|REPORTABLE |
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4189 OF 2012
(Arising out of SLP(C) NO.30417 of 2009)
1 Ishwardas Rohani … Appellant
Vs.
2 Alok Mishra & Ors. … Respondents
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 2008
elections to the Madhya Pradesh State Assembly as a candidate of the Indian
National Congress Party from Cantt. Legislative Assembly No.99
Constituency, Jabalpur. He was defeated in the elections by the Appellant
herein 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, being
I.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 Respondent
No.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 Section
81(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 thereunder, 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 the
1951 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.58
in 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 on
29th 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 on
8th 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 for
various 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. SCC
93], 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 8A
of 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 Court
in Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar [(2009) 9 SCC
310], 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 the
1951 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 1951
Act, 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
REPORTABLE
IN THE SUPREME COUR OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4189 OF 2012
[Arising out of SLP (C) NO.30417 OF 2009]
Ishwardas Rohani ….Appellant
Versus
Alok Mishra & Ors. ….Respondents
J U D G M E N T
Chelameswar, J.
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 2009
on 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 of
2009 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 fulfil 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 toto:
“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 utter
chaos 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 40
provides 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)
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 this
Court.
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 there
by 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 17-10-2008
and cash to 200 persons on 21-10-2008 and a cheque drawn on the IndusInd
Bank, Shastribridge, 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 IndusInd Bank was
issued the same was encashed 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 1
of 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 be
brought.
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 alsogiven 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 in
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) 9
SCC 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. Balakrishna
vs. George Fernandez and others, (1969) 3 SCC 238, this Court held as
follows:
“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.”
26. 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.
27. 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.”
28. 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 Narain
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.
29. 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.
30. 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.
31. 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.
32. 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.
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[1] 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 Section
100(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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