Dhartipakar
Madan Lal Agarwal Vs. Rajiv Gandhi [1987] INSC 164 (11 May 1987)
SINGH,
K.N. (J) SINGH, K.N. (J) VENKATARAMIAH, E.S. (J) CITATION: 1987 AIR 1577 1987
SCR (3) 369 1987 SCC Supl. 93 JT 1987 (2) 402 1987 SCALE (1)1086
CITATOR
INFO :
F
1987 SC1926 (4,5) RF 1991 SC2007 (5)
ACT:
Representation
of the People Act, 1950: ss. 77, 80 to 87, 100 and 123--Election
petition--Allegations of corrupt practice--Not to be vague or general--scrutiny
by Court in a Strict manner--Jurisdiction of Court to strike out pleadings--Empowered
at any stage of proceeding even before filing of written statement--Time limit
for enquiry-Desirability for suitable Parliamentary legislation.
Code
of Civil Procedure: O.VI R. 16, O.VII R. 11, Striking out of pleadings----Rejection
of election petition--Jurisdiction of the Court.
HEADNOTE:
The
election of the respondent, who was returned to the Lok Sabha in a bye election
in 1981, was challenged by the appellant under s. 80 of the Representation of
the People Act, 1951, on a number of grounds, including the allegations of
corrupt practice of undue influence, hiring and procuring of vehicles for
carrying voters and obtaining the assistance of Government servants and
incurring expenses at the election in excess of the permissible limit. Upon a
preliminary objection raised by the respondent the High Court struck off the
pleadings as vague, general, unnecessary, frivolous and vexatious within the
meaning of Order VI Rule 16 of the Code of Civil Procedure and rejected the
petition under Order VII Rule 11 read with s. 87 of the Act on the ground that
it did not disclose any cause of action.
In
the appeal under s. 116-A of the Act against the order of the High Court, it
was contended for the appellant that the High Court had no jurisdiction to
entertain preliminary objections under Order VI Rule 16 or to reject the
election petition under Order VII Rule 11 of the Code before the respondent had
filed his written statement to the petition, which deprived him of the
opportunity of amending the petition by supplying material facts and
particulars, that allegations contained in various paragraphs of the petition
constituted corrupt practices which disclosed cause of action within the
meaning of s. 100 of the Act and the High Court committed error in holding that
the petition was detective, on the premise that it did not disclose any treble
issue, and that the election petition disclosed primary facts regarding corrupt
practice and 370 if there was absence of any particulars or details the High
Court should have afforded opportunity to the appellant to amend the petition.
The
respondent was subsequently returned to the Lok Sabha in the general election
held in 1984 and the validity of that election has been upheld in Azhar Hussain
v. Rajiv Gandhi, AIR 1986 SC 1253 and Bhagwati Prasad v. Rajiv Gandhi, [1986] 4
SCC 78- The relief of setting aside the impugned election had thus become in-fructuous
by lapse of time as the subsequent election could not be set aside on the
grounds raised in the petition. But since s. 98 read with s. 99 of the Act
mandates investigation of charges of corrupt practice, if any, raised against
the returned candidate, and as proof thereof entails incurring of
disqualification from contesting subsequent election for a period of six years,
the Court heard the appeal at length.
On
the questions: Whether the High Court had jurisdiction to strike out pleadings
under Order VI Rule 16 of the Code of Civil Procedure and to reject an election
petition under Order VII Rule 11 of that Code at the preliminary stage, even
though no written statement had been filed by the respondent, whether in the
instant case in entertaining the preliminary objections and rejecting the
election petition the High Court deprived the appellant of an opportunity to
amend the petition and to make good the deficiencies by supplying necessary
particulars and details of the corrupt practices alleged in the petition, and
whether the various paragraphs of the said election petition disclosed any
cause of action.
Dismissing
the appeal,
HELD:
1.1 Right to contest election or to question the election by means of an
election petition is neither common law nor fundamental right, instead it is a
statutory right regulated by the statutory provisions of the Representation of
the People Act, 1951, which is a complete and self contained Code. Outside the
statutory provisions, there is no right to dispute an election. The provisions
of the Civil Procedure Code are applicable to the extent as permissible by s.
87 of the Act. [387H-388B] 1.2. The scheme of the Act shows that an election
can be questioned under the statute as provided by s. 80 on the grounds as
contained in s. 100. The pleadings are regulated by s. 83, which lays down a
mandatory provision in providing that an election petition shall contain a Concise
statement of material facts and set forth full particulars of 371 corrupt
practices with exactitude. [388C]
1.3
Since allegations of corrupt practice are in the nature of criminal charges, it
is necessary that each and every corrupt practice must be clearly and
specifically pleaded and it should be complete in itself so that the returned
candidate may know the case he has to meet. If the allegations are vague and
general and the particulars of corrupt practice are not stated in the pleadings
the trial of the election petition cannot proceed for want of cause of action.
[388DE] N.P. Ponnuswami v. Returning Officer, [1952] SCR 218; Jagan Nath v.
Jaswant Singh, AIR 1954 SC 210 and Jyoti Basu v. Debi Ghosal, [1982] 3 SCR 318,
referred to.
2.1
A combined reading of ss. 81, 83, 86 and 87 of the Act makes it apparent 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 s. 100 of the Act.
If the allegations contained in the petition do not set out grounds of
challenge as contemplated by s. 100 and if the allegations do not conform to
the requirement of ss. 81 and 83 the pleadings are liable to be struck off
under Order VI Rule 16 of the Code of Civil Procedure. If after striking out
defective pleadings the Court finds that no cause of action remains to be tried
it would be duty bound to reject the petition under Order VII Rule 11 of the
Code. [382H, 386A-C] Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253; Bhagwatii
Prasad v. Rajiv Gandhi, [1986] 4 SCC 78; Udhav Singh v. Madhay Rao Scindia,
[1976] 2 SCR 246 and Charan Lal Sahu to.
2.2
In the instant case, the appellant failed to plead complete details of corrupt
practices which could constitute a cause of action as contemplated by s. 100 of
the Act. He also failed to give the material facts and other details of the
alleged corrupt practices. The High Court, therefore, rightly exercised its
power in rejecting the election petition under Order VII Rule 11 of the Code.
[401G, 403G-H]
3.
I Order VI Rule 16 of the Civil Procedure Code permits striking out of
pleadings which are unnecessary, scandalous, frivolous, or vexatious or which
may tend to prejudice, embarrass or delay a fair trial at any stage of the
proceedings. It does not admit of any exception that the respondent must file
written statement before the 372 preliminary objections could be entertained. If,
therefore, a preliminary objection is raised before commencement of the trial,
the court is duty bound to consider the same. It need not wait for the filing
of the written statement by the defendant and point out defects. Instead it can
proceed to hear the preliminary objection and strike out the pleadings.
[387BC,
386D, 383AB, CD] 3.2. The High Court, therefore, had jurisdiction in the
instant case to strike out pleadings at the preliminary stage even though no
written statement had been filed by the respondent. [382CD] K. Kamaraja Nadar
v. Kunju Thevar & Ors., [1959] SCR 583, referred to. Union of India v.
Surjit Singh Atwal, [1979] 2 SCR 1002, distinguished. Vidya Charan Shukla v.
G.P. Tiwari & Ors., AIR 1963 MP 356 overruled.
4.1
The Court did not deprive the appellant of the opportunity to amend the
petition and to make good the deficiencies by supplying the necessary
particulars and details of the corrupt practices alleged in the petition. He
was free to file amendment application, but at no stage did he express any
desire to make any amendment application nor he made any application to that
effect before the High Court. It was open to him to have made that application
but he himself did not make any such application. [387DE]
4.2
The High Court was under no legal obligation to direct the appellant to amend
pleadings or to suomoto grant time for the same. Moreover, the allegations of
corrupt practice as required by Section 83 were not complete and did not
furnish any cause of action. [387E]
5.1
The petition was drafted in a highly vague and general manner. Various
paragraphs of the petition presented disjointed averments and it is difficult
to make out as to what actually the petitioner intended to plead. [401H]
5.2
The allegations contained in paragraphs 1 to 7 contain narration of facts as to
when the election took place and the petitioner's desire to file his nomination
paper and the obstruction raised by the authorities and the allegation that the
police were shadowing the appellant do not make out any ground under s. 100 of
the Act. [388H]
5.3
The allegation in para 8 that food was given to the workers of the respondent
at some places assuming to be true does not make out a 373 case of corrupt
practice or any other ground of challenge under s. 100 of the Act. A corrupt
practice as contemplated by s. 123(6) contemplates incurring or authorising
expenditure beyond the prescribed limit. The impugned allegation does not
contain any averment that the respondent incurred or authorised expenditure
beyond the prescribed limit. [389B-D]
5.4
Paras 9 to 19 merely show that a number of vehicles were plying with party flags
of the respondent in the constituency on different dates which by itself do not
constitute any corrupt practice. The basic ingredients to make out a ground for
challenging the election under s. 100 of the Act in these paras were totally
lacking. They, therefore, disclosed no cause of action. [389E-G]
5.5
The allegations in paras 20 and 21 that the mother of the returned candidate,
who was the Prime Minister, had toured the constituency along with him and in
her speeches had appealed to the voters to vote for him do not constitute undue
influence or any other corrupt practice. It is always open to a candidate or
his supporters to appeal to the electors to vote for a particular candidate for
the development and progress of the area. This would be a legitimate appeal,
[389H-390A]
5.6
The allegations in paras 22 to 26 of the petition relate to the relationship of
the appellant with his agent.
These
do not make out any ground under s. 100 of the Act. [390BC]
5.7
The statement in para 27 that the appellant as we11 as his election agent were
being followed by police does not refer to any violation of law or rule or
commission of any electoral offence by the returned candidate or his workers
with his consent. [390C]
5.8
The allegation in para 28 that on the polling day a lady went to the polling
booth along with a voter where he affixed stamp on ballot paper and returned
with her does not amount to any corrupt practice with consent of the returned
candidate unless it could be shown that it materially affected the result of
the election. [390D]
5.9
The allegation in para 29 that on the polling day drinking water and batashas
were being distributed to the voters at the polling station does not show that
it was being done with the consent of the respondent or that he spent money
over it or that the said action influenced the voters or that it materially
affected the result of the election. In the absence of such allegations it
disclosed no cause of action. [390F] 374 5.10 The allegations in paras 31 to 35
that workers of the respondent helped voters to cast their votes in favour of
the respondent, do not amount to any corrupt practice unless there was further
allegation that it materially affected the result of the election. [390G] 5.11
The averments made in paras 37 and 38 contain narration of facts which have no
bearing on any corrupt practice. [391A] 5.12 The allegations in paras 39 to 49
that neither the appellant nor his election agent had appointed any counting
agents but a number of persons had acted as his counting agents in an un-authorised
manner and that complaints made by him were not considered by the Returning
Officer, even if assumed to be true do not make out any case of commission of
corrupt practice. [391B] The High Court, was, therefore, justified in striking
out all these paragraphs.
6.1
In order to constitute a corrupt practice as contemplated by ss. 77 and 123(6) it
is necessary to plead requisite facts showing authorisation or undertaking of
reimbursement by the candidate or his election agent. A mere vague and general
statement that the candidate and his workers with his consent spent money in
election in excess of the permissible ceiling would not be sufficient to con-
stitute corrupt practice. [392G-393A] Rananjaya Singh v. Baijnath Singh, [1955]
1 SCR 671;
Smt.
Indira Gandhi v. RaI Narain, [1976] 2 SCR 347 and Kunwar Lal Gupta v.A.N
Chawla, [1975] 2 SCR 259, referred to.
6.2
Any voluntary expense incurred by a political party, well wishers, sympathisers
or association of persons does not fail within the mischief of s. 123(6),
instead only that expenditure which is incurred by the candidate himself or
authorised by him is material for the purpose ors. 77.
[392B]
Dr. P. Nalla Thampy Terah v. Union of India & Ors., [1985] Supp. SCC 189,
referred to.
6.3
The allegations contained in various sub-paras of para 50 merely allege that a
number of vehicles were plying with the flags of the party to which the
returned candidate belonged and food was served in connection with the election
meetings, distribution of badges and 375 leaflets. There is no allegation that
the returned candidate incurred or authorised incurring of expenditure for the
aforesaid purposes. Unless the allegations are specific that the candidate or
his election agent authorised the expenses before the money was actually spent
and that the candidate or his election agent reimbursed or undertook to
reimburse the same the necessary ingredient of corrupt practice would not be
complete and it would provide no cause of action to plead corrupt practice. The
High Court was justified in striking out the same. [393G-394A]
7.1
If some developmental activity was carried on in the constituency and if it was
completed during the election period it could not amount to any gift or promise
to the voters. [394G]
7.2
The allegation in para 53(1)(A) does not disclose any material fact or particular
regarding the alleged corrupt practice of making gift which may amount to
bribery within the meaning of s. 123(1)(A). It merely states that Amethi
railway station was being constructed and during the election its work was
speeded up which persuaded the voters to cast their votes in favour of the returned
candidate.
There
is no allegation that he returned candidate or his workers with his consent
made any gift, offer or promise to any elector to vote or refrain from voting
at an election. [394EF]
8.1
A candidate, his workers and supporters have every right under the law to
canvass for the success of a particular candidate saying that if elected he
would work for the development of the constituency. Such a promise does not in
any way interfere with the free exercise of electoral right of the electors.
[395E]
8.2
The allegations in paras 53(1)(B) and (C) that the returned candidate, his
mother and their workers with their consent made promise through newspapers,
pamphlets and speeches that voters should cast their votes in favour of the
respondent for the sake of progress and development of the constituency, merely
amounts to a representation being made by the party leader and the returned
candidate and his workers. Such a statement of promise is a legitimate one and
it does not fail within the definition of bribery and undue influence under s.
123(1)(A) or s. 123(2). [395B, D]
8.3
Declaration of public policy or a promise of public action or promise to
develop the constituency in general do not interfere with free exercise of
electoral rights as the same do not constitute bribery or undue influence.
[396B] 376 Shiv Kirpal Singh v.V.V. Giri, [1971] 2 SCR 197 and H.V. Kamath v.
Ch. Nitiraj singh, [1969] 3 SCR 813, referred to.
9.1
Hiring or procuring of a vehicle by a candidate or his agent or by any other
person with his consent is the first essential ingredient of the corrupt
practice under s.
123(5),
the second such ingredient is that the hiring or procuring of the vehicle must
be for conveyance of the voters to and from the polling station, and the third
that conveyance of electors is free from any charge. If any of the three
ingredients is not pleaded to make out a case of corrupt practice under s.
123(5) the charge must fail. [397E, 399C]
9.2
The allegations contained in para 30 and 53(1)(D) conspicuously do not contain
any pleading regarding hiring and procuring of the vehicles by the returned
candidate or any of his workers with his consent for conveyance of the voters
to and from polling station free of cost. No particulars of any kind have been'
specified. The paras, therefore, do not make out any charge of corrupt practice
as contemplated by s. 123(5) and the High Court was justified in striking out
the same. [399G-400A] Joshbhai Chunnibhai Patel v. Anwar Beg A. Mirza, [1969] 2
SCR 97; Ch. Razik Ram v. Ch. J.S. Chouhan & Ors., AIR 1975 SC 667; Balwant
Singh v. Lakshmi Narain, [1960] 3 SCR 91;
Dadasaheb
Dattatraya Pawar & Ors. v. Pandurang Raoji Jagtap & Ors., [1978] 2 SCR
524; Dharmesh Prasad Verma v. Faiyazal Azam, [1985] 1 SCR 11; Rajendra Singh
Yadav v. Chandra Sen & Ors., AIR 1979 SC 882 and Balwan Singh v. Prakash
Chand & Ors., AIR 1976 SC 1187, referred to.
10.1
In order to constitute a corrupt practice under s. 123(7), it is essential to
clothe the petition with a cause of action which would call for an answer from
the returned candidate and it should, therefore, plead mode of assistance,
measure of assistance and all facts pertaining to the assistance. The pleading
should further indicate the kind or form of assistance obtained and in what
manner the assistance was obtained or procured or attempted to be procured by
the candidate. for promoting the prospect of his election.
The
petitioner must state with exactness the time of assistance, the manner of
assistance and the persons from whom assistance was obtained or procured by the
candidate.
[400DE]
10.2
The allegations in sub-paras 1, 2 and 3 of para 53(1)(E) that though the
appellant had not appointed any counting agent but still 377 certain persons
acted as his counting agents and the returning officer did not hold any inquiry
into his complaint, in sub-para 4 that there was fear psychosis and it looked
as if the police and other government officials wanted to help the returned
candidate, in sub para 5 of certain persons helping the voters to cast their
votes on the polling day and that some persons cast votes 100 to 200 times and
their signatures were not obtained do not make out any charge of corrupt
practice within the provisions of s. 123(7). [400FG]
11.
The allegations in para 53(2) that the presiding officers did not perform their
duties in accordance with law inasmuch as they failed in their duty to remove
the posters and other propaganda material from the polling booth and that the
election symbol of the returned candidate was displayed within 100metres of the
polling booth in violation of the rules do not make out any charge of corrupt
practice. If at all, it could be a ground under s.
100(1)(d)(iv)
for setting aside election on the ground of its being materially affected but
no such plea was raised.
[401EF]
12.
The allegation in para 52 that the returned candidate had polled cent per cent
votes in his favour in certain villages of the constituency do not make out any
corrupt practice or any ground of challenge under s. 100 and it was rightly
struck off by the High Court. [394B]
13.
Order VI Rule 17 of the Code of Civil Procedure permits amendment of an
election petition but the same is subject to the provisions of the Act. Section
81 prescribes a period of 45 days from the date of the election for presenting
election petition calling in question the election of the returned candidate.
After the expiry of that period no election petition is maintainable and the
High Court or this Court has no jurisdiction to extend the period of
limitation. An order of amendment permitting a new ground to be raised beyond
the time specified in s. 81 would amount to contravention of these provisions
and is beyond the ambit of s. 87 of the Act. A new ground cannot, thus, be
raised or inserted in an election petition by way of amendment after the expiry
of the period of limitation. [402CD] In the instant case, the election petition
was presented to the Registrar of the High Court on the last day of the
limitation. The amendments claimed by him are not in the nature of supplying
particulars instead those seek to raise new grounds of challenge. Various paras
of the election petition which are sought to be amended do not disclose 378 any
cause of action. Therefore, it is not permissible to allow amendment after
expiry of the period of limitation.
[402A,
E]
14.1
Court should not undertake to decide an issue unless it is a living issue
between the parties, for if an issue is purely academic in that its decision
one way or the other would have no impact on the position of the parties, it
would be waste of public time to engage itself in deciding it. [380D] Sun Life
Assurance Company of Canada v. Jervis, [1944] AC 111, referred to.
14.2
Election is the essence of democratic system and purity of elections must be
maintained to ensure fair election. Election petition is a necessary process to
hold inquiry into corrupt practice to maintain the purity of election. But there
should be some time limit for holding this inquiry. [381E]
14.3
Parliament should consider the desirability of amending the election law to
prescribe time limit for inquiry into the allegations of corrupt practice or to
devise means to ensure that valuable time of this Court is not consumed in
election matters which by afflux of time are reduced to mere academic interest.
[381D]
15.
A large number of independent candidates contest the election for the mere sake
of contesting, with a view to make out grounds for challenging the election.
They poll only paltry number of votes. Parliament should devise ways and means
to meet the onslaught of such independent candidates who are not quite serious
about their business. [402G, 403B, G] & CIVIL APPELLATE JURISDICTION: Civil
Appeal No. 430 of 1982.
From
the Judgment and Order dated 12.10.1981 of the Allahabad High Court in E.P. No.
1 of 1981.
Appeallent
in person Dr. Y.S. Chitale, N. Nettar, G.S. Narayan Rao and R.B. Datar for the
Respondent.
The
Judgment of the Court was delivered by SINGH, J. This appeal under Section
116-A of the Representation of the People Act 1951 is directed against the
order of the High Court of Alahabad (Lucknow Bench) dated 12.10.1981 rejecting
the election petition filed by the appellant questioning the election of the
respondent as member of the Lok Sabha.
A
bye election was held on June 14, 1981 to fill up the vacancy to the Lok Sabha
caused by the death of Sanjay Gandhi in the 25th Amethi Constituency in
District Sultanpur in the State of Uttar Pradesh. The appellant, the respondent
and 13 other candidates contested the election. On 15th June 1981 Rajiv Gandhi
was declared elected having polled 258884 votes while the appellant polled 2728
votes only. The appellant filed an election petition under Section 80 of the
Representation of the People Act 1951 (hereinafter referred to as the Act)
questioning the validity of the election of the respondent on a number of
grounds, including the allegations of corrupt practice of undue influence,
hiring and procuring of vehicles for carrying voters and obtaining the
assistance of Government servants and incurring expenses at the election in
excess of the permissible limit. The High Court issued notice to the respondent
who appeared before it and made an application under Order VI Rule 16 of the
Code of Civil Procedure for striking out the pleadings contained therein as the
same were vague, general, unnecessary, frivolous and vexatious which did not
disclose any cause of action. Respondent further prayed that the election
petition be rejected under Order VII Rule 11 of the Civil Procedure Code read
with Section 87 of the Act.
A
learned Single Judge of the High Court before whom the preliminary objections
were raised caused service of the copy of the objections on the appellant who
was appearing in person and granted time to him to submit his reply. The
appellant, however, did not submit any reply to the preliminary objections and
in spite of date being fixed for hearing arguments in his presence he did not
appear before the Court on the date fixed for arguments. The learned Judge
after hearing the arguments advanced on behalf of the respondent passed an
order on 12th October 1981 holding that the various paragraphs contained in the
petition were vague and the same did not contain sufficient averments to
constitute any corrupt practice and the various paragraphs of the petition were
unnecessary, frivolous and vexatious within the meaning of Order VI Rule 16 of
the Code of Civil Procedure. The learned Judge struck off paragraphs 2 to 53,
55 to 57 and rejected the petition under Order VII Rule 11 read with Section 87
of the Act on the ground that the election petition did not disclose any cause
of action. The appellant has preferred this appeal against the said order.
380
The election under challenge relates to 198 1, its term expired in 1984 on the
dissolution of the Lok Sabha, there- after another general election was held in
December, 1984 and the respondent was again elected from 25th Amethi Constituency
to the Lok Sabha. The validity of the election held in 1984 was questioned by
means of two separate election petitions and both the petitions have been
dismissed.
The
validity of respondent's election has been upheld in Azhar Hussain v. Rajiv
Gandhi, AIR 1986 SC 1253 and Bhagwati Prasad v. Rajiv Gandhi, [1986] 4 SCC 78.
Since the impugned election relates to the Lok Sabha which was dissolved in
1984 the respondent's election cannot be set aside in the present proceedings
even if the election petition is ultimately allowed on trial as the respondent
is a continuing member of the Lok Sabha not on the basis of the impugned
election held in 1981 but on the basis of his subsequent election in 1984. Even
if we allow the appeal and remit the case to the High Court the respondent's
election cannot be set aside after trial of the election petition as the relief
for setting aside the election has been rendered in-fructuous by lapse of time.
In this view grounds raised in the petition for setting aside the election of
the respondent have been rendered academic. Court should not undertake to
decide an issue unless it is a living issue between the parties. If an issue is
purely academic in that its decision one way or the other would have no impact
on the position of the par- ties, it would be waste of public time to engage
itself in deciding it. Lord Viscount Simon in his speech in the House of Lords
in Sun Life Assurance Company of Canada v. Jervis, [1944] AC 111 observed;
"1 do not think that it would be a proper exercise of the Authority which
this House possesses to hear appeals if it occupies time in this case in
deciding an academic question, the answer to which cannot affect the respondent
in any way. It is an essential quality of an appeal fit to be disposed of by
this House that there should exist between the parties a matter in actual
controversy which the House undertakes to decide as a living issue." These
observations are relevant in exercising the appellate jurisdiction of this
Court.
The
main controversy raised in the present appeal regarding setting aside of the
respondent's election has become stale and academic, but precious time of the
apex Court was consumed in hearing the appeal at Length on ac- count of the
present state of law. Section 98 read with Section 99 indicates that once the
machinery of the Act is moved by means of an election petition, charges of
corrupt practice, if any, raised against the returned candidate must be
investigated. On conclusion of the trial if the Court finds that a returned
candidate or any of his election agent is guilty of commission of corrupt
practice he or his 381 election agent, as the case may be, would be guilty of
electoral offence incurring disqualification from contesting any subsequent
election for a period of six years. In this state of legal position we had to
devote considerable time to the present proceedings as the appellant insisted
that even though six years period has elapsed and subsequent election has been
'held nonetheless if the allegations made by him make out a case of corrupt
practice the proceedings should be remanded to the High Court for trial and if
after the trial the Court finds him guilty of corrupt practice the respondent
should be disqualified. If we were to remand the proceedings to the High Court
for trial for holding inquiry into the allegations of corrupt practice, the
trial itself may take couple of years, we doubt if any genuine and bona fide
evidence could be produced by the parties before the Court, in fact, during the
course of hearing the appellant himself stated before us more than once, that
it would now be very difficult for him to produce evidence to substantiate the
allegations of corrupt practice but nonetheless he insisted for the appeal
being heard on merits. Though the matter is stale and academic yet having
regard to the present state of law, we had to hear the appeal at length.
Before
we consider the submissions on merit, we would like to say that Parliament
should consider the desirability of amending the law to prescribe time limit
for inquiry into the allegations of corrupt practice or to devise means to
ensure that valuable time of this Court is not consumed in election matters
which by efflux of time are reduced to mere academic interest. Election is the
essence of democratic system and purity of elections must be maintained to
ensure fair election. Election petition is a necessary process to hold inquiry
into corrupt practice to maintain the purity of election. But there should be
some time limit for holding this inquiry. Is it in public interest to keep
sword of Damocles hanging on the head of the returned candidate for an
indefinite period of time as a result of which he cannot perform his public
duties and discharge his obligations to his constituents? We do not mean to say
that the returned candidate should be permitted to delay proceedings and to
plead later on the plea of limitation. Ways and means should be found to strike
a balance in ascertaining the purity of election and at the same time in
preventing waste of public time and money and keeping the sword of Damocles
hanging on the head of returned candidate for an indefinite period of time.
The
appellant appeared in person and argued the ease vehemently for a number of
days. He made three submissions:
(i)
The High Court had no jurisdiction to entertain preliminary objections under
382 Order VI Rule 16 or to reject the election petition under Order VII Rule 11
of the Code of Civil Procedure before the respondent had filed his written
statement to the petition.
In
rejecting the petition under Order VII Rule 11 the High Court deprived the
appellant opportunity of amending the petition by supplying material facts and
particulars. (ii) Allegations contained in various paragraphs of the election
petition constituted corrupt practice which disclosed cause of action within
the meaning of Section 100 of the Act. The High Court committed error in
holding that the petition was defective on the premise that it did not disclose
any tri- able issue. (iii) The election petition disclosed primary facts
regarding corrupt practice and if there was absence of any particulars or
details the High Court should have afforded opportunity to the appellant to
amend the petition.
The
first question which falls for our determination is whether the High Court had
jurisdiction to strike out pleadings under Order VI Rule 16 of the Code of
Civil Procedure and to reject the election petition under Order VII Rule 11 of
the Code at the preliminary stage even though no written statement had been
filed by the respondent. Section 80 provides that no election is to be called
in question except by an election petition presented in accordance with the
provisions of Part VI of the Act before the High Court.
Section
81 provides that an election petition may be presented on one or more of the
grounds specified in Section 100 by an elector or by a candidate questioning
the election of a returned candidate. Section 83 provides that an election
petition shall contain a concise statement of material facts on which the
petitioner relies and he shall set forth full particulars of any corrupt
practice that he may allege including full statement 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. Section 86 confers power on the High
Court to dismiss an election petition which does not comply with the provisions
of Sections 81 and 82 or Section 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 rules made there under, every election
petition shall be tried 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 Civil Procedure Code apply to the trial of
an election petition, Order VI Rule 16 and Order VII Rule 11 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 Sections 81, 83, 86 and 87 of the Act, it is apparent
that those paragraphs of a petition which do not disclose any cause of 383
action are liable to be struck off under Order VI Rule 16, as the Court is
empowered at any stage of the proceedings to strike out or delete pleading
which is unnecessary, 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 plaint and it need not wait till the
defendant files written statement and points out the defects. If the court on
examination of the plaint or the election petition finds that it does not
disclose any cause of action it would be justified in striking out the
pleadings. Order VI Rule 16 itself empowers the Court to strike out pleadings
at any 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, 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 strike out the pleadings. If
after striking out the pleadings the court finds that no triable issues remain
to be considered, it has power to reject the election petition under Order VII
Rule 11.
In
K. Kamaraja Nadar v. Kunju Thevar and Ors., [1959] SCR 583 the Election
Tribunal and the High Court both re- fused to consider preliminary objections
raised by the returned candidate at the initial stage on the ground that the
same would be considered at the trial of the election petition. This Court set
aside the order and directed that the preliminary objection should be
entertained and a decision reached thereupon before further proceedings were
taken in the election petition. Bhagwati, J. speaking for the Court observed
thus:
"We
are of opinion that both the Election Tribunal and the High Court were wrong in
the view they took. If the preliminary objection was not entertained and a
decision reached thereupon, further proceedings taken in the Election Petition
would mean a full fledged trial involving examination of a large number of
witnesses on behalf of the 2nd respondent in support of the numerous
allegations of corrupt practices attributed by him to the appellant, his agents
or others working on his behalf; examination of a large number of witnesses by
or on behalf of the appellant controverting the allegations made against him;
examination of witnesses in support of the recrimination submitted by the
appellant against the 2nd respondent; and large 384 number of visits by the
appellant from distant places like Delhi and Bombay to Ranchi resulting in not
only heavy expenses and loss of time and diversion of the appellant from his
public duty in the various fields of activity including those in the House of
the People: It would mean unnecessary harassment and expenses for the appellant
which could certainly be avoided if the preliminary objection urged by him was
decided at the initial stage by the Election Tribunal." In Udhav Singh v.
Madhav Rao Scindia, [1976] 2 SCR 246 this Court held that failure to plead even
a single material fact leads to an incomplete cause of action and incomplete
allegations of such a charge are liable to be struck off under Order VI Rule
16, Code of Civil Procedure. If the petition is based solely on those
allegations which suffer from lack of material facts, the petition is liable to
be summarily rejected for want of a cause of action. In Charan Lal Sahu &
Ors., v. Giani Zail Singh & Anr., [1984] 2 SCR 6 an election petition
challenging the election of Giani Zail Singh, President was rejected summarily
at the initial stage by a Constitution Bench of this Court on the ground that
the pleadings contained in the election petition even assuming to be true and
correct did not disclose any cause of action for setting aside the election of
the returned candidate.
The
precise question as raised by the appellant was considered at length by this
Court in Azhar Hussain v. Rajiv Gandhi and this Court held that the High Court
while dealing with the election petition has power to strike out pleadings
under Order VI Rule 16 and to reject the election petition under Order VII Rule
11 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) and election petition could therefore be and 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 Court observed 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 of purpose. Even in an ordinary civil litigation the court readily
exercises the power to reject a plaint if it does not disclose any cause of
action. Or the power to direct the concerned party to strike out unnecessary, scandalous,
frivolous or vexatious parts of the pleadings. Or such pleadings which are
likely to cause embarrassment or delay the fair trial of the action or which is
otherwise an abuse of the process of law. An order directing a party to strike
out a part of the pleading would result in the termination of the case arising
in the context of the said pleadings. The courts in exercise of the powers
under the Code of Civil Procedure can also treat any point going to the root of
the matter such as one pertaining to jurisdiction or maintainability as a
preliminary point and can dismiss a suit without proceeding to record evidence
and hear elaborate arguments in the context of such evidence, if the court is
satisfied that the action would terminate in view of the merits of the
preliminary point of objection. 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 fulfill 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." In Bhagwati Prasad Dixit 'Ghorawala' v. Rajiv Gandhi, this
Court again reiterated that in an election petition pleadings have to be
precise, 386 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. A
pleading if vague and general is embarrassing. If the allegations contained in
the election petition even assuming to be true and correct do not make out any
case of corrupt practice or any ground under Section 100 of the Act, the
pleading would be unnecessary, frivolous and vexatious. It is always open to
strike out the same. If after striking out defective pleadings the Court finds
that no cause of action remains to be tried it would be duty bound to reject
the petition under Order VII Rule II of the Code of Civil Procedure. If a
preliminary objection is raised before the commencement of the trial, the court
is duty bound to consider the same it need not postpone the consideration for
subsequent stage of the trial.
The
appellant placed reliance on the decision of this Court in Union of India v.
Surjit Singh Atwal, [1979] 2 SCR 1002 in support of his submission that unless
a plea is raised by the respondent in the written statement it is not open to
the Court to strike out pleadings contained in the election petition. In Surjit
Singh Atwal's case plaintiff had filed a suit for recovery of certain amount of
money which he claimed to be due to him from the Union of India under a
contract. The Union of India filed a written statement five years after the
filing of the suit wherein they raised no plea that the contract between the
parties was hit by failure to comply with the provisions of Section 175(3) of
the Government of India Act, 1935. More than a dozen years after the
institution of the suit and eight years after the filing of the written
statement, an application for amendment of the written statement was filed on
behalf of the Union of India raising a plea that the contract was hit by the
failure to comply with the provisions of Section 175(3) of the Government of
India Act, 1935. The trial court dismissed the suit in view of the additional
plea raised in the written statement, but the High Court decreed the suit.
On
appeal by the Union of India this Court upheld the order of the High Court, and
in that connection it observed that the illegality of the contract should have
been specifically pleaded as required by Order VI Rule 8 and Order VIII Rule 2
of 387 the Code of Civil Procedure. The decision has no relevance to the
question under consideration. The appellant then placed reliance on a Division
Bench decision of Madhya Pradesh High Court in Vidya Charan Shukla v. G.P.
Tiwari and Ors., AIR 1963 MP 356.In that case a Division Bench of the High
Court held that the preliminary objections relating to non-maintainability of
an election petition should not be allowed to be raised by mere applications
without filing a complete written statement. We do not find any justification
to uphold this view. As discussed earlier Order VI Rule 16 of Civil Procedure
Code permits striking of pleadings at any stage of proceedings. It does not
admit of any exception that the respondent must file written statement before the
preliminary objections could be entertained. In view of this Court's decisions
as discussed earlier the view taken by the Madhya Pradesh High Court in Vidya
Charan Shukla's case is no longer a good law.
The
appellant's grievance that in entertaining the preliminary objections and
rejecting the election petition under Order VII Rule 11 the High Court deprived
the appellant's opportunity to amend the petition and to make good the
deficiencies by supplying the necessary particulars and details of the corrupt
practice alleged in the petition, is devoid of any merit. Firstly, the
appellant was free to file amendment application, but at no stage he expressed
any desire to make any amendment application nor he made any application to
that effect before the High Court. It was open to the appellant to have made
that application but he himself did not make any such application. The High
Court was under no legal obligation to direct the appellant to amend pleadings
or to suomoto grant time for the same.
Secondly,
the allegations of corrupt practice as required by Section 83 were not complete
and the same did not furnish any cause of action, any amendment made after the
expiry of the period of limitation could not be permitted which would amount to
raising a new ground of challenge. The question, however, does not arise as the
appellant did not file any amendment application. During the course of hearing
of this appeal before us the appellant has made applications for amendment of
the election petition which we shall deal later.
Before
we consider various paragraphs of the election petition to determine the
correctness of the High Court order we think it necessary to bear in mind the
nature of the right to elect, the right to be elected and the right to dispute
election and the trial of the election petition.
Right
to contest election or to question the election by means of an election
petition is neither common law nor fundamental right 388 instead it is a
statutory right regulated by the statutory provisions of the Representation of
the People Act, 195 1.
There
is no fundamental or common law right in these matters. This is well-settled by
catena of decisions of this Court in N.P. Ponnuswami v. Returning Officer,
[1952] 1 SCR 2 18; Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 and Joyti Basu
v. Debi Ghosal, [1982] 3 SCR 318. These decisions have settled the legal
position that outside the statutory provisions there is no right to dispute an
election. The Representation of the People Act is a complete and self contained
code within which any rights claimed in relation to an election or an election
dispute must be found. The provisions of the Civil Procedure Code are
applicable to the extent as permissible by Section 87 of the Act. The scheme of
the Act as noticed earlier would show that an election can be questioned under
the statute as provided by Section 80 on the grounds as contained in Section
100 of the Act.
Section
83 lays down a mandatory provision in providing that an election petition shall
contain a concise statement of material facts and set forth full particulars of
corrupt practice. The pleadings are regulated by Section 83 and it makes it
obligatory on the election petitioner to give the requisite facts, details and
particulars of each corrupt practice with exactitude. If the election petition
fails to make out a ground under Section 100 of the Act it must fail at the
threshold. Allegations of corrupt practice are in the nature of criminal
charges, it is necessary that there should be no vagueness in the allegations
so that the re- turned candidate may know the case he has to meet. If the
allegations are vague and general and the particulars of corrupt practice are
not stated in the pleadings, the trial of the election petition cannot proceed
for want of cause of action. The emphasis of law is to avoid a fishing and
roving inquiry. It is therefore necessary for the Court to scrutinise the
pleadings relating to corrupt practice in a strict manner.
Now
we would consider the various paragraphs of the election petition to determine
as to whether the allegations contained therein disclosed any cause of action.
The election, petition runs into 58 paragraphs containing allegations of
various corrupt practices known to the law. The averments contained in the
various paragraphs are in disjointed form and in order to ascertain true
intention of the election petitioner, one has to read several paragraphs and
connect the same with the other to ascertain the correct import of the
allegations. The allegations contained in paragraphs 1 to 7 contain narration
of facts as to when the election took place and the petitioner's desire to file
his nomination paper by wearing only a "langot" and the obstruction
raised by the authorities and the allegation that the police were 389 shadowing
the appellant and two of them always kept company to him. These paragraphs do
not make out any ground under Section 100 of the Act. In paragraph 8, the
appellant alleged that on 5th, 6th and 10th June he saw a number of jeeps
plying in the Parliamentary constituency of Amethi bearing flags of Congress
(I) which were being used for electioneering purposes in support of Rajiv
Gandhi. The allegations further state that the appellant noticed that food was
being given to the workers of Rajiv Gandhi at the kothi of Sanjay Singh at
Amethi. Assuming the allegations to be true, these do not make out any case of
corrupt practice or any other ground of challenge under Section 100 of the Act.
During the course of arguments the appellant urged that the allegations
contained in paragraph 8 indicate that Rajiv Gandhi had been using a large
number of vehicles and feeding workers and thereby he had been incurring
expenses beyond the permissible limit. This inference is not permissible as
each and every corrupt practice must be clearly and specifically pleaded and it
should be complete in itself. No corrupt practice can be inferred from reading
one sentence here and the other sentence there. A corrupt practice as contemplated
by Section 123(6) contemplates incurring or authorising expenditure beyond the
prescribed limit. The allegations contained in paragraph 8 do not contain any
averment that the respondent incurred or authorised expenditure beyond the
prescribed limit. Neither any details of incurring expenses or authorising have
been stated therein. Paragraph 9 of the petition stated that on 5th June 1981
the appellant had seen a number of cars mentioned therein carrying Congress (I)
flags. Similarly, allegations contained in paragraphs 10, 11, 12, 13, 14, 15,
16, 17, 18 and 19 stated that on the dates mentioned in those paragraphs the
election petitioner namely the appellant has seen a number of vehicles plying
in the constituency carrying Congress (I) flags. These allegations merely show
that a number of vehicles were plying with Congress (I) flags in the
constituency which by itself do not constitute any corrupt practice. It appears
that the appellant intended that the returned candidate had spent money over
the plying of vehicles and thereby he exceeded the limit prescribed by Section
123(6) read with Section 77 of the Act. In the absence of requisite allegations
in the aforesaid paragraphs the basic ingredients to make out a ground for
challenging the election under Section 100 of the Act was totally lacking.
These paragraphs therefore disclosed no cause of action.
In
paragraphs 20 and 21 the appellant stated that Smt.
Indira
Gandhi toured the constituency along with the respondent and in her speeches
she appealed to the voters to vote for Rajiv Gandhi. We fail to appreciate how
these allegations constitute any corrupt practice. It 390 is always open to a
candidate or his supporter to appeal to the electors to vote for a particular
candidate for the development and progress of the area. This would be a
legitimate appeal and in any view, it could not constitute undue influence or
any other corrupt practice. The appellant further stated that the Station
Officer of Amethi took him in a jeep to Munshi Ganj crossing on the pretext
that Smt.
Indira
Gandhi had given time to see the appellant but later on the Station Officer
left him there. These allegations are wholly irrelevant.
Allegations
contained in paragraphs 22 to 26 relate to the relationship between the
appellant and one Ram Pal Singh whom he had appointed his election agent. These
allegations refer to matters which do not make out any ground under Section 100
of the Act. In paragraph 27 the appellant stated that he as well as his
election agent both were being followed by police but it does not refer to any
violation of law or rule or commission of any electoral offence by the returned
candidate or his workers with his consent. In paragraph 28 the appellant
alleged that on the polling day a lady went to the polling booth along with a
person, and the accompanying person affixed stamp on the ballot paper and
returned with her. Even if that be so, we fail to understand as to how those
facts would amount to any corrupt practice with consent of the returned
candidate. Even assuming that this constitutes violation of provisions of the
Act and the Rules framed there under, there is no pleading that it materially
affected the result of the election. In fact the difference of votes between
the petitioner and the returned candidate was of such great magnitude that
there could be no question of election being materially affected on the basis
of the aforesaid incident. In paragraph 29 the appellant stated that on the
polling day drinking water and 'batashas' were being distributed to the voters
at the polling station in Amethi. There is no allegation that the water and
batashas were being distributed with the consent of Rajiv Gandhi or that he
spent money over it or that the said action influenced the voters or that it
materially affected the result of the election. In the absence of any such
allegations paragraph 29 disclosed no cause of action.
Allegations
contained in paragraphs 31 to 35 relate to alleged irregularities committed on
the polling day. According to these allegations, workers of the respondent
helped voters to cast their vote in favour of the respondent. The averments
contained therein do not amount to any corrupt practice, instead if at all
these allegations relate to irregularities and illegalities alleged to have
been commit- ted on the polling day which would at best be relevant if there
was further allegation that it materially affected the result of the election.
Since
respondent's term has already expired, and as his election cannot be set aside,
these allegations do not survive and it is not necessary to consider them in
detail.
Similarly
averments contained in paragraphs 3738 contain narration of facts which have no
bearing on any corrupt practice. Allegations contained in paragraphs 39 to 49
relate to the appointment of counting agents. In substance the appellant has
alleged that neither he nor his election agent had appointed any counting
agents but a number of persons had acted as the appellant's counting agents in
an un-authorised manner and complaints made by him were not considered and the
Returning Officer failed to perform his duty. These allegations even if assumed
to be true do not make out any case of commission of corrupt practice.
Allegations
contained in paragraphs 50, 51 and 53 (1)(F) of the election petition purport
to state that Rajiv Gandhi and his workers with his consent spent money on the
election in excess of the ceiling limit and major portion of which was not
shown by him in his election expenses return. It was alleged that in all
Rs.3,15,500 had been spent by Rajiv Gandhi in his election but he did not
include the same in his return. Details of the expenditure are mentioned in the
sub-paragraphs (a) to (g) of paragraph 50. In these paragraphs the appellant
alleged that Rajiv Gandhi used at least 100 jeeps for thirty days and his
workers with his consent used 40 jeeps and spent money on propaganda badges,
leaf- lets, making arrangements for holding meetings for Smt. Indira Gandhi
throughout the Amethi constituency and money was spent in providing food to 100
workers of Rajiv Gandhi, in all the returned candidate and his workers with his
consent spent a sum of Rs.3,15,500 but the same was not accounted for in the
election return. The allegations contained in these paragraphs relate to the
corrupt practice under Section 123(6) of the Act read with Section 77. Section
123(6) provides that incurring or authorising of expenditure in contravention of
Section 77 is a corrupt practice. Section 77 lays down that every candidate at
the election shall keep a correct and separate account of all expenditure in
connection with the election incurred or authorised by him or by his election
agent between the date of nomination and the date of declaration of result. The
account shall contain such particulars as prescribed by Rules. Sub-section (3)
lays down that expenditure shall not exceed such amount as may be prescribed.
Rule 90 of the Conduct of Election Rules, 1961 prescribed that the expenses
shall not exceed a sum of Rs. 1 lakh for Lok Sabha election in the State of
Uttar Pradesh. Section 77 and the Rules therefore prescribed a ceiling limit
for election expenses and if any candidate incurs or 392 authorises expenses in
excess of the ceiling limit, he would be guilty of corrupt practice under
Section 123(6) of the Act. The allegations contained in various paragraphs of
para 50 merely allege that a number of vehicles were plying with Congress (I)
flags and food was served in connection with the election meetings,
distribution of badges and leaflets.
There
is, however, no allegation that Rajiv Gandhi incurred or authorised incurring
of expenditure for the aforesaid purposes. Any voluntary expense incurred by a
political party, well-wishers, sympathisers or association of persons does not
fall within the mischief of Section 123(6) of the Act, instead only that
expenditure which is incurred by the candidate himself or authorised by him is
material for the purpose of Section 77. In Rananjaya Singh v. Baijnath Singh,
[1955] 1 SCR 671 this Court pointed out that expenses must be incurred or
authorised by the candidate or his election agent. In that case the Manager,
the Assistant Manager, 20 Ziladars and their peons were alleged to have worked
for the election of the returned candidate. This Court held that the employment
of extra persons and the incurring or authorising of extra expenditure was not
by the candidate or his election agent. It was further pointed out that persons
who volunteer to work cannot be said to be employed or paid by the candidate or
his election agent. In Smt. Indira Gandhi v. Raj Narain, [1976] 2 SCR 347 Ray,
C.J. observed "Authorisation means acceptance of the responsibility.
Authorisation must precede the expenditure. Authorisation means reimbursement
by the candidate or election agent of the person who has been authorised by the
candidate or by the election agent of the candidate to spend or incur. In order
to constitute authorisation the effect must be that the authority must carry
with it the right of reimbursement.
Section
77 requires a candidate to keep a separate and correct account of all
expenditure "in connection with the election incurred or authorised by him
or by his election agent" between the date of his nomination and the date
of declaration of the result of the election. The candidate is required to
maintain account of only that expenditure which he or his election agent may
have authorised before the expenditure was actually incurred, which would imply
that the candidate or his election agent undertook to reimburse the expenses
which may have been authorised by him or his election agent to be spent at the
election. In order to constitute a corrupt practice as contemplated by Sections
77 and 123(6) it is necessary to plead requisite facts showing authorisation,
or undertaking of reimbursement by the candidate or his election agent. A mere
vague and general statement that the candidate and his workers with his consent
spent money in election in 393 excess of the permissible ceiling would not be
sufficient to constitute corrupt practice.
In
Kunwar Lal Gupta v. A.N. Chawla, [1975] 2 SCR 259 this Court held that what
Section 77(1) prescribed was not only the incurring but also the authorising of
excessive expenditure and that such authorisation may be implied or express.
The Court held that when a political party sponsoring a candidate incurs
expenditure in connection with his election as distinguished from expenditure
on a general party propaganda, and the candidate knowingly takes advantage of
it or participates in the programme or activity or consents to it or
acquiescence to it, it would be reasonable to infer that he impliedly
authorised the political party to incur such expenditure and he could not
escape the rigor of the ceiling by saying that he had not incurred the
expenditure and the political party had done so. The result of the judgment was
that the expenditure incurred by political party in connection with the general
party propaganda was deemed to have been incurred by the candidate himself. The
Parliament amended Section 77 by the Representation of the People (Amendment)
Act, 1974 by adding two explanations to the Section. Explanation 1 lays down
that any expenditure incurred or authorised in connection with the election of
a candidate by a political party or by any association or body of persons or by
any individual other than the candidate or his election agent, shall not be
deemed to be incurred or authorised by the candidate or his election agent. The
validity of the Amending Act was upheld by a Constitution Bench of this Court
in Dr. P. Nalla Thampy Terah v. Union of India & Ors., [1985] Supp. SCC
189. After the amendment of Section 77(1) any expenditure at the election by a
political party, sympathisers or friends cannot be held to have been incurred
by the candidate or his election agent unless it is shown that the money which
they spent belonged to the candidate or his election agent or that he
reimbursed the same.
it
is thus evident that unless the allegations are specific that the candidate or
his election agent authorised the expenses before the money was actually spent
and that the candidate or his election agent reimbursed or undertook to
reimburse the same the necessary ingredient of corrupt practice would not be
complete and it would provide no cause of action to plead corrupt practice. In
the instant case paragraph 50 and its various sub-paragraphs contain mere
assertion of facts relating to expenditure but there is no allegation that the
expenditure was incurred or authorised by Rajiv Gandhi or that he undertook to
reimburse the same.
The
appellant made an attempt to jumble up various allegations regarding incurring
of expenditure by the returned candidate and his workers. The allegations 394
contained therein do not make out any case of corrupt practice and the High
Court was justified in striking out the same.
Allegations
contained in paragraph 52 disclose that the appellant had come to know that the
villages in the constit- uency of Amethi, Rajiv Gandhi polled cent percent
votes in his favour. This statement does not make out any corrupt practice or
any ground of challenge under Section 100 of the Act, it was rightly struk off
by the High Court.
Paragraph
53 of the election petition stated that Rajiv Gandhi committed corrupt practice
as set out in sub-paragraphs (A) to (F). These paragraphs are under the heading
of "Grounds". It appears the appellant intended to challenge the
election of the returned candidate on the grounds mentioned in various
sub-paragraphs of paragraph 53, it is therefore necessary to consider the
allegations contained in each of the sub-paragraphs to ascertain as to whether
any corrupt practice was pleaded which could disclose cause of action to
maintain the petition. Paragraph 53(1)(a) stated that Rajiv Gandhi "tried
to make gift" to the voters in the following manner to make them vote in
his favour which is illegal under Section 123(1)(A) of the Representation of
the People Act. After making this general statement the appellant stated that
on 15th June 1981 prior to the declaration of election and also during the
election period workers of Rajiv Gandhi with his consent speeded up the
construction work of Amethi Railway Station, and this was done only to persuade
the voters to cast their vote in his favour. This was a gift to the voters of
the constituency. Besides that certain other works were also done which fall
within the definition of gift to the voters of the constituency. The petition
does not disclose any material fact or particular regarding the alleged corrupt
practice of making gift which may amount to bribery within the meaning of
Section 123(1)(A) of the Act. The allegations merely disclose that Amethi
Railway Station was being constructed and during the election its work was
speeded up which persuaded the voters to cast their vote in favour of the
returned candidate.
There
is no allegation that Rajiv Gandhi or his workers with his consent made any
gift, offer or promise to any elector to vote or refrain from voting at an
election. If some developmental activity was carried on in the constituency and
if it was completed during the election period it could not amount to any gift
or promise to the voters.
It
would be noticed that the allegations contained in sub-paragraph 53(1)(A) open
with the qualification "Respondent No. I (Rajiv Gandhi) tried to make gift
to the voters," which means that attempt was 395 made to make gift to the
voters and not that it was actually done. It indicates that the appellant who
made the allegations was himself not sure that any corrupt practice had been
committed. Sub-paragraphs (A) and (C) of paragraph 53 (I) of the election
petition alleged that Rajiv Gandhi and Smt. Indira Gandhi and their workers with
the consent of Rajiv Gandhi and Smt. Indira Gandhi made promise through
newspapers, pamphlets and speeches that voters should cast their vote in favour
of Rajiv Gandhi for the development of Amethi because his victory will ensure
progress and development. Further Rajiv Gandhi and Smt. Indira Gandhi and the
workers of Rajiv Gandhi in all their speeches and particularly Smt. Indira
Gandhi in her speech of 11.6.1981 said that for the development of Amethi
Constituency they should vote for Rajiv Gandhi. On account of these speeches
voters could not cast their vote impartially, instead they cast their vote in
favour of Rajiv Gandhi. Since Rajiv Gandhi and Smt. Indira Gandhi both attended
the meetings together voters got the impression that as Smt. Indira Gandhi was
Prime Minister and her son Rajiv Gandhi was a candidate, there was bound to be
development of Amethi area if Rajiv Gandhi was elected. These allegations
merely amount to representation being made by Smt. Indira Gandhi and the
returned candidate and his workers that if Rajiv Gandhi was elected the
constituency would be developed. Such a statement of promise is a legitimate
one and it does not fail within the definition of bribery or undue influence
under Section 123(1)(A) or 123 (2) of the Act. A candidate, his workers and
supporters have every right under the law to canvass for the success of a
particular candidate saying that if elected he would work for the development
of the constituency. Such a promise does not in any way interfere with the free
exercise of electoral right of the electors.
Smt.
Indira Gandhi who was the leader of the party was entitled to ask the electors
to vote for Rajiv Gandhi and the fact that she was the Prime Minister made no
difference to her to make an appeal of that nature. There is no allegation that
there was any element of bargaining or undue influence in making appeal to the
voters for casting their vote in favour of Rajiv Gandhi. Section 123(2)(b)
itself provides that a declaration of public policy, or a promise of public
action or the mere exercise of a legal right without intent to interfere with
the electoral right shall not be deemed to be interference with the exercise of
electoral right.
In
Shiv Kirpal Singh v. V.V. Gin, [1971] 2 SCR 1971, a Constitution Bench of this
Court held that the expression "free exercise of the electoral right"
does not mean that voter is not to be influenced. This expression has to be
read in the context of an election in a democratic 396 society and the
candidates and their supporters must naturally be allowed to canvass support by
all legitimate and legal means. This exercise of the right by a candidate or
his supporters to canvass support does not interfere or attempt to interfere
with the free exercise of the electoral right. What does amount to interference
with the exercise of an electoral right is "tyranny over the mind".
Declaration of public policy or a promise of public action or promise to
develop the constituency in general do not interfere with free exercise of
electoral rights as the same do not constitute bribery or undue influence. In
H.V. Karnath v. Ch. Nitiraj Singh, [1969] 3 SCR 813 the State Government during
the election period issued an Ordinance granting exemption to certain
agriculturists from payment of land revenue and during the election the Chief
Minister announced increased dearness allowance to Government employees.
Referring to these facts the election petitioner therein alleged that the same
amounted to corrupt practice under Section 123(1)(A) of this Act. This Court
repelled the contention and held that the Ordinance did not amount to a gift,
offer or promise of any gratification within the meaning of Section 123(1)(A).
Similarly,
increase in dearness allowance could not be regarded as a gift, offer or
promise of any gratification within the meaning of Section 123(1)(A). A general
promise made by the Prime Minister or Minister to redress public grievance or
to provide for public amenities for developing the constituency if elected,
does not amount to corrupt practice. In paragraph 53(1)(B) and (C) material
facts relating to alleged "gift and promise and undue influence" have
not been stated in the petition and for that reason also paragraphs 53(1)(B)
and (C) were righty struck off.
Paragraph
53(1)(D) stated "the workers of Rajiv Gandhi with his consent on 14th June
1981 at about 2 p.m. tried to bring voters in truck for casting votes and
dropped them back at their houses. The appellant noted the number of such truck
which is mentioned in the paragraph. This truck had brought about 20-22 voters
to the Junior High School Polling Centre of Amethi constituency and took them
back without charging fare from them. The truck was used by Rajiv Gandhi and
this amounted to corrupt practice. This paragraph contains substantially the
same allegations as contained in paragraph 30 of the petition, it purports to
convey that Rajiv Gandhi and with his consent his workers "tried to bring
voters". In substance the allegation amounts to saying that Rajiv Gandhi
and his workers made attempt to carry voters in a truck. He further alleged
that they carried the voters. It appears that the appellant intended to lay
charge of corrupt practice against Rajiv Gandhi under Section 123(5) of the Act
for hiring or procuring of a 397 truck for the use of same for free conveyance
of electors to and from the polling station. The necessary particulars with
regard to corrupt practice as contemplated by Section 123(5) are however,
totally lacking. The petition does not contain any material facts with regard
to hiring or procuring of the vehicle. Further there is no allegation as to
when the vehicle was hired or procured, by whom, and at what place or that the
said vehicle in furtherance of hiring or procuring was used for free conveyance
of electors to and from polling station. The allegations made in paragraphs 30
and sub- paragraph (D) of paragraph 53(1) merely show that some voters were
brought to the polling station Amethi in a truck without charging any fare from
them and the truck was used by the workers of Rajiv Gandhi. Does this make out
a corrupt practice under Section 123(5)? Section 123(5) reads as under:
"The
hiring or procuring, whether on payment or otherwise, of any vehicle or vessel
by a candidate or his agent or by any other person (with the consent of a
candidate or his election agent) (or the use of such vehicle or vessel for the
free conveyance) of any elector (other than the candidate himself, the members
of his family or his agent) to or from any polling station provided under
Section 25 or a place fixed under sub-section (1) of Section 29 for the poll
..... " It would be noticed that hiring or procuring of a vehicle by a
candidate or his agent or by any other person with his consent is the first
essential ingredient of the corrupt practice, the second essential ingredient
is that the hiring or procuring of the vehicle must be for conveyance of the
voters to and from the polling station and the third necessary ingredient is that
conveyance of electors is free from any charge. All the three ingredients must
be pleaded to make out a case of corrupt practice under Section 123(5). If any
of the three ingredients is not pleaded there would be no pleading of corrupt
practice. In Joshbhai Chunnibhai Patel v. Anwar Beg A. Mirza, [1969] 2 SCR 97.
Hidayatullah, C.J. speaking for the Court analysed this Section and ob- served:
"it will therefore, appear that the Section requires three things, (i)
hiring or procuring of a vehicle; (ii) by a candidate or his agent etc, and
(iii) for the free conveyance of an elector. It will be noticed that the
Section also speaks of the use but it speaks of the use of such vehicle which
connects the two parts, namely, hiring or procuring of vehicle and its use. The
requirement of the law therefore is that in addition to proving the hiring or
procuring and the carriage of electors to and from any polling station, should
also be proved that the electors used the vehicle free of cost to
themselves." In Ch. Razik Ram v. Ch. J.S. 398 Chouhan & Ors., AIR 1975
SC 667 the Court considered the decision of this Court in Balwan Singh v.
Lakshmi Narain, [2960] 3 SCR 91 and the effect of 1966 amendment and there-
upon it held as under:
"On
analysis, clause 5 of Section 12* fails into two parts. The requirements of the
first part are: (i) the hiring or procuring whether on payment or otherwise, of
any vehicle or vessel for the free conveyance of voters, (ii) such hiring or
procuring must be by a candidate or his election agent or by any other person
with the consent of a candidate or of his election agent. The second part
envisages the "use of such vehicle or vessel for the free conveyance of
any elector (other than the candidate himself, the members of his family, or
his election agent) to or from any polling station." The two parts are
connected by the conjunction "or" which is capable of two
constructions. In one sense it is a particle coordinating the two parts of the
clause and creating an alternative between them. In the other sense which is
akin to the sense of "and" it can be construed as conjoining and
combining the first part of the clause with the second. The latter construction
appears to comport better with the aim and object of the amendment of 1966. In
this connection, it is noteworthy that even before the amendment, this Court in
Shri Balwan Singh v. Lakshmi Narain, [1960] 3 SCR 91 held that in considering
whether a corrupt practice described in Section 123(5) is committed, conveying
of electors cannot be dissociated from the hiring of a vehicle.
Even
if the word "or" is understood as a coordinating conjunction
introducing alternatives, then also a petitioner in order to succeed on the
ground of a corrupt practice under the second part of the clause, must prove in
addition to the use of the vehicle or vessel for the free conveyance of any
elector to or from any polling station, the hiring or procuring of that vehicle
or vessel.
This
is so because the word "such" in the phrase introduced by the 1966
amendment, expressly imports these elements of the first into the second part
of the clause." Same view was taken by this Court in Dadasaheb Dattatraya
Pawar & Ors. v. Pandurang Raoji Jagtap & Ors., [1978] 2 SCR 524 and the
Court emphasised that it was necessary for an election petitioner to 399 prove
(i) that any vehicle or vessel was hired or procured, whether on payment or
otherwise, by the returned candidate or by his election agent or by any other
person with the consent of the candidate or of his election agent; (ii) that it
was used for the conveyance of the electors to or from any polling station, and
(iii) that such conveyance was free of cost to the electors. Failure to
substantiate any one of these ingredients leads to the collapse of the whole
charge.
Standard
of proof required to establish a corrupt practice is strict, as imputation of
corrupt practices is quasi- criminal and the charge of corrupt practice under
Section 123(5) has to be scrutinised in a strict manner. In Dharmesh Prasad
Verma v. FaiyazaI Azam, [1985] 1 SCR 11 this Court again reaffirmed the
aforesaid view. There is thus good authority for holding that if any of the
three ingredients as noted earlier is not pleaded the charge of corrupt
practice must fail. In the absence of any of the three ingredients being
pleaded it would not be open to the election petitioner to adduce evidence to
sustain the charge of corrupt practice as was held by this Court in Rajendra
Singh Yadav v. Chandra Sen & Ors., AIR 1979 SC 882.
The
appellant placed strong reliance on the decision of this Court in Balwan Singh
v. Lakshmi Narain. This case was decided prior to the amendment of Section
123(5) but even in that case this Court observed that the corrupt practice
under Section 123(5) being the hiring or procuring of a vehicle for the
conveyance of the electors, full statement of the hiring or procuring must be
given by the election petitioner. Balwan Singh's case was considered and
discussed in Ch. Razik Ram v. Ch. J.S. Chouhan & Ors. The appellant then
placed reliance on the observations of this Court in Balwan Singh v. Prakash
Chand & Ors., AIR 1976 SC 1187. We have persued the decision but we do not
find any support for the appellant's contention that the pleadings contained in
paragraphs 30 and 53(1)(D) are sufficient to constitute charge of corrupt
practice. In Balwan Singh v. Prakash Chand & Ors., this Court interpreted
the word "procure" to mean "to obtain, as by request, loan,
effort, labour, or purchase, get, gain, come into possession of". Thus the
hiring of a vehicle must be to procure the same for the purpose of conveyance
of the voters free of cost. The hiring and pro- curing the vehicle is a
necessary ingredient which must be pleaded before the charge can be tried. The
allegations contained in paragraphs 30 and 53(1)(D) conspicuously do no contain
any pleading regarding hiring and procuring of the vehicles by Rajiv Gandhi or
any of his worker with his consent for conveyance of the voters to and from
polling station free of cost. No particulars of any kind have been specified in
the paragraphs under consideration. The paragraphs as 400 they stand do not
make out any charge of corrupt practice as contemplated by Section 123(5) of
the Act and the High Court was therefore justified in striking out the same.
In
paragraph 53(1) (E) of the election petition the appellant stated "that as
per Section 123(7) of the Representation of the People Act, Rajiv Gandhi's
workers with his consent took help from the Government officers and high police
officers and people of Government departments for securing votes of the
electors. These officials flouted all rules and laws particulars of which are
as under." Thereafter particulars of the help taken from the Government
officers are detailed in sub-paragraphs (I) to (8). A corrupt practice as
contemplated by Section 123(7) contemplates obtaining or procuring by a
candidate or his election agent, assistance from the Government servants
belonging to the classes specified in sub-section (7) of Section 123 for the
furtherance of the prospect of the candidate's election. In order to constitute
a corrupt practice under Section 123(7), it is essential to clothe the petition
with a cause of action which would call for an answer from the returned
candidate and it should therefore plead mode of assistance, measure of
assistance and all facts pertaining to the assistance. The pleading should
further indicate the kind or form of assistance obtained and in what manner the
assistance was obtained or procured or attempted to be procured by the candidate
for promoting the prospect for his election.
The
election petitioner must state with exactness the time of assistance, the
manner of assistance and the persons from whom assistance was obtained or
procured by the candidate as held by this Court in Hardware Lal v. Kanwal
Singh, [1972] 2 SCR 743 and Azhar Hussain v. Rajiv Gandhi. Allegations
contained in subparagraphs 1, 2 and 3 of the paragraph 53(1) (E) raise a
grievance that though the appellant had not appointed any counting agent but
still certain persons acted as his counting agents and the Returning Officer
did not hold any inquiry into his complaint. Sub-paragraph 4 states that in the
Amethi Constituency, there was fear psychosis and "it looked as if the
police and other Government officials wanted to help Rajiv Gandhi".
Sub-paragraphs 5 to 8 refer to certain illegalities and irregularities alleged
to have been committed by certain persons on the polling day in helping voters
to cast their votes and it further alleged that some persons cast votes 100 to
200 times and their signatures were not obtained. These allegations do not make
out any charge of corrupt practice within the provisions of Section 123 (7) of
the Act; As regards paragraph 53(1)(G) it purports to allege a corrupt practice
under Section 123(6) of the Act on the ground that Rajiv Gandhi spent Rs.3,
15,500 in excess of the amount permitted under the law. We have 401 already
discussed this matter earlier.
Paragraph
53(2) of the petition is as under:
"That
Presiding Officer is duty bound under Sections 27, 28 and 139 of the
Representation of the People Act to ensure that the polling is fair, but it has
not been so in this case.
According
to the rules, the Presiding Officer should have not removed the posters and
other propaganda material from the polling booth.
But
the hand symbol was being displayed by every Presiding Officer, and other
persons and the agents of the candidates and voters.
By
reason of this, the voters were influenced and Rajiv Gandhi got very many
votes. The hand symbol influenced the voters to a great extent because Rajiv
Gandhi's workers were trying to display the hand symbol in the polling booth as
well as within 100 meters of the polling booth. The hand symbol was visible to
every voter everywhere. This influenced the voters very much and they cast
votes in favour of Rajiv Gandhi." The aforesaid allegations do not amount
to any corrupt practice as contemplated by Section 123 of the Act. At best
these allegations raise a grievance that the Presiding Officers did not perform
their duties in accordance with law in as much as they failed in their duty to
remove the posters and other propaganda material from the polling booth and the
hand which was the election symbol of Rajiv Gandhi and the same was displayed
within 100 meters of the polling booth in violation of the rules. The
allegations do not make out any charge of corrupt practice. If at all the
allegations could be a ground under Section 100(1)(d)(iv) of the Act for
setting aside election on the ground of its being materially affected but no
such plea was raised. Paragraphs 54 to 58 do not deal with any corrupt
practice.
The
above scanning of the election petition would show that the appellant failed to
plead complete details of corrupt practice which could constitute a cause of
action as contemplated by Section 100 of the Act and he further failed to give
the material facts and other details of the alleged corrupt practices. The
allegations relating to corrupt practice, even if assumed to be true as stated
in the various paragraphs of the election petition do not constitute any
corrupt practice. The petition was drafted in a highly vague and general
manner. Various paragraphs of the petition presented disjointed averments and
it is 402 difficult to make out as to what actually the petitioner intended to
plead. At the conclusion of hearing of the appeal before us appellant made
applications for amending the election petition, to remove the defects pointed
out by the High Court and to render the allegations of corrupt practice in
accordance with the provisions of Section 83 read with Section 123 of the Act.
Having given our anxious consideration to the amendment applications, we are of
the opinion that these applications cannot be allowed at this stage. It must be
borne in mind that the election petition was presented to the Registrar of the
High Court, at Lucknow Bench on the last day of the limitation prescribed for
filing the election petition. The appellant could not raise any ground of
challenge after the expiry of limitation.
Order
VI Rule 17 no doubt permits amendment of an election petition but the same is
subject to the provisions of the Act. Section 81 prescribes a period of 45 days
from the date of the election for presenting election petition calling in question
the election of a returned candidate. After the expiry of that period no
election petition is maintainable and the High Court or this Court has no
jurisdiction to extend the period of limitation. An order of amendment
permitting a new ground to be raised beyond the time specified in Section 81
would amount to contravention of those provisions. and is beyond the ambit of
Section 87 of the Act. It necessarily follow that a new ground cannot be raised
or inserted in an election petition by way of amendment after the expiry of the
period of limitation. The amendments claimed by the-appellant are not in the
nature of supplying particulars instead those seek to raise new grounds of
challenge. Various paragraphs of the election petition which are sought to be amended,
do not disclose any cause of action, therefore it is not permissible to allow
their amendment after expiry of the period of limitation.
Amendment
applications are accordingly rejected.
Before
we close we would like to express our anxiety on a feature which of late has
assumed great proportion. In Parliamentary form of democracy political parties
play vital role and occasionally they sponsor candidates for the election. But
under the existing law it is open to any elector to contest election from any
parliamentary constituency in the country and it is not necessary that the
candidate should be sponsored by a political party. It is permissible for an
elector to contest election on his own as an independent candidate. Some
independent individuals contest election genuinely and some of them have
succeeded also but experience has shown that a large number of independent
candidates contest the election for the mere sake of con- testing, with a view
to make out grounds for challenging the election. Presence of a number of
independent candidates results in confusion, for the millions of the illiterate
and ignorant electors who exercise 403 their electoral right on the basis of
'symbols' printed on the ballot papers. The presence of large number of
independent candidates makes the ballot paper of unmanageable size and ordinary
elector is confused in the election booth while exercising his franchise. This
leads to confusion. In the instant case out of 14 candidates who contested the
election 11 of them including the appellant contested as independent candidates
and they all polled only paltry number of votes.
This
shows the genuineness of the candidature of independent candidates. The
appellant is a resident of Gwalior in Madhya Pradesh and he is a lawyer by profession.
He contested election as an independent candidate and on the date of filing of
nomination paper he insisted to file his nomination paper by stripping off
himself completely and by put- ting on only a 'langot'. This caused
consternation in the office of the Re-. turning Officer, and it has also been
raised as a ground of attack in the election petition. In fact the appellant
has filed certain photographs before us showing himself in a 'langot' only.
When this appeal came up for hearing before us the appellant insisted that he
should be allowed to argue the case by putting on a crown (an artificial one)
on his head. According to him without the crown he would not be able to make
his submissions in a satisfactory manner. We refused to grant the permission to
the great dissatisfaction of the appellant. A court of law is a solemn place
where proceedings are held in a solemn manner and the time of the court
especially in the apex court is precious. time which belongs to the people and
it would be wholly obnoxious to judicial propriety to allow a litigant to
appear in court wearing a crown to argue the case. The court cannot be
converted into a dramatic or theatrical stage. We accordingly refused to grant
the per- mission to the appellant to wear his crown. During the arguments the
appellant glibly stated that he had contested the election for the offices of
President and Vice-President and that he would be contesting each and every
election as an independent candidate with a view to reform the society and the
election law. This is not uncommon as a number of other persons have been
contesting elections as independent candidates for the high office and some of
them filed election petition disputing the election. These factors have given
cause for anxiety to us and we hope that the Parliament will take these matters
into consideration to devise ways and means to meet the onslaught of
independent candidates who are not quite serious about their business.
In
view of our discussion, we are of the opinion that the High Court rightly
exercised its power in rejecting this petition under Order VII Rule 11. The
appeal fails and accordingly dismissed with costs which we quantify at
Rs.2,000.
P.S.S.
Appeal dismissed.
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