc. application. 8.Though the Election Commission of India is neither a necessar y par ty nor a proper par ty in an election petition in view of the clear enuncia tion of law by the Hon’ble Supreme Court in the case of B. S undara Rami Reddy v. Election Commission of India reported in 1991 Supp. (2) S CC 624, the Court has none-the-less given audience to learned senior counsel appearing for the Election Commission of India since the election petit ioner ha s himself made the Election C ommission of India and its officials r espondents in the election petition. Mr. M. Zothankhuma, learned senior counsel appearing for the Election Commission of India submits that the scheme of the election law is to uphold the purity of the elect oral pr ocess while maintaining the secrecy of ballot. Unsettling an electoral ver dict being a serious ma tter ha ving wide ramification, law mandates that there should be strict compliance of procedura l requirements . Violation of the mandatory conditions, particularly those mandated in Sections 81, 82 and 117 of the Act would r esult in dismissal of the election petition, he submits. 9.I have heard the rival submissions and also perused the materials on record. 10. To a ppreciate the r ival contentions, it would be apposite to briefly refer to t he elect ion petition at the outset. Election petitioner ha s challenged the election of the applicant as MLA in the legisla tive assembly elections to the Mizoram State Legislative Assembly, 2013, As can be seen from the cause title, the following are the parties to the election petition:-“Dr. K. Pachhunga, S/o K. Hramluia (L), R/o Lung lawn, Mizoram. ......Petitioner. -Vrs- 1. Sh. S. Laldingllana S/o Lalchungnunga (L), R/o Chanmani I, Lunglei. .. .. .. Respondent . 2. Election Commission of India through its Secretary, Nirvachan Sadan f Ashoka Road, New Delhi. 3. Chief Elect oral Officer, Mizoram, Aizawi. 4. Returning Officer, 33-Lunglei South (ST), AC, Lunglei, Mizoram. ......Proforma Respondents.” The reliefs sought for by the election petitioner are as under:- “(i) An enquiry committee consisting of experts recommended by the petitioner as well as by the resp ondents shall not be constituted for the purpose of scrutinizing the correctness of the result of t he election by checking the EVMs concerned with the help of a scientific device, and (it) on the basis of the findings of the exp ert committee why the election of the respondent No. 1 shall not be decla red to be void and why the petitioner shall not be declared elected from the said constituency.” - 144 - Ex-81/2015 11. Regarding the substance of the allegation and the ground for challenging the election of the applicant, election petitioner has relied upon Section 100 (l)(d) (HI) of the Act which says tha t if the High Court is of the opinion that the result of the election in s o far it concerns a returned candida te has been materially affected by improper r eception, refusal or r ejection of any vote or by the reception of any vote which is void, the High Cour t shall declar e the election of the returned candidate to be void. In support of the a bove ground of challenge, the election petitioner has put forward the following averments:-“5, That during the pr eceding MLA Elections held in Mizor am, the result of Postal Ballots used to be unfailing indica tors for the final outcome of the election r esults. In this connection, it may briefly be stated that in the 1998 MIA General Election, the MNF Party and the MPC Party had joined ha nds In which as per the result of the Postal Ballots, the two Parties together had won in 24 Constituencies and in the final result they had won in 29 Constituencies. Similarly, in t he 2003 MLA General Election In which the MNF Pasty had fought singly, it had won in PJ Constituencies as per the Postal Ballot a nd in 21 Constituencies in the final result However, in the 2008 MLA Gener al Elect ion, In which the Election Commission of India had decided to switch over to the EVM, ma nufactur ed by the ECIL Company, there occurr ed a dra stic change in t he result. T hough the MNF Party had won in 2 0 Constituencies as per the result of the Postal Ballot, the result of the EVM ha d shown that the MNF Party could win only in 3 Constituencies such as in the 25-East Tuipui AC(ST) in the undivided Aizawl Distr ict, in the 32-L unglei West AC (ST) in Lunglei District and in the 37 - Lawngtlai West AC (ST ) of Lawngtlai District. The result as per the postal ballot and the EVM in all the. constituencies being so contradictory, the same had led to a strong s uspicion against the correctness of the EVM by ail the Parties other than the INC Party, It may be stated here that the MNF Party had come to its own conclusion that there was wide spread manipulation/rigging of the EVMs at the instance of the winning Part]/ i.e. INC Party by hacking the said EVMs with the help of some experts in the field. The same EVMs which were kept by the Election Depar tment in their safe custody were aga in used in all the polling booths in all the Constituencies except in the 10 Constituencies within Aizawl City where WPA T system were used in place of EVMs. It is not known why the ECU Company could pr ovide VVPAT only for 1.0 Constituencies of Aizawl City while the r emaining 30 Constituencies were left with no other op tion but to use the same EVMs used earlier and against which the MNF P art}’ had made a number of complaints of their being hacked/manipulated. Copies of the Abstract of Postal Ballot record in different constit uencies in the MLA Elections, 1998, 2003, 2008 & 20X3 are at Annexures -3,4,5, & 6 respectively. 6. That at this stage, it may be pertinent to state that due to a number of compliant against the EVM, as a device for conduct ing Elections, from different corners, a nu mber of Scientists of different countr ies wor ked together to see whether there is a possibility of manipulating the EVMs for altering the election r esults. As per the finding of the experts in the field published in an Article/Paper - ‘Secur ity Analysis of India’s Electronic Machines’,, it was sta ted tha t in spit e of the stand taken by the Election Commission of India that the EVMs were fuliykamper- pivof and that the machines were ‘perfect’ with no need for technological impr ovement, the expert team in their said Paper ha d, after thorough scrutiny and analysis of the EVM, had come to the finding that the EVMs used in India are not tamper-proof and ar e succeptible to a range of attacks a nd that while the use of paperless ORE (Dir ect Recording Electronic) voting machines ha s been discont inued In California, Florida , Ireland, the Nether lands a nd Germany, Indian election authorities are still sticking to it and it is high time tha t they should immediately - 145 -Ex-81/2015review the securit y procedures now in place and should inspect ail EVMs for evidence of fraud. Moving forward, they had suggested that India should adopt a different-voting system that .provides greater securities and tra nsparency. In the said Paper it was clearly highlighted that on the basis of expert scrutiny. Observations and tests there are a number of attackers who could manipula te the EVMs and that these attacks a re possible even if the voting soft ware is completely error-free. It was found by the said expert team that the EVM firmware is stor ed In masked r ead-only memor y inside the microcont roller chips, and there is no provision for extracting it or verifying its integrity. This means that if the software was modified before It was built in to the CPUs, the changes could be difficult to detect. Similarly even the engineer resp onsible compiling the source and tr ansmitting it to the CPU manufacturer could substitute a version containing a ba ck door with little chance of being caught and tha t employees at the chip makers could alter the compiled pr ogrammed image before burning it in to the chip.It was also highlighted that atta ckers might try to substitute look-alike CPUs conta ining software that counts the votes dishonest ly. And that anytime between t he start of polling and the public count, dishonest election insider s or other criminals could use the clip-on device to change the votes recorded in the EVM. A copy of the said Article Dt. 29/7/2010 is at Amwxure-7. 9. That in this connection it may humbly be stated that the respondent has been declared elected in the said Genera! MLA Election, 2013 held on 25/11/2013 on the basis of reception of the winning votes which were void. In other words, the a ctual and valid votes so polled in favour of t he respondent were less than the votes so polled in favour of the Petitioner, and the resp ondent could not have been declared elected but for the reception of votes, which were void, on the basis of rigging and manipulation of some of the EVMs within the said Constituency. At this sta ge it may be humbly submitted that since it is not possible on the part of the petitioner to produce a ny docu mentary evidence in support of his contention as required, the Hon’ble Cour t shall have to constitute a commit tee to enquire into the allegation made herein and the said committee will have to function with the help of those having expertise in the field. In this connection it may also be noted that dur ing the election, a number of outsiders who claimed to be the officials of the ECU Company came to Mizoram and stationed themselves a t different places where counting took pla ce. Such persons were claiming to be supervising the funct ioning of the EVMs for which those personnel used to be present in and around the Polling Booths. Even when polling was over those personnel continued to be present in Aizawl a nd again distributed themselves at the time of counting of Votes at different counting stations. Though the Petitioner did not raise any objections to the presence of those personnel, however he had doubted the necessity of t heir presence. The subsequent event had confirmed his suspicion regarding the manipulation and hacking/r igging of the EVMs as well as the VVPAT Systems during the process of Election. To add salt to his already injured and suspicious mind, one Mr. K.Chhawnthua ma (as Phantom, ) owner of K. V.Multipurpose (English Medium) High School and ordained Elder of the Durtlang Presbyterian Church, had sent two text mess ages to the pr esent Chief Minist er who ha s b een elect ed fr om, t he 26-Ser chhip (S T) Ass embly Cons tituency immediately a fter he was dec la red elected. The tex t messa ges read as under : To win an election based upon the manipulated CPU supported EVM is such a dirty game. You a re no doubt the dirtiest person a live. Even the lives of those of you who had manipulated/rigged the EVMs are at great risk. The bribe given to the DC was a lso no doubt high, It is hard to say how many of you will suffer. Pr oofs would come with photogra phs! There is none among the Mizos who is more corr upted tha n you. You a re so despicable. - 146 - Ex-81/2015Considering the degr ee of crime you have committed f you ha ve failed to take proper care bringing disgrace to your self PHANTOM I continue to know who you are - the dir ty and despica ble CM who had gone to the extent of manipulating EVM. The highest form of corruption, winning with the help of manipulated EVM is bound to be exp osed. You are bringing disgrace upon yourself for acting in such a manner. How you have manipulated the EVM will be exposed with the help of photographs. I know you through and through. PHANTOM’ After detecting the sender of the said two text messa ges, the police had r egistered a case (i.e. Cri.Tr. No.2195 of 2013: Azi. P.S. Case No, 373 of 2013 u/s 17 1G IPC r/w 66 A (a) (b) IT Act) against the author who had sent the said messages. T he said text messages have been published in the Zalen weekly local newspa per on 22/12/2013. Copies of t he text messages and their English t ranslations are at Annexures-8 and 9 r espectively, 10. That at t his stage, since the Petitioner is having a serious -and legitimate doubt about the correctness of the result as per the EVMs, and since the experts in the field have already come to the conclusion that EVMs in India are vulnerable to fraud a s already highlight ed by those experts in the Paper enclosed herein above, and in view of the fact that the results of the Election in the EVMs are highly contr adictory to the results of postal ballots, it is necessa ry and in the interest of justice to enquire into the ma tter so as to bring out the true factual position,” 12. Since the election petitioner has raised objection about applicability of the provisions contained in Order 7 Rule 11 of the Civil Procedure Code for rejection of an election petition at the preliminary stage, the said issue may be taken up first for consideration. Under Order 7 Rule; 11 (a) of the Civil Procedure Code, a plaint shall be rejected where it does not disclose a cause of act ion,. Section 87 of the Act deals with the procedure to be followed by the High Court while adjudicating an election petit ion. It says that subject to the provisions of the Act and the Rules made thereunder, every election petition s hall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. In Dha ttipaka r Madan Lai Agarwal -vs-Shri Rajiv Gandhi reported in AIR 1987 SCC 1577, the Hon’ble Supreme Court considered the question as to whether the High Cou rt had the jurisdiction to strike out pleadings under Order 6 Rule 16 of the Code of Civil Procedure and to reject the election petition under Order 7 Rule 11 thereof at the preliminar y stage. The Apex Court clearly held that both Or der 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure a re applicable to proceedings relating to tr ial of an election petition. Court has the power to reject an election petition under Order 7 Rule 11. If an election petition does not disclose a cause of act ion, it should be rejected at the initial sta ge. Cause of action in questioning the validit y, of election must relate to the grounds specified in Section 100 of the Act. This view has been reitera ted in Ram Sukh -vs- Dinesh Aggarwal reported in (2 009) 10 SCC 541. It has been held that undoubtedly by vir tue of Section 87 of the Act, the pr ovisions of the Civil Procedure Code applied to the trial of an election petition and the High Court trying an election p etition can invoke powers under the Civil Procedure Code including the powers under Order 6 Rule 16 and - 147 -Ex-81/2015 Order 7 Rule 11, the objective being to ensure that meaningless litigation which is otherwise bound to prove abortive should not be permitted to occupy the judicial time of the Courts. In view of the a bove authoritative pronouncements of the Apex Court; the Object ion1 raised by the election pet itioner on this ground is rejected. T his Court ‘accordingly holds that it would be open to the returned candidate to file application under Order 7 Rule 11 of the Civil Procedure Code to seek rejection of the election petition if it does; not disclose a ny cause of act ion. 13. Having held so, let us now turn t o the r elevant provisions of the Act. While Section 80 to Section 81 deals with filing of election petition In the High Cour t and the manner of it s presentation. Section 82 deals with parties to the election petition. Clause (a) of Section 82 is very specific. It provides that in a ca se where an election petitioner in addition to claiming declaration that the election of the retu rned candidate is void, , also claims a further decla ration that he himself or any other candida te has been elected, all the contesting candidates of the constituency are required to be made respondents and where no such addit ional declaration is sought for, only the r eturned candidate is to be ma de a pa rty. Section 83 of the Act stipulates what should: be the contents of an Election petition. First and foremost, an election petition should conta in a concise statement of the material fact s on which the petitioner relies. If allegation is made of corrupt practice, full particulars of corrupt practice alleged are to be set out. Pr ovisions of Section 87 has already b een noticed above. Under Section 98, at the conclusion of t he tria l of an election petition, the High Court can either dismiss the election petition or declare the election of the returned candidate as void and can also declare the petitioner to be the elected candidate. Section 100 lays down the grounds for declaring an election to be void. As already noticed, in the related election petition, the election petitioner has challenged the election of the applicant on ground 100 (1) (d)(iii). i.e., the election of the applica nt has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void. Under Section 117, the election pet itioner has to b e deposit costs in the High Cour t at the time of presentation of the election petition. 14. Having noticed the above, we may now turn to Section 86 of the Act which has a decisive bearing on the case. As per Section 86 of t he Act, the High Court shall dismiss an election petition which does not comply “with the provisions of Section 81 or Section 82 or Section 117 of the Act, The word used is “ shall”, which denotes mandator y consequence of non-compliance of Sections 8 1,82 or 117. 15. Keeping the above in mind, let us examin the objection of the applicant regar ding non-joinder of necessary party as respondents ar id seeking relief beyond the ambit a nd scop e of an election petit ion. Since both these issues a re interrelated, those are ta ken up together, As a lready noticed above, the first relief sought for by the election petitioner is to constitute a n enquiry committee of experts to scrutinize correctness of the election result by checking the EVMs. Admittedly, such a relief is not open to an election petitioner and no or der to this effect ca n be pa ssed under Section 98 of the Act. Second relief sought for by the election petitioner is to declare the election of the applicant as void and thereafter to declare him as the elected ca ndidate. If tha t is the prayer, under Section 82 of the Act, all the contesting candidates of the particular constituency ought to have been joined as respondents in the elect ion petition, which ha s not been done. Thus, there is no compliance of the provisions cont ained in Section 82 (a ) of the Act. In view of the clear language of Section 86 of the Act, there is no other alterna tive but to dismiss the election petition for non-compliance of Section 82 of the Act. Submission made by the election petitioner that he has given up the second prayer i.e., to declare him as an elected candidate and that he should be allowed to amend the election petition cannot be acceded to at this stage, more so, when there is no formal application to that effect. - 148 - Ex-81/2015 16. Though in view of t he above finding, it is really not necessary to go into the other issue regarding lack of material facts in the election petition, since the same has been a rgued a t length, it is considered appr opriate to address the same, 17. As a lready noticed, Section 83 of the Act stipulates that an election petition shall contain a concise statement of the ma terial facts on which t he petitioner relies. In Azha r Hussain -vs- Rajiv Ga ndhi reported in 1986 (Supp.) SCC 315, it has been held by the Apex Court that if essential particulars are not: pleaded, election petition is to be dismissed. In Ananga Uday Singh Deo -vs- Ranga Nath Mishra and Others reported in AIR 2001 S CC 2992, the Apex Cour t made it clear that a n election petition must disclose material facts. Averments must be adequate, clear and specific. In Ram Sukh (supra), it has been held that since the phrase “ materia l facts” has neither been defined in the Act nor in the Civil Procedure Code, it has been understood by the Courts in general terms to mean the entire bundle of fa cts which would constitute a complete cause of action. “Material fa cts” ar e facts upon which the plaintiff ’s cause of action or the defendant’s defence depends. In Jitu P atnaik -vs- Sanatan Moha kud and Others reported in (2012) 4 S CC 194, it has been held that all basic or primary facts which must be proved at the trial for est ablishing cause of action or defence are ma terial facts, which would however depend on fa cts of each case. Bare allegations ar e never treated as material fa cts. Failure to state even a single material fa ct will entail dismiss al of an election petition. 18. From a reading of t he averments ma de in the elect ion petition as extracted hereinabove, it is more than clear that the entir e grievance of the election petitioner is structur ed on the basis of his suspicion and apprehension. No material fact has been pleaded by the election petitioner which would constitute the ground that the elect ion of the applicant has been materially affected because of the impr oper reception, refusal or rejection of any valid vote or by the r eception of any void vote. Suspicion and appr ehension howsoever great .those may be, cannot be construed as material facts as is understood i n l a w. 19. That being the position, there is no other alternative but to hold that the election petition suffers from fundamental defects under Section 82 of the Act and also does not disclose ma terial facts to hold trial to examine the validity of the election of the applicant. 20. Accordingly and in view of the discussions made above, this Misc. application is allowed and the related election petition is dismissed. 21. However, there shall be no order a s to costs. Sd/- UJJAL BHUYAN JUDGEPublished and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50The Mizoram Health & Family Welfare Department (Group ‘B’ Non Gazetted post) Recruitment Rules, 2015.
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008Re. 1/- per pageVOL - XLIV Aizawl, Tuesday 10.2.2015 Magha 21, S.E. 1936, Issue No. 67 NOTIFICATIONNo. A.12018/17/2013-P&AR(GSW), the 4th February, 2015. In exercise of the powers conferred by the proviso to Article 309 of t he Constitution of India, the Governor of Mizoram is pleased to make the following rules regulating the method of recruitment to the post(s) of Physiot herapy Technologist under Health & Fa mily Welfare Department, Government of Mizor am, namely :- 1.Shor t title and (1) These Rules may be called the Mizoram Health & Family Welfare Commencement Department (Group ‘B’ Non Gazetted post) Recruitment Rules, 2015. (2) They shall come into force from the date of their publication in the Official Gazette. 2. Application These rules shall apply to the posts specified in Column 1 of the Schedule annexed to these ru les. 3. Number of posts, The number of the said post(s), their classification, pay b and and grade classification, pa y ba nd pay/pay scale attached thereto sha ll be as specified in columns 2 to and grade pa y/pay scale 4 of the Schedule aforesaid. 4. Method of r ecruitment, The method of recruitment to the sa id posts, age limit, qualifica tion age limit, and other matters relating thereto shall be as specified in columns 5 qualifications, etc. to 14 of the said Schedule. Provided that the upper age limit prescribed for direct recruitment may be relaxed in t he case of candidates belonging to the Scheduled Castes/the Scheduled Tribes and other special ca tegories of persons in a ccordance with the or ders issued by the Central Government or the Government of Mizoram, as the case may be, from time to time. 5. Disqualification No person- (a ) who, has entered into or contracted a marr iage with a person having a spouse living; or - 2 - Ex-67/2015 (b) who, having a spouse living, ha s entered into or contracted a marriage with any other person, shall be eligible for appointment to t he said post(s); Provided that the Governor may, if satisfied that such marriage is permissible under the personal law applicable to such person and to the other party to the marriage and that there are other grounds for doing so, exempt any such person from the operation of this r ule. 6.Training and Departmental Every Gover nment s ervant recruited under these rules s hall undergo Examination. such training or pass such Departmental Exa mination(s) as may b e pr escribed from t ime to t ime. 7. Powers to trans fer Notwithstanding anything contained in these rules, the Governor of Mizoram, in public interest, shall have power to transfer any officer(s) so r ecruited under these rules to a ny other post or position which is equivalent in rank or gr ade. 8. Power to relax Where the Governor is of the opinion that it is necessary or expedient so to do, he may, by order and for reasons to be recorded in writing thr ough the Depar tment of Personnel & Administra tive Refor ms, relax any of the pr ovisions of these rules with respect to any class or category of persons. 9. Reservation and other Nothing in these rules shall affect any reservation relaxation of age concessions limit and other concessions required to be provided for the Scheduled Castes/the Schedu led Tribes and ot her ca tegor ies of persons in accordance with the orders issued by the Central Government or the Government of Mizoram from time to time in this regard. By order s, etc. Lalsangpuii, Additional Secreta ry to the Govt. of Mizoram, Depa rtment of Personnel & Administrative Reforms. - 3 -Ex-67/2015Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/100SCHEDULE(See Rule 2, 3 & 4)RECRUITMENT RULES FOR THE POST OF PHYSIOTHERAPY TECHNOLOGIST IN THE DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVT. OF MIZORAMName of postNo. of postClassificationPay Band and Grade Pay/Pay ScaleWhether Selection post or Non-selection post12345 SelectionWhether benefit of added years of service admissible under Rule 30 of the CCS (Pension) Rules, 1972Age limit for direct recruitsEducational and other qualif ications required for direct recruitsWhether age and educa tional qualifications prescribed for direct recruits will apply in the case of promoteesPeriod of probation, if any67 8910 Not applicableBetween 18 and 35 years. Upper age limit is relaxable upto 5(five) years in case of candidates belonging to Scheduled Castes/ Scheduled TribesNot applicable Essential 1. HSSLC(Sc) with B.Sc in Physiotherapy from recognized Institute. 2. Knowledge of Mizo language at least Middle School standard. Desireable : Master Degree in Physio- th era py from recog nized Institute2(two) yearsMethod of recruitment, whether by direct recruitment or by promotion or by deputation/transfer and percentage of P ost to be filled by various meth odsIn case of recruitment by promotion/transfer/deputation, grades from which promotion/ deputation/transfer to be madeIf a DPC exist, what is its composition ?Circumstances in which MPSC is to be consulted in making recruitment.11121314As per Mizoram Public Service Commission (Limitation of Functions) Regulations, 1994 and as amended from time to time. Mizoram Public Service Commission or as constituted by the Government of M izoram f rom time to time. Physiotherapy Technologist1(one) post or as sanctioned by the Government from time to timeGeneral State Service (Group ‘B’ post) (Non-Gazetted) (Non-Ministerial)PB-2 ^ 9300-34800/- + Grade Pay ^ 4600/- PROMOTION : From Physiotherapist with not less than 5(five) years regular service in the grade having Diploma /Bachelor Degree in Physiotherapy from recognised Institute. 100% by promotion failing which by direct recruitment
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973 Postal Regn. No. NE-313(MZ) 2006-2008Re. 1/- per pageVOL - XLIV Aizawl, Tuesday 10.2.2015 Magha 21, S.E. 1936, Issue No. 67 NOTIFICATIONNo. A.12018/17/2013-P&AR(GSW), the 4th February, 2015. In exercise of the powers conferred by the proviso to Article 309 of t he Constitution of India, the Governor of Mizoram is pleased to make the following rules regulating the method of recruitment to the post(s) of Physiot herapy Technologist under Health & Fa mily Welfare Department, Government of Mizor am, namely :- 1.Shor t title and (1) These Rules may be called the Mizoram Health & Family Welfare Commencement Department (Group ‘B’ Non Gazetted post) Recruitment Rules, 2015. (2) They shall come into force from the date of their publication in the Official Gazette. 2. Application These rules shall apply to the posts specified in Column 1 of the Schedule annexed to these ru les. 3. Number of posts, The number of the said post(s), their classification, pay b and and grade classification, pa y ba nd pay/pay scale attached thereto sha ll be as specified in columns 2 to and grade pa y/pay scale 4 of the Schedule aforesaid. 4. Method of r ecruitment, The method of recruitment to the sa id posts, age limit, qualifica tion age limit, and other matters relating thereto shall be as specified in columns 5 qualifications, etc. to 14 of the said Schedule. Provided that the upper age limit prescribed for direct recruitment may be relaxed in t he case of candidates belonging to the Scheduled Castes/the Scheduled Tribes and other special ca tegories of persons in a ccordance with the or ders issued by the Central Government or the Government of Mizoram, as the case may be, from time to time. 5. Disqualification No person- (a ) who, has entered into or contracted a marr iage with a person having a spouse living; or - 2 - Ex-67/2015 (b) who, having a spouse living, ha s entered into or contracted a marriage with any other person, shall be eligible for appointment to t he said post(s); Provided that the Governor may, if satisfied that such marriage is permissible under the personal law applicable to such person and to the other party to the marriage and that there are other grounds for doing so, exempt any such person from the operation of this r ule. 6.Training and Departmental Every Gover nment s ervant recruited under these rules s hall undergo Examination. such training or pass such Departmental Exa mination(s) as may b e pr escribed from t ime to t ime. 7. Powers to trans fer Notwithstanding anything contained in these rules, the Governor of Mizoram, in public interest, shall have power to transfer any officer(s) so r ecruited under these rules to a ny other post or position which is equivalent in rank or gr ade. 8. Power to relax Where the Governor is of the opinion that it is necessary or expedient so to do, he may, by order and for reasons to be recorded in writing thr ough the Depar tment of Personnel & Administra tive Refor ms, relax any of the pr ovisions of these rules with respect to any class or category of persons. 9. Reservation and other Nothing in these rules shall affect any reservation relaxation of age concessions limit and other concessions required to be provided for the Scheduled Castes/the Schedu led Tribes and ot her ca tegor ies of persons in accordance with the orders issued by the Central Government or the Government of Mizoram from time to time in this regard. By order s, etc. Lalsangpuii, Additional Secreta ry to the Govt. of Mizoram, Depa rtment of Personnel & Administrative Reforms. - 3 -Ex-67/2015Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/100SCHEDULE(See Rule 2, 3 & 4)RECRUITMENT RULES FOR THE POST OF PHYSIOTHERAPY TECHNOLOGIST IN THE DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVT. OF MIZORAMName of postNo. of postClassificationPay Band and Grade Pay/Pay ScaleWhether Selection post or Non-selection post12345 SelectionWhether benefit of added years of service admissible under Rule 30 of the CCS (Pension) Rules, 1972Age limit for direct recruitsEducational and other qualif ications required for direct recruitsWhether age and educa tional qualifications prescribed for direct recruits will apply in the case of promoteesPeriod of probation, if any67 8910 Not applicableBetween 18 and 35 years. Upper age limit is relaxable upto 5(five) years in case of candidates belonging to Scheduled Castes/ Scheduled TribesNot applicable Essential 1. HSSLC(Sc) with B.Sc in Physiotherapy from recognized Institute. 2. Knowledge of Mizo language at least Middle School standard. Desireable : Master Degree in Physio- th era py from recog nized Institute2(two) yearsMethod of recruitment, whether by direct recruitment or by promotion or by deputation/transfer and percentage of P ost to be filled by various meth odsIn case of recruitment by promotion/transfer/deputation, grades from which promotion/ deputation/transfer to be madeIf a DPC exist, what is its composition ?Circumstances in which MPSC is to be consulted in making recruitment.11121314As per Mizoram Public Service Commission (Limitation of Functions) Regulations, 1994 and as amended from time to time. Mizoram Public Service Commission or as constituted by the Government of M izoram f rom time to time. Physiotherapy Technologist1(one) post or as sanctioned by the Government from time to timeGeneral State Service (Group ‘B’ post) (Non-Gazetted) (Non-Ministerial)PB-2 ^ 9300-34800/- + Grade Pay ^ 4600/- PROMOTION : From Physiotherapist with not less than 5(five) years regular service in the grade having Diploma /Bachelor Degree in Physiotherapy from recognised Institute. 100% by promotion failing which by direct recruitmentPu R.C. Thanga, Senior Advocate, District Court, Aizawl, Mizoram as one of the members of the Drafting Committee for Land Acquisition Acts/Rules for the state of Mizoram
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Tuesday 24.2.2015 Phalguna 5, S.E. 1936, Issue No. 89 NOTIFICATION No. H. 11011/16/2014-REV, the 18th February, 2015. The Governor of Mizoram is pleased to include Pu R.C. Thanga, Senior Advocate, District Court, Aizawl, Mizoram as one o f the members of the Drafting Committee for Land Acquisition Acts/Rules for the state of Mizoram constituted vide this Department’s Notification of even No. dt. 11.8.2014. Zothankhuma, Secretary to the Govt. of Mizoram, Revenue Department.Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Tuesday 24.2.2015 Phalguna 5, S.E. 1936, Issue No. 89 NOTIFICATION No. H. 11011/16/2014-REV, the 18th February, 2015. The Governor of Mizoram is pleased to include Pu R.C. Thanga, Senior Advocate, District Court, Aizawl, Mizoram as one o f the members of the Drafting Committee for Land Acquisition Acts/Rules for the state of Mizoram constituted vide this Department’s Notification of even No. dt. 11.8.2014. Zothankhuma, Secretary to the Govt. of Mizoram, Revenue Department.Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50Members of Legal Service Authorities
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Tuesday 24.2.2015 Phalguna 5, S.E. 1936, Issue No. 90 NOTIFICATION No. J. 11013/1/2011-LJE, the 18th February, 2015. In supersession of this Depa rtment ’s Notification No. J. 11013/1/2011-LJE dt. 23.10.2012 and in exercise of the powers conferred under section 6(1) of the Legal S ervice Authorities Act, 1987, as amended fr om time to time, read with Rule 3 of the Mizoram State Legal Services Authorities Rules, 1996 as amended from time to time, and as approved by the Hon’ble Chief Justice of the Gauhati High Court, vide No. HC. XI-15/96(Pt)/RC dt. 09.02.2015, the Governor of Mizoram is pleased to reconstit ute the Mizor am St ate Legal Services Authority, with the following composition, with immediate effect :- 1.The Hon’ble Chief Justice of the Gauhati High Court, Guwahati- Patron-in-Chief 2.Hon’ble Sitting Judge of the Aizawl Bench of the Gauhati High Court - Executive Cha irman 3.Advocate General of Mizoram- Ex-Officio Member 4.Secr etary to the Govt. of Mizoram, Law and Judicia l Department-- do - 5.Secr etary to the Govt. of Mizoram, Finance Department-- do - 6.Director General of Police/Inspector General of Police of Mizoram-- do - 7.Member Secr etary, Mizor am State Lega l Services Authority-- do - 8.Chairman, State Social Advisory Board-- do - 9.Chairman, Aizawl District Legal Services Authority-- do - 10.Chairman, Lunglei District Legal Services Authority-- do - 11.Pi Lalrintluangi w/o R. Thansanga (L) RT S Building, Chanmari West, Aizawl- Nomina ted Member 12.Pu Vanlalrema Vanta wl, President, MJA-- do - Editor, Zalen Chanchinbu, Aizawl 13.Pu R. Vanramchhuanga, Rtd. Director of Academics MBSE-- do - Ramhlun Vengthar (near YMA Hall), Aizawl The function of the State Legal Services Authorities, the terms of office and other conditions relating to the members a nd the Member-Secreta ry shall be as per provisions contained in the Legal Services Authority Act, 1987, as a mended from time to t ime, and the Mizoram State Legal Services Authorities Rules, 1996, as amended from time to time. P. Singthanga, Secr etary to the Govt. of Mizoram.Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Tuesday 24.2.2015 Phalguna 5, S.E. 1936, Issue No. 90 NOTIFICATION No. J. 11013/1/2011-LJE, the 18th February, 2015. In supersession of this Depa rtment ’s Notification No. J. 11013/1/2011-LJE dt. 23.10.2012 and in exercise of the powers conferred under section 6(1) of the Legal S ervice Authorities Act, 1987, as amended fr om time to time, read with Rule 3 of the Mizoram State Legal Services Authorities Rules, 1996 as amended from time to time, and as approved by the Hon’ble Chief Justice of the Gauhati High Court, vide No. HC. XI-15/96(Pt)/RC dt. 09.02.2015, the Governor of Mizoram is pleased to reconstit ute the Mizor am St ate Legal Services Authority, with the following composition, with immediate effect :- 1.The Hon’ble Chief Justice of the Gauhati High Court, Guwahati- Patron-in-Chief 2.Hon’ble Sitting Judge of the Aizawl Bench of the Gauhati High Court - Executive Cha irman 3.Advocate General of Mizoram- Ex-Officio Member 4.Secr etary to the Govt. of Mizoram, Law and Judicia l Department-- do - 5.Secr etary to the Govt. of Mizoram, Finance Department-- do - 6.Director General of Police/Inspector General of Police of Mizoram-- do - 7.Member Secr etary, Mizor am State Lega l Services Authority-- do - 8.Chairman, State Social Advisory Board-- do - 9.Chairman, Aizawl District Legal Services Authority-- do - 10.Chairman, Lunglei District Legal Services Authority-- do - 11.Pi Lalrintluangi w/o R. Thansanga (L) RT S Building, Chanmari West, Aizawl- Nomina ted Member 12.Pu Vanlalrema Vanta wl, President, MJA-- do - Editor, Zalen Chanchinbu, Aizawl 13.Pu R. Vanramchhuanga, Rtd. Director of Academics MBSE-- do - Ramhlun Vengthar (near YMA Hall), Aizawl The function of the State Legal Services Authorities, the terms of office and other conditions relating to the members a nd the Member-Secreta ry shall be as per provisions contained in the Legal Services Authority Act, 1987, as a mended from time to t ime, and the Mizoram State Legal Services Authorities Rules, 1996, as amended from time to time. P. Singthanga, Secr etary to the Govt. of Mizoram.Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50Afficavit of T.C. Thanga, 2nd I.R. Battalion, Armed Veng South, Aizawl, Aizawl District,
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Tuesday 24.2.2015 Phalguna 5, S.E. 1936, Issue No. 91 AFFIDAVITI, T.C. Thanga, 2nd I.R. Battalion, presently residing at Armed Veng South, Aizawl, Aizawl District, Mizoram, do hereby solemnly affirm and state a s follows : 1.That I am a bonafide citizen of India a nd a competent to swear this affida vit. 2.That I am working as Sub-Inspector in the 2nd I.R. Battalion. 3.That my name has been written and recorded as Tha wngchint hanga in my service book, which is incorrect. However, my tr ue and correct name has been written and r ecorded as T.C. Thanga in my other documents including Voter ’s ID Card, Gas Booking, Ra tion Car d and S BI Account. 4.That the purpose of this a ffidavit is to correct my name T.C. Thanga which has been written as Thawngchinthanga in my service book. 5.That from now onwar ds my name shall be written and recor ded as T.C. T ha nga. 6.That the contents of this affida vit are true a nd correct to the best of my knowledge and belief, and nothing material has been concealed therein. IN WIT NESS WHEREOF I have hereunto subscr ibed my hand and put my signa ture on this 19th day of December, 2014. Sd/- DEPONENT Identified by me :Signed before me: Sd/-Sd/- Hranghmingthanga Ralte, B.A., L.L. BR. Thangkanglova AdvocateAdvocate & Notary Public Distr ict & Sessions Judge’s CourtAizawl, Mizoram Aizawl District, Aizawl, Mizoram.Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50Notarial Registration No. 106/12 Date 19.12.2014
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Tuesday 24.2.2015 Phalguna 5, S.E. 1936, Issue No. 91 AFFIDAVITI, T.C. Thanga, 2nd I.R. Battalion, presently residing at Armed Veng South, Aizawl, Aizawl District, Mizoram, do hereby solemnly affirm and state a s follows : 1.That I am a bonafide citizen of India a nd a competent to swear this affida vit. 2.That I am working as Sub-Inspector in the 2nd I.R. Battalion. 3.That my name has been written and recorded as Tha wngchint hanga in my service book, which is incorrect. However, my tr ue and correct name has been written and r ecorded as T.C. Thanga in my other documents including Voter ’s ID Card, Gas Booking, Ra tion Car d and S BI Account. 4.That the purpose of this a ffidavit is to correct my name T.C. Thanga which has been written as Thawngchinthanga in my service book. 5.That from now onwar ds my name shall be written and recor ded as T.C. T ha nga. 6.That the contents of this affida vit are true a nd correct to the best of my knowledge and belief, and nothing material has been concealed therein. IN WIT NESS WHEREOF I have hereunto subscr ibed my hand and put my signa ture on this 19th day of December, 2014. Sd/- DEPONENT Identified by me :Signed before me: Sd/-Sd/- Hranghmingthanga Ralte, B.A., L.L. BR. Thangkanglova AdvocateAdvocate & Notary Public Distr ict & Sessions Judge’s CourtAizawl, Mizoram Aizawl District, Aizawl, Mizoram.Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50Notarial Registration No. 106/12 Date 19.12.2014Re-constitute State e-Governance Apex Committee by renaming to State Apex Committee on Digital India with the following member’s effect and until further order
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Friday 27.2.2015 Phalguna 8, S.E. 1936, Issue No. 92 NOTIFICATION No. D.20013/4/2014-ICT, the 19th February, 2015. In supercession of this Depar tment Notifica tion issued under Memo No.B.16012/2/2008-PLG(ICT)89 dt. 30.4.2009, the Governor of Mizoram is pleased to re-constitute State e-Governance Apex Committee by renaming t o State Apex Committee on Digital India with the following member ’s effect and until further order :- Chairman- Chief Secretary M ember Secr et ar y - Secretary, IC T Depart ment Members- Secr etary, Finance Depart ment - Secreta ry, Home Dep artment - Secr etary, Education Depart ment - Secr etary, Health Depart ment - Secr etary, Planning Department - Secreta ry, PWD - Secretary, P & E - Secretary, DP & AR - Secretary, GAD - Chief Informatics Officer, ICT Department - SIO, NIC - Technical expert (t o be invited as and when necessary) The t erms of referenc e ofMizoram State Apex Committee shall be a s follows:- i.To provide str ategy dir ection to the D igita l India Pr ogr a mme inline with the p olicy goa ls a nd objectives determined by the State Level Committee on Digital India. ii.To oversee and monitor the implementation of pr ogress under Digital India in the State. iii.To ensure inter department on matters relating to Information Technology standards, interoperability, technologies security, consistency, ar chitectur e Interdependencies, core, support or shar ed infrastructure, overlaps etc. i v.Any other related ma tter C. Lalhmachhuana, Secr etary to the Govt. of Mizoram, Dept t. of Information & Communication Technology.Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Friday 27.2.2015 Phalguna 8, S.E. 1936, Issue No. 92 NOTIFICATION No. D.20013/4/2014-ICT, the 19th February, 2015. In supercession of this Depar tment Notifica tion issued under Memo No.B.16012/2/2008-PLG(ICT)89 dt. 30.4.2009, the Governor of Mizoram is pleased to re-constitute State e-Governance Apex Committee by renaming t o State Apex Committee on Digital India with the following member ’s effect and until further order :- Chairman- Chief Secretary M ember Secr et ar y - Secretary, IC T Depart ment Members- Secr etary, Finance Depart ment - Secreta ry, Home Dep artment - Secr etary, Education Depart ment - Secr etary, Health Depart ment - Secr etary, Planning Department - Secreta ry, PWD - Secretary, P & E - Secretary, DP & AR - Secretary, GAD - Chief Informatics Officer, ICT Department - SIO, NIC - Technical expert (t o be invited as and when necessary) The t erms of referenc e ofMizoram State Apex Committee shall be a s follows:- i.To provide str ategy dir ection to the D igita l India Pr ogr a mme inline with the p olicy goa ls a nd objectives determined by the State Level Committee on Digital India. ii.To oversee and monitor the implementation of pr ogress under Digital India in the State. iii.To ensure inter department on matters relating to Information Technology standards, interoperability, technologies security, consistency, ar chitectur e Interdependencies, core, support or shar ed infrastructure, overlaps etc. i v.Any other related ma tter C. Lalhmachhuana, Secr etary to the Govt. of Mizoram, Dept t. of Information & Communication Technology.Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50State Level Committee for Older Persons (SLCOP) under rule 21 of the Mizoram Maintenance and Welfare of Parents and Older Persons Rules, 2013
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Friday 27.2.2015 Phalguna 8, S.E. 1936, Issue No. 93 NOTIFICATION No. B. 13011/18/2013-SWD, the 23rd February, 2015. In supersession of this Department’s Notification of even No. dated 14 .10.2013, the Governor of Mizoram is pleased to constitute State Level Committee for Older Persons (SLCOP) under rule 21 of the Mizoram Ma intenance and Welfare of Par ents and Older Persons Rules, 2013 comprising of the following members with immediate effect until fur ther orders :- 1.Minister, S ocia l Welfare Depart ment-Chairman 2.Parlia menta ry Secr etary, Socia l Welfare Depart ment-Co-op ted Chairman 3.Secr etary, Socia l Welfare Depart ment-Vice Chairman 4.Director, Social Welfare Department-Member Secretary 5.President, MUP Headquarters, Mizoram-Member 6.General Secretary, MUP Headquarters, Mizoram-Member 7.Saingenga, Cha nmari-Member 8.President, Civil Pensioner ’s Associa tion-Member 9.Pu Rualzakhuma, IAS (Rtd.)-Member 10.President, MHIP-Member 11.Chair Person, Mizoram Social Welfare Board-Member 12.Director, Health & Family Welfare Department-Member 13.Director, Transport Department-Member 14.Dir ector, Ru ral Development Depart ment-Member 15.Director, Art & Culture Department-Member 16.Director, I & PR Department-Member Terms of Reference of the Committee : 1)The Commit tee shall device criteria and indicator s for monitoring the implementation of the SLCOP. 2)To a dvise the State Government on policies and issues relating to old age. 3)The Committee shall meet once every six months. 4.The tenure of the Committee shall be 3 years. Manisha Saxena, Commr. & Secretary to the Govt. of Mizoram, Socia l Welfar e Depart ment.Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50
The Mizoram Gazette EXTRA ORDINARY Published by Authority RNI No. 27009/1973Postal Regn. No. NE-313(MZ) 2006-2008VOL - XLIV Aizawl, Friday 27.2.2015 Phalguna 8, S.E. 1936, Issue No. 93 NOTIFICATION No. B. 13011/18/2013-SWD, the 23rd February, 2015. In supersession of this Department’s Notification of even No. dated 14 .10.2013, the Governor of Mizoram is pleased to constitute State Level Committee for Older Persons (SLCOP) under rule 21 of the Mizoram Ma intenance and Welfare of Par ents and Older Persons Rules, 2013 comprising of the following members with immediate effect until fur ther orders :- 1.Minister, S ocia l Welfare Depart ment-Chairman 2.Parlia menta ry Secr etary, Socia l Welfare Depart ment-Co-op ted Chairman 3.Secr etary, Socia l Welfare Depart ment-Vice Chairman 4.Director, Social Welfare Department-Member Secretary 5.President, MUP Headquarters, Mizoram-Member 6.General Secretary, MUP Headquarters, Mizoram-Member 7.Saingenga, Cha nmari-Member 8.President, Civil Pensioner ’s Associa tion-Member 9.Pu Rualzakhuma, IAS (Rtd.)-Member 10.President, MHIP-Member 11.Chair Person, Mizoram Social Welfare Board-Member 12.Director, Health & Family Welfare Department-Member 13.Director, Transport Department-Member 14.Dir ector, Ru ral Development Depart ment-Member 15.Director, Art & Culture Department-Member 16.Director, I & PR Department-Member Terms of Reference of the Committee : 1)The Commit tee shall device criteria and indicator s for monitoring the implementation of the SLCOP. 2)To a dvise the State Government on policies and issues relating to old age. 3)The Committee shall meet once every six months. 4.The tenure of the Committee shall be 3 years. Manisha Saxena, Commr. & Secretary to the Govt. of Mizoram, Socia l Welfar e Depart ment.Published and Issued by Controller, Printing & Stationery Department, Government of Mizoram Printed at the Mizoram Government Press, Aizawl. C/50