1. This order shall govern disposal of I.A. No. 20/2014 and I.A. No. 21/2014.
2. I.A. No. 20/2014: This application has been filed by respondent No. 1 under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as CPC ) read with Section 86 of the Representation of the People Act, 1951 (hereafter referred to as the R.P.Act ), inter-alia on the ground that the petitioner has called in question, the election of respondent No.1 from Assembly Constituency No. 66 Amarpatan, on the ground of suppression of material facts while submitting the nomination paper, indulging in corrupt practices and exceeding the limit of expenditure. It is further submitted that the pleadings contained in Election Petition do not disclose any cause of action because there is no specific pleading in regard to fact that how election of respondent No.1 has been materially affected. It is further submitted that there is no specific pleading in regard to corrupt practices and exceeding the limit of expenditure caused by respondent No. 1 in contravention of Section 77 of the R.P. Act. It is further submitted that verification and the affidavit filed along with the Election Petition are not in accordance with law. On the basis of aforesaid submission, it is prayed that as Election Petition does not disclose any cause of action, therefore, same is liable to be dismissed at threshold.
3. In reply, it is submitted on behalf of the petitioner that the Election Petition contains concise statement of the material facts on which the petitioner relies. It is further submitted that the petitioner has specifically pleaded the date, time and place where the election agent of respondent No.1 committed corrupt practices, therefore, there is sufficient cause of action against the respondent No.1 and petition cannot be dismissed at threshold. On the basis of the aforesaid submission he prays for dismissal of IA No. 20/2014 filed under Order VII Rule 11 of C.P.C. read with Section 86 of the R.P. Act.
4. Learned counsel appearing on behalf of the respondent has submitted that name of agent of respondent No.1 has not been mentioned and further submitted that there is no pleading as to effect that how petitioner acquired knowledge of incidents mentioned in para-15. He further submitted that there is no affidavit in regard to source of information of corrupt practice of the petitioner. In absence of such material fact any pleading of allegation of para-15 cannot be subject matter of the trial and has not disclosed any cause of action. Learned counsel for the respondent placed reliance on (2000) 2 SCC 294, V. Narayanaswamy Vs. C.P. Thirunavukkarasu.
5. On the contrary learned counsel appearing on behalf of the petitioner has submitted that he specifically pleaded that who has committed the corrupt practices. Since the alleged corrupt practices committed by the election agent of respondent No.1, therefore, there is no need to plead that same has been committed with the consent of the petitioner. It is further submitted that Election Petition has to be considered as a whole and if any cause of action is disclosed from the whole pleading of Election Petition, petition cannot be dismissed at threshold.
6. It is further submitted that petitioner has come with the case that corrupt practices has not been committed by the respondent No.1 or any person other than agent of respondent No.1. If petitioner comes with the case that corrupt practices were committed by the person other than election agent then it would be necessary to plead that such practices has been committed with the consent of the returned candidate.
7. I have heard learned counsel appearing on behalf of the parties at length and gone through the pleadings made in Para-15 of the Election Petition. The petitioner has specifically pleaded the name of election agent of respondent No.1 who bribed electors Gyan Nidhi Mishra and Dinesh Prasad Vishwakarma. Further, the date, place and time of incident and the name of the persons before whom aforesaid corrupt practices committed for the purpose of voting in favour of respondent No.1 have also been specifically pleaded.
8. Section 100(1) of the R.P. Act provides the grounds for declaring the election to be void. The relevant extract of Section 100(1) of the R.P. Act reads as under:
100. Grounds for declaring election to be void.- {(1) Subject to the provisions of sub-section (2) if {the High Court} is of 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) *** *** ***
the High Court shall declare the election of the returned candidate to be void.
9. On a bare perusal of Section 100(b) of the R.P. Act, it reveals that if any corrupt practice has been committed by a returned candidate or his election agent, the High Court shall declare the election of the returned candidate to be void, thus, there is no need to plead that the corrupt practice has been committed by the election agent with the consent of the returned candidate.
10. As far as verification and affidavit in regard to aforesaid pleading is concerned, petitioner specifically sworn an affidavit regarding corrupt practices committed by election agent of respondent No.1 specifically stating the date, time, place and person before whom such corrupt practice has been committed by the election agent and it has been further verified that aforesaid facts are true to his personal knowledge. In these circumstances, principle laid down in case of V. Narayanaswamy (supra) is not applicable to the facts of this case. It is not the case wherein petitioner has not pleaded concise statement of material fact and failed to plead full particulars of any corrupt practice along with full statement including name of person, time and place where election agent has committed such corrupt practice. Thus, there is no non-compliance of Section 81 or 82 of the Representation of the People Act, 1951 therefore, in my opinion, petition cannot be dismissed as threshold under Section Order VII Rule 11 of C.P.C. read with Section 86 of the R.P. Act.
11. Consequently, IA No.20/2014 is liable to be dismissed and is hereby dismissed.
12. I.A. No.21/2014: Respondent No.1 has filed this application under Section VI Rule 16 of the Code of Civil Procedure inter-alia on the ground that pleadings alleging suppression of material facts while submitting the nomination paper by respondent No.1 contained in para 8 to 14 of the Election Petition are absolutely vague and being unnecessary, scandalous and frivolous, same are liable to be struck off. It is further submitted that pleading of para-15 of the Election Petition alleging commission of corrupt practices and pleadings of para-16 and 17 alleging excessive expenditure are also absolutely vague and being unnecessary, scandalous and frivolous are liable to be struck off. On the basis of aforesaid submission prayer has been made for struck off the pleadings of para-15 to 17 of the Election Petition.
13. Despite repeated opportunities, petitioner has not filed reply to this application and made only oral objection to the pleadings of IA No. 21/2014.
14. Learned counsel appearing on behalf of respondent No.1 has submitted that in the pleadings of para 8 to 14 of the Election Petition, the petitioner has not pleaded that how such suppression of material facts in nomination form has materially affected the election of respondent No.1. He placed reliance on (2009) 10 SCC541, Ram Sukh Vs. Dinesh Aggarwal. It is further submitted that petitioner has not specifically pleaded in para-16 and 17 that returned candidate spent more than upper limit of expenditure stipulated by the Election Commission of India and it is further not pleaded that how aforesaid non-compliance has materially affected the election of respondent No.1, therefore, no cause of action is disclosed in aforesaid pleading and no case is made out for trial under Section 123(6) of the R.P. Act. He placed reliance on (1999) 1 SCC 666, L.R. Shivaramagowda and others Vs. T.M. Chandrashekar.
15. Learned counsel appearing on behalf of the petitioner has submitted that pleadings of para 8 to 14 and 16 and 17 are not unnecessary, scandalous and vexatious, same are required trial, and therefore, aforesaid pleadings cannot be struck off under Order VI Rule 16 of C.P.C.
16. I have perused the pleadings of para 8 to 14 wherein petitioner has not pleaded that how suppression of alleged material fact has materially affected the election of returned candidate. Further the allegation made in para 16 and 17 has not disclosed that how returned candidate spent more than upper limit of expenditure stipulated by the Election Commission of India. Pleadings of para 8 to 14 and para 16 and 17 fall under the ground of Section 100(1)(d)(iv) of the R.P. Act which reads as under:
100. Grounds for declaring election to be void.- {(1) Subject to the provisions of sub-section (2) if {the High Court} is of opinion-
(a) *** *** ***
(b) *** *** ***
(c) *** *** ***
(d) that the result of election, in so far as it concerns a returned candidate, has been materially affected the High Court shall declare the election of the returned candidate to be void-
(i) *** *** ***
(ii) *** *** ***
(iii) *** *** ***
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act;
the High Court shall declare the election of the returned candidate to be void.
17. A bare reading of aforesaid provision makes it clear that the if the petitioner comes with the case that there is any non-compliance of rules or orders made by the respondent No.1, then it is obligatory for him to plead that how aforesaid non-compliance has materially affected the election of respondent No.1 but this material fact is lacking in the pleading of para 8 to 14, same do not disclose any cause of action. In my opinion, the same do not require trial, appear to be unnecessary and vexatious and tend to prejudice or delay in trial of the case, therefore, liable to be struck off.
18. As far as pleadings of para-16 and 17 are concerned, in these paragraphs also nothing has been pleaded in regard that how allegation made in these pleadings have materially affected the election of respondent No.1. Further nothing has been pleaded in regard to fact that how respondent No.1 incurred the expenditure in contravention of Section 77 of the Act. It reveals on bare perusal of pleadings of para-16 and 17, that these pleadings are in regard to expenditure of honour ceremony (Samman Samaroh) organized at District Party Office Satna on 29.12.2013 wherein respondent No.1 admitted that his party had given him a sum of Rs. 50 lakhs for the purpose of contesting the assembly election 2013 and respondent No.1 has filed only expenditure to the tune of Rs. 12 lakhs, thereby he has not complied with the provision of Section 77 of the R.P. Act.
19. It is further pleaded that since respondent No.1 has admitted that his party has provided him Rs. 50 lakhs, therefore, he committed the corrupt practices defined under Section 123 of the R.P. Act. It is on record that such statement given by the respondent after completion of election proceeding, therefore same would not amount to corrupt practices committed by him during election and cannot be a ground for declaring the election of respondent No.1 null and void. In these circumstances, no cause of action is disclosed from the pleading of para 16 and 17 and such pleadings are not required a full dressed trial. The pleadings of Paras 16 and 17 being unnecessary and vexatious and tend to prejudice or delay in trial of the case, therefore, liable to be struck off.
20. Consequently, IA No. 21/2014 filed under Order VI Rule 16 of C.P.C. is hereby partly allowed and petitioner is directed to strike off the pleadings of para 8 to 14 and 16 and 17 of the election petition within 30 days from today.
21. The respondents are directed to file written statement.
List on 24.6.2015.