Ishwardas Rohani Vs. Alok
Mishra & Ors.
[Civil Appeal No.4189
of 2012 arising out of SLP(C) No. 30417 of 2009]
J U D G M E N T
ALTAMAS KABIR, J.
1.
Leave
granted.
2.
The
Respondent No.1 herein, Shri Alok Mishra, contested the 2008elections to the
Madhya Pradesh State Assembly as a candidate of the Indian National Congress Party
from Cantt. Legislative Assembly No.99Constituency, Jabalpur. He was defeated
in the elections by the Appellant therein as a candidate of the Bharatiya
Janata Party. The said Respondent filed Election Petition No.22 of 2009, challenging
the election of the Appellant on the ground of corrupt practice, as contemplated
in Sub-Sections (1)(A) and (B), (2), (6) and (7) of Section 123 of the Representation
of the People Act, 1951, hereinafter referred to as the“1951 Act”.
3.
The
grounds relating to corrupt practice, as alleged by the Respondent No.1 herein,
inter alia, were to the following effect :
i.
as
an Ex-M.L.A. and Ex-Speaker of the Vidhan Sabha and being a close associate of
the Chief Minister of the State, the Appellant was able to exert undue
influence on the Collector, the District Returning Officer and other
authorities for procuring their assistance for the furtherance of his prospects
in the elections;
ii.
that
on 2nd November, 2008, when the Respondent No.1 was returning to Jabalpur from
New Delhi, as the authorized candidate of the Indian National Congress, his
supporters, who came to meet him at the railway station, were arrested, whereas
the very next day, no action was taken against the supporters of the Appellant
herein who had deployed as many as 300 vehicles in the election rally organised
on the occasion of the filing of his nomination, although, permission had been given
for use of only 27 vehicles. The Appellant was allowed to erect “welcome gates”
at various places and used unauthorized vehicles and also put up flags,
hoardings and posters on electric poles and even on temples, despite the
objections raised by the Respondent No.1 herein;
iii.
during
his election campaign, the Appellant distributed school bags reflecting the
name of the Appellant, as also his party flag amongst the children of the
voters and huge amounts of money were also paid through cheques under the garb of
financial assistance by Garib Sahayata Samiti.
Apart from the above,
clothes, sweets, blankets, cheques for amounts of Rs.500/- to the female voters
and identity and ration cards, were distributed amongst the voters by the
supporters of the Appellant, but no action was taken either against the
Appellant or his agent for resorting to such corrupt practice. Accordingly, in
the election petition the Respondent No.1, inter alia, prayed for a declaration
that the election of the Appellant herein, Ishwardas Rohani, be declared as void
and he be declared as the returned candidate.
4.
In
the pending Election Petition No.22 of 2009, an Application, beingI.A.No.58 of
2009, was filed on behalf of the Appellant herein, under Order VII Rule 11 read
with Order VI Rule 16 of the Code of Civil Procedure, hereinafter referred to
as “C.P.C.”, praying that the Election Petition filed by the Respondent No.1 be
rejected, inter alia, on the ground that except for making vague allegations of
corrupt practice, the RespondentNo.1 (Election Petitioner) had failed to disclose
material facts and particulars in respect thereof. Another ground of challenge was
that the Respondent No.1 had failed to comply with the provisions of Section81(3)(a)
and (b), which are mandatory and in the absence whereof no cause of action
could be said to have been available to the Election Petitioner to seek any
relief thereunder.
5.
I.A.No.58
of 2009, which was filed by the Appellant under Order VII Rule 11 read with
Order VI Rule 16 C.P.C. for rejection of the Election Petition or for a
direction to set out pleadings specified there under, was taken up for hearing
by the Madhya Pradesh High Court on 16th July, 2009.After considering the facts
involved in the Election Petition, as also in the Application filed under Order
VII Rule 11 read with Order VI Rule 16 of the C.P.C., the High Court was of the
view that although, the allegations of corrupt practice had not been properly drafted,
the Election Petition could not be rejected on the said ground.
As far as the Application
under Order VI Rule 16 C.P.C. is concerned, the High Court observed that non-revision
of the voters list is not a ground set out in Section 100 of the1951 Act for
declaring an election to be void. The High Court also observed that violation
of the Model Code of Conduct cannot also be treated as a ground for declaring an
election to be void. On the said understanding of the law, the High Court
allowed the Appellant’s I.A.No.58in part and directed the Appellant to :(i)
delete the pleadings relating to voters’ list and Model Code of Conduct;(ii)
move an appropriate application for amending the pleadings in the light of the
objections raised by the Respondent No.1 and the defects as pointed out in
paragraph 2, subject to the limits circumscribed by law.
The High Court also
added that after amending the pleadings suitably, the Appellant would also
verify the same by furnishing an affidavit under Order VI Rule 15(4) C.P.C. and
further verify the pleadings relating to corrupt practice by filing a proper
affidavit in the prescribed Form No.25, as prescribed under Rule 94-A and appended
to the Conduct of the Election Rules, 1961.
6.
Aggrieved
by the directions given by the High Court in I.A. No.58,directing the
Respondent No.1 herein to delete the pleadings relating to the voters’ list and
the Model Code of Conduct and to move an appropriate application for amending
the pleadings in the light of the objections raised by the Appellant herein,
the said Appellant has filed the Special Leave to Appeal challenging the said
directions dated 5th October, 2009, in Election Petition No.22 of 2009.
7.
Appearing
for the Appellant, Ishwardas Rohani, Dr. Rajeev Dhawan, learned Senior
Advocate, submitted that all the allegations relating to corrupt practice were
in respect of periods prior to the date of the notification of the elections, namely,
29th October, 2008, when the Election Petitioner, Shri Alok Mishra, was not yet
a candidate, nor was the Appellant herein. Dr. Dhawan pointed out that the elections
were notified for the Jabalpur Cantt. Legislative Assembly Constituency No.99 on29th
October, 2008.
On 3rd November,
2008, the Election Petitioner, Mr. Alok Mishra, filed his nomination papers and
the polling was held on 27th November, 2008. The results of the
election were thereafter announced on8th December, 2008, in which the Appellant
was declared to have been elected. Dr. Dhawan termed the period between 29th
October, 2008, when the elections were notified, till 8th December, 2008, when the
results were declared, as the “active” period, when the conduct of the elected member
could be faulted. Dr. Dhawan submitted that the Election Petition had been filed
by the Respondent No.1 herein within the period of 45 days, as specified under
Section 81 of the 1951 Act.
However, the directions
given by the High Court to amend the Election Petition were not permissible in law
as such amendment would be beyond the period of limitation, as prescribed. Following
such directions of the High Court, the Election Petitioner filed an Application
under Order VI Rule 17 CPC praying forvarious amendments for providing material
facts.
8.
Dr.
Dhawan urged that given the consequences of disqualification, allegations of
corrupt practice would have to be strictly construed, as was held in the case
of Surinder Singh Vs. Hardial Singh [(1985) 1 SCC 91],wherein it was, inter
alia, observed that for more than 20 years the position had been uniformly
accepted that charges of corrupt practice have to be equated with criminal
charges and the proof thereof would not be preponderance of probabilities as in
civil matters, but proof beyond reasonable doubt as in criminal trials.
Reference was also made
to the decision in Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi[(1987) Supp. SCC93],
wherein it was observed as follows :- “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 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. 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.” In this regard, Dr. Dhawan referred to the
provisions of Section 8Aof the 1951 Act, which sets out the harsh consequences
of having been found guilty of corrupt practice by an order under Section 99 of
the 1951 Act.
9.
Submissions
were also advanced by Dr. Dhawan in regard to the distinction between “material
facts” and “material particulars”, which does not appear to me to be very
material for a decision in this case. What is necessary is that the material
facts must disclose the plaintiff’s cause of action or may be the source for
the defence of the defendant.
What is relevant is
that the facts as set out in the Election Petition must not be vague and must
be such as to enable the Respondent to deal with and give a proper response. Dr.
Dhawan contended that as has been held by this Courtin Anil Vasudev Salgaonkar
Vs. Naresh Kushali Shigaonkar [(2009) 9 SCC310], the failure to state even a single
material fact will entail dismissal of the Election Petition.
Furthermore, it is
also essential that any action which is attributed to an elected candidate and goes
to constitute an allegation of corrupt practice, must be shown to have been done
with the consent of the candidate, which, as was observed in Surinder Singh’s
case (supra), is a lifeline to link up the candidate with the action of the
other person which may amount to corrupt practice.
10.
Turning
to another branch of his submissions, Dr. Dhawan submitted that where corrupt practices
are alleged, details supporting such allegations have to be pleaded. Referring
to the decision of this Court in R.P. Moidutty Vs. P.T. Kunju Mohammad [(2000) 1
SCC 481], Dr. Dhawan referred to paragraph 14 of the judgment, wherein it has been
observed as follows :- “The legislature has taken extra care to make special provision
for pleadings in an election petition alleging corrupt practice.
Under Section 83 of
the Act ordinarily it would suffice if the election petition contains a concise
statement of the material facts relied on by the petitioner, but in the case of
corrupt practice the election petition must set forth full particulars thereof
including as full a statement as possible of
(i) the names of the
parties alleged to have committed such corrupt practice,
(ii) the date, and
(iii) place of the commission
of each such practice.
An election petition
is required to be signed and verified in the same manner as is laid down in the
Code of Civil Procedure, 1908 for the verification of pleadings. However, if
the petition alleges any corrupt practice then the petition has additionally to
be accompanied by an affidavit in Form 25 prescribed by Rule 94-A of the
Conduct of Elections Rules, 1961 in support of the allegations of such corrupt practice
and the particulars thereof.
Thus, an election
petition alleging commission of corrupt practice has to satisfy some additional
requirements, mandatory in nature, in the matter of raising of the pleadings
and verifying the averments at the stage of filing of the election petition and
then in the matter of discharging the onus of proof at the stage of the trial.”
11.
In
fact, in this regard, Dr. Dhawan also referred to Section 83(1)(b)of the 1951
Act, which indicates that full particulars of any corrupt practice that the Petitioner
alleges and other details regarding such corrupt practice has to be set forth in
the Election Petition and the verification must disclose the exact source of the
information. Reference was also made to the decision in V. Narayanaswamy Vs.
C.P. Thirunavukkarasu [(2000) 2 SCC 294], where similar sentiments have been
expressed.
12.
Dr.
Dhawan urged that having regard to the above, the Election Petition filed by
the Respondent No.1 should have been dismissed by the High Court, without
giving an opportunity to the Election Petitioner to rectify some of the defects,
outside the period of limitation, as prescribed under Section 81 of the 1951
Act.
13.
Dr.
Dhawan, learned senior counsel, contended that all the alleged instances
referred to in the Election Petition regarding alleged corrupt practice on the
part of the Appellant were outside the “active period” when the Respondent No.1
was not even a candidate and consequently the same could not be taken into
consideration for the determination of the Election Petition in view of Section
81 of the 1951 Act, which stipulates that such a Petition may be presented by any
candidate at such election or any elector within forty-five days from, but not earlier
than the date of election of the returned candidate.
14.
Replying
to Dr. Dhawan’s submissions, Mr. Rakesh Khanna, learned Senior Advocate,
appearing for the Respondent No.1, pointed out that the allegations relating to
corrupt practice made against the Appellant, are contained in paragraph 10 of the
Election Petition and despite the observations made by the High Court, the same
conveyed the manner in which financial allurements and the distribution of
gifts were made, as also the issuance of cheques by the Appellant from the
Indus Ind Bank near Shastri Bridge, 124, Napier Town, Jabalpur.
Mr. Khanna contended
that although Dr. Dhawan had referred to the issuance of cheques as being a fishing
expedition, but, in fact, the details relating to the cheques are in the custody
of the Indus Ind Bank and are easily available. Mr. Khanna submitted that the
details of the cheque books and the cheque numbers have also been provided in
paragraph 9 of the Election Petition which disclosed the strategy adopted by
the Appellant for garnering votes in the election.
15.
Referring
to the decision of this Court in Sardar Harcharan Singh Brar Vs. Sukh Darshan
Singh [AIR 2005 SC 22], which also involved the provisions of Section 83 of the
1951 Act, Mr. Khanna pointed out that even if all the bundles of information
which constitute the cause of action for the Petition were not available in the
Election Petition, the same could not be dismissed at the threshold.
Mr. Khanna submitted that
in Sardar Harcharan Singh Brar’s case (supra), this Court had occasion to consider
the observations made in the decision in the case of Raj Narain Vs. Smt. Indira
Nehru Gandhi [(1972) 3 SCC 850], which, inter alia, laid down that while a
corrupt practice has to be strictly proved, it does not follow that a pleading
in the election petition should receive a strict consideration.
The charge of corrupt
practice in an election petition is a very serious charge and has to be proved.
It may or may not be proved. The allegations may be ultimately proved or not
proved. But the question for the Courts is whether a petitioner should be refused
an opportunity to prove his allegations merely because the petition was drafted
clumsily.
16.
Mr.
Khanna submitted that it was in such context that it was observed that
opportunity to prove should not be refused and the Court should be reluctant to
stay an action on technical grounds. In the said case it was further recorded
that “material facts” as referred to in Section 83 of the1951 Act show that the
grounds of corrupt practice and the facts necessary to formulate a complete
cause of action, must be stated, but the Election Petition is not liable to be
dismissed in limine because full particulars of the corrupt practices alleged
were not set out.
If an objection was taken
and the Tribunal was of the view that full particulars had not been set out,
the Petitioner had to be given an opportunity to amend or amplify the
particulars. It is only in the event of non-compliance with such order to
supply the particulars that the charge, which remained vague, could be struck
down. Mr. Khanna pointed out that a note of caution had been sounded to the
effect that rules of pleadings are intended as aids for a fair trial and for
reaching a just decision.
An action at law should
not be equated with a game of chess. Provisions of law are not mere formulae to
be observed as rituals. Beneath the words of a provision of law, generally speaking,
there lies a juristic principle. It is the duty of the Court to ascertain that
principle and implement it.
17.
Mr.
Khanna submitted that in Sardar Harcharan Singh Brar’s case(supra), it was
pointed out that the views expressed in Raj Narain’s case(supra) had been
subsequently reiterated in various other cases set out in paragraph 11 of the
judgment.
18.
Drawing
a parallel with the facts of this case, Mr. Khanna submitted that the High
Court had passed the impugned order in complete consonance with the views
expressed in Sardar Harcharan Singh Brar’s case (supra).
19.
Mr.
Khanna next referred to the decision of a three Judge Bench of this Court in
F.A. Sapa & Ors. Vs. Singora & Ors. [(1991) 3 SCC 375],wherein the
requirements of furnishing material facts and full particulars, within the
meaning of Section 83(1) of the 1951 Act, in order to establish corrupt
practice, was considered in detail. After considering the various decisions
rendered earlier, including that in Raj Narain’s case (supra), on the question
of verification,
Their Lordships held
that Clause (c) of Sub-Section (1) of Section 83 of the 1951 Act, provides for an
Election Petition to be signed by the petitioner and verified in the manner laid
down by the Code of Civil Procedure for the verification of the pleadings.
It was noted that
under Section 83(2) any schedule or annexure to the pleading must be similarly
verified. Referring to Order VI Rule 15 of the Code, Their Lordships took note
of Sub-Rule (2) which provides that the person verifying has to specify with
reference to the numbered paragraphs of the pleading, what he verifies on his
own knowledge and what he verifies upon information received and believed to be
true. The verification has to be signed by the person making it and must state
the date on and the place at which it was signed.
However, Their
Lordships also went on to say that the defect in the verification could be of a
formal nature and not very substantial, or one which substantially complies
with the requirements, or that which is material but capable of being cured. Mr.
Khanna submitted that the bottom line of the aforesaid decision was that any defect
in the verification was not fatal to the entertainment of the Election Petition
at the threshold and as indicated in Sardar Harcharan Singh Brar’s case(supra),
an opportunity ought to be given to the Election Petitioner to cure such
defect.
20.
Mr.
Khanna submitted that the submissions advanced by Dr. Dhawan in, relation to
the order passed by the High Court, were contrary to the decisions rendered by
this Court in Sardar Harcharan Singh Brar’s case(supra) and also in F.A. Sapa’s
case (supra), and all that the Court had directed was in keeping with the spirit
of the said decisions which contemplated that an Election Petition, where
corruption had been alleged, should not be thrown out on a purely technical
ground, such as defect in verification of the pleadings, and without giving an opportunity
to the Election Petitioner to cure such defect.
21.
From
the decisions cited by learned counsel for the respective parties, one line of
decisions rendered by this Court suggests that since an Election Petition has
serious consequences under Section 8A of the 1951Act, the provisions of the Act
have to be strictly construed and, particularly, in cases where corruption is alleged,
any omission in the pleadings to mention such corrupt practice would render the
Election Petition not maintainable.
On the other hand, as
indicated immediately hereinbefore, the other line of decisions suggests that since
the issue involved in an Election Petition alleging corrupt practice, was of great
public interest, an Election Petition should not be rejected at the threshold,
but an opportunity should be given to the Election Petitioner to cure the
defects which are curable. In the instant case, what has been contended by Dr.
Dhawan is that in the absence of a cause of action or incomplete cause of
action for the Election Petition on account of the verification thereto not
being in conformity with the provisions of Order VI Rule 15 of the C.P.C. the
Election Petition was liable to be dismissed.
Such submission is
not acceptable to me in the light of the decisions in Sardar Harcharan Singh
Brar’s case (supra) and also in F.A. Sapa’s case(supra), despite the fact that
in F.A. Sapa’s case it was indicated that if the affidavit of schedule or annexure
forms an integral part of the Election Petition itself, strict compliance would
be insisted upon.
22.
I
am inclined to agree with the trend of thinking in F.A. Sapa’s case, where it
had been indicated that a charge of corrupt practice has a two dimensional
effect, namely, its impact on the returned candidate has to be viewed from the
point of view of the candidate’s future political and public life and from the
point of view of the electorate to ensure the purity of the election process.
Accordingly, there
has to be a balance in which the provisions of Section 81(3) of the 1951 Act are
duly complied with to safeguard the interest, both of the individual candidate,
as well as of the public. In this case, while accepting the case made out by the
Appellant regarding the deficiencies in the Election Petition, the Division Bench
of the High Court, in my view, did not commit any error in directing the
Election Petitioner to cure the defects in the Election Petition, which had
been brought out during the hearing of the Election Petition.
23.
The
decisions cited on both sides, lay down the law in regard to Election Petitions
and how Election Petitions are to be presented and the procedure to be strictly
followed in filing such Election Petitions, in which corruption, in particular,
is the allegation made against the returned candidate. There is little doubt
that the provisions have to be strictly construed, but that does not mean that
any defect in the Election Petition cannot be allowed to be cured in the public
interest. If after an opportunity is given, still no steps are taken by the Election
Petitioner to cure the defects which are noticed, then the rigours of the procedure
indicated by the 1951 Act, come into effect with full vigour.
24.
I,
therefore, see no reason to interfere with the order of the High Court appealed
against and the appeal is, accordingly, dismissed.
25.
There
will, however, be no order as to costs.
………………………………………………………J.
(ALTAMAS KABIR)
New
Delhi
Dated:
03.05.2012
Ishwardas Rohani Vs. Alok
Mishra & Ors.
Civil Appeal No. 4189
of 2012 arising out of SLP (C) No.30417 of 2009]
J U D G M E N T
Chelameswar, J.
1.
Both
the petitioner (herein after referred to as ‘the returned candidate’) and the 1st
respondent (herein after referred to as ‘the election petitioner’) contested
the General Election to the Legislative Assembly of the State of Madhya Pradesh
from the Jabalpur Cantonment Constituency. The returned candidate was the candidate
of the Bharatiya Janata Party. The election petitioner was the candidate of the
Indian National Congress, who lost the election with a margin of 24731 votes to
the returned candidate.
The election
petitioner questioned the validity of the election of the returned candidate by
Election Petition No.22 of 2009on the file of the High Court of Madhya Pradesh.
In the said petition, the election petitioner not only sought a declaration
that the election of the petitioner is void, but also sought a further
declaration that; “the petitioner No.1 as Return candidate and directed to be unseated
Respondent No.1.”It is further prayed:
“The Hon’ble High Court
further kindly be directed the Respondent to declare the petitioner as Elected
candidate.”Certain other reliefs are also prayed for in the election petition, the
details of which are not necessary for our purpose. The said election petition was
filed on 20-01-2009, admittedly, within the period of limitation prescribed for
the said purpose. On 16-06-2009, I.A.No.58 of2009 was filed by the petitioner
herein (returned candidate) under Order 7 Rule 11 of the Code of Civil Procedure,
seeking the dismissal of the election petition on the following grounds:
a. The allegations of
corrupt practice lacks material facts and particulars, inasmuch as it is not
disclosed on what date and time the alleged corrupt practice had been committed;
b. The mandatory
affidavit in Form 25 of the Conduct of Election Rules does not fulfill the
mandatory contents as required in law;
c. Election Petitioner
has not filed affidavit as required under the provisions of CPC;
d. The copy of the
petition supplied by the Respondent No.1 to the Petitioner is not identical to the
copy of the petition filed and the documents annexed to the election petition
have not duly been verified by the Respondent No.1;
e. The averments contained
in a number of paragraphs are frivolous in nature and does not disclose any cause
of action against the Petitioner herein.”
2.
The
abovementioned IA was partly allowed by the impugned Judgment on 05-10-2009. The
operative portion of the Judgment is as follows: “Consequently, the I.A. is
allowed in part. In the result, the petitioner is directed to – i) delete the
pleadings relating to voter list and Model Code of Conduct. ii) move an appropriate
application for amending the pleadings in the light of the objections raised by
the respondent no.1 and the defects as pointed out in Para 2 (above) subject to
the limits circumscribed by law.”Hence, the present S.L.P.
3.
Before
I proceed to examine the correctness of the conclusion reached by the High
Court, I deem it necessary to extract para 2 of the Judgment under appeal in
to: “2. At the outset, it may be remarked that the election petition is not a
good piece of drafting. A bare perusal thereof would reveal that not a single
paragraph is free from grammatical and typographical errors and omissions. Even
provisions of law have not been correctly referred to. For example : sub-section
(1)(A) and (B) have been mentioned as sub-section (A) and (B) Section 123.
This apart, there is apparent
conflict between contents of some of the annexures and the corresponding pleadings.
Moreover, some averments are mere mechanical repetitions of the facts already
pleaded [See Para 2 (wrongly numbered as 1), 3A and 7]. Further, the petitioner
has used certain uncommon words such as Cambal, Chadar & Floor-Sari. It appears
that the petitioner is labouring under a misconception that an election
petition must be drawn up in English language whereas it is well settled that
in Madhya Pradesh, an election petition drafted in Hindi language would be
maintainable (Vijay Laxmi Sadho v. Jagdish AIR 2001 SC 600 referred to). Although,
these defects would not provide any reasonable ground for rejection of the
petition in limine yet, the negligent and indifferent manner in which the petition
has been drafted and filed without even reading it, deserves to be deprecated.”
4.
In
my view, the election petition is not only a bad piece of drafting, but also it
is difficult to state with precision as to what exactly is the substance of the
complaint in the election petition. The absurdity of the election petition can
only be understood by reading it, but cannot be explained. There are vague allegations
that the returned candidate committed corrupt practices falling under Sections 123
(A) and(B), 123 (2), (6) and (7) of the Representation of the People Act, 1951(henceforth
referred to as ‘the R.P. Act’.).
To demonstrate the utterchaos
of the pleadings, I extract a passage from the election petition: “……………… Since
the Respondent No.1 have wrongly and illegally adopted the corrupt practices by
distributing the amount in cash as well as through the Cheque, Article, Cloths,
Ornaments, Ornament’s Jewellery and other article further he has also command
on the Respondent Distt. Election Officer and taken the Assistance from police and
other authority, so that it is apparent that respondent No.1 Iswardas Rohani has
committed milled corrupt practices, which is same under Section 123A, B, 123(2)
and also giving threat and other provision of this act have also been violating
therefore, his Election is deserve to be declare void.”
5.
On
the basis of such pleadings, of which the above is only a sample, the respondent
invites an adjudication that corrupt practices falling under Section 123(2),
(6), (7) and 123(A) and (B) of the R.P. Act, have been committed. There are no
Sections numbered 123(A), (B) in the R.P.Act, 1951. The High Court, however, generously
construed such reference to Sections 123(A) and (B) occurring under para 13 of the
election petition as references to Section 123(1)(A) and (B).
6.
The
substance of the chaotic pleadings in the election petition is culled out by my
learned brother as follows: “The ground relating to corrupt practice, as alleged
by the Respondent No.1 herein, inter alia, was to the following effect :
i.
as
an ex-M.L.A. and Ex-Speaker of the Vidhan Sabha and being a close associate of the
Chief Minister of the State, the Appellant was able to exert undue influence on
the Collector, the District Returning Officer and other authorities for procuring
their assistance for the furtherance of his prospects in the elections.;
ii.
that
on 2nd November, 2008, when the Respondent No.1 was returning to Jabalpur from New
Delhi, as the authorised candidate of the Indian National Congress, his supporters,
who came to meet him at the railway station, were arrested, whereas the very
next day, no action was taken against the supporters of the Appellant herein
who had deployed as many as 300 vehicles in the election rally organised on the
occasion of the filing of his nomination, although, permission had been given
for use of only 27 vehicles. The Appellant was allowed to erect “welcome gates”
at various places and used unauthorised vehicles and also put up flags,
hoardings and posters on electric poles and even on temples, despite the
objections raised by the Respondent No.1 herein;
iii.
during
his election compaign, the Appellant distributed school bags reflecting the
name of the Respondent No.1, as also his party flag amongst the children of the
voters and huge amounts of money were also paid through cheques under the grab of
financial assistance by Garib Sahayata Samiti. Apart from the above, clothes,
sweets, blankets, cheques for amounts of Rs.500/- to the female voters and identity
and ration cards, were distributed amongst the voters by the supporters of the Appellant,
but no action was taken either against the Appellant or his agent for resorting
to such corrupt practice. Accordingly, in the election petition the Respondent
No.1, inter alia, prayed for a declaration that the election of the Appellant
herein, Ishwardas Rohani, be declared as void and he be declared as the
returned candidate.”
7.
For
the purpose of deciding the present petition, I shall also presume that the
election petitioner intended to complain that various corrupt practices, i.e.,
bribery falling under Section 123 (1)(A) and (B);unduly influencing the voters,
falling under Section 123(2); incurring or authorising expenditure in
contravention of Section 77 – corrupt practice under Section 123(6) and
procuring the assistance from the employees of the State, falling under Section
123(7), were committed.
8.
Before
examining the correctness of the Judgment under appeal, a brief survey of the
Scheme of the relevant provisions of the R.P. Act,1951, would be useful. Section
100 provides the grounds on which an election could be declared void. The said Section,
insofar as it is relevant for our present purpose, reads as under: “Subject to
the provisions of sub-section (2) if the High Court is of the opinion –
a) ……………
b) that any corrupt
practice has been committed by a returned candidate or his election agent or by
any other person with the consent of a returned candidate or his election
agent;…. c) …… d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected— (i)………………… (ii) by any
corrupt practice committed in the interests of the returned candidate by an agent
other than his election agent. (iii)………………… (iv)……… The High Court shall declare
the election of the returned candidate to be void.
”It can be seen from
the above that the election of a returned candidate can be declared void, if
the High Court is satisfied; A) that any corrupt practice has been committed
either by the returned candidate or his election agent or any other person with
the consent of either the candidate or his election agent; B) that any corrupt
practice has been committed by any agent other than the election agent.
In the case of the
satisfaction of the High Court of the 1st of the abovementioned two
contingencies, the High Court can straightaway declare the election of the
returned candidate to be void. Whereas in the 2nd of the abovementioned
contingencies, the High Court must also be satisfied that such commission of
the corrupt practice has materially affected the result of the election because
the corrupt practices falling under the later category are committed without
the consent of the returned candidate or his election agent.
9.
The
meaning of the expressions “candidate”, “election agent” and “agent other than
the election agent” is required to be ascertained. Part VI of the R.P. Act
deals with disputes regarding elections. Part VII of the R.P. Act deals with corrupt
practices and electoral offences. Section 79, with which part VI commences, contains
the definitions of various expressions employed in Part VI and Part VII of the R.P.
Act. Section 79, insofar as it is relevant for the present purpose, reads as follows:
“In this Part and in Part
VII unless the context otherwise requires,- (a)……… (b) “candidate” means a
person who has been or claims to have been duly nominated as a candidate at any
election;”The expression “election agent” is not defined therein. But, Section 40provides
for the appointment of “election agent”. It stipulates that a candidate at an
election can appoint any person, who is not subject to any disqualification
stated in Section 41[1], to be his election agent[2].
Therefore, the
expression “election agent” occurring under Section 100 must be understood to
be only an election agent appointed by the candidate under Section 40. The
meaning of the phrase “agent other than the election agent” requires an
examination. Sections 46 and 47 of the Act, provide for the appointment of
polling agents[3] and counting agents[4], respectively, by the contesting
candidates at an election. I am conscious of the fact that the phrase may take
within its sweep other persons also, but for the purpose of the present case, it
is not necessary to explore the full contours of the phrase.
10.
Section
123 of the R.P. Act deals with corrupt practices. It declares 10 activities to
be corrupt practices. They are;
i.
bribery;
ii.
undue
influence;
iii.
appeal
in the name of religion;
iv.
promotion
of enmity or hatred between different classes of citizens on grounds of religion,
race, caste, community, etc.;
v.
propagation
or glorification of the practice of sati;
vi.
publication
of any false statement in relation to the personal character of any candidate,
etc. reasonably calculated to prejudice the prospects of that candidate’s election;
vii.
hiring
or procuring vehicles for the free conveyance of any elector to the polling station;
viii.
incurring
expenditure in contravention of Section 77;
ix.
(ix)obtaining
or procuring any assistance of various categories of persons specified under
sub-section (7); and
x.
booth
capturing.
It must be mentioned
that each one of the sub-sections of Section 123,deals with a distinct corrupt
practice, which contemplates commission or omission of an act or acts indicated
therein either by the candidate or his agent or any other person with the
consent of either the candidate or his election agent. The only sub-section,
which does not refer to the election agent or any other person is sub-section
(6), i.e., the corrupt practice of incurring or authorising the expenditure in
contravention of Section 77.
11.
It
is argued by the learned senior counsel Dr. Rajeev Dhawan appearing for the returned
candidate that the allegations of corrupt practice contained in the election
petition fall into two categories; (1)corrupt practices attributed to the returned
candidate; and (2) corrupt practices attributed to other persons.
The learned counsel
argued that the returned candidate cannot be subjected to the pain of going through
the trial of the election petition on these allegations for the following reasons:(i)
the allegations of commission of corrupt practices either pertain to the period
anterior to 03-11-2008; or, (ii) lack in material facts to constitute any
corrupt practice satisfying the description of any one of the corrupt practices
enumerated under Section 123.
12.
Coming
to the allegations of corrupt practice said to have been committed by certain
named and unnamed persons in the election petition the learned counsel argued
that, once again, the allegations are vague, without any reference to the dates
on which such acts were committed and do not disclose any cause of action. Further,
there is no allegation in the election petition that such named persons, who are
alleged to have committed certain corrupt practices, did so with the consent of
either the returned candidate or his election agent. Interestingly, the election
petition does not even contain any specific allegation against the election agent
of the returned candidate. Even the name of the election agent is not
mentioned.
13.
On
the other hand, the learned counsel for the election petitioner submitted that
the election petition contained all the material facts required to be pleaded
for establishing the commission of corrupt practices. Such pleadings are
required to be scrutinized liberally in the larger interests of the purity of
election system as was done by the High Court.
The learned counsel
also submitted that in view of the fact that what is at stake is the purity of the
election system, the High Court rightly directed the election petitioner to
move an appropriate application for the amendment of the pleadings. I am only
reminded of a caution given by this Court in Kunwar Nripendra Bahadur Singh vs.
Jai ram Verma and others, (1977) 4 SCC 153: “21. …………, the provisions of the
election law which have got to be construed strictly, must work with indifference
to consequences, immediate or mediate…… .”
14.
Admittedly,
the returned candidate filed his nomination on 03-11-2008. It is only with
effect from that date the petitioner became a candidate for the election in dispute.
Goes without saying that an election agent could have been appointed by the returned
candidate only after filing his nomination. To be guilty of committing a corrupt
practice, the returned candidate or his election agent or some other person duly
authorised either by the returned candidate or his election agent must have
committed some act or omission contemplated under one of the clauses under
Section 123 of the R.P. Act, after the 03-11-2008, but before the completion of
the election process.
15.
It
was so held by this Court in Mohan Rawale vs. Damodar Tatyaba, (1994) 2 SCC
392. It was a case where the election of the appellant before this Court was called
in question by the respondent therein on the ground that the appellant committed
corrupt practices falling under Section 123(2), (3) and (3)(A).
The returned candidate
raised various preliminary objections regarding the maintainability of the election
petition. One of the objections was that the various allegations said to be constituting
corrupt practices, pertain to a period long anterior to the date of the nomination
of the returned candidate and, therefore, it was argued by the returned candidate
that even if these allegations were to be proved, they would not amount to the
commission of a corrupt practice by the returned candidate.
Such an objection did
not find favour with the Bombay High Court. Reversing the conclusion of the Bombay
High Court, this Court held at para 6 as follows: “……………… The view fails to
take note of and give effect to the substitution of the definition of the
expression “candidate” in Section 79(b). All sub-sections of Section 123 of the
Act refer to the acts of a ‘candidate’ or his election agent or any other person
with the consent of the candidate or his election agent. The substituted
definition completely excludes the acts by a candidate up to the date he is nominated
as a candidate. ………… .”
16.
The
allegations in the election petition on hand are required to be examined in the
light of the principle of law laid down by thisCourt.
17.
Para
1 of the election petition narrates the incidents that are alleged to have
occurred from 30-10-2008 to 02-11-2008 and it reads as follows: “That, the
context of the situation is that the petitioner was out of City at Jabalpur he
was at Delhi for confirmation of his Ticket from Indian National Congress Party,
the same was confirmed on 30.10.2008 from his Party on 1.11.2008 the petitioner
No.1 was come from Delhi on 2.11.2008, the petitioner come from Delhi to
Jabalpur by Mahakohal Express Train, after receiving the information from the
petitioner his supporter were reach to the Jabalpur Railway station, where a
number of person have received to the petitioner after come-out from the Railway
Station there was crowd of the supporter who were reached thereby own vehicle
or by hire that very day District Returning Officer, Respondent and his
observer including the police men and authority an subordinate officer, who
have been authorised by the State Election Commission on the instance of Respondent
no.1 Speaker of State Legislative Assembly they have wrongly and illegally
misused their power and seized the personal vehicle of petitioner supporter and
confined to the police station Cantt. And police station Civil Lines with the
intention to demoralize and breaking the support with the help of police
dispute of that Gathering was not political movement nor any object to moved in
the shape of Rally, but all of a sudden it was happen, the Respondent No. 1
winning candidate have declare his Rally for submitting the Election nomination
form for this very purpose.
The Respondent Nod.1
have arranged as much as 300 Vehicle in that Rally Respondent and his
subordinate officer (observer) who ere watching the Gathering and strand of
vehicle in the Rally they have never raised any objection, nor seized any of the
vehicle, despite of the permission was obtain for only 27 vehicles for used in
the Election, but 10 time’s more vehicles were present in the Rally on the date
of submitting his nomination form the Respondent his subordinate and police have
not acted fairly and Reasonably in the Election of Cantt Constituency and they are
working/acting in support of Respondent No.1, who is speaker of State legislative
Assembly and having infalance on the Respondent on the Distt. Election Officer
including all the Executive Officer, who are working in district Jabalpur including
the police Officer, they have exercise the colour of power in favour of Respondent
No.1 and against the petitioner, the complaint was made to the Chief Election
Commission and State Election Commission, but they have not taken any action
against the Respondent No.1.
”The gist of this
paragraph appears to be (giving some allowance to the bad drafting) that while
the returned candidate was permitted to take out a rally with a large number of
vehicles without any objection from anybody, the vehicles of the election
petitioner’s supporters were seized on the 02-11-2008 when they took out a
rally from the Jabalpur railway station after the election petitioner’s return
from Delhi. Assuming all the allegations extracted above to be true and such
allegations constitute on 02-11-2008 (I only assume for the limited purpose),
the returned candidate had not yet filed his nomination. Even according to the election
petitioner the returned candidate filed the nomination on 03-11-2008:
“That on the next day
3.11.2008 the Respondent No.1 had proceeded to fill up the nomination farm /
paper. .”That apart, from a reading of the above-extracted portion, the allegation
appears to be that the vehicles of the election petitioner and his supporters
were seized by the State Election Commission and its officers, but not the
returned candidate:
“that very day
District Returning Officer, Respondent and his observer including the police
men and authority an subordinate officer, who have been authorised by the State
Election Commission on the instance of Respondent No.1 Speaker of State Legislative
Assembly they have wrongly and illegally misused their power and seized the personal
vehicle of petitioner supporter and confined to the police station Cantt. And police
station Civil Lines with the intention to demoralize and breaking the support
with the help of police ………… ”Therefore, looked at either way, the returned
candidate cannot be legally accused to be guilty of any activity falling within
the scope of any one of the corrupt practices enumerated under the sections of
the R.P. Act, 1951,as, on 02-11-2008, the returned candidate had not yet filed
his nomination.
18.
Coming
to the allegation that the returned candidate being a Member of the Legislative
Assembly and also the Speaker at the relevant point of time, was able to exert
undue influence on the Collector, who was the District Returning Officer, and
other authorities for procuring their assistance for the furtherance of his prospects
in the elections-allegations are too omnibus. Such allegations are to be found
in para 3 of the election petition. The vagueness of the pleading is better extracted
than explained: “PROCURING ASSISTANCE FROM GAZETTED OFFICER: It is respectfully
submit that the Bhartiya Jana Party is the Rulling Party in the State and also
have its influence to all the Executive Officer, who are serving in the State of
Madhya Pradesh.
They are directly or
indirectly having relation with the Respondent No.1 who is Speaker of State
Legislative Assembly and during last five year the Govt. of Bhartiya Janta
Party was dealing their power and handling the same with the help of all the
Gazetted Officer including the Collector of the District including the Police
Officer Shri Shivraj Singh Chouhan is the Chief Minister of Madhya Pradesh and has
got hold over the Administrative Machinery during the Election period they have
directly or indirectly supported to the Respondent No.1 who is Speaker of State
Assembly the ‘lure’ work in a Better way than the command to the Administrative
Officer and there subordinate to them with the Aid an Assistance of Chief Minister
Shivraj Singh Chouhan, the Respondent No.1 having very thick Relationship with
the Respondent.
So that the District
Election Officer, Jabalpur was regularly oblige to the Respondent No.1 by way
of supporting the act of Respondent No.1 and objecting the same act by illegal manner,
the Respondent have performed several act to oblige the Respondent No.1 the same
are as under;”Further, there are five sub-paras (A) to (E) in para 3. Sub-para
(C) deals with some alleged irregularities in the preparation of the voters list,
which can never be the subject matter of an election petition and the High Court
rightly[5] directed the deletion of those allegations. Sub-para (D)deals with the
objection of the petitioner regarding employment of Electronic Voting Machines.
These too are the
vague allegations with which the returned candidate is no way concerned. Sub-paras
(A) and (B), once again, repeat the allegations contained in para 1 of the
election petition, i.e., allegations regarding the seizure of the vehicles of the
election petitioner and his supporters, etc. Para 4 of the election petition, once
again, exclusively deals with the complaint regarding the preparation of the
voters list.
19.
Paras
5 and 6 contain the allegations of distribution of cash, cheques, clothing material
and school bags to the children. The allegations in para 5 pertain to the
distribution of “cloths” on 17-10-2008and cash to 200 persons on 21-10-2008 and
a cheque drawn on the Indus Ind Bank, Shastri bridge, Jabalpur, for an amount
of Rs.500/- in favour of Shiv Durga Utsava Sammittee on 08-10-2008. Assuming
for the sake of arguments that all the abovementioned allegations are true and constitute
some corrupt practice, all these allegations pertain to a period prior to the filing
of the nomination, i.e., 03-11-2008, by the returned candidate.
20.
Para
6, once again, contains allegations of the returned candidate issuing cheques, the
numbers of which are given without disclosing in whose favour such cheques were
given, but it is relevant to notice that even according to the election petitioner,
such cheques were given some time prior to 30-10-2008, because it is alleged in
para 6 that the election petitioner lodged a complaint dated 30-10-2008, marked
as Annexure P-12 to the petition, with regard to the issuance of the cheques. Obviously,
the cheques must have been issued prior to that date. At the cost of repetition
it must be stated that by 30-10-2008, the returned candidate had not filed his
nomination:
“That the Respondent
No.1 have issued the Cheque to the several other person. Even after
notification issued by the Election Commission and prior to the date, he has
given the cheque to the several other person from the month of Sept. 2008, Oct.
2008, Nov. 2008 and Dec. 2008 continuously cheque of Indus Ind Bank was issued
the same was encased by the person the Cheque No. mentioned in list submitted
the Cheque No.348127 to 348150 and 716616 to 716894 approximately 200 cheque
were given to get vote from the Voter the list of the Cheque is filed with the complaint
dated 30.10.2008, marked as ANNEXURE P-12 with the petition. The petitioner
have also submitted the facts.
The Respondent No.1
with the help of their reliable Ward member, Punch and Surpanch through the
worker the amount was distributed on 29.10.200, even in the Eve of Depawali. The
Respondent No.1 have distributed the amount in the Box of Sweet with Sweet also
the petitioner have submitted the Complaint before the Respondent, Distt.
Election Officer, but no action was taken by the Distt. Election Officer, Respondent,
even they are supporting to the Respondent No.1 this Complaint dated 30.10.2008
is already filed as Annexure P-12, but no action was taken.”
21.
Para
7, once again, repeats the allegations contained in para 1of the election
petition.
22.
Para
8 contains vague allegations regarding the erection of welcome gates. Assuming
for the sake of arguments that the so-called“ welcome gates” were erected without
the permission of the District Election Officer, as alleged by the election
petitioner, I simply fail to understand, under what Head of corrupt practice
such an activity could bebrought.
23.
Para
9, once again, contains some vague allegations regarding distribution of
clothing material, etc. Just to demonstrate the vagueness of the pleading, I
extract the paragraph: “………, further the Respondent No.1 have also given the number
of Article to the Women of the Cantt. Constituency in which he had distributed
the Payal, Long, Bichhiya, Clothes, Cambal and other thing the complaint.
The Respondent No.1
have also distributed the Cash amount to the several person or Sammittee the petitioner
have made the complaint in time to time before the district Election officer and
State Election Commission and Superior Authority, by they have not acted upon nor
taken any action against the Respondent No.1 nor made any inquiry on the Complaint
submitted by the petitioner and his Party supporter or agent the complaint
dated 17.10.2008, 21.10.2008, 23.10.2008, 30.10.2008, 31.10.2008, 13.11.2008 and
14.11.2008.
Even the Respondent
have distributed the amount by Cheque during the Course of Election from
1.9.2008 to upto December 2008, from two cheque book as Cheque No.716886 of
this series and Cheque book No 348130 upto 100 and more cheque from the Series was
distributed by the Respondent No.1 in favour of Voter or there benefited person.
So in this way the Respondent No.1 have adopted the corrupt practices during
the Election or before the notification he was trying to gain Vote from the Voter
a any cost.”
24.
In
my opinion, if a returned candidate is asked to face trial of an election
petition, such as the one, which is the subject matter of the instant S.L.P.,
it would be an absolute travesty of justice and opposed to all the settled
principles of law regarding the election disputes. It was held in Rahim Khan
vs. Khurshid Ahmed and others, (1974) 2 SCC 660, as follows: “9. An election once
held is not be treated in a lighthearted manner and defeated candidates or disgruntled
electors should not get away with it by filing election petitions on
unsubstantial grounds and irresponsible evidence, thereby introducing a serious
element of uncertainty in the verdict already rendered by the electorate.
An election is a politically
sacred public act, not of one person or of one official, but of the collective
will of the whole constituency. Courts naturally must respect this public expression
secretly written and show extreme reluctance to set aside or declare void an
election which has already been held unless clear and cogent testimony
compelling the Court to uphold the corrupt practice alleged against the returned
candidate is adduced. Indeed election petitions where corrupt practices are
imputed must be regarded as proceedings of a quasi-criminal nature wherein strict
proof is necessary. The burden is therefore heavy on him who assails an
election which has been concluded.”
25.
Coming
to the pleadings in an election petition, an election petition is required to
contain all the material facts, which, either if proved or went uncontraverted,
would be sufficient to constitute the cause of action for setting aside the
election of the returned candidate on one or some of the grounds specified
under Section 100 of the R.P. Act. It is held repeatedly by this Court that
allegations of corrupt practice are I the nature of criminal charges. In Dhartipakar
Madan Lal Agarwal vs. Rajiv Gandhi, 1987 Supp SCC 93, this Court examined the
nature of the allegations of corrupt practice and the effect of the vagueness
of the pleading in an election petition and held as follows at para 108:
“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 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. 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.” Emphasis Supplied Again, in Anil Vasudev Salgaonkar vs. Naresh Kushali
Shigaonkar, (2009) 9SCC 310, it was held as follows:
“57. It is settled
legal position that all “material facts” must be pleaded by the party in
support of the case set up by him within the period of limitation. Since the
object and purpose is to enable the opposite party to know the case he has to meet
with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure
to state even a single material fact will entail dismissal of the election petition.
The election petition must contain a concise statement of “material facts” on which
the petitioner relies.” Emphasis Supplied The distinction between ‘material
facts’ and ‘material particulars’ fell for the consideration of this Court
repeatedly. In Samant N. Balakrishnavs. George Fernandez and others, (1969) 3 SCC
238, this Court held as follows: “
26.
29.
What is the difference between material facts and particulars? The word
‘material’ shows that the facts necessary to formulate a complete cause of action
must be stated. Omission of a single material fact leads to an incomplete cause
of action and the statement of claim becomes bad. The function of particulars
is to present as full a picture of the cause of action with such further
information in detail as to make the opposite party understand the case he will
have to meet. …………… ”In Anil Vasudev Salgaonkar (supra), this Court reiterated the
difference between the material facts and particulars:
“58. There is no
definition of “material facts” either in the Representation of the People Act,
1951 nor in the Code of Civil Procedure. In a series of judgments, this Court
has laid down that all facts necessary to formulate a complete cause of action should
be termed as “material facts”. All basic and primary facts which must be proved
by a party to establish the existence of cause of action or defence are material
facts.
“Material facts” in
other words mean the entire bundle of facts which would constitute a complete
cause of action. …… ”The absolute necessity of mentioning all the material
facts in an election petition is reiterated: “48. …… . It is, however,
absolutely essential that all basic and primary facts which must be proved at the
trial by the party to establish the existence of a cause of action or defence
are material facts and must be stated in the pleading by the party.”
27.
Though
the failure to give the ‘material particulars’ has not been held to be fatal,
the failure to give ‘material facts’ has always been held to be fatal to the
election petition.
28.
The
Judgment under appeal recorded a finding that the election petition contained
all material facts. At para 12 of the Judgment, the learned Judge recorded as
follows: “12. Keeping in view the criteria for distinguishing material facts
from material particulars, it can safely be concluded that the election
petition contains material facts in respect of other corrupt practices alleged
to have been committed by the respondent no.1.
It is true that the
allegations suffer from lack of certain material particulars particularly as to
the consent of the returned candidate or his election agent but, as explained
in Rai Naraian’s case (supra), this Court may allow the deficient particulars
to be amended or elaborated.” Emphasis Supplied And opined that it is permissible
to allow amendment of the election petition to enable the election petitioner
to supply the particulars. Such a conclusion, according to the High Court, is
warranted on the basis of a Judgment of this Court in Sardar Harcharan Singh Brar
vs. Sukh Darshan Singh and others, (2004) 11 SCC 196.
It was a case where the
appellants before the Court filed election petition challenging the election of
the Respondent to the Panjab Legislative Assembly. One of the grounds in the said
election petition is that the respondent obtained the assistance of a public
officer, thereby committing a corrupt practice under Section 123 (7)of the R.P.
Act.
One of the issues framed
was whether the election petition lacked material facts and, therefore, did not
disclose any cause of action. The High Court found the said issue against the election
petitioner. On appeal, this Court reversed the conclusion of the High Court, holding
as follows: “13. Having gone through the contents of the election petition, we are
satisfied that the High Court has not been right in directing the petition to
be dismissed at the threshold by forming an opinion that the averments made in the
election petition were deficient in material facts.
It is not necessary to
burden this judgment with reproduction of the several averments made in the election
petition. The High Court has already done it. The test laid down in the several
authorities referred to hereinabove and in particular in the case of Raj Narain
(supra) is fully satisfied. The grounds of corrupt practice and the facts
necessary to formulate a complete cause of action have been stated.”While
arriving at such a conclusion, this Court relied upon Raj Narain vs. Smt.
Indira Nehru Gandhi and another, (1972) 3 SCR 841. At para 9, this Court
‘summarised’ the principles emanating from Raj Narain (supra) as follows:
“9. Some of the
principles elaborated in Raj Narain v. Smt. Indira Nehru Gandhi and Anr. [1972]
3SCR841 , are relevant for our purpose. Dealing with the corrupt practice, the
Court held that : (i) While a corrupt practice has got to be strictly proved, it
does not follow that a pleading in an election proceeding should receive a
strict construction. Even a defective charge does not vitiate a criminal trial
unless it is proved that the same has prejudiced the accused. If a pleading on
a reasonable construction could sustain the action, the court should accept that
construction.
The courts are
reluctant to frustrate an action on technical grounds. (ii) The charge of
corrupt practice in an election petition is a very serious charge and has to be
proved. It may or may not be proved. The allegations may be ultimately proved or
not proved. But the question for the courts is whether a petitioner should be refused
an opportunity to prove those allegations merely because the petition was
drafted clumsily.
Opportunity to prove
should not be refused. (iii) If the allegations made in an election petition
regarding a corrupt practice do not disclose the constituent parts of the corrupt
practice alleged, the same will not be allowed to be proved and those
allegations cannot be amended after the period of limitation for filing an
election petition, but the court may allow particulars of any corrupt practice
alleged in the petition to be amended or amplified. "Material facts"
in Section 83 of the Representation of People Act, 1951 shows that the ground
of corrupt practice and the facts necessary to formulate a complete cause of
action must be stated.
The function of the
particulars is to present a full picture of the cause of action so as to make
the opposite party understand the case he has to meet. Under Section 86(5) of
the Representation of People Act if the corrupt practice is alleged in the petition
the particulars of such corrupt practice may be amended or amplified. (iv) An
election petition is not liable to be dismissed in limine because full
particulars of corrupt practice alleged were not set out.
If an objection was
taken and the Tribunal was of the view that full particulars have not been set
out, the petitioner : has to be given an opportunity to amend or amplify the
particulars. It is only in the event of non-compliance with such order to supply
the particulars, that the charge which remained vague could be struck down.”
29.
Raj
Narain and Indira Gandhi contested from Rae Bareilly constituency in the
General Election to the Lok Sabha held in March, 1971.Raj Narain lost the election
and challenged the election of Indira Gandhi. After the issues were framed in
the election petition, an application was filed by Indira Gandhi to strike out
issues No. 1 to 3 therein. Raj Nara in filed an application to amend the
election petition.
His application was rejected
and the application of Indira Gandhi was allowed by the High Court on the
ground that he was seeking to add material facts beyond the period of
limitation for filing the election petition. Raj Narain carried the matter to
this Court. This court examining the question whether the High Court was
justified in striking out of the first issue, i.e., whether Indira Gandhi
obtained the assistance of Yashpal Kapur, a gazetted officer in the service of
the Government of India, in furtherance of the prospects of her election, held
as follows:
“10. The appellant's
contention is that the respondent after she became a candidate in the election in
question obtained the services of Yashpal Kapur when he was still a gazetted officer
in the Government of India for the furtherance of the prospects of her
election. In order to establish that plea, he must plead and prove: (1) That
the respondent obtained the assistance of Yashpal Kapur when he was a gazetted
officer; (2) That the assistance obtained by her was for the furtherance of the
prospects of her election and (3) That she obtained that assistance after she became
a candidate.”
Emphasis Supplied And
at para 13, this Court recorded that in order to establish his plea, Raj Narain
had to establish that the assistance of Yashpal Kapur was obtained when he was
still a government servant and at the time such an assistance was obtained
Indira Gandhi had become a candidate. This Court after examining the relevant
averments of the election petition, which were extracted in extenso, recorded a
finding that the election petition nowhere stated as to when Indira Gandhi had
become a candidate. It was, in this context, this Court observed at para 16 as
under: “But if the petition is read reasonably, as it should be, it is clear
that the allegation of the petitioner is that the service of Yashpal Kapur were
obtained by the respondent when she had already become a candidate and when she
so obtained his assistance, Yashpal Kapur was still a gazetted officer.
It is true that one
of the ingredients of the corrupt practice alleged i.e. that when the
respondent obtained the assistance of Kapur, she was a candidate is not
specifically set out in the petition but from the allegations made; it flows as
a necessary implication. While a corrupt practice has got to be strictly proved
but from that it does not follow that a pleading in an election proceeding
should receive a strict construction. This Court has held that even a defective
charge does not vitiate a criminal trial unless it is proved that the same has prejudiced
the accused.
If a pleading on a reasonable
construction could sustain the action, the court should accept that construction.
The courts are reluctant to frustrate an action on technical grounds. The
charge of corrupt practice in an election is a very serious charge. Purity of
election is the very essence of real democracy. The charge in question has been
denied by the respondent.
It has yet to be proved.
It may or may not be proved. The allegations made by the appellant may
ultimately be proved to be wholly devoid of truth. But the question is whether the
appellant should be refused an opportunity to prove his allegations? Should the
Court refuse to enquire into those allegations merely because the appellant or
someone who prepared his brief did not know the language of the law.
We have no hesitation
in answering those questions in the negative. The implications of the rule of
law are manifold.”All that this Court held is that the particulars of a corrupt
practice can be supplied by amendment provided that the basic facts constituting
the corrupt practice are pleaded. This Court held in Raj Narain (supra):
“It is true that one
of the ingredients of the corrupt practice alleged i.e. that when the
respondent obtained the assistance of Kapur, she was a candidate is not specifically
set out in the petition but from the allegations made; it flows as a necessary implication.”The
fact that Indira Gandhi was a candidate at the election in dispute would be a
logical implication of the fact that it was her election, which was under
challenge. The observations were not meant to dilute the long established
principles of pleadings in the election disputes but were limited to the
context.
30.
This
Court in Sardar Harcharan Singh Brar (supra), in my opinion, also came to the
same conclusion. Principle No.(iii) stated in para 9 of Sardar Harcharan Singh
Brar (supra) makes it abundantly clear.
31.
In
my opinion, the election petition on hand hopelessly lacks in stated the
material facts constituting the various corrupt practices mentioned in the
election petition to enable the declarations sought by the election petitioner.
The conclusion recorded by the High Court (extracted at para 27 supra) that; “It
is true that the allegations suffer from lack of certain material particulars
particularly as to the consent of the returned candidate or his election agent.
”In my opinion is
wholly erroneous in law. Consent by the candidate or his election agent is an
essential material fact, which is required to be pleaded and proved when the
allegation is that somebody other than the candidate or his election agent
committed a corrupt practice.
The election petition
on hand, in my opinion, is incapable of being read as disclosing any cause of
action on the basis of any known cannon of interpretation of documents - whether
a rule of reasonable construction or any other construction. In view of the
conclusion reached above, I do not propose to examine the other submissions
regarding the legal fact of the non-filing of an affidavit in Form No.25 and absence
of proper verification of the pleadings and annexures.
32.
I
may also mention here that though the learned counsel for the election
petitioner did not bring to our notice (obviously he was not briefed in this regard),
Dr. Rajeev Dhawan, learned counsel for the returned candidate placed before us
a photocopy of an application seeking the amendment of the election petition
pursuant to the directions of the High Court. I do not propose to examine the content
of the said application except to take note of the fact that the same appears to
have been presented on 02-05-2011.
Even otherwise, any
such application could, obviously, have been filed only after 05-10-2009, which
is the date of Judgment under appeal. In view of the fact that the results of the
election in question were declared on 08-12-2008, the application was filed beyond
the period of limitation prescribed under the R.P. Act, to challenge the
election.
In view of my conclusion
that the election petition, as originally presented, did not contain the necessary
material facts to constitute the cause of action to challenge the election of the
returned candidate, the abovementioned application filed by the election petitioner,
even if it contain the necessary material facts, cannot be allowed as it would
amount to permitting the amendment of the election petition beyond the period
of limitation.
33.
I,
therefore, not only grant leave in the S.L.P., but also allow the appeal and
dismiss the election petition.
…………………………
J. (J. CHELAMESWAR)
New
Delhi;
May
3, 2012.
41. Disqualification
for being an election agent.- Any person who is for the time being disqualified
under the Constitution or under this Act for being a member of either House of
Parliament or the House or either House of the Legislature of a State or for
voting at elections, shall, so long as the disqualification subsists, also be
disqualified for being an election agent at any election.[2] 40. Election
Agents.- A candidate at an election may appoint in the prescribed manner any
one person other than himself to be his election agent and when any such
appointment is made, notice of the appointment shall be given in the prescribed
manner to the returning officer.[3] 46. Appointment of polling agents.-
A contesting candidate
or his election agent may appoint in the prescribed manner such number of
agents and relief agents as may be prescribed to act as polling agents of such candidate
at each polling station provided under section 25 or at the place fixed under
sub-section (1) of section 29 for the poll.[4] 47. Appointment of counting
agents.- A contesting candidate or his election agent may appoint in the
prescribed manner one or more persons, but not exceeding such number as may be
prescribed, to the present as his counting agent or agents at the counter of votes,
and when any such appointment is made notice of the appointment shall be given in
the prescribed manner to the returning officer.[5] see Kunwar Nripendra Bahadur
Singh vs. Jai Ram Verma and others = (1977) 4 SCC 153 :
25. Thus in a catena
of cases this Court has consistently taken the view that the finality of the
electoral roll cannot be challenged in an election petition even if certain
irregularities had taken place in the preparation of the electoral roll or if subsequent
disqualification had taken place and the electoral roll had on that score not been
corrected before the last hour of making nominations.
After that dead-line the
electoral roll of a constituency cannot be interfered with and no one can go behind
the entries except for the purpose of considering disqualification under
Section 16 of the 1950 Act. 26. The election could be set aside only on the
grounds mentioned in Section 100 of the 1951 Act. In this case reliance was
placed under Section100 (1)(d)(iii) for invalidating the election on the ground
of reception of void votes. We have already shown that the electoral roll containing
the particular names of voters was valid and there is, therefore, no question of
reception of any vote which was void. There is, thus, no substance in that
ground for challenging the election.
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