| SooperKanoon Citation | sooperkanoon.com/1039443 |
| Court | Madhya Pradesh High Court |
| Decided On | Nov-08-2012 |
| Appellant | Chandrabhan Singh Choudhary |
| Respondent | Kamal Nath |
HIGH COURT OF MADHYA PRADESH, JABALPUR Election Petition No.51/2009 Chandrabhan Singh Choudhary S/o Chou. Kuber Singh Choudhary, Aged about 48 years, R/o Ward No.31, Station Road, Chhindwara, P.S.Tahsil & District Chhindwara (M.P.) ….Petitioner Versus Kamal Nath, S/o Mahendra Nath, Aged about 60 years, R/o Shikarpur, At-Post Shikarpur, P.S. Tahsil &District Chhindwara (M.P.) ....Respondent Present : Hon. Shri Justice Krishn Kumar Lahoti Shri P.C.Paliwal, counsel for the petitioner. Shri Vivek Tankha, learned Senior Advocate with Sarvashri P.D.Gupta, Sumeer Sodhi, Ravindra Gupta and H.K.Upadhyaya, counsel for respondent.
ORDER( 8.11.2012) Respondent has been elected as Member of Parliament from Constituency no.16 Chhindwara on 16.5.2009 by a margin of 1,21,320 votes. His election has been questioned in this petition mainly on the ground that he had made expenditure beyond the permissible limit by using helicopter in the election campaign and the expenditure shown by him were not correct. On the aforesaid ground it is alleged that the respondent had used corrupt practice in the election and his election be declared as void under section 100(1)(b), (d), (ii), (iv), 123(6) of the Representation of Peoples 2 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath Act, 1951 and under Rule 90 of Conduct of Election Rules, 1961.
2. The respondent on notice has filed two applications in the case, one is under Order 6 Rule 16 C.P.C., read with sections 86 and 87 of the Representation of Peoples Act, 1951 (hereinafter referred to as 'Act' for short) praying that the pleadings as contained in para 12 to 18 partly 19 to 26, partly 28 to 39, 41 and 47 in the petition being unnecessary, frivolous and tend to prejudice or embarrass the trial being an abuse of the process of the Court, so the aforesaid pleadings may be struck out. Another application I.A.No.91/2009 is filed under Order 7 Rule 11 C.P.C., read with section 86 and 87 of the Act for dismissal of the petition on the ground that petition is based on hypothesis, is bereft of material facts and does not disclose source of information by appropriate description, so as to attract section 100(1)(b), d(ii), and d(iv) read with section 123(6) of the Act and Rule 90 of the Conduct of Election Rules, 1961 (hereinafter referred to as 'Rules' for short), praying that no cause of action is disclosed in the petition, as is required under the aforesaid provision, so the election petition may be dismissed. The reply of both the applications are filed by the other side.
3. To appreciate the rival contentions of the parties, it would be appropriate if the objections raised in the application I.A.No.91/2009 are referred in brief. The main contention of the respondent in the application is that the pleadings in the election petition are not averments of material facts, but are transcription of exploratory thinking, requiring the High Court to draw inference by adopting an involved process of reasoning. The petitioner has made vague allegations as to the use of the helicopter and has coined a term 'standard charges' with reference to certain invited 3 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath communication from the Directorate of Civil Aviation, Government of M.P., to show that the respondent was required to make payment of some higher charges, but had shown in the accounts lower charges in comparison to the standard rates fixed for the use of helicopter. The interpretation of the petitioner is wrong and mis-placed. In the entire petition, the petitioner has not pleaded that the respondent has incurred expenditure in a specified sum or has authorized somebody else to incur the expenditure to be reimbursed by the respondent. The material facts in support of the charges of corrupt practice within the meaning of section 123(6) read with section 77 of the Act and Rule 90 of the Rules have not been pleaded, in absence of which the present petition is not maintainable. The facts, circumstances and material in the pleadings are being almost identical to the election petition no.3/1998, which was filed against the respondent on the same allegations of use of helicopter, payment of actual charges below the standard rent prescribed by the State Government. In the aforesaid writ petition similar preliminary objection was raised by the respondent, which was turned down by the High Court, against which an S.L.P. was preferred before the Apex Court, which was decided by the Apex Court on 8.1.2002 reported as Kamalnath Vs. Sudesh Verma (AIR 200.SC 599), by which the Apex Court dealing with the same pleadings had found that no cause of action arose in the matter and dismissed the election petition. It was submitted that in the present case the allegations are vague in respect of use of helicopter and exceeding the ceiling limit of the expenditure, as provided under Rule 90 of the Rules. It was submitted that the allegations does not disclose material fact for attracting section 123(6) read with section 77 of the Act and the election petition may be dismissed. 4 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath 4. The election petitioner has filed reply of the application, in which the allegations are seriously opposed. In nutshell it is submitted in the reply that the helicopter was in possession of the respondent for 15 days, while respondent had shown payment of charges for 5.54 hours and in fact the charges, which were shown in the account were not correct as the respondent was required to pay higher charges. It was submitted that the election petition discloses cause of action, triable issue and by rejecting the application filed under Order 7 Rule 11 C.P.C., matter may be fixed for recording evidence after seeking reply of respondent on merits of the case.
5. To appreciate rival contentions of the parties, it would be appropriate if the factual position in the case is stated. The petitioner, in the election petition, has made allegations in respect of corrupt practice in paras 8 to 45 of the election petition. Aforesaid allegation relates to the use of helicopter by the respondent for election campaign, on various dates, but all the allegations are identical. For ready reference relevant paras of the election petition are referred which reads as under :-
“10. That the department of Vimanan Sanchalanalay Madhya Pradesh Rajabhoj Vimantal Bhopal issued a letter to the Election Commission Madhya Pradesh and copy sent to the Collector Chhindwara April, 2009 which was received in the office of Collector Chhindwara/District Returning Officer on 20/04/09. By this letter Vimanan Directorate fixed the rate of Air Craft Bell - 407, Rs.75,000/- to 80,000/- per hour. Hence, it is clear that the Air Craft company be required to pay Rs.75,000/- to 80,000/- by the person/ candidate who obtained the Air Craft on charter.
11. That, the respondent submitted the 5 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath details of his campaign Tour programme during the period from 06/04/2009 to 17/04/2009 by Air Craft. The respondent was in possession of the Air Craft between the above mentioned period, Shri Malik was Pilot of the Air Craft. The detailed programme has been mentioned in the Charter Invoice with Annexure.
12. That, on 06/04/2009 the respondent visited Hanotia, Dungariya, Suthia, Damaniya, Pagara, Khurd, Palachourai, Chitri and returned back to Chhindwara, in regard to his campaign of the election. He started departure at 11.30 A.M., from Chhindwara to Hanotia and after completing the campaign returned to Chhindwara at 18.05 hours.
13. That, on 06/04/2009 respondent used the Air Craft for 6.35 hours. The respondent required to pay Rs.75,000/- per hour to the Span Air Private Limited and therefore, the total fare Rs.4,93,750/- but, the respondent paid only fare for 45 minutes, in which the Air Craft was flying. The action of the respondent showing the less amount/expenditure on Air Craft is in contravention of Section 77 of the Act.
14. That, on 07/04/2009 respondent started his campaign from Chhindwara at 12.30 P.M., to Sausor, Bhuli, Itawa, Siratha, Rajdongari, Sjiri and returned to Chhindwara at 18.06 hour. Flying period shown 0.35 hour. The respondent used the Air Craft for 5.35 hours. The respondent required to pay Rs.75,000/- per hour to the Span Air Private Limited and therefore the total fare Rs.4,20,000/- but, the respondent paid only fare for 35 minutes, in which the Air Craft was flying.
15. That, on 08/04/2009 respondent started his campaign from Chandameta to Chhindwara at 18.00 hour and returned to Chhindwara at 18.07 hour. The flying period was 0.07 minutes. The respondent paid the fare for 0.07 minutes at the rate of Rs.75,000/- per hour. Hence, the respondent required to pay Rs.8750/- to the company Span. In the programme respondent submits that on 08/04/09 he came from Chandameta to Chhindwara by the Air Craft, he did not disclose that how the Air Craft came to Chandameta from Chhindwara during the 6 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath period of dated 07/04/09 18.06 hour to dated 08/04/2009 to 18.00 hour. This fact has been suppressed by the respondent, in the account of expenditure.”
. Paras 16 to 32 are identical in which the petitioner has pleaded use of helicopter on a particular day and alleged that for the use of helicopter the respondent was required to pay higher amount, but has shown a less amount in the account. Though the Span Air Private Limited had issued a bill for a less amount and the same amount had been shown in the election account by the respondent, while the respondent was required to pay higher amount. In para 33 of the election petition the the petitioner has pleaded in respect of expenditure of one Star Pracharak Shri Atul Sharma and has stated that the expenditure of Shri Atul Sharma have been shown to the tune of 50%, while the respondent was liable to make payment of 100% of his expenditure. Similar pleadings are in respect of another Star Pracharak Shri Batuk Joshi in paras 34 and 35 about the expenditure of Star Pracharak Shri Batuk Joshi have been pleaded. In paras 36 to 45, the petitioner has pleaded act of corrupt practice based on aforesaid facts. For ready reference the aforesaid paras are reproduced, which reads as under :-
“36. That, the Director of Vimanan fixed the rate of helicopter Bell 407 Rs.75,000/- to 80,000/- per hour. And therefore, at the rate of 75,000/- per hour the respondent required to pay Rs.58,73,750/- to the Span Air Pvt. Ltd. Against this the respondent paid only Rs.3,95,300/- against the Invoice Number SPA/ 2009-2010/031 dated 30/04/2009 and Rs.1,01,617/- was paid against the Invoice no.SPA/2009-2010/032 dated 30/04/09 which was issued for Rs.2,03,233/-. Due to the Star Pracharak, the respondent is required to pay 50% of the total amount, and hence, the respondent paid Rs.1,01,617/-. The total amount paid by the respondent to the Span Air Pvt. Ltd., is Rs.4,96,917/- as fare of the 7 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath Helicopter and same was included in the final account of the respondent.
37. That, the respondent required to be paid fare of Helicopter Rs.58,73,750/- against which the payment of Rs.4,96,917/- has been shown to be paid and same was included in the account of election.
38. That, the Rule 90 of Conduct of Election Rules, 1961 define maximum election expenses is Rs.25,00,000/-. Therefore, respondent required to submit the final account/ Maximum election expenses Rs.25,00,000/-. Respondent made the expenses more than 25,00,000/-, which itself clear from the fare of the Helicopter between the period of 06/04/09 to 21/04/09. The respondent admitted that the Helicopter was used by him during the above period but, he submitted the account showing only flying period of 5.54 hour.
39. That, the Helicopter was obtained by the respondent for election campaign from Span Air Pvt. Ltd., and used it during the period of election campaign i.e. from the date of submission of the nomination paper dated 04/04/09 to 21/04/2009. It is not disputed that the respondent was in possession of the Helicopter since 04/04/09 to 21/04/09 and therefore, the respondent is liable for payment of fare at the rate of Rs.75,000/- per hour to the Span Air Pvt. Ltd., New Delhi.
40. That, the Election Commission of India issued a circular No.3/10/(ES 007.94/Nya.Anu.ii-2 dated 02/09/1994 which shows that the account shall be maintained and declared from the date of nomination form and upto declaration of result under section 77(1) of the Act, 1951.
41. That, the respondent made the excessive expenditure then the maximum amount prescribed Under Rule 90 of the Rules, 1961 would tantamount to corrupt practice. But, the said expenditure has to be incurred either by the candidate or by his Election agent or by a person authorized by him and further such expenditure must be between the date of publication of the notification calling the election and the date of declaration of the result. The Rule 90 provides the maximum amount of Rs.25,00,000/- for Lok Sabha election in Madhya Pradesh under section 77 of 8 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath the Act.
42. That the Span Air Pvt. Ltd., gave the Helicopter to the respondent on fare and same was used by the respondent since 04/04/09 to 21/04/09 which is about 18 days. The respondent used the Helicopter for 18 days, by keeping them at Chhindwara and paid only Rs.5,98,533/- to the Company. The above payment was made by the respondent and the P.C.C. Bhopal. Then the fare Rs.33,251.83 per day obtained by the company. Whether, these facts can be believed in the facts and circumstances.
43. That, in the facts and circumstances and on the basis of material placed before this Hon'ble Court by the petitioner, prima facie proved that the respondent spent more than Rs.58,73,750/- as fare for the Helicopter. Therefore, alone on this ground this election petition required to be allowed because, the respondent made the excess expenses in the election and hence, the respondent committed the corrupt practice under section 123(6) and section 77 of the Act.
44. That, this Hon'ble Court has power to estimate the expenditure made by the respondent in his election for Member of Parliament constituency no.16, Chhindwara, on the basis of material placed in this petition alone.
45. That, the Span Air Pvt. Ltd., company gave the Helicopter or Air Crafts on fare on the fixed rate. The minimum period for giving the Helicopter is 3 hours. In the present case the Helicopter was physically in possession of the respondent from 04/04/09 to 21/04/09. It is no doubt the Helicopter was exclusively in possession of the respondent and therefore, the respondent was liable for payment of the fare the rate fixed by the Election Commission/ District Returning Officer/ Director of Vimanan. The Director Vimanan fixed the fare of Helicopter at the rate of Rs.75,000/- per hour.”
6. The main contention of the respondent before this Court is that even if the aforesaid pleadings are accepted as it is, even then no case is made out against the respondent for corrupt practice so no cause of action arises against the respondent. It is 9 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath submitted by the respondent that the helicopter was hired from Span Airways Private Limited. As per the contract between the respondent and Span Airways all the charges were paid as per the bills issued by the Span Airways Private Limited. The aforesaid actual expenses were shown as incurred in the election account of expenses. The Election Commission notified the expenses. No objection was raised by the petitioner on the accounts of expenditure furnished by the respondent. Rule 89 provides a complete procedure for raising objection on the correctness of account, but no objection was raised by the petitioner before the Election Commission. The accounts were accepted by the Election Commission and not the accounts cannot be challenged in the election petition.
7. So far as the expenditure of Shri Atul Sharma and Shri Batuk Joshi are concerned, it was submitted that those were Star Pracharaks and the respondent was liable for 50% of the expenditure, which the respondent had paid and duly shown in the account. Even if the remaining expenditure of 50% are deemed to be included in the expenditure of respondent, even then the expenditure were much below the prescribed limit under Rule 89 of the Rules. In reply to the aforesaid, it was submitted by Shri P.C.Paliwal, learned counsel for petitioner that it is a matter of evidence that what was the actual payable rent of helicopter, what was paid by the respondent to the company and in this regard actual payment can be ascertained from the accounts of respondent or of Airways. It was submitted that during the evidence the petitioner can summon the Income Tax return of Span Airways to prove his contention. Reliance is placed to the 10 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath judgment of Apex Court in Ishwardas Rohani Vs. Alok Mishra and others [(2012) 7 SCC 309]..
8. To appreciate the aforesaid, it would be appropriate to refer the law laid down by the Apex Court in Kamalnath (supra). In Kamalnath the position was identical and the Apex Court considering the identical position held that chapter VIII of the Act deals with election expenditure. Under section 77 of the Act every candidate, at an election, either by himself or by his election agent, is required to keep a separate and correct account of all expenditure in connection with the election, incurred or authorized by him or by his election agent between the date, on which he has been nominated and the date of declaration of the result thereof. Sub-section (3) of Section 77 provides that the total of the said expenditure shall not exceed such amount as may be prescribed. The expenditure may be incurred either by the candidate or by his election agent or by a person authorized by him and such expenditure must be between the date of publication of the notification calling the election and the date of declaration of the result thereof. Rule 90 of the Rules provides the maximum amount that can be spent by a candidate or his authorised agent under section 77 and for a Parliamentary Constituency, the amount is specified in Column (2) of the table in the State of Madhya Pradesh. The Apex Court further held that incurring of expenditure in excess of the prescribed amount would be a corrupt practice. On a combined reading of section 77 and section 123(6) of the Act, it is explicitly clear that the excess expenditure must be incurred by the candidate or by any person authorised by the candidate or his election agent. In other words, an expenditure incurred by a third person, who is not authorised by a candidate or by an election agent of the candidate, will No.11 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath be a corrupt practice within the ambit of section 123(6) of the Act. It would therefore, be necessary to establish a corrupt practice, as contemplated under section 123(6) of the Act to plead requisite facts showing authorization or undertaking or reimbursement by the candidate or his election agent.
9. The Apex Court considering earlier judgment in Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi [1987 (Supp) SCC 93]., in which the allegation were that several jeeps were plying in the constituency and that food was given to the party workers, would not tantamount to an allegation of corrupt practice and, therefore, the election petition was held to be not maintainable. The Apex Court held that, explanation (1) to S.77 in the context of expenditure incurred or authorised by the candidate bears considerable significance inasmuch as voluntary expenditure incurred by friends, relations or sympathisers of the candidate is not required to be included in the candidate's return of expenses unless expenses were incurred in the circumstances from which it could be positively inferred that the successful candidate had undertaken that he would reimburse the person, who had incurred the expenses. When maintainability of an election petition is considered from the stand-point as to whether material facts have been pleaded or not in a petition alleging corrupt practice on the ground that expenses incurred by the candidate is more than the prescribed limit, it would be necessary to aver the fact that the candidate has incurred the expenditure or has authorised any other person to incur the expenditure or that his election agent has incurred the expenditure and further the candidate has undertaken the liability to reimburse. These would constitute the material facts of an election petition, which is filed, alleging corrupt practice within the ambit of section 123(6) 12 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath read with section 77 of the Act and Rule 90 of the Conduct of Election Rules. I would examine the residue of averments made in the election petition to find out whether such material facts had in fact been averred in the election petition, so that a triable issue can be said to subsist, which could be adjudicated upon, after evidence being lead. Vague assertion that an helicopter was used for a specified number of flying hours and the standard charges for flying hour could have been more, would not necessarily constitute the material fact that the candidate had spent by way of hiring of the helicopter, an amount exceeding the ceiling provided under Rule 90 of the Conduct of Election Rules.
10. The Apex Court applying the test to the residue of pleadings held that applying the aforesaid test to the residue of pleadings that are available in the election petition, after striking of several paragraphs pursuant to the orders of the High Court, it is difficult to hold that the material facts in relation to the alleged corrupt practice within the ambit of Section 123(6) read with Section 77 of the Act, have at all been pleaded, so that the matter would be left to lead evidence during trial. On the other hand, vague assertion with regard to the use of helicopter and what are the standard charges of an helicopter per flight hour have been mentioned on it. It has not been specifically pleaded that either the appellant had incurred the expenditure amounting to a particular sum or has authorised his agent to incur the same or that he has authorised any other person to make the expenditure which the appellant has undertaken to reimburse. The High Court in paragraph (11) had culled out the residue of averments in the petition which were considered to be sufficient pleadings of the corrupt practice within the ambit of Section 123(6) read with Section 77 of the Act, but on examining the averment which 13 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath remains in the election petition after several paragraphs having been struck off, the Apex Court had not found any averment on record, indicating that the appellant either did incur the expenditure of hiring an helicopter for a specified number of hours or that he had authorised his election agent for hiring such helicopter or that he had authorised any other person for hiring such helicopter to whom he had undertaken to reimburse the amount. Though the respondents had vehemently argued that paragraph (6) of the election petition unequivocally satisfies the material facts in relation to the allegation of corrupt practice under Section 123(6) of the Act, but the Apex Court had found that paragraph (6) merely states that the facts narrated would not show that the expenses beyond the maximum limit as prescribed under Section 77 were actually incurred by the returned candidate or he had authorised the same. But on scrutinizing the facts I found that the returned candidate had in fact not incurred expenditure beyond the prescribed limit and all that had been stated is that an helicopter had been used for a number of hours and the normal rate of hiring a helicopter being in the minimum Rs. 2,12,000/- per day and the helicopter having been used for 14 days, the returned candidate must have been required to pay more than the prescribed limit towards the expenses of the helicopter, cannot be held to be an assertion of material fact and on the other hand, it would be in the realm of conjecture, requiring the Court to draw inference by adopting an involved process of reasoning and that would not satisfy the requirement of the pleadings of material facts. Having examined the averments the Apex Court held that material facts in relation to an allegation of corrupt practice within the ambit of Section 123(6) read with Section 77 of the Representation of the Peoples Act were lacking and, therefore, the election petition was held to 14 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath be not maintainable.
11. The Apex Court in Samant N.Balakrishna Vs. George Fernandez and others (AIR 196.SC 1201.considering the distinction between material facts and particulars held that the entire and complete cause of action must be stated in the petition in the shape of material facts. The particulars is to give necessary information to present full picture of the cause of action. The Apex Court further held that Section 83 is mandatory and requires the election petition to contain first a concise statement of material facts and then requires the fullest possible 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 a full 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. There may be some overlapping between material facts and particulars but the two are quite distinct. The 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. In stating the material facts it will not be merely to quote the words of the section because then the efficacy of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. An election petition without the material facts relating to a corrupt practice is no election petition at all.
12. Section 77 of the Act provides Account of election expenses 15 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath and maximum thereof. For ready reference section 77 is reproduced thus:-
“77. Account of election expenses and maximum thereof - (1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof, both dates inclusive. Explanation 1 - For the removal of doubts, it is hereby declared that - (a) the expenditure incurred by leaders of a political party on account of travel by air or by any other means of transport for propagating programme of the political party shall not be deemed to be the expenditure in connection with the election incurred or authorised by a candidate of that political party or his election agent for the purposes of this sub-section ; (b) any expenditure incurred in respect of any arrangements made, facilities provided or any other act or thing done by any person in the service of the Government and belonging to any of the classes mentioned in clause (7) of section 123 in the discharge or purported discharge of his official duty as mentioned in the proviso to that clause shall not be deemed to be expenditure in connection with the election incurred or authorised by a candidate or by his election agent for the purposes of this sub-section. Explanation 2 - For the purposes of clause (a) of Explanation 1, the expression “leaders of a political party”., in respect of any election, means - (i) where such political party is a recognised political party, such persons not exceeding forty in number, and (ii) where such political party is other than a recognised political party, such persons not exceeding twenty in number, 16 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath whose names have been communicated to the Election Commission and the Chief Electoral Officers of the States by the political party to be leaders for the purposes of such election, within a period of seven days from the date of the notification for such election published in the Gazette of India or Official Gazette of the State, as the case may be, under this Act: Provided that a political party may, in the case where any of the persons referred to in clause (i) or, as the case may be, in clause (ii) dies or ceases to be a member of such political party, by further communication to the Election Commission and the Chief Electoral Officers of the States, substitute new name, during the period ending immediately before forty-eight hours ending with the hour fixed for the conclusion of the last poll for such election, for the name of such person died or ceased to be a member, for the purposes of designating the new leader in his place. (2) The account shall contain such particulars, as may be prescribed. (3) The total of the said expenditure shall not exceed such amount as may be prescribed.”
. Section 78 of the Act provides lodging of account with the district election officer. Section 78 reads thus :-
“78. Lodging of account with the district election officer - (1) Every contesting candidate at an election shall, within thirty days from the date of election of the returned candidate or, if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates, lodged with the district election officer an account of his election expenses which shall be a true copy of the account kept by him or by his election agent under section 77.”
13. In the rules, namely Conduct of Election Rules, 1961, Rule 86 provides particulars of account of election expenses, which reads thus :- 17 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath
“86. Particulars of account of election expenses.- (1) The account of election expenses to be kept by a candidate or his election agent under section 77 shall contain the following particulars in respect of each item of expenditure from day to day, namely:- (a) the date on which the expenditure was incurred or authorised; (b) the nature of the expenditure (as for example, travelling, postage or printing and the like); (c) the amount of the expenditure- (i) the amount paid; (ii) the amount outstanding; (d) the date of payment; (e) the name and address of the payee; (f) the serial number of vouchers, in case of amount paid; (g) the serial number of bills if any, in case of amount outstanding; (h) the name and address of the person to whom the amount outstanding is payable. (2) A voucher shall be obtained for every item of expenditure unless from the nature of the case, such as postage, travel by rail and the like, it is not practicable to obtain a voucher. (3) All voucher shall be lodged along with the account of election expenses, arranged according to the date of payment and serially numbered by the candidate or his election agent and such serial numbers shall be entered in the account under item (f) of sub-rule (1). (4) It shall not be necessary to give the particulars mentioned in item (e) of sub-rule (1) in regard to items of expenditure for which vouchers have not been obtained under sub- rule (2).”
. Rule 87 of the Rules provides notice by District Election Officer for inspection of accounts, which reads thus :-
“87. Notice by district election officer for inspection of accounts - The district election officer shall, within two days from 18 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath the date on which the account of election expenses has been lodged by a candidate under section 78, cause a notice to be affixed to his notice board, specifying- (a) the date on which the account has been lodged; (b) the name of the candidate; and (c) the time and place at which such account can be inspected. Rule 88 of the Rules provides that any person on payment of one rupee shall be entitled to inspect an account and on payment of such fee as may be fixed by the Election Commission shall be entitled to obtain attested copies of such account or any part thereof.
14. The aforesaid provision specifically provides that the District Election Officer after lodging of the account of election expenses has to submit its report, after duly notifying all the expenses on his notice Board and any person can inspect and obtain copies of the election account submitted by the candidate. So far as the petitioner is concerned, it appears that no objection was raised by the petitioner at the time when the District Election Officer had published the accounts of respondent on the notice board.
15. not the question arises, whether if the pleadings of the petitioner are taken as it is, whether any cause of action arises against the respondent or not. In the case of Kamalnath (supra) the Apex Court has held that in respect of corrupt practice on the ground that expenditure incurred by the candidate is more than the prescribed limit, it would be necessary for the election petitioner to aver that the candidate has incurred the expenditure or has authorised any other person to incur the expenditure or that his election agent has incurred the expenditure and further the candidate has undertaken the liability to reimburse. These would constitute the material facts of an election 19 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath petition alleging corrupt practice. In the light of statutory provisions, the Apex Court has held that vague assertion that an helicopter was used for a specified number of flying hours and the standard charges for flying hour were much higher, would not necessarily constitute material fact that the candidate has spent an excess amount under Rule 90 of the Rules. In the present case as quoted hereinabove the allegations of the petitioner are that as per the letter dated April 2009 of Aviation Directorate, Madhya Pradesh Bhopal the prescribed rate for Bell - 407 helicopter was between Rs.75,000 to Rs.80,000/- per hour. On the basis of this, it is pleaded, in the entire petition, that the respondent was required to pay Rs.75,000/- per hour to the Span Airways Private Limited. Therefore the total fare was much higher, but the respondent had paid only for minutes, to which the craft was flying. It is not in dispute that the respondent had paid fare in minutes, while the case of petitioner is that respondent was required to pay Rs.75,000/- per hour to Span Airways Private Limited. In nutshell the contention of petitioner is that the respondent was required to make payment of higher amount, while he had actually paid less amount. Nowhere in the pleadings it is pleaded that the respondent had in fact incurred higher expenditure or had authorized any other person to incur the expenditure or that his election agent had incurred the expenditure and the respondent had undertaken the liability to reimburse or had reimbursed that amount. In absence of these pleadings, the pleadings as on record does not constitute a cause of action against the respondent. Until and unless petitioner specifically pleads that the respondent either himself or by his election agent had incurred expenditure in connection with the election or any other person authorised by him or by election agent, between the date, on which he was nominated and the date of declaration of result thereof he had paid or promised to pay the expenses or the respondent had promised to reimburse the aforesaid amount, the election of respondent cannot be declared as void. The essential pleadings as are required under section 77 of the Act provides specific pleadings and the petitioner ought to have alleged specifically that such higher 20 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath expenditure were incurred or promised to be incurred by the respondent or his election agent, only then the cause of action arises against the respondent for using corrupt practice in the election, as is envisaged under section 83(1)(b) of the Act. Until and unless full particulars of any corrupt practice are pleaded, no cause of action arises in the matter. Sub-section (6) of section 123 provides corrupt practice for the purpose shall be incurring or authorizing of expenditure in contravention of section 77 of the Act. Section 77 of the Act specifically provides the expenses incurred by the candidate himself or by his election agent including all the expenditure in connection with the election incurred or authorized by him or by his election agent between the date on which he has been nominated and the date of declaration of the result thereof and not which were required to be paid.
16. But in the present case there are no pleadings alleging that in fact the respondent had incurred expenditure or authorized some expenditure by himself or through his election agent. The case of petitioner is that the respondent was required to pay some higher amount, but has paid a less amount to the Span Airways Private Limited. In fact the pleadings reveals that the charges paid to the Span Airways Private Limited were shown in the accounts submitted by the respondent. There was no hidden charges which were promised to be paid by the respondent to Span Airways Private Limited, but the entire case is based on the basis of letter of Aviation Department of Madhya Pradesh that the respondent was required to pay Rs.75,000/- per hour to Span Airways Private Limited. What is provided in law is, whether in fact such an amount was paid or promised to be paid is the question which could have been tried. When there are specific pleadings that the charges were paid to Span Airways by the respondent as per the bills or agreement between the respondent and Span Airways, no cause of action arises in the matter to try the election petition to inquire into that what was required to be paid. Even if the 21 E.P.No.51/2009 Chandrabhan Singh Choudhary Vs. Kamal Nath allegations which are made in the election petition are accepted as it is, even then no cause of action arises against the respondent in respect of use of any corrupt practice by the respondent in the election.
17. not another contention of the petitioner in respect of expenses by Star Pracharak that 50% amount was shown by the respondent, while he was liable to make payment of full amount, may be looked into. It is not in dispute that the aforesaid persons namely; Shri Atul Sharma and Shri Batuk Joshi were Star Pracharaks authorized by the recognized party. Their expenditures were debited to the tune of 50% in the account of respondent, as per the communication by the recognised party, which the respondent had shown in his account. When the respondent had shown the aforesaid expenditure in the account, then it cannot be inquired that what was required to be paid, so matter is squarely covered by the judgment of the Apex Court in Kamalnath (supra) and in the light of the aforesaid judgment it is held that no cause of action arises in the matter.
18. In view of aforesaid discussion, it is held that this election petition has been filed without cause of action and is accordingly dismissed, with no order as to costs. The security deposited by the petitioner be returned to him by the registry after the period of appeal. (Krishn Kumar Lahoti) JUDGE 8 11.2012 M.