Kamalnath
Vs. Sudesh Verma [2002] Insc 4 (8 January 2002)
G.B.
Pattanaik & Y.K. Sabharwal Pattanaik, J.
These
appeals by special leave are directed against the order dated 21.7.2000 of the
High Court of Judicature at Jabalpur in Election Petition No. 3 of 1998 as well
as against the Order dated 31.1.2001 in the said Election Petition. The
appellant is the successful candidate from Chhindwara Lok Sabha Constituency in
the State of Madhya
Pradesh. The
respondent filed an Election Petition, which was registered as Election
Petition 3 of 1998 impugning the election of the appellant alleging corrupt
practice under Section 123(6) of the Representation of Peoples Act (hereinafter
referred to as "The Act"), in as much as the appellant is alleged to
have incurred or authorised expenditure in contravention of Section 77 of the
Act. It may be stated, apart from the aforesaid allegation of corrupt practice,
there was no other allegation in the Election Petition. The appellant had won
the election by defeating his nearest rival by 1,53,398 votes. In the Election
Petition the appellant filed two applications seeking dismissal of the Election
Petition on the ground that the said Petition does not disclose material facts
with regard to alleged corrupt practices, as required under Section 83 of the
Act. It was also urged that the accompanying affidavit is too vague and is not
in accordance with the proviso to Section 83 of the Act. The appellant also
prayed that several paragraphs of the Election Petition should be deleted as it
has no connection with the allegation of corrupt practice within the ambit of
Section 123(6). It was also prayed that the Election Petition having not
disclosed any triable issue, the same is liable to be dismissed. The learned
judge, who had been appointed as Election Tribunal, by his order dated
21.7.2000 came to hold that the pleadings in paragraphs3, 4, 5, 9, 15, 16, 17,
18 and 19 are wholly unnecessary and frivolous and deserve to be struck down,
and accordingly directed for striking out those paragraphs. But so far as the
allegation of corrupt practice on the ground, that the amount spent exceeded
the ceiling on election expenses, the learned Judge came to hold that the
material facts with regard to the ingredients of the cause of action for the alleged
corrupt practice has been disclosed, and therefore, the Election Petition
cannot be dismissed in limine. The appellant thereafter filed yet another
application seeking review of the aforesaid order dated 21.7.2000, and that
Review Application was rejected by Order dated 31.1.2001, and hence the present
appeals.
Mr.
K.K. Venugopal, the learned senior counsel, appearing for the appellant
contended, that the validity of Explanation 1 to 77(1) of the Representation of
Peoples Act, 1951 having been up held by this Court in the case of Dr. P. Nalla
Thampy Terah vs. Union of India - 1985 (Supp.) Supreme Court Cases 189, unless
an Election Petition contains averment to the effect that the returned
candidate, either has incurred or has authorised expenditure to be incurred by
the election agent, more than the ceiling prescribed under the Act, a mere
vague allegation will not make an Election Petition maintainable to be tried
under Section 123(6) of the Act, and in the case in hand, after striking out of
the paragraphs as per the order of the High Court, on the assertions made in
the residue of the paragraphs do not make out an allegation of corrupt practice
within the ambit of Section 123(6) of the Act, and as such, the Election
Petition was liable to be rejected and the High Court committed error in
rejecting the said submission of the appellant. Mr. Venugopal further contended,
that the allegations of corrupt practice being quasi criminal in nature, the
pleadings require a strict examination, and therefore, there should not be any
vagueness in the allegations made which a returned candidate would be required
to meet.
According
to Mr.Venugopal, on vague and general allegation without giving any
particulars, it is difficult to hold that there exists a triable issue,
therefore the High Court committed error in not dismissing the Election
Petition. According to Mr. Venugopal the Election Petition cannot be
entertained to have a fishing and roving enquiry and, therefore, it is
obligatory on the Election Petitioner to give requisite facts, details and
particulars of the corrupt practice with exactitude, and in the absence of such
particulars the Election Petition must fail at the thresh-hold. Mr. Venugopal
further urged that on a true construction of Section 83 of the Act, more
particularly, proviso to Section 83 [1][c], the source of information is
required to be given in the affidavit and the same not having been furnished
there has been an infraction of requirement of law and Election Petition ought
to have been rejected on this ground also.
Mr. Ramajois,
learned senior counsel appearing for respondents, on the other hand contended,
that the material facts and material particulars are not one and the same
thing.
Material
facts are those primary facts which disclose the cause of action and those
primary facts have to be specifically pleaded, and failure to do so will result
in rejection of the Election Petition. But if such material facts have been
pleaded, then the rest would be a matter for trial and, therefore, in the case
in hand, since the Election Petition did contain the material facts alleging
that the returned candidate had spent more than the ceiling provided for, the
Election Petition could not have been rejected at the thresh- hold, and on the
other hand there exists a triable issue which can only be adjudicated after
evidence being lead. In this view of the matter, the impugned order of the High
Court does not suffer from illegality requiring interference by this Court. In
support of his contention reliance is placed on the decision of this Court in
V.S. Achuthanandan vs. P.J. Francis and another (1999) 3 Supreme Court Cases
737.
In
view of the rival contentions two questions arise for consideration:-
(1)
After striking out of the paragraphs from the Election Petition in pursuance of
order of the High Court, whether on the residue of the averments can it be said
that material facts leading to the allegation of corrupt practice have been
pleaded or the allegations are such that it would involve a chance or conjecture
for the Court to draw inference by adopting an involved process of reasoning to
arrive at a conclusion that the Petition contains an averment of expenditure
beyond the prescribed limit, and as such, a triable issue still exists.
(2)
Whether non-mention of source of information in the affidavit constitutes an
infraction of the provisions of Section 83 of the Act, and as such is fatal to
the maintainability of an Election Petition.
Coming
to the first question, Chapter VIII of the Act deals with election expenses.
Under Section 77 of the Act every candidate at an election either by himself or
by his election agent, is required to keep a separate and correct account of
all expenditure in connection with the election incurred or authorized by him
or by his election agent between the date on which he has been nominated and
the date of declaration of the result thereof. Sub-section (3) of Section 77
provides that the total of the said expenditure shall not exceed such amount as
may be prescribed. The expression "prescribed" has been defined in
Section 2(h) to mean prescribed by the rules made under the Act. Under Section
123(6) of the Act incurring excessive expenditure than the maximum amount
prescribed, would tantamount to corrupt practice. But the said expenditure has
to be incurred either by the candidate or by his election agent or by a person
authorized by him and further such expenditure must be between the date of
publication of the notification calling the election and the date of
declaration of the result thereof. Rule 90 of the Conduct of Election Rules
provides the maximum amount that can be spent by a candidate or his authorised
agent under Section 77 and for a Parliamentary Constituency, the amount is
specified in Column (2) of the table in the State of Madhya Pradesh. It may be stated that mere non-
disclosure of the expenditure will not be a corrupt practice but it is
incurring of expenditure in excess of the prescribed amount would be held to be
a corrupt practice. On a combined reading of Section 77 and Section 123(6) of
the Act, it is explicitly clear that the excess expenditure must be incurred by
the candidate or by any person authorised by the candidate or his election
agent. In other words, an expenditure incurred by a third person, who is not authorised
by a candidate or who is not an election agent of the candidate, will not be a
corrupt practice within the ambit of Section 123(6) of the Act. It would,
therefore, be necessary to establish a corrupt practice, as contemplated under
Section 123(6) of the Act to plead requisite facts showing authorisation or
undertaking of reimbursement by the candidate or his election agent. In the
case of Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi, 1987 (Supp.) S.C.C. 93,
this Court examined the allegations made in the election petition and came to
hold that mere allegation that several jeeps were plying in the constituency
and that food was given to the party workers, would not tantamount to an
allegation of corrupt practice and, therefore, the election petition was held
to be not maintainable. Explanation (1) to Section 77 in the context of
expenditure incurred or authorised by the candidate bears considerable
significance inasmuch as voluntary expenditure incurred by friends, relations
or sympathisers of the candidate is not required to be included in the
candidate's return of expenses unless expenses were incurred in the
circumstances from which it could be positively inferred that the successful
candidate had undertaken that he would reimburse the person, who incurred the
expenses. When maintainability of an election petition is considered from the
stand point as to whether materials facts have been pleaded or not in a
petition alleging corrupt practice on the ground that expenses incurred by the
candidate is more than the prescribed limit, it would be necessary to aver the
fact that the candidate has incurred the expenditure or has authorised any
other person to incur the expenditure or that his election agent has incurred
the expenditure and further the candidate has undertaken the liability to
reimburse. These would constitute the material facts of an election petition,
which is filed, alleging corrupt practice within the ambit of Section 123(6)
read with Section 77 of the Act and Rule 90 of the Conduct of Election Rules.
We
would, therefore, examine the residue of averments made in the election
petition to find out whether such material facts had in fact been averred in
the election petition, so that a triable issue can be said to subsist, which
could be adjudicated upon, after evidence being lead. Vague assertion that an
helicopter was used for a specified number of flying hours and the standard
charges for flying hour was Rs. 53,000/- , would not necessarily constitute the
material fact that the candidate has spent by way of hiring of the helicopter,
an amount exceeding the ceiling provided under Rule 90 of the Conduct of
Election Rules. In Dhartipakar Madan Lal Agarwal vs. Rajiv Gandhi, 1987 (Supp.)
S.C.C. 93, the Court examined the allegation that at least 100 jeeps for 30
days and his workers with his consent used 40 jeeps and spent money on
propaganda badges, leaflets, making arrangements for holding meetings
throughout Amethi constituency and money was spent in providing food to 100
workers of Rajiv Gandhi, which was not accounted for in the election expenses
return and came to hold that the allegations contained therein do not make out
any case of corrupt practice. It was held in the aforesaid case that it is
necessary to plead requisite facts showing authorisation, or undertaking of
reimbursement by the candidate or his election agent and 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 constitute corrupt practice.
In V. Narayanaswamy
vs. C.P. Thirunavukkarasu, 2000 (2) S.C.C. 294, a three Judge Bench of this
Court examined the distinction between material facts and material particulars
and ultimately came to hold on fact that the election petition had lacuna in
material facts. The allegation in that case was also corrupt practice but
relating to bribery and undue influence. But the Court observed that in a
petition on the allegation of corrupt practice, the cause of action cannot be
equated with the cause of action, as is normally understood because of the
consequences that follow in a petition based on the allegations of corrupt
practices inasmuch as an election petition seeking a challenge to the election
of a candidate on the allegation of corrupt practices is a serious matter and
if proved, not only does the candidate suffer ignominy, but he also suffers
disqualification from standing for election for a period that may extend to six
years. After taking note of all the earlier decisions, the Court held that to
plead corrupt practice as contemplated by law it has to be specifically alleged
that the corrupt practices were committed with the consent of the candidate and
that a particular electoral right of a person has affected and it cannot be
left to time, chance or conjecture for the Court to draw inference by adopting
an involved process of reasoning.
Applying
the aforesaid test to the residue of pleadings that are available in the
election petition, after striking of several paragraphs pursuant to the orders
of the High Court, it is difficult for us to hold that the material facts in
relation to the alleged corrupt practice within the ambit of Section 123(6)
read with Section 77 of the Act, have at all been pleaded, so that the matter
would be left to lead evidence during trial. On the other hand, vague assertion
with regard to the use of helicopter and what are the standard charges of an
helicopter per flight hour have been mentioned on it. It has not been
specifically pleaded that either the appellant had incurred the expenditure
amounting to a particular sum or has authorised his agent to incur the same or
that he has authorised any other person to make the expenditure which the
appellant has undertaken to reimburse. The High Court in paragraph (11) has
culled out the residue of averments in the petition which were considered to be
sufficient pleadings of the corrupt practice within the ambit of Section 123(6)
read with Section 77 of the Act. But on examining the averment which remains in
the election petition after several paragraphs having been struck off, we do
not find any averment on record, indicating that the appellant either did incur
the expenditure of hiring an helicopter for a specified number of hours or that
he has authorised his election agent for hiring such helicopter or that he has authorised
any other person for hiring such helicopter to whom he has undertaken to
reimburse the amount. Mr. Ramajois, appearing for the respondents vehemently
argued that paragraph (6) of the election petition unequivocally satisfies the
material facts in relation to the allegation of corrupt practice under Section
123(6) of the Act, but paragraph (6) merely states that the facts narrated
below specifically would show that the expenses beyond the maximum limit as
prescribed under Section 77 were actually incurred by the returned candidate or
he has authorised the same. But on scrutinizing the facts narrated below did
not indicate the factual averment that the returned candidate had in fact
incurred expenditure beyond the prescribed limit and all that had been stated
is that an helicopter had been used for a number of hours and the normal rate
of hiring a helicopter being in the minimum Rs. 2,12,000/- per day and the
helicopter having been used for 14 days, the returned candidate must have been
required to pay more than the prescribed limit towards the expenses of the
helicopter. This in our considered opinion, cannot be held to be an assertion
of material fact and on the other hand, it would be in the realm of conjecture,
requiring the Court to draw inference by adopting an involved process of
reasoning and that would not satisfy the requirement of the pleadings of
material facts. We are unable to agree with the submissions of Mr. Ramjois,
appearing for the respondents that in fact the election petition does indicate
the cause of action and the applicant would be required to establish them only
during trial inasmuch as an election petition which purports to unsettle the
wish of the electorates has to be strictly construed and more so when an
allegation of corrupt practice is the basis of the petition, the said
allegation being quasi criminal in nature. Having examined the averments which
remain after striking off several paragraphs pursuant to the order of the High
Court, we have no hesitation to come to the conclusion that material facts in
relation to an allegation of corrupt practice within the ambit of Section
123(6) read with Section 77 of the Representation of the People Act are lacking
and, therefore, the election petition must be held to be not maintainable. In
our view, the High Court committed error in coming to the conclusion that a triable
issue does subsist on the residue of the allegations. Our answer to the first
question, therefore, is that there has been an infirmity in the election
petition, as the material facts in the context of allegation of corrupt
practice within the ambit of Section 123(6) read with Section 77 of the
Representation of the People Act are lacking and such an election petition is
liable to be dismissed.
So far
as the second question is concerned, Mr. Venugopal,s contention is based upon
the language used in the proviso to Section 83(1) of the Representation of
People Act. The proviso to Section 83(1) reads thus:-
"83.
Contents of petition.
(1) An
election petition
(a) shall
contain a concise statement of the material facts on which the petitioner
relies;
(b)
shall set forth full particulars of any corrupt practice that the petitioner
alleged including as full a statement as possible of the names of the parties
alleged to have committed such corrupt practice and the dae and place of the
commission of each practice; and
(c) shall
be signed by the petitioner and verified in the manner laid down in the Code of
Civil Procedure, 1908 (5 of 1908) for the verification of pleadings;
(Provided
that where the petitioner alleges any corrupt practice, the petition shall also
be accompanied by an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars thereof.)" Mr. Venugopal
contends, that when an Election Petition alleges any corrupt practice the said
petition, under law, is required to be accompanied by an affidavit in the
prescribed form in support of the allegation of such corrupt practice and the
particulars thereof. The underlined idea behind the aforesaid proviso is that
the person against whom allegations are made should also be aware of the source
of information of the deponent so that the person concerned can challenge the
same in cross-examination. This being the position, according to Mr. Venugopal,
lack of source of information of the deponent constitutes an infraction of the
proviso, even if the prescribed form does not provide to indicate such source
of information, and any petition which lacks the source of information should
be rejected at the thresh-hold. In support of the same reliance has been placed
on the decision of this Court in Ravinder Singh vs. Janmeja Singh and Others
(2000) 8 Supreme Court Cases 191, as well as a Three Judge Bench decision in V.
Narayanaswamy vs. C.P. Thirunavukarasu (2000) 2 Supreme Court Cases 294. In Ravindra
Sing's case (supra) this Court, construed the provision of Section 83 of the
Act and held that not only a concise statement of material facts and full
particulars of the alleged corrupt practice to present a full and complete
picture of the action to be detailed in the election petition, but also under
the proviso to Section 83(1) of the Act, the election petition levelling a
charge of corrupt practice is required, by law, to be supported by an affidavit
in which the election petitioner is obliged to disclose his source of
information in respect of the commission of that corrupt practice.
According
to learned Judges the reason for this insistence is obvious. It is necessary
for an election petitioner to make such a charge with full responsibility and
to prevent any fishing and roving inquiry and save the returned candidate from
being taken by surprise. The Court in this case held that in the absence of
proper affidavit, in the prescribed form, filed in support of the corrupt
practice of bribery, the allegation pertaining thereto, could not be put to
trial, the defect being of a fatal nature. In the aforesaid case the Court found
that there was no affidavit filed in support of the allegations of corrupt
practice of bribery.
In V. Narayanaswamy's
case the Court also construed the provision of Section 83 of the Representation
of People Act and examined the purpose with which proviso to sub- section (1)
of Section 83 was inserted by Act 40 of 1961.
The
Court held that an Affidavit within the meaning of proviso to Section 83(1) has
to conform not only to the form prescribed in substance but also contain
particulars as prescribed by the Rules. It was also held that if several
paragraphs of the Election Petition alleging corrupt practices remain unaffirmed
under the verification clause as well as the affidavit, the unsworn allegation
could have no legal existence and the court could not take cognizance thereof.
Charge
of corrupt practice being quasi-criminal in nature the court must always insist
on strict compliance with the provisions of law. Bearing in mind the principles
laid down in the aforesaid cases, and on examining the affidavit that has been
sworn to in the case in hand, it appears, that Rule 94(A) of the Conduct of the
Election Rules, which was inserted by way of amendment with effect from 27th
February, 1962, provides that the Affidavit referred to in the proviso to sub- section
(1) of Section 83 shall be sworn before a magistrate of the first class or a
notary or a commissioner of oaths and shall be in Form 25. Thus Form 25 is the
prescribed form required under the proviso to Section 83(1), in which form the
affidavit is required to be made. The form indicates that the deponent must
state that which of the paragraphs are true to his knowledge and which of the
paragraphs are true to his information. The Election Petition in the present
case contains a verification which states that paragraphs 2 to 21are true to
the information received by the petitioner of which sources have been disclosed
in the main petition. The accompanying affidavit also states that the
particulars of corrupt practices mentioned in paragraphs 2 to 21 are true to
the information received from the concerned authorities/persons are believed to
be true. Out of these paragraphs, paragraph nos. 3, 4, 5, 9, 15, 16, 17, 18 and
19 have already been struck up by the order of the High Court dated 21.7.2000.
On considering the averments made in the Election Petition, as well as the
contents of the verification and affidavit referred to earlier, we are unable
to persuade ourselves with the submission of Mr. Venugopal that there has been
an infraction of the proviso to Section 83(1) of the Act so as to reject the
Petition on that score at the thresh- hold.
In
view of our conclusion on question no. 1, the appeals are allowed and the
impugned orders of the High Court dated 21.7.2000 as well as 31.1.2001 are set
aside and the Election Petition No. 3 of 1998 in the High Court of Madhya
Pradesh at Jabalpur is held to be not maintainable.
..........................................J.
(G.B.
PATTANAIK) ..........................................J.
(Y.K.
SABHARWAL) January 08,
2002.
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