ORDER
1. Petitioner and the respondent along with four others contested in the General Election to the Kerala Legislative Assembly from Thodupusha Constituency, styled as 'No. 82, Thodupuzha'. The poll took place on 12-6-1991. Petitioner contested as an independent candidate, supported by Samajwadi Janatha Party. Respondent was the candidate of Congress (I), a constituent of the United Democratic Front, Among the other candidates, one belonged to the Kerala Congress (J), one to Bharathiya Janatha Party and the other two were independents.
2. Election to the Kerala Legislative Assembly was notified as per notification published in Kerala Gazette, Extraordinary, dated 19-4-1991. The date for poling was fixed as 23-5-1991. On account of the assassination of Sri. Rajiv Gandhi, the former Prime Minister, on 21-5-1991, polling was postponed to 12-6-1991. Candidates were permitted by the Election Commission to carry on propaganda work till the evening of 10-6-1991.
3. The 'ashes' of Sri. Rajiv Gandhi was collected in several urns and those urns were sent to different parts of the country to be immersed in various holy rivers. One such urn was brought to Kerala. It was taken to all the Assembly Constituencies in Kerala by the leaders of United Democracic Front, led by Congress (I). According to the petitioner, it was an attempt of the U.D.P. to arouse passion among the general public in its favour, in order to have electoral gains. The ashes was finally immersed in Papanasini in Wynad on 30-5-1991. In the guise of celebrating the day on which the ashes of their leader was immersed in Papanasini, the United Democratic Front organised prayer meeting at the Autorickshaw stand, near the Thodupuzha Municipal Bus stand from 10 A.M. to 4 P.M. on 30-5-1991. It was also announced that rice would be distributed free to all the poor people in the locality after the prayer meeting. It is averred by the petitioner that the prayer meeting and distribution of free rice to the poor people of the locality were clever devices invented by the respondent to give gifts and gratification so as to induce the people receiving the gifts or gratification offree rice to vote for him at the election from No. 82, Thodupuzha Assembly Constituency. The distribution of rice after the prayer meeting, according to the petitioner, constituted corrupt practice as contemplated by the Representation of the People Act, 1951, hereinafter referred to as 'the Act'. On this basis, he has filed this Election Petition invoking the provisions contained in Section 80, 81, 83, 84 and 100 read with Section 117 of the Act to declare the election of the respondent from No. 82, Thodupuzha Assembly Constituency as void.
4. Respondent entered appearance and raised a preliminary objection regarding the maintainability of the petition. The contention raised by the respondent is that the pleadings have to be struck out under Order VI Rule 16 C.P.C. as they are irrelevant, unnecessary and an abuse of the process of the Court. It is stated that the petition does not disclose any cause of action and has therefore to be rejected under Order VII, Rule 11 of the Code of Civil Procedure. According to the respondent, an analysis of the several paragraphs in the Election Petition would show that the petition does not disclose any cause of action of corrupt practice under Section 123(1) of the Act.
5. It is trite law that an election petition can be dismissed summarily at the threshold if it does not disclose any cause of action (vide Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253). It is now well settled that in Election Petition pleadings have-to be precise, specific and unambiguous. If the election petition does not disclose a cause of action, it is liable to be rejected in limine. An per Section 83 of the Act, an election petition shall contain a concise statement of the material facts on which the petitioner relies. It should 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 further provides that the election petition shall be signed by the petitioner and verified in the manner laid down in the Code of CivilProcedure for the verification pleadings. Where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. Rule 94-A of the Conduct of the Election Rules, 1961 states that the affidavit referred to in the proviso to Sub-Section (1) of Section 83 of the Act shall be sworn before a Magistrate of the First Class or a Notary or a Commissioner of Oaths and shall be in Form 25. Form 25 prescribes solemn affirmation or oath of the particulars of corrupt practices, which are personally known to the petitioner and separate affirmation of those particulars of corrupt practices which are true to the petitioner's information. Thus, an election petition praying for declaration of an election to be void on the basis of corrupt practice should strictly comply with the requirements of Section 83 of the Act,
6. In an election petition where corrupt practice is alleged, the petitioner should set forth full particulars of those corrupt practices, 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. As held by the Supreme Court in Udhav Singh v. M. Rule Scindia, AIR 1976 SC 744 (para 38) :--
'All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are 'material facts'. In the context of a charge of corrupt practice, 'material facts' would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action, are 'material facts' which must be pleaded, and failure to plead even a single material factamounts to disobedience of the mandate ofSection 83(1)(a)'.
It is, therefore, vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action. The allegations made by the petitioner should give an equal and full opportunity to the respondent to meet the case and to defend the charges. Mere allegation that respondent obtained or procured or attempted to obtain assistance from someone will have no meaning unless and until facts are stated to show as to how the prospect of election was improved by such action.
7. Section 83 of the Act requires that the election petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particulars of the corrupt practice alleged. The word 'material' shows that the ground of corrupt practice and the facts necessary to formulate a complete cause of action must be stated. The necessity of giving the particulars is to present a full picture of the cause of action, so as to enable the opposite party to understand the case he has to meet. As stated by Their Lordships of the Supreme Court in Raj Narain v. Indira Gandhi, AIR 1972 SC 1302 (at p. 1307 para 19):
'Facts stated in the petition relating to any corrupt practice must be sufficient to constitute a cause of action. In other words the facts more bring out all the ingredients of the corrupt practice alleged. If the facts stated fail to satisfy that requirement, then they do not give rise to a triable issue. Such a defect cannot be cured by any amendment after the period of limitation for filing the election petition'.
Thus the pleadings set out in the election petition must be such that a person accused of corrupt practice must know precisely what he is accused of, so that he may have the opportunity to meet the allegation made against him. If the accusation made is nebulous and is capable of being made use of for establishing more than one charge, or if it does not make out a corrupt practice at all,then the charge must fail at the Very threshold. In such a situation, the petition will have to be thrown out without trial.
8. After an elaborate survey of the earlier decisions, the Supreme Court in Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253, has given the exact content of the expression 'material facts and particulars', which an election petitioner should incorporate in the petition by virtue of Section 83(1) of the Act. They are (para 14):--
'(l)What are material facts and particulars?
Material facts are facts which are established would give the petitioner the relief asked for. The test required to be answered if whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. ((1969) 3 SCR 217 : AIR 1969 SC 734, Manubhai Nandlal Amarsey v. Poptlal Manilal Joshi).
(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a Government servant, the following facts are essential to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded: ((1972) 2 SCR 742 : AIR 1972 SC 515, Hardwari Lal v. Kanwal Singh).
a) mode of assistance;
b) measure of assistance; and
c) all various forms of facts pertaining to the assistance.
(3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to obtain or procure the assistance of Government servant in election it is absolutely essential to plead the following:
(a) kind or form of assistance obtained or procured;
(b)in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election-candidate for promoting the prospects of his election. (AIR 1972 SC 515).
(4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured (AIR 1972 SC 515).
(5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered. (AIR 1972 SC 515) (supra).
(6) The election petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in the particulars. (AIR 1972 SC 515) (supra)'.
In the light of the above statement of the law, I will proceed to examine the averments made by the petitioner. Since the averments in paragraph 9(A) to (D) alone are covered by the affidavit accompanying the petition, I need consider only those averments. They are:--
'A. The election of the respondent is vitiated by the corrupt practices indulged by the respondent, in so far as he induced the electors by giving illegal gifts and gratification to vote for him at the election.
B. The respondent had, with the intention of inducing electors to vote for him at the election to the Kerala Legislative Assembly, the polling of which was held on 12-6-1991, asked his workers, including M/s. Joseph, Benny and some others to go all over the Thodupuzha Municipal area and to tell poor people that they would be given free rice, after the prayer meeting to be held on 30-5-1991 at the autorickshaw stand at Indukki Junction, near the Thodupuzha Municipal Bus-stand at Thodupuzha. They accordingly went to various parts of Thodupuzha Municipality on 29-5-1991 and canvassed people, telling them that if they would vote for the respondent, they would be given free rice, after the prayer meeting to be held on 30-5-1991 from 10 A.M. to 4 P.M. One such team of workers of the respondent consisting of M/s. Joseph, Benny,Francis and some others was seen telling the residents of the 'Charinirmarjana Colony at Kolani, within Ghodupuzha Municipal area, that they would be given free rice, on 30-5-1991, after a prayer meeting to be held at the autorickshaw stand at Idukki Junction, near Thodupuzha Municipal Bus stand, Thodupuzha, if they would vote for the respondent by M/ Section Gopi, Soman, Chacko, Sudhakaran, Unni, Suresh Jose and some others, who are workers of this petitioner on 29-5-1991 at about 5.30 P.M. The action of the respondent amounts to corrupt practice as defined in Section 123(1) of the Act, 1951.
C. On 30-5-1991, after the prayer meeting held under the auspices of the U.D.F. led by Congress-(I) of which the respondent contested as a candidate in the autorickshaw stand near the Thodupuzha Municipal Bus stand at the Indukki Junction in Thodupuzha at about 3 P.M., the respondent distributed rice to M/s. Sunny, Sarojam, Lakshmi, Ammini, Marykutty, Rahim, Chellappan, Devassy, Varghese and some others. After giving rice to each person, the respondent showed his 'hand', thereby suggesting that such person should vote in favour of the 'hand' symbol, which was the respondent election symbol. The respondent has induced electors by giving them gifts and gratification, in the form of free rice, to vote for him. Posters containing the 'Hand'symbol appealing to vote in favour of the 'hand symbol' were exhibited in the Pandhal in which the distribution of free rice and prayer-meeting was held on 30-5-1991. The action of the respondent clearly falls within Section 123(1) of the Representation of the People Act, 1951. The election of the respondent from No. 82 Thodupuzha is liable to be declared void.
D. Since the respondent could not distribute the whole of the rice, at the Pandhal after the prayer meeting held on 30-5-1991, the respondent instructed his workers M/s. Joseph, Kunju, Francis and some others to distribute the rice by taking it to the house of poor people in the Kothayikunnu area in Thodupuzha Municipality with the intention of inducing such recipients to vote for him. They along with some others thereupontook the rice to the houses in Kothayikunnu area and distributed the same as they were instructed. The above acts of the respondent amounts to a corrupt practice, within the meaning of Section 123(1) of the Representation of the People Act, 1951. The election of the respondent is liable to be declared void and set aside'.
From the above averments, it can safely be seen that petitioner is alleging corrupt practice of bribery against the respondent. With reference to the allegations made in this case, the meaning of 'Bribery' as defined in Section 123(1) is to have the following amplitude :-- Any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever with the object, directly or indirectly or inducing an elector to vote or refrain from voting at an election or as a reward to an elector for having voted or refrained from voting. The petitioner should allege the existence of an offer or promise by the respondent to any person with the object of inducing an elector to vote in his favour. Has the petitioner alleged that any other person, with the consent of the respondent, offered or promised any gift to any elector to exercise his vote in favour of the respondent? In paragraph 9 what he gives is a general statement that the respondent induced the electors by giving illegal gifts and gratification to vote for him at the election. In sub-paragraph (B) what is stated is that respondent had asked his workers, including M/s. Joseph, Benny and some others to go all over the Thodupuzha Municipal area to tell poor people that they would be given free rice after the prayer meeting to be held on 30-5-1991. This, it is stated, was with the intention of inducing the electors to vote for him at the elections to the Kerala Legislative Assembly. The Agents accordingly went to various parts of Thodupuzha Municipality on 29-5-1991 and canvassed people, telling them if they would vote for respondent, they would be given free rice after the prayer meeting. One team of workers, consisting of M/s. Joseph, Benny, Francis and some others was seen telling the residents of CherinirmarjanaColony at Kolani that they would be given free rice if they would vote for respondent. This was seen by some of the workers of the petitioners, namely M/s. Gopi, Soman, Chacko, Sudhakaran, Unni, Suresh Hose and some others. In the next paragraph it is stated that on 30-5-1991, after the prayer meeting, respondent distrubuted rice to M/s. Sunny, Sarojam, Lakshmi, Ammini, Marykutty, Rahim, Cheilappan, Devassy, Varghese and some others. Thereafter he showed his hand suggesting that such person should vote in favour of the 'Hand' symbol, Thus respondent had induced electors by giving them gifts and gratification in the form of free rice. Posters containing the 'Hand' symbol were exhibited in the Pandhal in which rice was distributed. This action falls within Section 123(1) of the Act. Lastly it is averred in sub-paragraph (D) that respondent induced his workers M/s. Joseph, Kunju, Francis and some others to distribute the rice by taking it to the house of poor people in Kothayikunnu area with the intention of inducing such recipients to vote for him. They along with some others took the rice to the houses in Kothayikunnu area and distributed the same as instructed.
9. Petitioner has given certain names as Joseph, Benny, Francis, Sunny, Sarujam, Laxmi, Kunju, etc. These are very common names in the locality. By that name, the persons mentioned in the petition cannot be identified. The identity of the recipients of the rice distributed is also not given. It is not alleged anywhere in the petition that the respondent induced any elector to exercise vote in his favour for getting the rice. Nor is it averred that respondent's agents induced any elector to vote for the respondent with his consent. At this juncture it is worthwhile to note that rice was distributed on 30-5-1991 and the polling took place on 12-6-1991 only. Petitioner has nowhere stated that persons who received rice from the respondent voted for him. Petitioner has no case that the rice that was distributed after the prayer meeting belonged to the respondent or was procured by him.
10. The assassination of Rajiv Gandhi was a shock to the nation. His death wasmourned by one and all. During the period of mourning, the poor were fed at some places and at some other, rice was distributed to them. In a country where majority of the people are poor, living below the poverty line, supply of rice to them on such occasion is considered to be for the salvation of the departed soul, for it to rest in peace. On the day when the ashes of Rajiv Gandhi was immersed in holy rivers, prayer meetings were held throughout the country and alms were given to the poor. The distribution of rice on such an occasion can never be termed as a bribe coming within the purview of Section 123(1) of the Act. This is especially so when it is seen that the petitioner has not even pleaded that any named elector who accepted rice was induced by the respondent or by any other person with his consent to vote for him. The averment in the petition that the respondent showed his hand after distributing the rice suggesting the recipients to vote for the 'Hand' symbol cannot be considered as an inducement to vote in the election. Petitioner has no case that by seeing the hand of the respondent any recipient of the rice distributed, did in fact change his mind and voted in his favour. No averment is made in the petition that any named elector was induced to vote for the respondent as a result of the public distribution of rice on 30-5-1991. Petitioner has not stated that the agents of the respondent, who spread the news of the distribution of the rice after the prayer meeting, had induced any voter to accept the rice and to vote for the respondent. Nor is there any statement that they had done so with the consent of the respondent. Details on these matters are lacking. Nowhere it is averred that the recipients of the rice exercised the vote in favour of the respondent on account of the distribution of rice. It is not the petitioner's case that the recipients of the rice voted in favour of the respondent and that affected the result of the election.
11. The affidavit accompanying the petition sworn to by the petitioner states that the statements made in paragraph 9(A) to (D) of the election petition about the commission of the corrupt practice of bribery are true to his knowledge and information. The facts knownto the petitioner personally should have been sworn to as true to his knowledge and those which are based on information should have been stated to be true to his information. What the petitioner has affirmed is that all the information in sub-paragraphs (A) to (D) of paragraph 9 are true to the best of his information and knowledge. This is not a proper affidavit as provided by Form 25, attached to the Conduct of Elections Rules. The facts which are stated in paragraphs 9(A) to 9(D) were stated in paragraphs 4 to 7 of the petition. They also relate to corrupt practice. The facts mentioned therein also should have been covered by the affidavit, the correctness of those facts are not affirmed in the affidavit. Therefore the Court is not to consider the averments made by the petitioner in paragraphs 1 to 8 of the petition because those averments even though relate to corrupt practice are not supported by an affidavit. This defect in the affidavit, which was to accompany the petition is fatal and cannot be cured.
12. The vague and general statements made by the petitioner in paragraphs 9(A) to 9(D) of the petition are not sufficient to constitute corrupt practice. The petitioner has not given the basic facts which constitute the ingredients of the particular corrupt practice alleged by him. Since all the facts which are essential to clothe the petition with complete cause of action has not been pleaded, it has only to be dismissed in limine. The failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act. Since the present petition suffers from such vice, it has to be dismissed at the threshold.
13. Paragraphs 4 to 7 and Grounds 9(A) to (D) in the Election Petition are hereby struck out under Order VI, Rule 16, C.P.C. as unnecessary, frivolous or vaxatious. No further cause of action remains and hence the petition itself is rejected under Order VII, Rule 11(a) of the Code of Civil Procedure as not disclosing any cause of action. Petitioner will pay the respondent his costs, which is quantified at Rs. 1500/-. This amount will be paid out of the security deposited by the petitioner. Balance will be refunded to the petitioner.
In the result, the election petition is rejected. The office will intimate the substance of the decision to the Election Commission and the Speaker of the Kerala Legislative Assembly without delay. An authenticated copy of the decision shall be sent to the Election Commission as per Section 103 of the Act.