Hardwari Lal Vs. Kanwal Singh [1971] INSC
338 (7 December 1971)
RAY, A.N.
RAY, A.N.
HEGDE, K.S.
GROVER, A.N.
CITATION: 1972 AIR 515 1972 SCR (3) 742 1972
SCC (1) 214
CITATOR INFO :
R 1972 SC1302 (19,20) F 1975 SC1788 (6) RF
1976 SC 744 (34) RF 1976 SC1187 (6) RF 1985 SC 236 (66) R 1986 SC1253
(10,14,18) F 1987 SC1577 (28) R 1990 SC1731 (10)
ACT:
Representation of the People Act, 1951 s.
123(7)--Corrupt practice of obtaining assistance etc. from a Government
servant--What constitutes--When material particulars are not supplied the
petition must be dismissed.
HEADNOTE:
The appellant was declared elected to the
Haryana Legislative Assembly from Bahadurgarh constituency. The respondent
challenged the election on various grounds. in para 16 of the election petition
it was alleged that the appellant was guilty of the corrupt practice mentioned
in s.
123(7) of the Representation of the People
Act. 1951 inasmuch as he had written letters to six Government servants seeking
their assistance in the election. The High-Court framed issue No. 5 to deal
with this allegation.
The appellant applied to the High Court for
further particulars to be supplied by the respondent in support of his
allegations in para 16 but the application was rejected.
The High Court held the appellant guilty of
the said corrupt practice and declared his election void. The appellant
appealed to this Court by special leave. The question that fell for
consideration was Whether the petition was not maintainable in view of the
appellant's contention that material particulars in support of the allegation
of corrupt practice which was the Subject-matter of Issue No. 5 had not been
supplied.
HELD : The different expressions used in s.
123(7), namely, obtaining,,. Procuring, 'abetting or attempting to obtain or
procure is various forms of corrupt practice. It has to be found as to whether
the allegation of obtaining assistance amounts to an allegation of fact. It is
well settled that general expression like 'fraudulently', 'negligently' or
'maliciously' in pleadings do not amount to allegations of fact. [746 H] In the
present case the allegations in para 16 of the election petition did not amount
to any statement of material fact of corrupt practice. It was not stated as to
what kind or form of assistance was obtained or procured or attempted to be
obtained or procured. It was not stated from whom the particular type of
assistance was obtained or attempted to be obtained or procured. It was not
stated in what manner the assistance was for the furtherance of the prospect of
the election. The government of the charge of corrupt practice is obtaining or
attempting to obtain or procure any assistance other than the giving of a vote.
In the absence of any suggestion as to what the assistance was the, election
petition was lacking in the most vital and essential material fact to furnish a
cause of action. It did not amount to an election petition on grounds mentioned
in s. 123 (7) of the Act and was therefore liable to be dismissed. [750 F-G]
The fact that s. 83 under which material particulars are required to be
supplied is not mentioned in s. 86 as one of the sections non-compliance with
which must result in dismissal of the petition cannot lead to a contrary
conclusion. Under s. 87 of the Act every election petition shall be tried by
the High Court as nearly as may be in accordance with the procedure applicable
tinder the Code of Civil Procedure 1908 to the trial of 743 Suits. A suit which
does not furnish cause of action can be dismissed, [750H-751A] Samat N. Balakrishna
etc. George Fernandex & Ors., [1969] 3 S.C.R. 603, Manubhai nandlal Amersey
v. Popatlal Manilal Joshi & Ors., [1969] 3 S.C.R. 217 and Harish Chandra
Bajpai
& CIVIL APPELLATE JURISDICTION : Civil
Appeal No. 129 of 1971.
Appeal under S. 116-A of 'the Representation
of the People Act, 1951 from the Judgment and Order dated December 24, 1970 of
the Punjab and Haryana High Court in Election Petition No. 1 of 1970.
Appellant appeared in person.
Anand Swaroop , Janardan Sharma and S. K.
Nand.v, for the respondent.
The Judgment of the Court was delivered by
Ray, J. This is an appeal under section 11 6-A of the Representation of the
People Act (hereinafter referred to as the Act) from the judgment and order
dated 24 December, 1970 of the High Court of Punjab and Haryana setting aside
the election of the appellant.
The appellant was declared elected to the
Haryana Legislative Assembly from Bahadur garh Constituency. The polling took
place on 7 June, 1970. The result was declared on 8 June. The appellant
obtained 22436 votes. The respondent obtained 17760 votes.
The respondent challenged the appellant's
election on numerous grounds.
The election petition was filed on 23 July,
1970. The written statement Was filed on 2 September, 1970. Seven issues were
framed at the trial on various allegations to corrupt practice. After the
conclusion of evidence the petitioner gave up pleas giving rise to issues No. 1
and 2. Issues No.
3(i), (iv), and (vi) were also given up.
Issues No. 3(ii), 3(iii), 3(v) and 3(vii) were pressed and the court decided
the entire issue No. 3, against the election petitioner.
Issues No. 4(a) and (b) were decided against
the election petitioner. Issue No. 5 was held to be proved only relating to
Chand Ram Rathi and the remaining issues were found not to be proved. Issue No.
6 was consequential on issue No. 5 and inasmuch as the election petitioner,
called in question only the election of the appellant and did not claim any
declaration either that the petitioner or any other candidate bad been elected,
no question of declaration under section 744 101 of the Act arose. Issue No. 7
was answered by holding that the appellant was guilty of commission of corrupt
practice under section 123(7) of the Act. The High Court, therefore, declared
the election of the appellant to be void and held the appellant guilty of the
commission of corrupt practice under section 123(7) of the Act and awarded
costs amounting to Rs. 2000/-.
The election petition succeeded only on issue
No. 5. Issue No. 7 was the consequential relief. Issue No. 5 related to
paragraph 16 of the petition and allegations as to corrupt practice within the
meaning of section 123(7) of the Act.
The only question for determination in this
appeal is whether the election petition was maintainable in regard to
allegations against the appellant under section 123(7) of the Act, which were
comprised in issue No. 5.
The allegations in paragraph 16 of the
petition were as follows: "That the respondent committed the corrupt
practice of obtaining and procuring or attempting to obtain and procure the
assistance for the furtherance of the prospects of his election from the
following persons who are in the service of the Government and belonging to the
prohibited classes within the meaning of section 123(7) of the Act;
1. Shri Chand Ram Rathi, Lecturer in
Political Science, Government College, Gurgaon.
2. Shri Gulab Singh, B.A., B.Ed., Government
High Court, Jaharsa (Gurgaon).
3. Pt. Bhim Singh, Assistant Sub-Inspector,
Police Security Lines, Lytton Road, New Delhi.
4. Ch. Chhattar Singh, M.A., B.T. Teacher V.
& P.O. via Bahadurgarh, District Rohtak.
5. Ch. Mukhtiar Singh, Inspector of Police,
Delhi.
6. Ch. Raghbir Singh, M.A., B.T.,
Bahadurgarh.
The respondent has written letters under his
own signatures to the above Government servants soliciting their help and
assistance in furtherance of the prospects of his election".
The appellant submitted preliminary
objections. These were inter alia that paragraph 16 (4 the petition was liable
to expunction "for it does not give the necessary particulars about the
nature of assistance and the place and the date where and when such assistance
was sought or received from the persons named in the petition". The
appellant further dealt with paragraph 16 by denying the allegations.
745 The High Court by an order dated 11
September, 1970 dealt with the preliminary objection. As to allegations in
paragraph 16 of the election petition the High Court said that in form BB filed
by the election petitioner particulars of letters written by the appellant to
the various persons mentioned therein had been given at Serial Numbers 3 to 8.
Dates of the letters and the script in which
they were written and the persons to whom they were addressed had been
mentioned in those items. Counsel on behalf of tile appellant contended before
the High Court that the letters should either be produced or details of their
contents should be disclosed so as to enable the appellant to find out whether
or not the assistance alleged to have been sought from the addressees of those
letters was or was not sought for the furtherance of the prospects of the
appellant in election. The High Court said that the election petitioner could
not be expected to be in possession of letters and in the nature of thing it
would not be possible for the election petitioner to change the contents of
letters and if and when the letters were produced or admitted or proved, it
would be a mere matter of argument whether the writing of the letters did or
did not fall within the corrupt 'practice defined in section 123(7) of the Act.
The High Court declined to allow further or better particulars asked for by the
appellant.
At the trial Chand Ram Rathi whose name was
mentioned in item No. 8 in form BB annexed to the petition as one of the persons
to whom the appellant had written a letter was examined on behalf of the
election petitioner on 3 December, 1970. The election petitioner was also
examined on 3 December, 1970. The oral evidence of the election petitioner was
concluded on 4 December, 1970. On the same day, the appellant was examined by
the Court under Order 12.
Rule 3 (a) of the Code of Civil Procedure as
to whether the appellant had written the letter marked Ex. P.W. 34/1 to Chand
Ram Rathi. On the same day, the appellant asked for an order to recall Chand
Ram Rathi. One oil the rounds given by the appellant to recall the witness was
to put a letter dated 27 May, 1970 written by Chand Ram Rathi to the appellant.
The High Court declined to accede to the prayer of the appellant on the ground
that recalling the witness for province the letter dated 27 May, 1970 written
by Chand Ram Rathi to the appellant would be to contradict the statement of
Chand Ram Rathi and to show that he was not a truthful witness.
The High Court relied on the oral evidence of
Chand Ram Rathi to whom the appellant had written a letter and held that the
appellant was guilty of corrupt practice within the meaning of section 123 (7)
of the Act.
746 The appellant appeared in person in this
Court. The appellant raised these contentions. Paragraph 16 of the election
petition did not contain statement of material facts to amount to any
allegation of corrupt practice against the appellant. The High Court declined
to order particulars. The High Court allowed oral evidence to be adduced by the
election petitioner in the absence of any pleading of material facts alleging
,corrupt practice within the meaning of section 123(7) of The Act. Therefore,
the appellant contended that first there was no pleading, secondly, particulars
were not allowed to give the appellant an opportunity of knowing the case; and,
thirdly, the High .Court allowed proof of matters of which there was no
foundation .in the pleadings.
Counsel on behalf of the election petitioner
on the other hand .contended.t contended that the allegations were that the
appellant had sought assistance from Government servants for the furtherance of
the ,prospects of the appellant's election and particulars of letters were
given and therefore the election petitioner alleged material facts and proved
the same in support of the allegations.
Under section 83 of the Act an election
petition (a" shall .,contain a concise statement of the material facts on
which the petitioner relies, (b) shall set fourth full particulars of any
corrupt practice that the petitioner alleges, including as full a statement ,as
possible of the names of the parties alleged to have committed such corrupt
practice and the date and place of the commission of each such practice. It is
manifest that the election petition shall not only contain material facts but
also set forth particulars of corrupt practice.
Section 123(7) of the Act is as follows
"The obtaining or procuring or abetting or attempting to obtain or procure
by a candidate or his agent or, by any other person with the consent of a
candidate or his election agent, any assistance other than the giving of vote)
for the furtherance of the prospects of that candidate's election, from any
person in the service of the Government and belonging to any of the ,following
classes, namely :
Clauses (a) to (g) which need not be set out
here".
It has to be noticed that the different
expressions obtaining, procuring, abetting or attempting to obtain or procure
are various forms of corrupt practices. It has to be found as to whether the
allegation of obtaining assistance amounts to an .,allegation of fact. It will
well settled that general expressions 747 like 'fraudulently' 'negligently' or
'maliciously' in pleadings do not amount to any allegation of fact. A fact is after
all not a mere word.
The provisions of the aforesaid section
indicate these heads of corrupt practices. First, the obtaining by a candidate
or his agent or by any other person any assistance (other than the giving of
vote) for the furtherance of the prospects of that candidate's election from
any person in the service of the Government as mentioned in the section.
Second, the procuring by a candidate or his
agent or by any other person with the consent of the election petitioner any
assistance (other than the giving of vote) for the furtherance of the prospects
of that candidates election.
Third, the abetting by a candidate or his
agent or by any other person with the consent of the candidate or his election
agent any assistance (other than the giving of vote) for the furtherance of the
prospects of that candidates election as mentioned. Fourth, the attempting to
obtain or procure by a candidate or his agent, or by any other person with the
consent of a candidate or his election agent any assistance (other than the
giving of vote) for the furtherance of the prospects of that candidate's
election.
Fifth, the assistance that is forbidden or
prohibited by the statute is any assistance other than the giving of vote. It
is clear that the four different heads of corrupt practices are (a) obtaining
(b) procuring (c) abetting, and (d) attempting to obtain or procure assistance.
Therefore, material facts are to be alleged
as to whether the candidate obtained or procured or abetted or attempting to
obtain or procure any assistance other than the giving of vote. In paragraph 16
of the election petition it is alleged that the appellant committed the corrupt
practice or obtaining and procuring or attempting to obtain and procure
-assistance for the furtherance of the prospects of his election from the
persons mentioned there. Reading paragraph 16 of the election petition one will
search in vain to find out as to whether the allegations against the appellant
are in regard to the assistance under both heads or either head from each of
the six persons mentioned there.
One will speculate as to whether the
appellant obtained and procured or attempted to obtain and procure assistance
from each or Some of the persons mentioned there. Obtaining or procuring or
attempting to obtain or procure assistance are separate and independent forms
of corrupt practice. One will guess as to whether the allegations are that the
appellant committed all or one or more of the corrupt practices of obtaining,
procuring, attempting to obtain, or procure assistance from each of the persons
mentioned there.
One will also conjecture and 748 hazard as to
what assistance was obtained or procured or attempted to obtain or procure from
each of the persons mentioned there, for the furtherance of the prospects of
that candidate's election. The giving of vote is not within the mischief of
corrupt practice. It cannot be understood from the petitioner whether the
giving of vote is the assis tance alleged. It is, therefore, apparent that the
appellant who was charged by the election petitioner with corrupt practice
should be told in the election petition as to what assistance he sought. The
type of assistance, the manner of assistance, the time of assistance, the
person from whom assistance is sought are all to be set out in the petition
about the actual and the specific assistance with which the appellant can be
charged in violation of the provisions of the Act. Nor is there any statement
in the election petition describing the manner in which the prospects of the election
were furthered and the way in which the assistance was rendered. The
allegations against the appellant were in relation to six persons. Therefore,
it was essential and imperative for the election petitioner to set out with
exactitude and precision the type of assistance as also the manner in which
assistance was obtained or procured from each person. The time, the date and
the place of the assistance were also required to be set out in the
particulars. Thus it had to be alleged as the material facts as to what
assistance the appellant obtained or procured or abetted or attempted to obtain
or procure from which person and how the assistance furthered the prospects of
the appellant's election. If all the four variants and ingredients were to be
charged against the appellant these had to be set out as statements of material
facts in relation to each person.
The requirements in an election petition as
to material facts and the consequences of lack of such allegation of material
facts came up for consideration in this Court in the recent decision in Samant
N. Balakrishna etc. v. George Fernandes & Ors. etc. (1969) 3 S.C.R. 603. In
that case reference was made to sections 81, 83 and 86 of the Act as the
procedure provisions of election petition. Section 81 deals with presentation
of petitions. Section 83 deals with contents of petitions. Section 86 deals
with trial of petitions. Hidayatullah, C.j. speaking for the Court laid down
these propositions. First, section 83 of the Act is mandatory and requires first
a concise statement of material facts and then requires the fullest possible
particulars.
Second, omission of a single material fact
leads to an incomplete cause of action and the statement of calm becomes bad.
Third, the function of particulars is to present in full a picture of the cause
of action to make the opposite party understand the case be will have to meet.
Fourth, material facts and particulars are distinct matters.
Material facts will mention statements of
fact in 749 particulars will set out the names of person with the, date, time
and place. Fifth, material facts will show the ground of corrupt practice and
the complete cause of action and the circulars will give the necessary
information to present a full picture of the cause of action. Sixth, in stating
the material facts it will not do merely to quote the words of the section
because then the efficacy of the material facts will be lost. The fact which
constitutes a corrupt practice must be, stated and the fact must be correlated
to one of the heads of corrupt practice. Seventh,, an election petition without
the material facts relating to a corrupt practice is no election petition at
all. A petition which merely cites the sections cannot be said to disclose a
cause of action where the allegation is the obtaining or procuring of
assistance unless the exact type and form of assistance and the person from
whom it is sought and the manner in which the assistance is to further the
prospects of the election are alleged as statement,% of facts.
The importance of material facts and the
distinction between the material facts and particulars was also brought out in
another recent decision of this Court in Manubhai Nandlal Amersey v. Popatlal
Manilal Joshi & Ors., (1969) 3 S.C.R. 217. In that case a charge in the
petition was that.
several persons with the consent of the
appellant or his election agents induced or attempted to induce the electors to
believe that if they voted for the congress party candidate they would become
the objects of divine displeasure and spiritual censure. At a late stage of the
trial the High Court gave leave to the election petitioner to amend the
petition by adding fresh particulars of the corrupt practice. Bachawat, J.
speaking for the court said that section 83 of the Act was mandatory and
particulars of corrupt practice were to set out in full. It was said in that
case that no amendment in the shape of particulars of corrupt practice was
permissible if the corrupt practice was not previously alleged in the petition.
The obvious need not be stressed. It is that an election petition has the
effect of declaring an election void. It is a serious remedy. It is therefore
vital that the corrupt practice charged against the respondent should be a full
and complete statement of material facts to clothe the petitioner with a
complete cause of action and to give an equal and full opportunity to the
respondent to meet the case and to defend the charges. Merely, alleging that
the respondent obtained or procured or attempted to obtain or pro cure
assistance are extracting 'words from the statute which will have no meaning
unless and until facts are stated to show what that assistance is and how the
prospect of election is furthered by such assistance. In the present case, it
was not even alleged that the assistance obtained or procured was other than
the giving of vote. It was said by: counsel for the respondent that because 750
the statute did not render the giving of vote a corrupt practice the words 'any
assistance' were full statement of material fact. The submission is fallacious
for the simple reason that the matter of assistance, the mode of assistance,
the manner of assistance, the measure of assistance are all various aspects of
fact to clothe the petition with a cause of action which will call for an
answer. Material facts are facts which if established would give the petitioner
the relief asked for. If the respondent had not appeared could the court have
given a verdict in favour of the election petitioner. The answer is in the negative
because the allegations in the petition did not disclose any cause of action.
The necessity of clear and precise
allegations to support a plea of corrupt practice was emphasised by this Court
in Harish Chandra Bapai & Anr. v. Triloki Singh, 12 Election Law Reports
461. Venkatarama Ayyar, J. speaking for the court in dealing with the powers of
the court to allow amendment in respect of illegal or corrupt practice said
that where the allegation in the election petition 'in regard to the corrupt
practice was that the respondents could in furtherance of their election enlist
the support of Government servants, the words 'could enlist' did not amount to
an averment that in fact they enlisted their support. In other words, it was
observed that the word 'could enlist' did not allege a fact which happened.
Therefore, the happening of a fact as well as the fact itself is material.
Judged by that test in the present case there
is no allegation which will amount lo any averment of any assistance as a fact
in the absence of the kind of assistance being set out as a fact.
The allegations in paragraph 16 of the
election petition do not amount to any statement of material fact of corrupt
practice. It is not stated as to which kind or form of assistance was obtained
or procured or attempted to obtain or procure. It is not stated from whom the
particular type of assistance was obtained or procured or attempted to obtain
or procure. It is not stated in what manner the assistance was for the
furtherance of the prospects of the election. The gravamen 'of the charge of
corrupt practice within the meaning of section 123(7) of the Act is obtaining
or procuring or abetting or attempting to obtain or procure any assistance
other than the giving of vote. In the absence of any suggestion as to what that
assistance was the election petition is lacking in the most vital and essential
material fact to furnish a cause of action.
Counsel on behalf of the respondent submitted
that an election could not be dismissed by reason of want of material facts
because section 86 of the Act conferred power on the High Court to dismiss the
election petition which did not comply with 751 the provisions of section 81,
or section 82 or section 117 of the Act. It was emphasized that section 83 did
not find place in section 86. Under section 87 of the Act every election
petition shall 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. A suit which does not furnish cause of action can be dismissed.
In the present case, it is not necessary to
go to the question as to whether the High Court was justified in disallowing
the particulars and in refusing to recall the witnesses for the reasons given
in the order, because paragraph 16 of the election petition on which the High
Court relied to declare the election of the appellant void does not amount to
an election petition on the grounds mentioned in section 123 (7) of the Act.
For these reasons the judgment of the High
Court is set aside The appeal is allowed. The election petition shall stand
dismissed. The parties will pay and bear their costs in this appeal.
G.C. Appeal allowed.
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