JUDGMENT Dilip Gupta, J.
1. The Election Petition has been filed by Dr. Laxmi Kant Bajpai under Sections 80/81 of ''The Representation of the People Act, 1951' (hereinafter referred to as the ''Act') calling in question the election of the returned candidate Hazi Yaqoob from 381 Meerut Assembly constituency in the State of Uttar Pradesh.
2. The returned candidate has filed this application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ''CPC') read with Section 87 of the Act for rejecting the Election Petition as it does not disclose any cause of action.
3. The election to the aforesaid 381 Meerut Assembly Constituency was held in the Second phase. The date of notification was 17.03.2007 and the last date for filing nominations was 24.03.2007. The poll was held on 13.04.2007 and the result was declared on 11.05.2007. In the said election, the petitioner secured 47413 votes, while Hazi Yaqoob secured 48502 votes. Respondent Nos. 2 to 12 also contested this election but they secured much lesser votes. Respondent No. 1 Hazi Yaqoob was declared elected on 11th May, 2007 with a margin of 1089 votes.
4. The grounds for challenging the election are referable to the grounds mentioned in Section 100(1)(d)(iii) & (iv) of the Act and are:
(A) Because the result of the election, in so for as it concerns the respondent No. 1 Hazi Yaqoob, has been materially affected by the improper reception of votes including improper reception of void votes.
(B) Because the result of the election, in so for as it concerns the respondent No. 1 Hazi Yaqoob, has been materially affected by non-compliance with the provisions of the Constitution of India, the Representation of the People Act, 1951, and the Rules and Orders made thereunder.
(C) Because the petitioner has, in fact, received a majority of valid votes and is entitled to be declared as duly elected from the aforesaid constituency.
5. In support of the application Sri Ravi Kiran Jain, learned Senior Counsel appearing for the returned candidate submitted that the Election Petition is liable to be dismissed under Order VII Rule 11 CPC as it does not disclose any cause of action. Elaborating his submission, he contended that the Election Petition is based on the alleged violation of the grounds mentioned in Sub-sections (iii) and (iv) of Section 100(1)(d) of the Act as certain areas outside the territory of 381 Meerut Assembly constituency were not only included in this constituency but the voters of these areas were also allowed to vote in the election in question and this has materially affected the result of the election in so far as it concerns the returned candidate. It is his submission that not only is this factually incorrect but this cannot also be made a ground for declaring the election of the returned candidate to be void under Section 100(1)(d) (iii) & (iv) of the Act. He further submitted that an Election Petition can be filed only if some illegality contemplated under Section 100 of the Act is found to have been committed during the process of the election but in the present case the alleged illegality that has been pointed out relates to a stage prior to the commencement of the process of election. He further contended that the Court trying an Election Petition has no jurisdiction to go behind the electoral roll and find out whether the name of any person was illegally entered and any entry in the electoral roll of a constituency cannot be amended, transposed or deleted after the last date of making nomination for the election in that constituency. He also submitted that "The Representation of the People Act, 1950" (hereinafter referred to as the ''1950 Act') is a complete code so far as the preparation and maintenance of the electoral roll is concerned and any violation of the provisions of the said 1950 Act cannot be made a ground for setting aside the election under Section 100(1)(d) of the Act.
6. Sri K.N. Tripathi, learned Senior Counsel appearing for the petitioner, however, contended that the Election Petition discloses the cause of action as the result of the election in so far as it concerns the returned candidate has been materially affected by the improper reception of votes including the improper reception of void votes as also by non-compliance of the provisions of the Constitution, the Act, the Rules and the Orders made thereunder. Learned Senior Counsel further contended that the dispute in the present Election Petition is about the addition of some area in the territorial constituency and not about any addition or deletion of names in the electoral roll and this has resulted in non-compliance of the provisions of the Constitution of India.
7. In order to appreciate the contentions advanced by the learned Counsel for the parties, it would be necessary to examine the relevant provisions of the Act and the averments made in the petition.
8. Section 80 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Section 81 of the Act deals with the presentation of an election petition and it provides that an election petition calling in question any election may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 of the Act. Section 83(1)(a) of the Act provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies. Section 86(1) of the Act provides that 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. Section 87 of the Act stipulates that subject to the provisions of the Act and of any rules made thereunder, every election shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the CPC to the trial of suits. Section 87(2) of the Act provides that the provisions of the Indian Evidence Act, 1872 shall, subject to the provisions of the Act, be deemed to apply in all respects to trial of an election petition.
9. Section 100 of the Act which deals with the grounds for declaring election to be void is as follows:
100. Grounds for declaring election to be void.--(1) Subject to the provisions of Sub-section (2), if the High Court is of opinion--
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected--
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) ...
10. This Election Petition has been filed for declaring the election of the returned candidate to be void on the grounds mentioned in Sub-sections (iii) & (iv) of Section 100(1)(d) of the Act. The relevant averments made in the petition in this connection are, therefore, required to be examined.
11. The petitioner has made reference to Article 325 of the Constitution which provides that there shall be one general electoral roll for every territorial constituency for election to the Legislative Assembly of a State. The petitioner has also pointed out that the division of each State into territorial constituencies for the purpose of elections to the State Legislative Assembly is done by the Delimitation Commission constituted under ''The Delimitation Act, 1972' (hereinafter referred to as the ''Delimitation Act') and that the last division of the State of Uttar Pradesh into territorial constituencies was done by the Delimitation Commission under this Act. In this connection reference has been made to Order No. 8 that was published by the Delimitation Commission under Section 10 of the Delimitation Act on 8th December, 1973. It provides that 397 Meerut Assembly constituency, which is now 381 Meerut Assembly constituency, shall include that area which forms part of Municipal Ward Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19 and 20 of Meerut Municipality. Reference has also been made to the notification published by the Election Commission of India on 16th January, 1976 namely ''The Delimitation of Parliamentary and Assembly Constituency Order 1976'. The said Order, however, does not make any alteration in respect of 397 Meerut Assembly constituency.
12. It has also been pointed out that the electoral rolls for holding elections to the Legislative Assembly of a State are prepared in accordance with the provisions of the 1950 Act and the Rules framed thereunder and the electoral roll of an Assembly constituency must be confined to the area or extent of the concerned Assembly constituency and cannot include any area outside the territorial limits of that Assembly constituency. The petitioner has pointed out that due to growth of population in district Meerut, new localities/colonies/mohallas which were outside the territorial boundaries of 381 Meerut Assembly constituency (formerly 397 Meerut Assembly constituency) as notified by the notifications dated 8th December, 1973 and 16th January, 1976 have now been included in the 381 Meerut Assembly constituency and the names of 21 such localities/colonies/mohallas have been mentioned.
13. The petitioner has further mentioned that a representation was, therefore, made to the Chief Election Commissioner on 5th May, 2007 with a prayer that the names of the voters included in the electoral rolls of the aforesaid 21 localities/colonies/mohallas be excluded from the 381 Meerut Assembly constituency whereupon the Chief Election Commissioner called for a report from the Chief Electoral Officer, Uttar Pradesh who, in turn, sent the same for comments to the District Election Officer, Meerut on 10th February, 2007. The District Election Officer, Meerut called for a report from the Sub-Divisional Magistrate, Meerut who submitted his report dated 21st February, 2007 along with the report of the Tehsildar. The Deputy District Election Officer/Additional District Magistrate (Administration), Meerut then forwarded the copies of the said reports to the Chief Electoral Officer, Uttar Pradesh by his letter dated 27th February, 2007 and thereafter the Officer on Special Duty in the office of the Chief Electoral Officer, Uttar Pradesh forwarded the same to the Secretary, Election Commission of India on 5th March, 2007. It has also been stated that the Under-Secretary of the Election Commission of India by his letter dated 24th March, 2007 informed the Chief Electoral Officer, Uttar Pradesh that the geographical boundaries delimited during the previous delimitation cannot undergo any change unless the new Delimitation Order is implemented. The said order dated 24th March, 2007 was then forwarded by the Officer on Special Duty, Chief Electoral Officer, Uttar Pradesh to the District Election Officer, Meerut on 26th March, 2007.
14. The petitioner has raised a grievance that despite the aforesaid direction of the Election Commission of India, the electoral roll relating to the said 21 localities/colonies/mohallas were not excluded from the electoral roll of 381 Meerut Assembly Constituency even though no new Delimitation Order in respect of 381 Meerut Assembly constituency has been implemented. The petitioner has clarified that there were 78 polling stations/centres on which voters entered in the electoral roll of the aforementioned 21 localities/colonies/mohallas cast their votes in the election in question and the votes cast by such voters were counted for the 381 Meerut Assembly constituency. The details of votes polled in the aforesaid 21 localities/colonies/ mohallas have also been given. The grievance of the petitioner contained in paragraphs 42 to 53 of the Election Petition is as follows:
42. That the abovementioned 31025 votes were cast by voters from the aforementioned 21 localities/colonies/mohallas which are outside the territorial boundaries of 381 Meerut Assembly constituency. These votes were void and could not have been received and counted as valid votes for election from the constituency in question.
43. That however, as these 31025 votes were void but were improperly and illegally received and counted as valid votes, the same have materially affected the result of the election in so for as it concerns the returned candidate Hazi Yaqoob respondent No. 1.
44. That on deducting these 31025 from the Total number of votes polled in the election in question the total will come to 1,05,515 votes only.
45. That if 23431 void votes received by the respondent No. 1 Hazi Yaqoob are deducted from 48502 votes shown to have been received by him, the number of his valid votes would be only 25071. Similarly if 375 void votes counted in favour of the petitioner are reduced from the total of his 47413 votes, the total number of his valid votes would come to 47038. In view of this fact the respondent No. 1 Hazi Yaqoob could not have been declared elected and it is the petitioner who should have been declared elected as he has received a majority of valid votes.
46. That thus the result of the election in so for as it concerns the respondent No. 1 Hazi Yaqoob has been materially affected by improper reception of 23431 void votes in his favour and as such his election is liable to be declared void and be set aside.
47. That, in fact the petitioner has received a majority of valid votes in the election in question and as such is entitled to be declared elected to the Uttar Pradesh Legislative Assembly from 381 Meerut Assembly Constituency.
48. That the result of the election, in so for as it concerns the respondent No. 1 Hazi Yaqoob has also been materially affected by non-compliance with the provisions of Articles 324, 325 and 326 of the Constitution of India.
49. That according to Article 325 one general electoral roll has to be prepared for every territorial constituency, which means Assembly Constituency as determined by the Delimitation Commission. Thus the electoral roll for one territorial constituency cannot relate to any territory outside that territorial constituency.
50. That as stated earlier the electoral roll of 381 Meerut Assembly Constituency illegally included the electoral rolls relating to areas outside this constituency and the voters whose name were entered therein were allowed to cast votes at the election in question. These areas were not excluded from 381 Meerut Assembly Constituency despite the direction of the Election Commission as contained in letter dated 24.3.2007 (Annexure-6). There was thus non-compliance with the provisions of Article 324 of Constitution of India also which has materially affected the result of the election in so for as it concerns the Respondent No. 1 Hazi Yaqoob.
51. That it is thus clear that after exclusion of the votes polled in favour of respondent No. 1 Hazi Yaqoob from the aforesaid areas, that is, 21 localities/colonies/mohallas, he could not have been declared elected. Instead, the petitioner was entitled to be declared elected from 381 Meerut Assembly Constituency.
52. That since the voters from the aforementioned 21 localities/colonies/mohallas whose names were entered in the electoral rolls relating those areas, were not entitled, and were disqualified, to have their names included in the electoral rolls of 381 Meerut Assembly Constituency, there has been non-compliance with the provisions of Article 326 of the Constitution of India also, as this has also materially affected the result of the election in so for as it concerns the respondent No. 1 Hazi Yaqoob.
53. That there has also been non-compliance with the provisions of Section 15(2) of the Representation of the People Act, 1951, inasmuch as it is 381 Meerut Assembly Constituency which was called upon to elect a member, but areas outside the territory of this Assembly Constituency were included in the constituency and voters of those areas, as aforesaid, were allowed to vote at the election in question. This has also materially affected the result of the election in so for as it concerns the returned candidate Hazi Yaqoob.
15. It is on the basis of these averments that the petitioner has claimed that the Election held for 381, Meerut Assembly constituency be declared void.
16. It is, therefore, apparent that the main thrust of the Election Petition is that certain areas outside the territory of 381 Meerut Assembly constituency as it existed when the notification dated 8th December, 1973 was published by the Delimitation Commissioner were subsequently included in the said Assembly constituency and the voters of such areas were allowed to vote in the election in dispute. It is the contention of the petitioner that this has materially affected the result of the election in so far as it concerns the returned candidate because 31025 votes which were cast by such voters from these 21 localities/colonies/mohallas were void votes and could not have been received and counted as valid votes.
17. The nature of the controversy necessitates the examination of certain provisions of the Constitution and the Delimitation Act.
18. Article 170 of the Constitution deals with the composition of the Legislative Assemblies while Articles 324 and 327 of the Constitution deal respectively with the superintendence, direction and control of the election in the Election Commission and the power of the Parliament to make provisions with respect to election to Legislatures. The same are as follows:
170. Composition of the Legislative Assemblies.--(1) Subject to the provisions of article 333, the Legislative Assembly of each State consist of not more than five hundred, and not less than sixty members chosen by direct election from territorial constituencies in the State.
(2) For the purposes of Clause (1), each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State. Explanation-- In this clause, the expression ''population' means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2000 have been published, be construed as a reference to the 1971 census.
(3) Upon the completion of each census, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine:
Provided that such readjustment shall not affect representation in the Legislative Assembly until the dissolution of the then existing Assembly.
Provided further that such readjustment shall take effect from such date as the President may, by order, specify and until such readjustment takes effect, any election to the Legislative Assembly may be held on the basis of the territorial constituencies existing before such readjustment:
Provided also that until the relevant figures for the first census taken after the year 2000 have been published, it shall not be necessary to readjust the total number of seats in the Legislative Assembly of each State and the division of such State into territorial constituencies under this clause.
324. Superintendence, direction and control of elections to be vested in an Election Commission.--(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections of Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution shall be vested in a Commission (referred to in this Constitution as the Election Commission).
327. Power of Parliament to make provision with respect to election to Legislatures.--Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
19. It needs to be mentioned that prior to the enactment of the Delimitation Act, the delimitation of Parliamentary and Assembly constituencies was based on the population figures of 1961 census. The Delimitation Act was enacted on completion of the 1971 census as readjustment of the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies was considered necessary. Sections 9, 10 and 11 of the Delimitation Act are:
9. Delimitation of constituencies.--(1) The Commission shall, in the manner herein provided then distribute the seats in the house of the People allocated to each State and the seats assigned to the Legislative Assembly of each State to single member territorial constituencies and delimit them on the basis of the latest census figures having regard to the provisions of the Constitution and the provision of the Acts specified in Section 8 and also to the following provisions namely:
(a) all constituencies shall, as far as practicable be geographically compact areas, and in delimiting them regard shall be had to physical features existing boundaries of administrative units, facilities of communication and public convenience;
(b) every assembly constituency shall be so delimiting as to fall wholly within one parliamentary constituency;
(c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located, as far as practicable, in those areas where the proportion of their population to the total is compratively large; and
(d) constituencies in which seats are reserved for the Scheduled Tribes shall, as far as practicable, be located in areas where the proportion of their population to the total is the largest.
(2) The Commission shall --
(a) publish its proposals for the delimitation of constituencies, together with the dissenting proposals, if any, of any associate member who desires publication thereof, in the Gazette of India and in the Official Gazettes of all the States concerned and also in such other manner as it thinks fit;
(b) specify a date on or after which the proposals will be further considered by it;
(c) consider all objections and suggestions which may have been received by it before the date so specified, and for the purpose of such consideration, hold one or more public sittings at such place or places in each State as it thinks fit; and
(d) thereafter by one or more orders determine--
(i) that delimitation of parliamentary constituencies, and
(ii) the delimitation of assembly constituencies, of each State.
10. Publication of orders and their date of operation.--(1) The Commission shall cause each of its orders made under Section 8 or Section 9 to be published in the Gazette of India and in the Official Gazettes of the State concerned.
(2) Upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any court.
(3) As soon as may be after such publication, every such order shall be laid before the House of the People and the Legislative Assemblies of the State concerned.
(4) Subject to the provisions of Sub-section (5), the readjustment of representation of the several territorial constituencies in the House of the People or in the Legislative Assembly of a State and the delimitation of those constituencies provided for in any such order shall apply in relation to every election of the House or to the Assembly, as the case may be, held after the publication in the Gazette of India of that order and shall so apply in supersession of the provisions relating to such representation and delimitation contained in the Representation of the People Act, 1950 and the Delimitation of Parliamentary and Assembly Constituencies Order, 1966, and any final orders of the Election Commission relating to the delimitation of parliamentary constituencies or, as the case may be, of assembly constituencies of any State made in pursuance of the provisions of any other Acts.
(5) Nothing in this section shall affect the representation in the House of the People or in the Legislative Assembly of a State until the dissolution of the House or of the Assembly, as the case may be, existing on the date of publication in the Gazette of India of the final order or orders of the Commission relating to the delimitation of parliamentary constituencies or, as the case may be, of the assembly constituencies of that State and any bye-election to fill any vacancy in such House or in any such Assembly shall be held on the basis of the provisions of the laws and orders superseded by Sub-section (4) as if the said provisions had not been superseded.
11. Power to maintain delimitation orders up-to-date.--(1) The Election Commission may, from time to time, by notification in the Gazette of India and in the Official Gazette of the State concerned,--
(a) correct any printing mistake in any of the orders made by the Delimitation commission under Section 9 or any error arising therein from an inadvertent slip or omission; and
(b) where the boundaries or name of any district or any territorial division mentioned in any of the said orders are or is altered, make such amendments as appear to it to be necessary or expedient for bringing the orders up-to-date, so however, that the boundaries or areas or extent of any constituency shall not be changed by any such notification.
(2) Every notification under this section shall be laid, as soon as may be after it is issued, before the House of the People and the Legislative Assembly of the State concerned.
20. The Delimitation Commission of India published the notification dated 8th December, 1973 under Section 10(1) of the Delimitation Act. The territorial constituencies into which the State of Uttar Pradesh was divided for the purpose of elections to the Legislative Assembly and the extent of each such constituency was shown in Table ''B'. In respect of Meerut district, the extent of 397 Meerut constituency (now 381 Meerut Assembly constituency) was shown as "Meerut Municipality excluding wards 1, 2, 3, 14 and 15". The relevant portion of the said notification dated 8th December, 1973 published in the Official Gazette is as follows:
NOTIFICATION New Delhi, the 8th December, 1973 The following Order made by the Delimitation Commission in pursuance of Sub-section (1) of Section 10 of the Delimitation Act, 1972 (76 of 1972), in respect of the delimitation of parliamentary and assembly constituencies in the State of Uttar Pradesh is hereby published:
"ORDER NO.8"
WHEREAS, in pursuance of Section 8 of the Delimitation Act, 1972 (76 of 1972), the Delimitation Commission has by its Order No. 5 dated 24th August, 1973, determined the total number of seats in the House of the people to be allocated to be State of Uttar Pradesh as eighty-five (85) of which 18 seats shall be reserved for the Scheduled Castes and the total number of seats to be assigned to the Legislative Assembly of the State as four hundred and twenty five (425), of which 89 seats shall be served for the Schedule Castes and one seat for the Scheduled Tribes;
WHEREAS, the proposals of the Delimitation Commission for the delimitation of the parliamentary and assembly constituencies in the State were published in the Gazette of India and in the Uttar Pradesh Gazette on 3rd September, 1973.
AND, WHEREAS, all the objections and suggestions received in relation to the said proposals were considered by the Commission at public sittings held at Lucknow on 16, 17 and 18 October, 1973, at Bareilly on 21, 22 and 23 October, 1973 at Meerut and on 30 and 31 October, 1973, at Dehra Dun on 3 and 4 November, 1973 at Allahabad on 6, 7 and 8 November, 1973, at Varanasi on 12, 13 and 14 November, 1973 and at Agra on 16 and 17th November, 1973.
We hereby determine as follows:
(1) The territorial constituencies into which the State of Uttar Pradesh shall be divided for the purpose of elections to the House of the People and the extent of each such constituency shall be as shown in Table A.
(2) The territorial constituencies into which the State of Uttar Pradesh shall be divided for the purpose of elections to the Legislative Assembly and the extent of each such constituency shall be as shown in Table B.
(3) Where the name of a constituency as shown in Table A or Table B is distinguished by the brackets and letters "(SC)" the seat in that constituency is reserved for the Scheduled Castes; and where such name is distinguished by the brackets and letter "(ST)" the seat in that constituency is reserved for the Scheduled Tribes.
...................................................................
MEERUT DISTRICT ...................................................................
396. Meerut Cantonment : Wards 1 to 3, 14 and 15 in Meerut Municipality, Meerut Cantonment, Kanker Khera T.A., Abdullapur T.A., Buxer Khera T.A., and L.Cs., 36- Nagla Tashi Kasampur, 37-Sikhera, 38-Behchola, 43-
Aurangshahpur Diggi, and 44-Abdullapur in Meerut pargana in Meerut tahsil
397. Meerut : Meerut Municipality, (excluding wards 1 to 3, 14 and
15) ...................................................................
21. As noticed hereinabove, the notification dated 8th December, 1973 published by the Delimitation Commission mentions that the extent of 397 Meerut Assembly constituency shall be Meerut Municipality excluding Ward Nos. 1, 2, 3, 14 and 15. It further shows that the remaining Wards have been included in 396 Meerut Cantonment Assembly constituency. It is not in dispute that Meerut Municipality consisted of 20 wards.
22. The contention of Sri K.N. Tripathi, learned Senior Counsel for the petitioner is that the 21 localities/colonies/mohallas which were outside the territorial boundary of 397 Meerut Assembly constituency at the time the notifications dated 8th December, 1973 and 16th January, 1976 were published, have subsequently been included in the 397 Meerut Assembly constituency (now 381 Meerut Assembly constituency). It is not his contention, which is also clear from the averments made in the election petition, that these 21 localities/colonies/mohallas are presently not included in Ward Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19 and 20 of Meerut Municipality. To be precise, the contention of learned Senior Counsel for the petitioner is that the area of the said wards of Meerut Municipality at the time of publication of the notification on 8th December, 1973 cannot be increased except by publication of a fresh Delimitation Order and, therefore, the area of the wards which was extended subsequently cannot form part of 381 Meerut Assembly constituency and consequently the voters of such areas cannot be included in the electoral roll of the said Assembly constituency. According to the learned Senior Counsel for the petitioner, the power of the Election Commission under Section 11(1)(a) & (b) of the Delimitation Act is limited to the contingencies set out therein and even otherwise, this can be done only by publication of the notification in the Gazette which has not been done in the present case. In support of this contention learned Senior Counsel has placed reliance upon the decision of the Supreme Court in Election Commission of India v. Mohd. Abdul Ghani and Ors. wherein it was observed that the power of the Election Commission under Section 11(1)(b) of the Delimitation Act does not extend to alteration of the boundaries or area or extent of any constituency shown in the Delimitation Order. It is also his contention that there has been violation of the Constitution as the directions issued by the Election Commission on 24th March, 2007 under Article 324 of the Constitution have not been complied with.
23. Sri Ravi Kiran Jain, learned Senior Counsel for the respondent-applicant, however, submitted that the aforesaid contention is without any basis as the Delimitation Commission in its order dated 8th December, 1973 never intended to restrict the area of the wards to that existing on the date of publication of the notification. Learned Senior Counsel also contended that the Election Commission had not issued any direction for excluding the electoral roll relating to the 21 localities. He, therefore, contended that the Election Petition does not disclose any cause of action and should be dismissed under Order VII Rule 11 CPC.
24. The Delimitation Order dated 8th December, 1973 gives the extent of 397, Meerut Assembly constituency as "Meerut Municipality-excluding Ward Nos. 1, 2, 3, 14 and 15". It is not disputed by the parties that Meerut Municipality consists of 20 wards. Thus, all that area falling in Ward Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19 and 20 will form part of 397 Meerut Assembly constituency (now 381 Meerut Assembly constituency). As noticed hereinabove, it is not the contention of the petitioner that the 21 localities/colonies/mohallas are presently not included in the wards falling in 381 Meerut Constituency as there is no averment in the Election Petition to that effect. The contention, however, is that such area was not included on 8th December, 1973 in the wards constituting the said Assembly constituency and so cannot be subsequently included unless a new Delimitation Order is published.
25. It is in the light of the provisions of the U.P. Municipalities Act, 1916 (hereinafter referred to as the ''Municipalities Act') that the aforesaid Orders dated 8th December, 1973 and 16th January, 1976 that have been published by the Delimitation Commission have to be construed. It has, therefore, become necessary to examine the relevant provisions of the Municipalities Act dealing with ''Municipalities' and ''Wards'.
26. Section 2(9) of the Municipalities Act defines a ''Municipality' to mean any local area which is a Municipality by reason of a notification issued under Section 3 of the Act or, subject to the provisions of the said Section, any local area which was a Municipality at the time immediately preceding the commencement of the Act. Section 6 of the Act deals with incorporation and general functions of ''Municipal Boards' and provides inter alia that in every Municipality there shall be a Municipal Board. Section 9 of the Act deals with the composition of the Board. Sections 11-A, 11-B and 11-C deal with delimitation of wards and the said provisions are as follows:
11-A. Delimitation of wards.--(1) For purposes of elections to a Board there shall be wards provided by order under Section 11-B.
(2) The representation of each ward shall be on the basis of population of that ward as ascertained at the last census and shall as far as possible be in the same proportion as the total number of seates for the municipality and its population.
Provided that the reference in this sub-section to the ''last census' shall, for a period of one year from the commencement of the Uttar Pradesh Urban Local Self-Government Law (Second Amendment) Act, 1983, be construed as a reference to the 1971 census and any reference to the population shall be a reference to the population on the basis of that census.
11-B. Delimitation Order.--(1) The State Government shall, by order, determine.--
(a) the wards in which each municipality shall be divided for purposes of elections to the Board;
(b) the extent of each ward;
(c) the number of seats allotted to each ward; and
(d) the number of seats, if any, reserved for the Scheduled Castes.
11-C. Amendment of Delimitation Order.--The State Government may, after consulting the board concerned, by a subsequent order, alter or amend the final order under Sub-section (3) of Section 11-B.
27. Certain provisions of the Municipalities Act were amended in view of the 74th Constitution Amendment Act which came into force w.e.f. 1st June, 1993. It needs to be mentioned that by the said Constitution Amendment Act Part IX-A of the Constitution which deals with "The Municipalities" was inserted. Article 243-P(e) which is contained in Part IX-A of the Constitution defines "Municipality" to mean an institution of self government constituted under Article 243-Q. Article 243-R deals with the composition of Municipalities and provides that subject to Clause (2), all the seats in a municipality shall be filled by person chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as ''Wards'.
28. Section 2(9) of the Municipalities Act was accordingly amended by U.P. Act No. 12 of 1994 and the amended Section defined ''Municipality' to mean an institution of self government referred to in Clause (e) of Article 243-P of the Constitution. Sections 11-A, 11-B and 11-C of the Municipalities Act which deal with delimitation were consequently also amended by U.P. Act No. 12 of 1994 and are as follows:
11-A. Delimitation of wards.--(1) For the purpose of election of members of a municipality every municipal area shall be divided into territorial constituencies to be known as wards in such manner that the population in each ward shall, so far as practicable, be the same throughout the municipal area.
(2) Each ward shall be represented by one member in the municipality.
11-B. Delimitation Order.--(1) The State Government shall, by order, determine--
(a) the number of wards in to which each municipal area shall be divided for purposes of elections to the municipality;
(b) the extent of each ward;
(c) [omitted]
(d) the number of seats to be reserved for the Scheduled Castes, the Scheduled Tribes, the backward classes and the women.
(2) The draft of the Order under Sub-section (1) shall be published in the manner prescribed for a period of of not less than seven days.
(3) The State Government shall consider any objections filed under Sub-section (2) and the draft Order shall, if necessary, be amended, altered or modified accordingly and thereupon it shall become final.
11-C. Amendment of Delimitation Order.--(1) The State Government may, after consulting the Board concerned, by a subsequent Order, alter or amend the final order under Sub-section (3) of Section 11-B.
(2) For the alteration or amendment of any order Sub-section (1), the provisions of Sub-sections (2) and (3) of Section 11-B shall mutalis mutandis apply.
29. It is clear from the aforesaid Sections, both unamended and amended, that every ''Municipality' is divided into territorial constituencies to be known as Wards and that the State Government determines, by an order, the number of Wards into which each ''Municipal area' shall be divided and the extent of each Ward after considering the objections. However, under Section 11-C of the Municipalities Act the State Government can, after consulting the Board, by a subsequent order, alter or amend the final Delimitation Order published under Section 11-B of the Municipalities Act. It, therefore, transpires that the extent of each ward is not fixed and can be altered or amended in accordance with the provisions of Section 11-C of the Municipalities Act. This position existed at the time the notifications dated 8th December, 1973 and 16th January, 1973 were published by the Delimitation Commission. Thus, when the Delimitation Commission proceeded to determine the territorial constituencies into which the State of U.P. was to be divided for the purpose of elections to the Legislative Assembly and the extent of each such constituency, it was aware that the extent of each ward and the number of wards into which each Municipal Area shall be divided is not static and can be amended or altered from time to time. In such circumstances, if the intention of the Delimitation Commission was to restrict the extent of the Wards to that area only which existed on the date of publication of the notifications dated 8th December, 1973 and 16th January, 1976, then it would have conveyed such an intention by making a specific provision to that effect in the Order but as seen above, the Order in so far as 397 Meerut Assembly Constitutency is concerned merely refers to certain wards of the Municipality. There is no restriction in the Order that the area of the Wards shall be confined to the area comprised in the Wards on 8th December, 1973 and nor can such an inference be drawn. The irresistible conclusion that follows is that the territory of 397 Meerut Assembly constituency (now 381 Meerut Assembly constituency) shall comprise all that area falling in the different wards mentioned in the Delimitation Order as it exists on the date of making of the nomination for the election in question.
30. It also needs to be mentioned that there is no averment in the Election Petition that the 21 localities/colonies/mohallas were not included in Ward Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19 and 20 at the time of making of the nomination for the election in dispute. This was a material fact which was required to be stated in the Election Petition in case such was the factual position.
31. The Supreme Court in Virender Nath Gautam v. Satpal Singh and Ors. pointed out that 'material facts' are facts upon which the cause of action of the plaintiff or the defence of the defendant depends and failure to state even a single material fact will entail dismissal of the Suit or petition. The relevant portion of the judgment is as follows:
The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary'. [Burton's Legal Thesaurus, (Third edn.); p.349]. The phrase 'material facts', therefore, may be said to be those facts upon which a party relies for his claim or defence. In other words, 'material facts' are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be 'material facts' would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
In the leading case of Phillips v. Phillips (1878) 4 QBD 127 : 48 LJ QB 135, Cotton, L.J. Stated:
What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial.
In Bruce v. Odhams Press Ltd. (1936) 1 KB 697 : (1936) 1 All ER 287, Scott, L.J. referring to Phillips v. Phillips observed:
The cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one 'material' statement is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology, and in the new is liable to be 'struck out' under R.S.C. Order 25 Rule 4 (see Phillips v. Phillips); or 'a further and better statement of claim' may be ordered under Rule 7.
A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise.
All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.
32. In Mahadeorao Sukaji Shivankar v. Ramaratan Bapu and Ors. , the Supreme Court pointed out that what particulars would be 'material facts' would depend upon the facts of each case but all the basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party. The relevant observations are as follows:
Now, it is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by Clause (a) of Rule 11 of Order 7 of the Code. The question , however, is as to whether the petitioner had set out material facts in the election petition. The expression "material facts" has neither been defined in the Act nor in the Code. It may be stated that the material facts are those facts upon which a party relies for his claim or defence. In other words, material facts are facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party.
33. Sri K.N. Tripathi, learned Senior Counsel for the petitioner has, however, placed reliance upon the decision of the Supreme Court in Election Commission of India. In this case, 16 named villages in the territorial division of district Murshidabad in the State of West Bengal formed part of 8-Jangipur Parliamentary Constituency in the Delimitation Order. River Ganges, however, started changing its course as a result of which these 16 villages came to be located towards east bank of the river and then formed part of territorial division named as district Malda. In spite of this geographical change resulting in inclusion of of these villages in the territorial division of district Malda for administrative purposes, the position of these villages remain unaltered for election purposes and they continued to form part of 8-Jangipur Parliamentary Constituency in accordance with the Delimitation Order. Certain residents of these villages filed a writ petition in the Calcutta High Court that because of the above geographical change, these 16 villages should now form part of the Malda Parliamentary Constituency since they had become part of district Malda instead of earlier district Murshidabad. The writ petition was allowed by the Calcutta High Court.
34. The Supreme Court examined the provisions of Section 9(1)(b) of the 1950 Act and Section 11(1)(b) of the Delimitation Act and observed:
A comparison of Section 11(1)(b) of the Delimitation Act, 1972 with Section 9(l)(b) of the R.P. Act, 1950 shows that except for the last part of Section ll(l)(b) it is the same as Section 9(1(b) of the R.P. Act, 1950; and the additional words in Section 11(1(b) are - "so, however, that the boundaries or areas or extent of any constituency shall not be changed by any such notification". These additional words leave no doubt that the power to maintain Delimitation Orders up-to-date conferred on the Election Commission is subject to the restriction that in updating the Delimitation Orders occasioned by an alteration of the boundaries or name of any district or any territorial division it does not make any change in the boundaries or areas or extent of any constituency as shown in the Delimitation Order. Obviously, the exercise required to be performed by the Election Commission as a result of any alteration in the boundaries or name of any district or any territorial division mentioned in the Delimitation Order has to be made only by changing the description of that area which has undergone a geographical change to correctly describe that part of the constituency, the boundaries, area and extent of the constituencies remaining the same, i.e., unaltered. In other words, there is a specific restriction against any alteration or change in the boundaries or area or extent of any constituency as shown in the Delimitation Order and the exercise of updating the Delimitation Order has to be made merely for the purpose of correcting the description of that part of the constituency which has undergone a change in description because of the subsequent change in the boundaries or name of any district or any territorial division mentioned in the Delimitation Order.
There can be no doubt that Section 11(1(b) of the Delimitation Act, 1972 is incapable of any other construction since it does not permit the making of any change in the boundary' or area or in the extent of the constituency as described in the Delimitation Order because of the express prohibition therein. Section 9(1(b) of the R.P. Act. 1950, must be construed similarly for a harmonious construction of both these provisions. If the same words which are used in Section 9(1(b) are used also in Section 11(1(b) with this further addition containing the express restriction, there is no occasion to construe Section 9(1(b) of the R.P. Act, 1950 differently to permit an exercise expressly forbidden by Section 11(1(b) of the Delimitation Act, 1972.
In our opinion, the entire scheme of these enactments and the nature of power conferred on the Election Commission to merely update the Delimitation Order by making the necessary changes on account of subsequent events to correct the description in the Delimitation Order which has become inappropriate, lead to the conclusion that the power of the Election Commission under these provisions is only of this kind. This power cannot extend to alteration of the boundaries or area or extent of any constituency as shown in the Delimitation Order. The prayer made in the writ petition filed in the High court which has been granted by the High court is contrary to the express prohibition contained in Section ll(l)(b) of the Delimitation Act, 1972. This being so, a mandamus could not be issued to the Election Commission to perform an exercise expressly forbidden by law. This appeal has, therefore, been allowed.
35. This decision does not help the petitioner as in the present case, as noticed above, the Election Commission has not exercised any power under Section 11(1)(b) of the Act.
36. Much emphasis has been placed by the learned Senior Counsel for the petitioner on the communication dated 24th March, 2007 sent by the Under Secretary to the Election Commission of India to the Chief Electoral Officer, State of U.P. It is his contention that the Election Commission had issued directions under Article 324 of the Constitution to exclude the roll of 21 localities/colonies/mohallas from the rolls of 381 Meerut Assembly constituency but such directions were not carried our. Sri Ravi Kiran Jain, learned Senior Counsel, however, submitted that neither was such a direction issued and nor could such a direction be issued either under Section 11(1)(b) of the Delimitation Act or under Article 324 of the Constitution.
37. A perusal of the communication dated 24th March, 2007 shows that it is in response to the communication dated 5th March, 2007 sent by the Office on Special Duty in the office of Chief Electoral Officer, U.P. to the Secretary, Election Commission of India. The aforesaid letter dated 24th March, 2007 merely states that the geographical boundaries delimited during the previous delimitation cannot undergo any change unless the new Delimitation Order is implemented. This letter, therefore, merely reiterates what is contained in Section 11(1)(b) of the Delimitation Act and it cannot be construed to mean that the Election Commission of India had directed the Chief Electoral Officer, State of U.P. to exclude the roll of 21 localities/colonies/mohallas from the electoral roll of 381 Meerut Assembly constituency. It is, therefore, not necessary to examine whether directions could have been issued by the Election Commission of India.
38. It is in the light of the aforesaid discussion that it has to be ascertained whether the Election Petition discloses any cause of action.
39. For finding out whether the petition discloses a cause of action or not, the averments made in the petition have to be seen. This is what was observed by the Supreme Court in Hardesh Ores Pvt. Ltd. v. Hede & Co. 2007 AIR SCW 3456:
...It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is whether the averments made in the plaint if taken to be correct in their entirety a decree would be passed. The averments made in the plaint as a whole have to be seen to find out whether Clause (d) of Rule 11 of Order VII is applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense.
This was reiterated by the Supreme Court in Saleem Bhai and Ors. v. State of Maharashtra and Ors. and the observations are:
A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purpose of deciding an application under Clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court....
In I.T.C. Limited v. Debts Recovery Appellate Tribunal and Ors. the Supreme Court sounded a note of caution in this regard and observed:
The question is whether a real cause of action has been set out in the plaint or something purely illusory has been stated with a view to get out of Order 7 Rule 11 CPC. Clever drafting creating illusions of cause of action are not permitted in law and a clear right to sue should be shown in the plaint.
In Liverpool & London S.P. & I Asson Ltd. v. M.V. Sea Success I and Anr. the Supreme Court pointed out what 'cause of action is:
A cause of action is a bundle of facts which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit. For the aforementioned purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence.
...
In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown....
...
The reason for the aforementioned conclusion is that if a legal question is raised by the defendant in the written statement, it does not mean that the same has to be decided only by way of an application under Order 7 Rule 11 of the Code of Civil Procedure which may amount to pre-judging the matter.
40. In Azhar Hussain v. Rajiv Gandhi the Supreme Court held that an election petition can be dismissed under Order VII Rule 11 CPC if the petition does not disclose essential facts to clothe it with complete cause of action. Failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and the election petition must be dismissed if it suffers from any such vice. The Court repelled the submission that the power to reject an election petition summarily under the Code of Civil Procedure should not be exercised at the threshold. The observations are as under:
In substance the argument is that the Court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned Counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose.... The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matters pertaining to ordinary civil litigation, there is greater reason for taking the same in regard to matters pertaining the elections.
41. In Bhagwati Prasad Dixit ''Ghorawala' v. Rajiv Gandhi the Supreme Court also pointed out:
...in an election pleadings have to be precise, specific and unambiguous and if the election petition does not disclose a cause of action it should be rejected in limine. These authorities have settled the legal position that an election petition is liable to be dismissed in limine at the initial stage if it does not disclose any cause of action. Cause of action in questioning the validity of election must relate to the grounds specified in Section 100 of the Act. If the allegations contained in the petition do not set out grounds of challenge as contemplated by Section 100 of the Act and if the allegations do not conform to the requirement of Sections 81 and 83 of the Act, the pleadings are liable to be struck off and the election petition is liable to be rejected under Order VII Rule 11....
42. The Supreme Court in Azhar Hussain rejected the contention that even if the Election Petition is liable to be dismissed ultimately, it should be dismissed only after recording evidence as in its opinion the powers under Order VII Rule 11 CPC are meant to be exercised to serve the purpose for which the same have been conferred so that the litigation comes to an end at the earliest. In Bhagwati Prasad Dixit the Supreme Court also pointed out that the Election Petition should be dismissed in limine at the initial stage if it does not disclose any cause of action. In Saleem Bhai, the Supreme Court also pointed out that the Court can exercise powers under Order VII Rule 11 CPC at any stage of the suit. A reading of the Election Petition in the manner suggested in Hardesh Ores Pvt. Ltd. disclose that the alleged cause of action is that certain areas outside the territory of 381 Meerut Assembly constituency were illegally included in the said Assembly constituency and the voters of such area were allowed to vote and this has materially affected the result of the election in so far as it concerns the returned candidate as the votes cast by such voters were void votes and could not be received and counted as valid votes. This contention has not been accepted. The Election Petition, therefore, does not disclose any cause of action.
43. It is, therefore, not necessary to examine the other objections raised by Sri Ravi Kiran Jain, learned Senior Counsel for the applicant/returned candidate.
44. In view of the aforesaid decisions of the Supreme Court, the Election Petition is liable to be dismissed under Order VII Rule11(a) CPC. Thus, for all the reasons stated above, application (A-10) filed by the returned candidate is allowed and the Election Petition is dismissed under Order VII Rule 11 CPC as it does not disclose any cause of action.