Sudarsha Avasthi Vs. Shiv Pal Singh [2008] INSC 983 (16 May 2008)
CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 6807 OF 2005 Sudarsha Avasthi Appellant Versus Shiv Pal Singh
Respondent W I T H :
CIVIL APPEAL NO.1108 OF 2007.
A.K. MATHUR, J.
1. Both these appeals involve
common question of fact and law, therefore, they are disposed of by this common
order. For convenient disposal of both the case, the facts given in C.A.No.6807
of 2005 (Sudarsha Avasthi v.
Shiv Pal Singh) are taken into
consideration.
2. This civil appeal is directed
against the order passed by learned Single Judge of the High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow by which 1 three election
petitions were disposed of one by the appellant, Jitendra Nath Pandey and Sharad
Tiwari by the common order. The appellant before us, Sudarsha Avasthi filed an
election petition being Election Petition No.3 of 2002 for declaration of Shiv
Pal Singh's election to the Uttar Pradesh Legislative Council to be void on
various grounds. The appellant was an elector in the Electoral Roll for
election to the Legislative Council of Uttar Pradesh from Lucknow Division
Graduates' Constituency and his name was mentioned at Serial No.1595 of Part
No.190 Aliganj Ward Lucknow. The election was held on 2.5.2002 and the result
was declared on 7.5.2002. The respondent - Shiv Pal Singh was declared elected.
The election of the elected representative- respondent was challenged on the
ground that the result of the election had been materially affected by improper
acceptance of nomination paper of respondent. Respondent committed corrupt
practice by giving money directly to Ram Pratap Singh and Pradeep Kumar with a
view to induce them to contest as candidates in the said election. The
respondent also committed corrupt practice by giving money to S.P.Singhal with
the object of inducing him to withdraw his nomination. Lastly, the respondent
committed corrupt practice of procuring assistance in furtherance of his
prospects in the election from the Additional Commission (Administration) ,
Lucknow Division 2 who was the Assistant Returning Officer in the said
election. A detailed affidavit was filed by the appellant disclosing the
material facts of the corrupt practice. The Election petition was contested by
the returned candidate- the respondent, Shiv Pal Singh. It was pleaded on
behalf of the respondent that the election petition did not disclose any cause
of action, pleadings are vague, frivolous and vexatious. The concise statement
of material facts and the full particulars of the allegations of corrupt
practices had not been disclosed. Therefore, the election petition was liable
to be dismissed for non-compliance of the provisions of Sections 82 & 83 of
the Representation of the People Act, 1951 ( hereinafter to be referred to as
the Act). An application was also filed under Order VI Rule 16 read with Order
VII Rule 11 of the Code of Civil Procedure ( hereinafter to be referred to as
the C.P.C.) praying for dismissal of the election petition. The respondent
moved an application and prayed that the preliminary issues pertaining to the
maintainability of the election petition and the other that the election
petition lacked material facts and disclosed no cause of action. Two issues
were framed as preliminary issues which read as under:
" 1. Whether the election
petition preferred by the petitioner is liable to be dismissed as it was 3
presented before the Registrar and not before the Judge of the High Court
dealing with the election matter ?
2. Whether the election petition
deserves to be dismissed as it does not disclose any cause of action and
material facts and the particulars are lacking as alleged at this stage ? It
was also referred by learned Single Judge that during the course of the
proceedings, only learned counsel for the respondent- Shiv Pal Singh in
Election Petition No.3 of 2002 and the appellant in person submitted their
arguments on the preliminary issues as reproduced above. No issues were framed
nor any arguments were advanced in the other two election petitions. Therefore,
learned Single Judge observed that the order passed in election petition No.3
of 2002 will have no bearing on the other two election petitions.
3. So far as the issue No.1 was
concerned, learned Single Judge after review of the pleadings, held that it was
wrong to say that the election petition was not properly represented. So far as
issue No.2 was concerned, learned Single Judge after review of pleadings and
arguments made in the petition came to the following conclusion.
4 " The long and short of
above discussions is that the petitioner suppressed the material facts which
could disclose the cause of action and there being no cause of action, which
might have accrued to him, I am of the decisive opinion that this election
petition being devoid of merit deserves to be dismissed."
4. Incidentally, it may be
mentioned that the tenure of the present office of Legislative Council has
already expired and new election has already been ordered and they were held
during the pendency of this petition and the results are awaited. Therefore, it
was contended on behalf of the respondent that it is purely an academic issue
as the fresh election has already been held and the term of the present office
is already over. Therefore, no useful purpose will be served in going into the
merit of the case.
The appellant submitted that he
has made serious allegations of corrupt practice and in case he succeeds in
establishing that there was corrupt practice then the incumbent could be
debarred from contesting the election.
Therefore, the appellant insisted
that the civil appeal should be decided on merits.
5
5. We have heard the appellant in
person and learned counsel for the respondent and perused the record.
So far as issue No.2 is concerned,
whether the election petition deserves to be dismissed as it does not disclose
any cause of action and material facts and the particulars are lacking. In
order to appreciate the contention we may refer to necessary provisions of he
Act pertaining to pleadings. Section 83 of the Act says what should be the
contents of the election petition. Section 83 of the Act reads as under :
" 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 alleges including as
full a statement as possible of the names of the parties alleged to have
committed such corrupt practice and the date and place of the commission of
each such practice; and ) shall be signed by the petitioner and verified in the
manner laid don in the Code of Civil Procedure, 1908 (5 of 1908) for the
verification of pleadings:
6 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.
(2) Any schedule or annexure to be
petition shall also be signed by the petitioner and verified in the same manner
as the petition."
As per Section 83 of the Act, it
is the duty of the person who files the election petition and levels the
allegation of corrupt practice, he has to disclose the material facts on which
he relies and that should set forth the full particulars of a corrupt practice
that the petitioner alleges including the full statement as far as possible
disclosing the names of the parties alleged to have committed such corrupt
practice and the date and place of commission of each such practice and the
same shall be filed by the petitioner and verified in the manner as laid down
in the Code of Civil Procedure. Apart from this, he has to file an affidavit in
prescribed form in support of the allegation of such corrupt practice and he
should disclose the particulars thereof. If he wants to rely on any document
then it should be annexed to the petition signed by the petitioner and verified
in the same manner as 7 the petition. Section 123 of the Act deals with the
corrupt practice. What shall be the corrupt practice have been enumerated in
Section 123 of the Act, like; bribery which has been defined that any gift,
offer or promise by a candidate or his agent or by any other person with the
consent of a candidate or his election agent of any gratification, to any
person whomsoever, with the object, directly or indirectly of including a
person to stand or not to stand as, or to withdraw or not to withdraw from
being a candidate at an election or an elector to vote or refrain from voting
at an election, or as a reward to a person for having so stood or not stood, or
for having withdrawn or not having withdrawn his candidature; or an elector for
having voted or refrained from voting.
Therefore, the detailed
particulars are required to be given that how a person is being bribed by
various modes.
All these particulars have to be
given in the manner provided in Section 83 of the Act.
6. Now, keeping in background
these provisions we may advert to the facts that what were the pleadings made
by the appellant in his election petition and disclosure made therein. So far
as the question of nomination is concerned, the appellant in person has not
seriously agitated because he submitted that the election was held 8 and that
the term has almost come to an end. Therefore, he concentrated primarily on the
question of corrupt practice disclosed by him in his election petition. The
appellant tried to persuade us that sufficient material particulars have been
disclosed and the view taken by learned Single Judge that sufficient material
particulars were not disclosed was not correct. Therefore, what are the
material particulars disclosed by the appellant in his election petition have
to be considered. So far as the allegation of corrupt practice is concerned,
the same are contained in paragraph 5 B, C & D of the election which read
as under :
" 5 B Because the Returned
Candidate Respondent No.1 committed the corrupt practice of Bribery for
gratification ( i.e. giving money) directly to induce Respondent No.2 and 3 to stand
as candidates in the aforesaid election.
C. Because the Returned candidate,
Respondent No.1 committed the corrupt practice of Bribery by giving money to
Respondent No.4 with object of inducing directly the Respondent No.4 to
withdraw from the contest from the aforesaid election.
D. Because the Returned Candidate
the Respondent No.1 committed 9 the corrupt practice of procuring assistance
for the furtherance of his prospects in the aforesaid election, from the
Additional Commissioner (Administration), Lucknow Division, Shri A.K.Mishra,
who was also the Assistant Returning Officer in the aforesaid election, and
wrongly allowed an application of the Respondent No.1 for correction of his
name on the ballot paper in violation of the applicable statutory provision and
disallowed, with utter disregard to the directions given by the Election
Commission of India to the Returning Officers for dealing with such applicants,
a similar application of Km. Vibha Avasthi, another candidate to the aforesaid
election, on the basis of extraneous material privately supplied by the
Respondent No.1 to the said Assistant Returning Officer."
So far as the ground B is
concerned, the allegations have been set out in paragraph 16 and the relevant
allegations start from paragraphs 19 and 20 which read as under :
" 19. The Respondent No.2 Ram
Pratap Singh. S/o Late Ram Lal Singh is real brother of the Respondent No.1.
The Respondent inducing directly
Respondent No.2 to stand as a candidate in the aforesaid election. On
11.04.2002 10 at about 12.45 p.m. gave Rupees Ten Thousahd (Rs.10,000.00) to
Respondent No.2 inside the Court room of the Commissioner Lucknow Division, for
filing his (i.e. of Respondent No.2) nomination papers to become a candidate in
the aforesaid election to U.P.Legislative Council from Lucknow Division
Graduates' Constituency. The Respondent No.2 thereafter deposited the security
money and filed his nomination papers before the Assistant Returning Officer in
the Court room of the Commissioner, Lucknow, in presence of the Respondent
No.1.
20. That Respondent No.1, while
inducing Respondent No.3 directly to stand as a candidate in the aforesaid
elect6ion, on 11.04.2002 at about 1.00 PM gave Rupees Ten Thousand
(Rs.10,000.00) to Respondent No.3 Pradeep Kimar,S/o Late Behari Lal in the
Verandah which is outside the court room of the Commissioner, Lucknow Division,
for filing his (i.e. of Respondent No.3) nomination papers to become a
candidate in the aforesaid election to the Uttar Pradesh Legislative Council
from the Lucknow Division Graduates' Constituency. The Respondent No.1,
thereafter, delivered the nomination papers to the Respondent No.3 and made him
to put his signature on them at the table inside the court room of the
Commissioner, Lucknow Division, while the Respondent No.1 was 11 standing by
his side indicating the places for putting the signatures. The Respondent No.3
thereafter deposited the security money and filed his nomination papers before
the Assistant Returning Officer in the courtroom of Commissioner, Lucknow
Division. "
So far as the allegations
contained in Paragraph 5 C are concerned, those are contained in paragraph 21
onwards.
Relevant allegations are in
paragraphs 23 and 24 which read as under :
" 23. That Respondent No.4
S.P.Singhal S/o Ram Chandar Singhal had filed his nomination paper on
06.04.2002 in the aforesaid election and his nomination papers were found valid
and accepted by the Returning Officer on 12.04.2002.
24. That Respondent No.1 gave
Rupees Thirty Thousand (Rs.30,000.00) to Respondent No.4 inside the compound of
the Commissioner's Office (Lucknow Division) near the exit gate, on 15.04.2002
at about 2.00 p.m. to withdraw from being a candidate at the aforesaid
election. Thereafter, the Respondent No.4 withdraw his candidature by giving
Notice in writing addressed to the Returning Officer on 15.4.2002."
12 So far as the allegations
contained in Paragraph 5 D, those are set out at paragraph 25 onwards. Relevant
portions contained in paragraphs 27 to 29 which read as under :
" 27. That on 15.04.2002 at
2.25 P.M. the petitioner had submitted an application from Km.Vibha Avasthi, a
candidate in the aforesaid election, for addition of her popular name on the
ballot paper, by also including her alias"Dr.Vibha Harikrishna Avasthi",
and at that time the Respondent No.1 and his counsel were pleading before the
Assistant Returning Officer Shri A.K.Mishra for allowing to move a third
application for correction of his name in a manner as to distance/distinguish
it on the ballot paper from the other two candidates with similar name viz.
Shiv Pal Singh and the Petitioner tried to object to such a request, which was
improper and beyond the scope of the provision in this regard, but a visibly
annoyed Assistant Returning Officer Shri A.K.Mishra advised the Petitioner to
confine his submissions on the application moved by the petitioner, but when
requested to inform the objection, if any, or the reasons of dissatisfaction of
the Returning Officer as to the genuineness of the request, the said Assistant
Returning Officer announced 13 that time for withdrawing the nominations and
making applications was over, and left the room without pronouncing any
decision on the applications before him.
28. That at about 3.45 p.m. on the
same day, the petitioner went to the chamber of the Assistant Returning Officer
Shri A.K.Mishrpa, the doors of his room were half closed, and the petitioner
was not allowed entry by the home guard on duty outside the room, informing
that the Additional Commissioner was busy with another candidate and while the
petitioner was waiting outside his room he could hear a conversation inside the
room, with Mr.A.K.Mishra inquiring from Mr.Raees, the genuineness of a sample
ballot paper given by S.P.Singh, and the reply was in affirmative.
29. That thereafter the doors of
the room opened and the Petitioner saw the Respondent No.1 and his counsel
coming out of room bowing and profusely thanking the ARO Shri A.K.Mishra; and
then the petitioner was allowed entry inside the room of Shri A.K.Mishra and
saw Mr.Raees Ahmad, the Senior Clerk of Lucknow District Election Office
sitting inside the room and when the Petitioner asked the fate of the
application moved by him on behalf of Km.Vibha Avasthi, Shri A.K.Mishra the ARO
replied that the 14 same was rejected, but refused to give reasons for his
decision, even on asking by the Petitioner."
Learned Single Judge has taken
into consideration these grounds of corrupt practice along with the allegations
contained in the election petition as reproduced above and came to the finding
that these all appear to be cock and bull story. It was observed that it is not
believable that Ram Pratap Singh who is the real brother of the respondent
would accept illegal gratification in public view, that too inside the Court
room of the Commissioner. It was further observed that the appellant did not
disclose the name of any witness who was present inside the court room or
outside when the money was handed over to the brother of the respondent.
Similarly on the analogy that the theory of giving Rs.30,000/- as bribe to the
Respondent No.4 in office of Commissioner appears to be nothing but figment of
imagination. Lastly regarding ground D it was observed that Ku. Vibha Avasthi
wanted some alteration in her name.
She did not move any application
for addition of surname of her father. But the copy of this application for
alteration of the name was not filed and it was deliberately concealed that he
was the agent of Kumari Vibha Avasthi and it was also found that it is difficult
to understand when the Office of the Assistant Commissioner cum Returning
Officer, Shri A.K.Mishra was cordoned of by the Home Guards how did 15 he enter
inside the room of Shri A.K.Mishra and it is unbelievable that the respondent
went inside the room of Shri A.K.Mishra and influenced him in one way or the
other and secondly it was also held that it was not wrong on the part of the
candidate to have entered the office of Shri A.K.Mishra and it is difficult to
believe that other person standing outside could know what transpired between
the Officer and the person inside. Therefore, learned Single Judge found that
this is nothing but a cock and bull story. On the basis of these pleadings
learned Single Judge ultimately concluded that there was no material facts
disclosing the cause of action and consequently, dismissed the election
petition.
7. The election petition is a
serious matter and it cannot be treated lightly or in fanciful manner nor is it
given to a person who uses this as a handle for vexatious purpose. The
allegations made in the petition as disclosed in the election petition appear
to us to be totally a cock and bull story. We are in agreement with the view
taken by the learned Single Judge that a brother will give a sum of Rs.10,000/-
in the office of the Returning Officer i.e.
Assistant Commissioner for
appearing in the election or contesting the election or a sum of Rs.30,000/- to
another candidate for withdrawing in full public view of all and 16 sundry. On
the face of it appears to be unbelievable and these allegations have been
alleged in order to make a ground for some how or the other to put pressure on
the respondent. Learned Single Judge after review of the allegations contained
therein has rightly concluded that these allegations are not precise
allegations so as to show that these are serious allegations to be tried in the
election petition. Learned Single Judge has gone through all these allegations
and it also appears to us to be most unbelievable and impracticable sequence of
events. It is easy to allege without giving the detail particulars whether the
whole thing transpired in a hearing distance.
We are in full agreement with the
view taken by learned Single Judge and we are of opinion that the learned
Single Judge has correctly appreciated that this case lacks in particularity
any allegation of bribery as contained in Section 123 read with Section 83 of
the Act.
8. The appellant in person has
taken us through various decisions of this Court. The followings are the list
of cases cited by the appellant.
-
AIR 1982 SC 1559 Roop Lal Sathi
v. Machhattar Singh ii) (1991) 3 SCC 375 F.A.Sapa & Ors. v. Singora &
Ors.
-
17 (1999) 4 SCC 274 T.M.Jacob
v. C.Poulose & Ors.
-
(2004) 11 SCC 196 Sardar
Harcharan Singh Brar v. Sukh Darshan Singh & Ors.
-
(2005) 13 SCC 511 Harkirat
Singh v. Amrinder Singh
9. No useful purpose will be
served by referring to all these cases. The ratio of all these cases is the
election petition should contain the allegation of bribery in a concise manner
with material particulars. Material particulars disclosed in the present as
mentioned above, are not sufficient to be gone into for trial. We are in full
agreement with the view taken by learned Single Judge.
Therefore, we find no merit in the
appeal and the same is dismissed. No order as to costs.
Civil Appeal No.1108 of 2007
10. The election petition before
the High Court was dismissed for want of prosecution as nobody appeared. The
learned Judge has recorded in his order that the matter was adjourned number of
times and nobody appeared. Therefore, it is not necessary to restore this
petition as petitioner was not serious and present term has already expired.
This appeal is dismissed with no order as to costs.
18
.....................................J [A.K.MATHUR]
..............................
......J New Delhi, [ALTAMAS
KABIR] May 16, 2008.
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