1. The petitioner contested the General Election to Maharashtra Legislative Assembly from Ambernath Assembly Constituency. The polling took place on 12th February, 1995, the results were declared on 12th March, 1995 and the respondent was declared elected from the said constituency. It is the case of the petitioner that the respondent has committed several corrupt practice's and, therefore, his election is liable to be declared void. The alleged corrupt practices on the part of the respondent are narrated in paragraphs 4 to 15 of the petition.
The respondent has filed chamber summons No. 150 of 1996 raising preliminary objection to the maintainability of the petition. The respondent contends that the allegations in the petition are vague and they are frivolous and vexatious. It is also contended that the petitioner has not complied with the mandate of Section 83 of the Representation of the People Act, 1951 ('the Act', for short). The respondent prays that the allegations of corrupt practices inparagraphs 4 to 15 should be struck off under O. VI, R. 16 of C.P.C and the petition be dismissed under O. VII, R. 11 of C.P.C., since, after striking off the pleadings contain-ed in paragraphs 4 to 15, no triable issue remains to be considered.
2. Under Section 83 of the Act, an election petition (a) shall contain a concise statement of the material facts on which the petitioner relies, (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. It is manifest that the election petition shall not only contain material facts but also set forth particulars of corrupt practice. The importance of material facts and the distinction between the material facts and particulars were brought out in the decision of the Supreme Court in Manubhai Nandlal Amersey v. Popatlal Manilal Joshi, : [1969]3SCR217 . Bachawat, J., speaking for the Court, said that Section 83 of the Act was mandatory and particulars of corrupt practice were to be set out full. It was said in that case that no amendment in the shape of particulars of corrupt practice was permissible if the corrupt practice was not previously alleged in the petition.
3. The requirements in an election petition as to material facts and the consequences of lack of such allegation of material facts came up for consideration of the Supreme Court in Samant N. Balakrishnan v. George Fernandes, : [1969]3SCR603 . Hidayatullah, C.J., speaking for the Court laid down these propositions. First, Section 83 of the Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. Second, omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of person with the date, time and place. Fifth, material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. Sixth, in stating the material facts it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Seventh, an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless the exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further prospects of the election are alleged as statements of facts.
4. The Supreme Court has reiterated this position in Udhav Singh v. Madhav Rao Scindia, : [1976]2SCR246 . It has been held (at page 752 of AIR) :
'In short, all those facts which are essential to clothe the petitioner with a complete cause of action are material, which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).'
It was also held in the case of Daulat Ram Chauhan v. Anand Sharma, : [1984]2SCR419 , that the a1legation of corrupt practice must be so clear and specific that the inference of corrupt practice will irresistibly admit no doubt or qualm. It cannot be let to time, chance or conjecture for the Court to draw an inference by adopting an involved process of reasoning. As a logical consequence, it follows that where the allegation of fraudulent practice is open to two equal possible inferences, the pleadings of corrupt practice must fail.
5. The Supreme Court has consistently taken the view that ah election petition canbe and must be dismissed under the provisions of C.P.C. if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice are not complied with. By virtue of Section 87 of the Act, the provisions of the C.P.C. are made applicable for the trial of an election petition. Under O. VI, R. 16, the Court is empowered at any stage of the proceedings to strike out any pleading which may be unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit or which otherwise an abuse of process of the Court. O. VII, R. 11(a) mandates that a plaint shall be rejected where it does not disclose a cause of action. In Hardwari LaL v. Kanwal Singh, : [1972]2SCR742 , it was held that an election petition which does not set out material facts and particulars of corrupt practice so as to furnish a cause of action can be dismissed by virtue of Section 86 though not under Section 87 of the Act.
6. In Dhartipakar v. Rajiv Gandhi, : [1987]3SCR369 , the Supreme Court observed as follows :
'On a combined reading of Sections 81, 83, 86 and 87 of the Act, it is apparent that those paras of an election petition which do not disclose any cause of action, are liable to be struck off under O. VI, R. 15, C.P.C. as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the Court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. O. VI, R. 15 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings the Court finds that no triable issues remain to be considered, it has power to reject the election petition under O. VI, R. 11.'
The Supreme Court held that if the election petition fails to make out a ground under Section 100, it must fail at the threshold. 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 practices 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. The Supreme Court has expressed similar view in Azhar Hussain v. Rajiv Gandhi, : [1986]2SCR782 and Kona Prabhakara Rao v. M. Seshagiri Rao, : AIR1981SC658 .
7. Now coming to the allegations made in the petition, it is firstly alleged by the petitioner that the oath administered by the returning officer to the respondent was not proper since at the time of administering the oath to the respondent, the returning officer was sitting on his chair and as such the oath administered by him to the respondent is improper and hence the candidature of the respondent is liable to be rejected and his election is liable to be held void under Section 100(1)(d)(iv). The petitioner was unable to show any provision of law requiring the returning officer to stand while administering the oath to a candidate. It is difficult to appreciate as to how the oath administered by the returning officer can be said to be improper merely because he was sitting on the chair while administering the oath. Thus the allegation about the impropriety of the oath is devoid of any merit.
8. The next allegation made against therespondent is that at the time of filing the nomination paper, the respondent posed himself as Shiv Bhakt (Devote of Lord Shiva) and accordingly, covered his entire body with dhoti of bhagwa colour (red orange colour). Even assuming that the aforesaid allegation is true, it does not and cannot constitute corrupt practice within the meaning of the Act. In the first place, the allegation relating to the period anterior to the commencement of the candidature cannot be relied upon to establish corrupt practice. Secondly, it is difficult to appreciate as to how wearing cloth of a particular colour at the time of filing nomination constitutes corrupt practice. It is required under the provisions of the Act that the fact which constitutes corrupt practice must be correlated to one of the heads of corrupt practices. The petitioner has not cared to correlate the allegation made by him to any of the heads of corrupt practices. Even at the time of hearing, the petitioner was unable to state as to how the facts stated by him would amount to corrupt practice.
9. Then in paragraphs 9 to 12, the petitioner has alleged that after the voting was over, the ballot boxes were kept at Mahatma Gandhi Vidyalaya, Ambernath. On 4th March, 1995, the returning officer informed the petitioner that the ballot boxes would be shifted from Mahatma Gandhi Vidyalaya to the hall of Sarvodaya Housing Society at Sai Section, Ambernath on 10th March, 1995 at 8 p.m. where the counting was to take place on 11th March, 1995. The petitioner has alleged that the returning officer failed to transfer the ballot boxes on the given date and thereafter the returning officer had never informed the time and date of transfer of the ballot boxes at any time. The petitioner has alleged that the transfer of the ballot boxes from Mahatma Gandhi Vidyalaya to the hall of Sarvodaya Housing Society without giving prior intimation to the petitioner is highly objectionable and, therefore, the election of the returned candidate is liable to be set aside on this ground also. The allegation is devoid of any substance. It is not necessary for the returning officer to give such prior intimation to the candidate and assuming that such prior intimation is necessary, at the most, it will amount to mere irregularity. It is not even suggested by the petitioner that the result of the election is in any way affected due to alleged failure on the part of the returning officer to give prior intimation to the petitioner.
10. The petitioner has alleged in paragraph 13 of the petition that the respondent committed corrupt practice as defined under Section 123(3) of the Act. Paragraph 13 of the petition reads as follows :
'That the respondent No. 2 had posed himself as Shiv Bhakt (i.e. Devotee of Lord Shiva) before the voters of 56, Ambernath Assembly Constituency at the time of his election campaign and thus secured the sympathy votes from the voters on the ground of Shiv Bhakt, being a Muslim and thus committed the corrupt practice under Section 100(1)(b) and as per the definition of Section 123(3) of Representation of the People Act, 1951.'
We have already seen that a petition, which merely cites the sections, cannot be said to disclose a cause of action unless a concise statement of material facts accompanied by fullest possible particulars is given in the petition. The petitioner has completely failed to comply with this mandatory requirement of law. The material facts such as, when, where and in whose presence the respondent has posed himself as Shiva Bhakta during the election campaign are not stated. The allegations contained in paragraph 13 are completely vague. The petitioner has failed to give the material facts and the necessary particulars. Consequently, the allegations made in paragraph 13 cannot be sustained.
11. Lastly, the petitioner has alleged corrupt practices under Sections 123(1) and 123(5) of the Act. The relevant paragraphs are paragraphs 14 and 15 and the same read as follows:
'14. That respondent No. 2 used more than 100 vehicles almost at all the booths on the day of election on 12-2-1995 to bring the voters from their homes to the place of voting for the purpose of casting their votes in his favour and had distributed the food packetsalmost at all the booths not only to his workers and Polling Officers, but also to the Presiding Officers, Polling Officers and attendants which were the corrupt practices under Section 100(1)(b) and as per definition of Sections 123(5) and 123(1) respectively, of Representation of the People Act, 1951.'
'15. That the petitioner had specifically pointed out the Presiding Officer of Booth No. 318 of 56, Ambernath Assembly Constituency that the persons sitting in Jeep bearing Plate No. MP 09/A 0211 was repeatedly bringing the voters from their homes to the Polling Booth No. 318 for the purpose of voting and was canvassing for respondent No. 2. The copy of the letter dated 12-2-1995 in token of receipt and original letter given to the Presiding Officer of Booth No. 318, is submitted along with this Election Petition and the same is marked as Exhibit 'A'. The respondent No. 2 had spent more than Rs. 2.00 lacs on transport, food packets and salary of the Polling Agents and the persons who had worked for him on the day of election on 12-2-1995 and have thus exceeded the limit of election expenses though he has filed the false accounts of election expenses before the Presiding Officer on 13-2-1995 and committed the corrupt practice under Section 100(1)(b) and as per Section 123(6) of Representation of the People Act, 1951 as he had incurred the expenses in contravention of Section 77 of Representation of the People Act, 1951.'
12. The allegations made by the petitioner in the aforesaid paragraphs are not at all in conformity with mandatory requirement of S. 83 of the Act. In order to constitute corrupt practice under Section 123(5) of the Act, hiring or procuring of a vehicle by a candidate or his agent or any other person with his consent is the first essential ingredient of the corrupt practice; the second essential ingredient is that hiring or procuring of a vehicle must be for convenience of the voters to and from the polling station and the third necessary ingredient is that conveyance of electorates is free from any charge. All the three ingredients must be pleaded to make out a cause of corrupt practice under Section 123(5) of the Act. If any of the three ingredients is not pleaded, the charge of corrupt practice in question must fail. The hiring of a vehicle must be to procure the same for the purpose of conveyance of the voters free of cost. This essential ingredient has not been pleaded and, therefore, the allegations made by the petitioner do not disclose any cause of action or raise any triable issue. In paragraph 15, it is alleged that persons sitting in jeep bearing plate No. MP 09/A 0211 were repeatedly bringing the voters from their homes to the polling booth No. 318 for the purpose of voting and were canvassing for the returned candidate. The petitioner has not given any particular even in respect of this allegation, although jeep number is mentioned. The basic material facts like who were the persons travelling in the said jeep, from which area the said jeep was bringing voters to vote in favour of the returned candidate and on which booth number, the voters were brought, are not stated. But that apart, there is not even an averment in the petition that the alleged corrupt practice was committed by the persons with the consent of the returned candidate or his election agent. In these circumstances, paragraphs 14 and 15 are also liable to be struck off. In the said paragraphs, the petitioner has also alleged that the returned candidate distributed food packets to the presiding officers, polling officers and attendants. He has also alleged that the respondent has exceeded the limit of the election expenses. But these allegations cannot be sustained in the absence of proper pleadings. Surely, such vague and uncertain pleadings cannot be a foundation of an election petition under the Act.
13. We have seen that the Supreme Court in various decisions emphasized that if the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of an election petition cannot be proceeded with and the petitioner should not be allowed to have a 'fishing expedition' or to have a 'roving inquiry'. The allegations in the present petition do not give any details. They are of vague and general character and the names of the parties, who alleged to have committedcorrupt practices, are not mentioned in the petition. The petition is not in accordance with Section 83 of the Act. In these circumstances, the allegations made in the petition are liable to be struck out under Order VI, Rule 16 of the C.P.C. Therefore, I strike out paragraphs 4 to 15 of the election petition. As all the grounds urged by the petitioner are bereft of material particulars, the petition is liable to be rejected.
14. In the result, the election petition is dismissed with cost quantified at Rs. 1,500/-. The cost shall be paid out of securing deposit deposited by the petitioner and the balance amount be returned to the petitioner.
Petition dismissed.