Mithilesh
Kumar Vs. Sri R. Venkataraman & Ors [1987] INSC 289 (16 October 1987)
VENKATARAMIAH,
E.S. (J) VENKATARAMIAH, E.S. (J) MISRA RANGNATH OZA, G.L. (J) DUTT, M.M. (J)
SINGH, K.N. (J)
CITATION:
1987 AIR 2371 1988 SCR (1) 525 1987 SCC Supl. 692 JT 1987 (4) 111 1987 SCALE
(2)780
ACT:
The
Presidential and Vice-Presidential Ekctions Act, 1952-s. 18(1)(a)-Read with r.
34, OXXXIX, and r.6, O.XXIII, of the Supreme Court Rules, 1966 Plea for setting
aside an election on the ground of commission of offence of 'undue
influence'-Petition liable to be rejected if it does not contain a specific
averment that either the returned candidate himself had committed any act of
'undue influence' or any other person had committed any act of 'undue
influence' with his consent.
HEADNOTE:
%
Part III of the Presidential and Vice-Presidential Elections Act, 1952 sets out
the provisions relating to the settlement of disputes regarding elections to
the offices of the President and the Vice-President of India. Section 14(3)
thereof requires that an ekction petition should be presented in accordance
with the provisions of that Part and of the rules made by this Court under Art.
145 of the Constitution. The rules so made are contained in O.XXXIX of the
Supreme Court Rules, 1966. Rule 34 thereof provides that subject to the
provisions of that order or any Special order or directions of the Court, the
procedure on an election petition shall follow, as nearly as may be, the
procedure in proceedings before the Court in the exercise of its original
jurisdiction, which procedure is set out in O.XXIII. Rule 6 of o.XXIII states
inter alia that the plaint shall be rejected where it does not disclose a cause
of action.
Respondent
No. 1 was declared elected as the President of India at an election held in
July, 1987. The petitioner who had contested in the said election as a
candidate filed this petition questioning the validity of the election of
respondent No. 1 and praying for a declaration that he was the successful
candidate at that election.
Rejecting
the petition, ^
HELD:
In the circumstances of this case the Court has no choice except to reject the
petition as required under r.
6
of O.XXIII of 526 the Supreme Court Rules, 1966 as it does not disclose any
cause of A action. [537B] (i) Section 18 of the Presidential and Vice-
Presidential Elections Act, 1952 is exhaustive of the grounds on which the
election of the President or the Vice- President can be declared void. An
election may be set aside under cl.(a) of s. 18(1) if it is established that
the offence of bribery or undue influence, as explained in Chapter IXA of the
Indian Penal Code had been committed by the returned candidate or by any person
with the consent of the returned candidate. In order to succeed on the grounds
mentioned in s. 18(1)(a) it has to be established that the offence of bribery
or undue influence had been committed at the election by the returned candidate
himself; or by any person with his consent. [530G-H: 531A-R] (ii) The manner in
which the present petition has been drafted is not in accordance with the
Rules. Ordinarily the petition should state in a narrative form succinctly and
clearly all the facts as-may be necessary to enable the respondents and the
Court to understand the case of the petitioner. This is not the case here. The
first part of the petition contains 13 questions and the answers given by the
petitioner to those questions. A reading of all these 13 questions and answers
given there to be the petitioner shows that the only ground on which the
petitioner wished to call in question the election of the 1st respondent is
that the issue of a whip by the Congress (I) Party to its legislators on the
eve of the ekction asking them to cast their votes in favour of the 1st
respondent was in the nature of a threat amounting to undue influence which is
one of the two grounds set out in s. 18(1)(a). The allegations made in this
part of the petition suggest that the specific case of the petitioner is that
the said act of the influence had been committed by the members of the Congress
(I) Party. There is no allegation that any act amounting to undue influence was
committed either by respondent No. 1 himself or by any other person with his
consent. Even in the second part of the petition which is entitled 'Notable
points' and the third part of the petition containing grounds to declare the
election of the returned candidate as void there is no averment that either the
returned candidate himself had committed any act of undue influence or any
other person had committed any act of undue influence with his consent.
[532A-E]
(iii) At the hearing after getting the entire petition read out the Court asked
the petitioner to point out whether there was any allegation that the 1st
respondent had himself committed any undue influence or 527 any other person
with the consent of the 1st respondent had committed such an act or any
allegation which required to be tried and the petitioner was not able to point
out any part of the petition in which such an allegation had been made.
In
view of this infirmity we have not found it necessary to examine whether the
issuing of the whip by any political party amounts to undue influence vitiating
an election even when such an act is committed by the returned candidate or
with his consent by some other person. [536G-H; 537A] (iv) The petitioner did
not appear to be quite serious about his case. At one stage he contended having
himself filed the petition before the Court that this Court had no competence
to hear the case and at another stage he wanted 51 Judges to hear his petition
when the maximum permissible strength of this Court is about one-half of the
number and the existing strength of this Court is less than one-third of that
number. While we expect every conscientious citizen eligible to file an
election petition to question an election on the grounds prescribed by the Act,
we do not wish that any petitioner should make use of this Court as a forum to
file a petition without giving adequate thought to its contents and also to the
provisions of law governing the case merely to seek some cheap publicity.
[537C-E] Charan Lal Sahu v. Neelam Sanjeeva Reddy, l1978] 3 S.C.R. 1 and Charan
Lal SaJlu & O.R.S. v. Giani Zail Singh & Anr., [1984] 2 S.C.R. 6;
relied on.
ORIGINAL
JURISDICTION: Election Petition No. 1 of 1987.
Election
Petition under Section 16, 17, 18, 19 and 20 of Part III of the Presidential
and Vice-Presidential Elections Act 1952 Petitioner-in-person (Mithilesh
Kumar).
K.
Parasaran, Attorney General T.S. Krishnamurthy Iyer, Krishnamurthy Swami and
Miss A. Subhashini for the Respondents.
The
Judgment of the Court was delivered by VENKATARAMIAH, J. The above petition is
filed by the petitioner, Shri Mithilesh Kumar under the provisions of the
Presidential and Vice-Presidential Elections Act, 1952 (Act No. 31 of 1952)
(hereinafter referred to as 'the Act') calling in question the validity of the
election of Shri R.
Venkataraman,
the 1st respondent herein as the 528 President of India at the election held in
July, 1987 for electing the President of India and praying for a declaration
that he is the successful candidate at that election. There were three
candidates at the election, namely, Shri R. Venkataraman-respondent No. 1, Shri
V.R. Krishna Iyer-respondent No. 2 and Shri Mithilcsh Kumar-the petitioner. The
result of the election was declared on 16.7.1987 by the Returning officer for
Presidential Election 1987-respondent No. 4, declaring Shri R. Venkataraman-
respondent No. 1 as the President of India.
The
Act was passed in the year 1952 for the purpose of regulating certain matters
relating to or connected with the elections to the offices of the President and
the Vice- President of India. Part II of the Act contains the provisions
relating to the conduct of Presidential and Vice- Presidential elections and
Part III of the Act sets out the provisions relating to the settlement of
disputes regarding elections to the offices of the President and the Vice-
President of India. Section 14 of the Act provides that no election should be
called in question except by presenting an election petition to the authority
specified in subsection (2) and the authority having jurisdiction to try an
election petition under the Act is specified as the Supreme Court of India by
sub-section (2). Sub-section (3) of section 14 of the Act requires that an
election petition should be presented to the Supreme Court of India in
accordance with the provisions of Part III of the Act and of the rules made by
the Supreme Court of India under Article 145 of the Constitution of India.
Order XXXIX of the Supreme Court Rules, 1966 (hereinafter referred to as 'the
Rules') made under Article 145 of the Constitution of India and all other
powers enabling it in this behalf by the Supreme Court of India contains the
provisions relating to the election petitions filed under Part III of the Act.
Section 14-A of the Act provides that an election petition calling in question
an election may be presented on one or more of the grounds specified in
Sub/section (1) of section 18 and section 19 to the Supreme Court by any f
candidate at such election or in the case of Presidential election, by twenty
or more electors joined together as petitioners and in the case of
Vice-Presidential election, by ten or more electors joined as petitioners. Such
petition may be presented at any time after the date of the publication of the
declaration containing the name of the elected candidate at the election under
section 12 of the Act but not later than thirty days from the date of such
publication. Section is of the Act provides that subject to the provisions of
Part III of the Act rules made by the Supreme Court of India under Article 145
of the Constitution of India may regulate the form of election petitions, the
manner in which 529 they are to be presented, the persons who are to be made
parties thereto, the procedure to be adopted in connection therewith and the
circumstances in which petitions are to abate and to be withdrawn and in which
new petitioners may be substituted and may require security to be given for
costs. Rule 3 of order XXXIX of the Rules prescribes that a court-fee stamp of
the value of rupees two hundred and fifty shall be paid on the election
petition and the election petition will be signed by the petitioner or petitioners,
if they are more than one, or a duly authorised advocate-on- record on his or
their behalf. Rule 4 of order XXXIX of the Rules provides that the petition
shall be divided into paragraphs, numbered consecutively, each paragraph being
confined to a distinct portion of the subject, and shall be printed or typed
legibly on one side of standard petition- paper, demy-foolscap size or of the
size of 29.7 cm. x 21 cm. or on paper of equally superior quality. Rule 5 of
order XXXIX of the Rules requires that the petition shall state the right of
the petitioner under the Act to petition the Court and briefly set forth the
facts and grounds relied on by him to sustain the reliefs claimed by him. The
allegations of fact contained in the petition shall be verified by an affidavit
to be made personally by the petitioner or by one of the petitioners, if there
are more than one as provided under rule 6 of order XXXIX of the Rules. The
grounds on which the election of the returned candidate at the Presidential or
the Vice Presidential election can be declared void are set out in section 18
of the Act Section 18 of the Act reads thus:- " 18(1). If the Supreme
Court is of opinion,- (a) that the offence of bribery or undue influence at the
election has been committed by the returned candidate or by any person with the
consent of the returned candidate; or (b) that the result of the election has
been materially affected- (ii) by the improper reception or refusal of a vote;
or (ii) by any non-compliance with the provisions of the Constitution or of
this Act or of any rules or orders made under this Act; or (iii) by reason of
the fact that the nomination of any 530 candidate (other than the successful
candidate), who has not withdrawn his candidature, has been wrongly accepted;
or (c) that the nomination of any candidate has been wrongly rejected or the
nomination of the successful candidate has been wrongly accepted;
the
Supreme Court shall declare the election of the returned candidate to be void.
(2)
For the purposes of this section, the offences of bribery and undue influence
at an election have the same meaning as in Chapter IXA of the Indian Penal
Code." Section 19 of the Act sets out the grounds for which a candidate
other than the returned candidate may be declared to have been elected. Section
19 of the Act reads thus.
"19.
Grounds for which a candidate other than the re turned candidate may be
declared to have been elected. If any person who has lodged an election
petition has, in addition to calling in question the election of the returned
candidate, claimed a declaration that he himself or any other candidate has
been duly elected and the Supreme Court is of opinion that in fact the
petitioner or such other candidate received a majority of the valid votes, the Supreme
Court shall, after declaring the election of the returned candidate to be void,
declare the petitioner or such other candidate, as the case may be, to have
been duly elected:
Provided
that the petitioner or such other candidate shall not be declared to be duly
elected if it is proved that the election of such candidate would have been
void if he had been the returned candidate and a petition had been presented
calling in question his election." Section 18 of the Act is exhaustive of
the grounds on which the election of the President or the Vice-President can be
declared void. Under section 18(1)(a) an election of the President or of the
Vice-President may be set aside if it is established that the offence of
bribery or undue influence, as explained in Chapter IXA of the Indian Penal 531
Code had been committed by the returned candidate or by any person with the
consent of the returned candidate. In order to succeed on the grounds mentioned
in section 18(1)(a) of the Act it has to be established that the offence of
bribery or undue influence had been committed at the election by the returned
candidate himself; or by any person with his consent. Originally when the Act
was enacted section 18(1)(a) of the Act read thus:- " 18(1). If the
Supreme Court is of opinion- (a) that the offence of bribery or undue influence
at the election has been committed by the returned candidate or by any person
with the connivance of the returned candidate: or
................................................." The word 'connivance'
in section 18(1)(a) of the Act was substituted later on by Parliament when the
former Part III of the Act was substituted by the present Part III of the Act
by the Presidential and the Vice-Presidential Elections (Amendment) Act, 1977
to bring it in line with the provisions of section 123(1) and (2) of the
Representation of the People Act, 1951, which contain the grounds of bribery
and undue influence which would vitiate the election to either House of
Parliament or to the Houses or House of the State Legislatures as the case may
be. Clause (b) of section 18(1) of the Act contains three grounds the proof of
any of which would result in the election being declared void provided it is
established that the result of the election has been materially affected
thereby, namely, (i) the improper reception or refusal of a vote; or (ii) any
non-compliance with the provisions of the Constitution or of the Act or of any
rules or orders made under the Act; or (iii) wrongful acceptance of the
nomination of any candidate (other than the successful candidate), who has not
withdrawn his candidature. Clause (c) of section 18(1) of the Act provides that
if the nomination of any candidate has been wrongly rejected or the nomination
of the successful candidate has been wrongly accepted, the election of the
returned candidate is to be declared void. These are the only grounds on which
the election of the returned candidate can be declared void under the Act.
Section 19 of the Act as stated already contains grounds for declaring a
candidate other than the returned candidate as duly elected.
It
should he stated at the outset that the manner in which the 532 present
petition has been drafted is not in accordance with the Rules. Ordinarily the
petition should state in a narrative form succinctly and clearly all the facts
as may be necessary to enable the respondents and the Court to understand the
case of the petitioner. This is not the case here. The first part of the
petition contains 13 questions and the answers given by the petitioner to those
questions.
A
reading of all these 13 questions and answers given thereto by the petitioner
shows that the only ground on which the petitioner wished to call in question
the election of the 1st respondent is that the issue of a whip by the Congress
(I) Party to its legislators on the eve of the election asking them to cast
their votes in favour of the 1st respondent was in the nature of a threat
amounting to undue influence which is one of the two grounds set out in section
18( I)(a) of the Act. The allegations made in this part of the petition suggest
that the specific case of the petitioner is that the said act of undue
influence had been committed by the members of the Congress (I) Party. There is
no allegation that any act amounting to undue influence was committed either by
respondent No. ] himself, or by any other person with his consent. Even in the
second part of the petition which is entitled 'Notable points' and the third
part of the petition containing grounds to declare the election of the returned
candidate as void, there is no averment that either the returned candidate
himself had committed any act of undue influence or any other person had
committed any act of undue influence with his consent. The fourth part of the
petition contains grounds to declare the petitioner as duly elected. It is
alleged in this part that by reason of the issue of the whip by the Congress
(I) Party and/or by other parties the votes which would have been cast in his
favour had been grabbed by the other candidates. The fifth part of the petition
contains the reliefs sought by the petitioner and the last part contains the
prayer for an interim order directing the staying of the oath ceremony of the
returned candidate which had been fixed to take place on the 25th of July,
1987. There is no reference to any other ground mentioned in section 18 of the
Act on the basis of which the election can be set aside.
After
the petition was presented to this Court notice was issued to the respondents
and also to the Attorney- General of India as portion is liable to be rejected
at this stage itself since it does not disclose any cause of action. Rule 34 of
order XXXIX of the Rules provides that subject to the provisions of order XXXIX
of the Rules or any special order or directions of the Court, the procedure on
an election petition shall follow, as nearly as may be, the procedure in
proceedings before the Court in the exercise of its original jurisdiction.
Order XXIIl of the rules contains the rules of pleadings in cases filed under
the original jurisdiction of this Court. Rule 6 of order XXIII of the Rules
states that the plaint shall be rejected where it does not disclose a cause of
action or where the suit appears from the statement in the plaint to be barred
by any law. It is stated in the preliminary objections of the 1st respondent
and the preliminary submissions of the Attorney General of India that since no
where in the election petition the petitioner has stated that the offence of
undue influence had been committed by the 1st respondent or by any other person
with his consent and since no other ground specified in section 18 of the Act
has been pleaded, the petition is liable to be rejected under rule 6 of order
XXIII of the rules even assuming that all that the petitioner has stated in his
petition is true.
After
the preliminary objections of the 1st respondent and the preliminary
submissions of the Attorney-General of India were filed, the case was taken up
for hearing on the said preliminary objections and preliminary submissions. The
petitioner Shri Mithilesh Kumar (in person), Shri T.S.
Krishnamurthy
Iyer, learned counsel for respondent No. 1 and Shri K. Parasaran, learned
Attorney-General of India were heard.
The
issue which arises for consideration in this case is whether the election
petition is liable to be rejected under rule 6 of order XXIII of the Rules on
the ground that it does not disclose any cause of action.
The
question of law involved in this case is no longer res integra. In Charan Lal
Sahu v. Neelam Sanjeeva Reddy, [1978] 3 S.C.R. 1 the petitioner in that
petition had questioned the election of Shri Neelam Sanjeeva Reddy as the
President of India. In that decision this Court held that it was obligatory
upon the Court to reject a petition outright and not to waste any more time
upon a plaint or petition if the provisions of law bar or are shown to bar the
proceedings. The Court proceeded to hold that it was not even necessary to
issue notice to any opposite party or parties in such a case. The next decision
in Charan Lal Sahu & others v. Giani Zail Singh & Another, [198412
S.C.R. 6 534 deals with facts which are very close to the facts of the present
case. In A the said case two issues arose for consideration: (i) can the
election of a candidate to the fice of the President of India be challenged on
the ground that he is not a suitable person for holding that office;
and
(ii) whether the averments in that election petition, assuming them to be true
and correct, disclose any cause of action for setting aside the election of the
returned candidate on the ground stated in section 18(1)(a) of the Act. This
Court observed in that case that the rights arising out of elections, including
the right to contest or challenge an election, were not common law rights, but
they were creatures of the statutes which created, conferred or limited those
rights. Therefore, for deciding the question whether an election can be set
aside on any alleged ground, the court has to consult the provisions of law
governing the particular election. The Court has to function within the
framework of that law and cannot travel beyond it. The Court proceeded to
observe in the above decision thus at Pages 22 to 24:- "Nor is it alleged
that the offence of undue influence was committed by the returned candidate
himself. The allegation of the petitioners is that the offence of undue
influence was committed by certain supporters and close associates of
Respondent 1 with his connivance. It is patent that this allegation, even if it
is true, is not enough to fulfill the requirements of section 18(1)(a). What
that section, to the extent relevant, requires is that the offence of undue
influence must be committed by some other person with the 'consent' of the
returned candidate.
There
is no plea whatsoever in the petition that undue influence was exercised by
those other persons with the consent of Respondent 1.
It
is contended by Shri Shujatullah Khan who appears on behalf of the petitioners,
that connivance and consent are one and the same thing and that, there is no
legal distinction between the two concepts. In support of this contention,
learned counsel relies upon the meaning of the word 'connivance' as given in
Webster's Dictionary (Third Edition, Volume 1, p 481); Random House (p.
311);
Black's Law Dictionary (p. 274); Words and Phrases (Permanent Edition, Volume
8A, p. 173);
and
Corpus Juris Secundum (Volume 15A, p. 567).
The
reliance on these dictionaries and texts cannot carry the point at issue any
further. The relevant question for consideration for the 535 decision of the
issue is whether there is any pleading in the petition to the effect that the
offence of undue influence was committed with the consent of the returned
candidate. Admittedly, there is no pleading of consent. It is then no answer to
say that the petitioners have pleaded connivance and according to dictionaries,
connivance means consent. The plea of consent is one thing: the fact that
connivance means consent (assuming that it does) is quite another. It is not
open to a petitioner in an Election Petition to plead in terms of synonyms. In
these petitions, pleadings have to be precise, specific and unambiguous so as
to put the respondent on notice.
The
rule of pleadings that facts constituting the cause of action must be
specifically pleaded is as fundamental as it is elementary. 'Connivance' may in
certain situations amount to consent which explains why the dictionaries give
'consent' as one of the meanings of the word 'connivance'. But it is not true
to say that 'connivance' invariably and necessarily means or amounts to
consent, that is to say, irrespective of the context of the given situation.
The two cannot, therefore, be equated. Consent imply that parties ad idem.
Connivance
does not necessarily imply that parties are of one mind. They may or may not
be, depending upon the facts of the situation. That is why, in the absence of a
pleading that the offence of undue influence as committed with the consent of
the returned candidate, one of the main ingredients of section 18(1)(a) remains
unsatisfied.
The
importance of a specific pleading in these matters can be appreciated only if
it is realised that the absence of a specific plea puts the respondent at a
great disadvantage. He must know what case he has to meet. He cannot be kept
guessing whether the petitioner means what he says, 'connivance' here, or
whether the petitioner has used expression as meaning 'consent'. It is
remarkable that, in their petition, the petitioners have furnished no
particulars of the alleged consent, if what is meant by the use of the word
connivance is consent. They cannot be allowed to keep their options open until
the trial and adduce such evidence of consent as seems convenient and comes
handy. That is the importance of precision in pleadings, particularly in
election petitions. Accordingly, it is impermissible to substitute the word
'consent' for the word 'connivance which 536 occurs in the pleadings of the
petitioners.
The
legislative history of the statute lends support to our view that for the
purposes of section 18(1)(a), connivance is not the same thing as consent.
Originally, when the Act was passed in 1952, section 18(1)(a) provided that the
Supreme Court shall declare the election of the re turned candidate void if it
is of opinion that the offence of bribery or undue influence has been committed
by the re turned candidate or by any person 'with the connivance' of the
returned candidate. This sub-section was amended by section 7 of the
Presidential and Vice-Presidential Elections (Amendment) Act S of 1974, which
came into force on March 23, 1974. The word 'connivance' was substituted by the
word 'consent' by the Amendment Act. If connivance carried the same meaning as
consent and if one was the same as the other Parliament would not have taken
the deliberate step of deleting the word 'connivance' and sub situating it by
the word 'consent'. The amendment made by the Amendment Act of 1974 shows that
connivance and consent connote distinct concepts for the purpose of section
18(1)(a) of the Act.
Since,
admittedly, there is no pleading in the Election Petition that the offence of
undue influence was committed with the consent of the returned candidate, the
petition must be held to disclose no cause of action for setting aside the
election of the returned candidate under section 18(1) (a) of the Act." We
have given above a fairly long quotation from the above decision because it
contains all the reasons necessary to decide this case too. We do not propose
to repeat them.
They
are applicable to this case also. In the petition before us there is not even
an allegation that the act of undue influence had been committed by some
persons with the connivance of the 1st respondent. The petition is as bald as
it could be. At the hearing after getting the entire petition read out the
Court asked the petitioner to point out whether there was any allegation that
the 1st respondent had himself committed any undue influence or any other
person with the consent of the 1st respondent had committed such an act or any
allegation which required to be tried and the petitioner was not able to point
out any part of the petition in which such an allegation had been made. In view
of this infirmity we 537 have not found it necessary to examine whether the
issuing of the whip by any political party amounts to undue influence vitiating
an election even when such an act is committed by the returned candidate or
with his consent by some other persons.
In
the circumstances, the Court has no choice except to reject the petition as
required under rule 6 of order XXIII of the Rules as it does not disclose any
cause of action.
Before
concluding we should observe that the petitioner did not appear to be quite
serious about his case. At one stage he contended having himself filed the
petition before the Court that this Court had no competence to hear the case
and at another stage he wanted 51 Judges to hear his petition when the maximum
permissible strength of this Court is about one-half of that number and the
existing strength of this Court is less than one-third of that number. Rule 20
of order XXXIX of the Rules requires that every petition calling in question an
election to the offices of the President and the Vice-President shall be posted
before and be heard and disposed of by a Bench of this Court consisting of not less
than five Judges. While we expect every conscientious citizen eligible to file
an election petition to question an election on the grounds prescribed by the
Act, we do not wish that any petitioner should make use of this Court as a
forum to file a petition without giving adequate thought to its contents and
also to the provisions of law governing the case merely to seek some cheap
publicity. We regret to say that seeing one's name in newspapers everyday has
lately become the worst intoxicant and the number of people who have become
victims of it is increasing day by day. We, however, refrain from referring to
some other irrelevant and unwarranted statements made by him before this Court
orally and in writing. Perhaps the petitioner who desired to become the
President of India did not understand the effect of what he was saying. We
shall leave it at that.
The
petition is, therefore, rejected.
H.L.C.
Petition dismissed.
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