| SooperKanoon Citation | sooperkanoon.com/123866 |
| Subject | ;Election |
| Court | Guwahati High Court |
| Decided On | Oct-31-2007 |
| Judge | B.D. Agarwal, J. |
| Appellant | Paonam Achou Singh |
| Respondent | Laishram Nandakumar Singh and ors. |
| Disposition | Application allowed |
| Prior history | B.D. Agarwal, J. 1. This miscellaneous application has Stemmed out of Election Petition No. l of 2007. The election petitioner, namely, Shri Paonam Achou is challenging the election of the respondent No. 1, namely, Shri Laishram Nandakumar Singh, who has been elected to the 9th, Manipur Legislative Assembly from 10-Uripok Assembly Constituency. The election result was declared on 27.02.2007. In the said election the petitioner has been defeated by the respondent No. l by 971 votes. Being unsa |
B.D. Agarwal, J.
1. This miscellaneous application has Stemmed out of Election Petition No. l of 2007. The election petitioner, namely, Shri Paonam Achou is challenging the election of the respondent No. 1, namely, Shri Laishram Nandakumar Singh, who has been elected to the 9th, Manipur Legislative Assembly from 10-Uripok Assembly Constituency. The election result was declared on 27.02.2007. In the said election the petitioner has been defeated by the respondent No. l by 971 votes. Being unsatisfied with the election process and election of the respondent No. 1 for the aforesaid Assembly Constituency, the above named defeated candidate has filed the connected election petition under Sections 80-A read with Section 81 of the Representation of Peoples Act, 1951 (briefly 'ROP Act'). In the election petition, apart from seeking declaration that the election of the respondent No. 1 is null and void, the petitioner has also made an alternative prayer to declare him as lawfully and democratically elected.
2. The election of the respondent No. l has been basically challenged on the ground that the Electronic Voting Machines (EVMs) at few polling stations were not properly stored/deposited and votes were manipulated and tampered in favour of the returned candidate in the process of installation, closing and storing of EVMs.
3. The returned candidate i.e., the respondent No. 1 has contested the case by filing his written statement. The respondent Nos. 2,3, 4, 5 and 6 are the remaining candidates of the election and they have not filed their written statement either to oppose or support the election petition. Only in the miscellaneous application, one Shri K. Kumar, learned Counsel appeared on behalf of the respondent No. 3. However, since the hearing of election petition is already proceeding ex-parte, the respondent No. 3 's presence in the miscellaneous case is immaterial, more so, in absence of any counter-objection. The respondent No. 7 is the Returning Officer. He was represented by Shri N. Ibotombi Singh, learned Counsel, who supported the miscellaneous application to dismiss the election petition.
4. As usual, at the threshold of trial of the election petition, the respondent No. 1 has filed this application under Section 86 (1) of the Representation of People Act, 1951 (the 'ROP Act) read with Order 7 Rule 11 of the Code of Civil Procedure seeking dismissal of the election petition. The maintainability of the election petition has been primarily assailed on 5(five) counts:
(i) That, the Security money was not deposited while filing the election petition nor any challan, showing deposit of security money, was enclosed with the election petition thereby violating mandatory provisions of Section 117 of the ROP Act;
(ii) That, the petitioner has impleaded the Returning Officer as one the respondents and, as such, the election petition is also liable to be dismissed on the ground of mis-joinder of parties;
(iii) That, spare copies of election petition were not filed as required under section 81(3);
(iv) That, there was no proper verification of annexures of the election petition as required under section 83(2) and
(v) That, the election petitioner has failed to disclose material facts of corrupt practice in the election petition, which is violative of Section 83 of the ROP Act.
5. It may be mentioned here that the respondent has also filed a separate application alleging non-compliance of Section 117 of the ROP Act. This application has been registered as M.C. (E.P) No. 7 of 2007 and has been tagged with M.C.(E.P) No. 3 of 2007. Both the applications are being disposed-of by this common order. The election petitioner has filed his written objection to repel the preliminary objections raised by the respondent No. 1.
6. For convenience, I shall refer the parties as per their status in the election petition.
7. Heard the argument of Shri N.PC Singh, learned senior counsel assisted by Mr. Th. Babloo, advocate for the respondent No. 1/applicant of the miscellaneous application and Shri H.N.K. Singh, learned senior counsel assisted by Mr. Kh. Babulindro, advocate for the election petitioner. Shri K. Kumar, learned Counsel appeared for the respondent No. 3 and without any elaborate submissions he has supported the election petitioner. I have already noted earlier that main suit is proceeding ex-parte against the respondent No. 3. However, Shri N. Ibotombi, learned Counsel appearing for the Returning Officer (respondent No. 7) confined his argument to submit that the election official is not a necessary party and the name of respondent No. 7 should be deleted from the election petition.
8. To decide the preliminary objections, it would be necessary to refer to the provisions of Sections 81(3), 82,83, 86(1) and 117 of the ROP Act, which are reproduced below:
81 Presentation of Petition.-
(i) **** ***** *****
(2) **** ***** *****
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
82. Parties to the petition.-A petitioner shall join as respondents to his petition -
(a) Where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) Any other candidate against whom allegations of any corrupt practice are made in the petition.
83. Contents of petition.- (1) An election petition -
(a) Shall contain a concise statement of the materials 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; and
(c) Shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings:
Provided that 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.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
86. Trial of election petition.- (1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 117.
117. Security for costs.- (1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with rules of the High Court a sum of two thousand rupees as security for the costs of the petition. (Italics by me)
(2) During the course of the trial of an election petition, the High Court may, at any time, call upon the petitioner to give such further security for costs as it may direct.
9. The Gauhati High Court has also framed rules for the trial of election petitions. Chapter VIII-A has laid down the aforesaid procedures and for the purpose of disposal of this miscellaneous application, it is necessary to reproduce Rule 1, Rule 1 (d) and Note II, which relates to requirement of deposit of security amount along with the election petition and the rules are as below:
1. An election petition under Section 80-A of Representation of Peoples Act may be presented duly verified in the form prescribed under Sections 82 and 83 of the said Act before the stamp reporter of this Court with a Court fee of Rs. 6.00 affixed thereon, within 45 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 latter of those two dates. Every such petition shall be accompanied by-
(a) ***** ***** *****
(b) ***** ***** *****
(c) ***** ***** *****
(d) A challan showing the deposit of Rs. 2000(Rupees two thousand) into the State Bank of India, Gauhati Branch in favour of the Registrar of the Court, as security for the costs of the petition.
Provided that such deposit in respect of petition to be filed in the Benches at Kohima, Imphal and Agartala may be made in the State Bank of Kohima, Imphal and Agartala, as the case may be, in favour of the Deputy Registrar of the Bench concerned.(Italics mine)
Noted)- ***** ***** ***
Note(II)- Any petition which is presented out of time and without any of the above mentioned requisites duly satisfied shall forthwith be returned by the stamp reporter for refilling
10. Ground No. (i) : Security Deposit Challan:
Non-deposit of security money and a copy of the challan with the election petition is the first and foremost objection about the maintainability of the election petition itself. Shri N.PC Singh, learned senior counsel for the respondent No. 1 submitted that election petition was submitted in the Registry of the High Court on 11.4.2007 whereas the security deposit was made in the Treasury on 12.4.2007. Learned Counsel contended that under section 117 of the ROP Act the security deposit of Rs. 2000/- must be deposited at the time of presenting the election petition and any subsequent deposit cannot cure the inherent defect in the election petition. Elaborating his submissions, the learned Counsel for the respondent No. 1 submitted that the deposit of security money along with election petition is mandatory and any violation of this law would entail dismissal of the election petition under section 86. Learned Counsel for the respondent No. 1 further submitted that the Gauhati High Court Rules have further clarified that every election petition must be accompanied by a challan showing deposit of Rs. 2000/-. However, according to the learned Counsel, this mandatory formality was done on the next day, which is beyond condonation.
11. Shri NPC Singh, learned senior counsel for the respondent No. 1 also took the help of plethora of authorities and judicial pronouncements from the Hon'ble Supreme Court to buttress his point that deposit of security money at the time of presentation of election petition is sine qua non and any infraction in this regard invites dismissal of the election petition in limine. Learned Counsel also pleaded that ROP Act is a self-contained code and being a special statute, the High Court cannot exercise its discretionary powers conferred under general laws like the Limitation Act or Code of Civil Procedure. In support of this submission the learned Counsel also relied upon the judgments of Hon'ble Supreme Court rendered in the case of Charan Lal Sahu v. Nandakishore Bhatt and Ors. : [1974]1SCR294 ; Aeltemesh Rein v. Chandulal Chandrakar : [1981]3SCR142 and M.Y. Ghorpade v. Shivaji Rao M. Poal and Ors. : [2002]SUPP2SCR99 .
12. Countering the submissions advanced on behalf of the respondent No. 1, Shri H.N.K. Singh, learned senior counsel for the election petitioner submitted that the delay in depositing security money was not on account of any latches or negligence on the part of the petitioner but delay of one day was caused in processing the challan by the High Court registry. It was also the contention of the learned Counsel for the election petitioner that admittedly, security money was deposited within 45 days of declaration of the election result and as such, non-enclosure of the challan along with election petition cannot be termed as fatal.
13. Infraction of Section 117 of the ROP Act was also defended on the ground that under High Court Rules if any election petition is defective and does not satisfy the requirements of law the same should be returned to the presenter. However, since it was not done by the Registry, the election petitioner deposited the challan on the next day presuming that it was permissible. In support of his submissions, learned Counsel for the election petitioner relied upon the judgment of Hon'ble Orissa High Court given in the case of Kanak Vardhun Singhdeo v. Sri Bibekananda Meher and Ors. reported in AIR 1991 Orissa 234)
14. Apparently and admittedly, two facts are undisputed. Firstly, that challan for security deposit was not enclosed with the election petition and secondly, that the deposit was made within 45 days of statutory period for filing the election petition. Hence, the only question which remains to be examined is whether the aforesaid defect in the presentation of election petition would entail dismissal of the same or whether the deposit can be construed as in conformity to the law.
14.1 Before addressing the aforesaid legal issue, it would be apposite to reproduce the relevant averments of the election petitioner regarding deposit of security money, which is as below:
9. That as regards the allegations made in the sub-para No. 1.1 of the para No. 3 of the preliminary objection, the election petitioner/ present answering respondent humbly begs to submit that the election petition was filed on 11.4.2007 along with the requisite security of Rs. 2000/- and the Treasury Challan showing the deposit of Rs. 2000/-(Rupees two thousand) had been filed on 12.4.2004 as the process for passing the Challan by the Treasury Office could not be completed on 11.4.2007 due to paucity of time and also due to the aforesaid reasons specifically stated/ mentioned in the para No. 7 of the accompanying affidavit-in-op-position/written statement.
15. In the case of Charan Lal Sahu (supra), the Hon'ble Supreme Court had the occasion to examine the mandatory character of section 117 of the ROP Act and made the following eloquent observations:
Presentation of the petition under the repealed Section 81, beyond the period prescribed for its presentation could be condoned by the Election Commission in its discretion under the proviso to the repealed Section 85 of the Act, but there is nothing in Section 85 which permits the Election Commission to condone the non-compliance with the provisions of Section 117. Before the amendment of the Act in 1966, once the Election Commission finds the election petition to be in order and does not dismiss it under Section 85 for non-compliance with the requirements of Sections 81, 83 and 117, it has to appoint an Election Tribunal for the trial of the petition. The trial by the Tribunal therefore is only after compliance with the mandatory provisions prescribed in Sections 81,83 and 117 so that the trial is unrelated to the non-compliance by the petitioner with the requirements of Section 117. After the amendment, the jurisdiction of both the Election Commission and the Tribunal in respect of election disputes has been abolished and the High Courts of respective States have been vested with the jurisdiction in this regard. But the conferment of jurisdiction to entertain, try and determine an election petition has not in any way materially affected the position stated by us, as will be presently indicated.
16. The judgment of the Hon'ble Apex Court given in the case Aeltemesh Rein v. Chandulal Chandrakar AIR 1981 SCJ 199 was also relied upon by the respondent. In this case, the election petition was not accompanied by security deposit of Rs. 2000/- and because of this non-compliance of law, the election petition was dismissed. The dismissal of the election petition for non-deposit of security money was upheld following the ratio laid down by the Hon'ble Apex Court in the case of Charan Lal Sahu (supra).
17. The question of consequence of non-deposit of security for costs along with election petition was again examined by the Hon'ble Apex Court in the case of M.Y. Ghorpade (supra). In this case also, the Hon'ble Apex Court reiterated the fall-out of non-deposit of security money in the following words;.There cannot be any dispute that if the High Court comes to the conclusion that the election petition had not complied with the provisions of Section 117, then that election petition has to be dismissed.
18. The rigidity of ROP Act has been clearly spelt-out in the case of Jyoti Basu v. Debi Ghosal : [1982]3SCR318 . In this authority, the Hon'ble Supreme Court has firmly stated that adherence to the provisions of ROP Act in its letter and spirit is the rule and there can be no departure from the mandatory provisions on the ground of equity in the following authoritative words:
A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the light to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus, the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?.
19. The aforesaid survey of authorities from the Hon'ble Supreme Court does not lead to draw any inference other than that compliance of Section 117 is mandatory and any infraction thereof certainly becomes fatal and the court has no discretion except to dismiss such election petition under section 86 of the ROP Act. In other words, the language of Section 86 does not admit any other interpretation. The High Court cannot dilute the rigour of Section 117 to any extent as it would amount to going against the mandate and spirit of the election law.
20. The judgment of Orissa High Court relied upon by the learned Counsel for the election petitioner is on different footing and distinguishable on facts. It is a case of non-furnishing of the copy of challan and not a case of default in depositing the security money. In the case at hand, there is an express admission on the part of the petitioner that neither the security money was deposited beforehand nor the challan was enclosed with the election petition. Section 117 of the ROP Act speaks of deposit of security money in the High Court and the Gauhati High Court Rules have further clarified that the deposit should be by way of enclosing a challan along with election petition showing deposit of Rs. 2000. I have also browsed the disputed challan which clearly shows that the security money was deposited in the bank only on 12.4.2007 and as such, apparently, it was not a part of the election petition. I also put on record that the entire process of depositing the money was initiated on 12.4.2007 i.e. post filing of election petition. It is true that High Court registry ought to have returned the election petition with the aforesaid endorsement but this administrative omission cannot confer legal jurisdiction to the High Court to relax the mandatory requirements of Section 117.1 say so because the law casts a duty upon the election petitioner to deposit the security money in advance and the election petition must accompany a copy of challan as a proof of deposit. In my considered view, this burden of the election petitioner can neither be shifted nor can it be diluted. Having not complied with this mandatory provision of law, the election petition is liable to be dismissed on this score alone.
21. One more additional peculiarity of the challan in question is that the money of Rs. 2000/- has been deposited on account of costs of 'recrimination petition' and not as security deposit for the election petition. It is needless to mention here that recrimination petition ordinarily comes from returned candidate or any other party and not from the election petitioner himself. Hence, the challan filed by the election petitioner also cannot be accepted as a challan for depositing security money in favour of the election petitioner.
22. In this regard, learned Counsel for the election petitioner submitted that the challan was prepared by the officials of the High Court registry and as such, the petitioner cannot be penalised for the aforesaid defect. In my considered opinion, such an alibi is misplaced and not acceptable as it would amount to thwarting the mandatory law. Be that as it may, the aforesaid submission is also not based on pleading. Hence, over-ruled
23. Ground No. (ii): Misjoinder of Parities:
This is the second technical objection raised on behalf of the respondent. Shri NPC Singh, learned Counsel for the respondent No. 1 submitted that only the returned candidate is a necessary party in an election petition and impleading of other candidates of the election for the same constituency also becomes necessary, if further declaration is sought for to declare the election petitioner as duly elected. According to the learned Counsel, the ROP Act does not permit impleading of any person or authority other than those mentioned under section 82, which speaks of impleadment of candidates only. It was the contention of the learned Counsel that any such election petition, impleading other parties should necessarily be declared as frivolous, vexatious and mis-leading and Section 86 mandates that such petition should be dismissed in limine. In support of this submission, learned Counsel for the respondent No. l cited the judgment of Hon'ble Supreme Court rendered in the case of Jyoti Basu v. Debi Ghosal : [1982]3SCR318 and the case of B. Sundara Rami Reddy v. Election Commissioner of India and Ors. reported in 1991 Suppl (2) SCC 624.
24. Shri N. Ibotombi, learned Counsel appearing for the respondent No. 7 also supported the respondent's pleading that the Returning Officer is not at all a necessary or proper party to be impleaded in the election petition. The learned Counsel also relied upon the judgments of Jyoti Basu (supra), the judgment of Rajasthan High Court rendered in the case of Dr.(Smt.) Shipra v. Shri Shanti Lal and the judgment of Bombay High Court given in the case of Ganesh Ramchandra Naik v. Sitaram Bhoir and Ors. reported in : AIR2000Bom294 .
25. In reply to the aforesaid submission, Shri H.N.K. Singh, learned Counsel for the election petitioner submitted that there is no fundamental infirmity in impleading the Returning Officer as a party in the election petition and in support of this submission, the learned Counsel relied upon the judgment of Calcutta High Court rendered in the case of Dwijendra Lal Sen Gupta v. Harekhshna Konar : AIR1963Cal218 . An alternative submission was made that at best if the court considers that the Returning Officer is not a necessary party, his name may be struck-out from the plaint. This submission was made on the basis of the judgment of Hon'ble Supreme Court given in the case of Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors. : [1964]3SCR573 .
26. In the case of Murarka Radhey Shyam Ram Kumar (supra), the Hon'ble Apex Court has held that if all the necessary parties envisaged under section 82 are impleaded the election petition cannot be thrown over-board just because a person who is not a necessary party is also arrayed as a respondent. The Calcutta High Court has no doubt held that in appropriate cases, the Returning Officer can be impleaded if there are allegations of bad faith, mis-conduct and impropriety on the part of the said officer besides allegation of illegalities etc. in the election. However, this view of Calcutta High Court given in the case of Dwijendra Lal (supra) appears to be a minority view inasmuch the Rajasthan and Delhi High Courts have taken other view. Be that as it may, the judgment of Hon'ble Supreme Court rendered in the case of Jyoti Basu (supra) has settled the issue in clear terms by observing:
We think that the concept of 'proper parties' is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86 (4) and no others. However, desirable and expedient it may appear to be, none else shall be joined as respondents.
27. Section 82 of the ROP Act has al-'' ready been quoted in this judgment. Aplain and harmonious reading of this provision shows that the law in this regard is inclusive in nature. In the case of Murarka Radhey Shyam Ram Kumar (supra), the Hon'ble Supreme Court has observed that the words 'no others' cannot be read in Section 82. This observation of the Hon'ble Apex Court somehow keeps the window open to admit the Returning Officer as a party in an election petition, if it is felt necessary.
28. Coming to the case at hand, I find that '''the only allegation against the respondent No. 7 is that he did not follow the necessary directions in storing and depositing the EVMs. In my considered opinion, such statement can be said to be a part of the grounds for declaring the election void and it does not permit the petitioner to implead the Election Officer as a party in the case. I find that the election petitioner has not justified in his election petition as to why the Returning Officer is a necessary party and how he will be prejudiced without impleading him as a respondent. Having regard to all the aspects, I hold that the Returning Officer is not a necessary party in this case and the name of respondent No. 7 stands struck-off from the list of respondents.
29. Ground No. (iii): Filing of Spare Cop-
This technical objection has been raised on the basis of Section 81(3) which mandates filing of copies of the election petition commensurate to the number of respondents. In my considered opinion, there is no foundation for this ground inasmuch as there is no complain that the respondents did not receive any copy of the election petition with notice. At the same time, I find from the record that the petitioner has also submitted an extra copy of the election petition. Hence, the objection is untenable on facts.
30. Ground No. (iv): Verification of Copies:
It is the submission of the learned Counsel for the respondents that Sub-section (2) of Section 83 of the ROP Act mandates that all the annexures to the election petition must be attested and verified by the petitioner. However, in the present case, annexures to the election petition were not duly verified. Learned Counsel submitted that any contravention of Section 83(2) is fatal and the court has to dismiss the election petition on this count also. To buttress his submission, the learned Counsel hesitatingly referred to the judgment of Hon'ble Apex Court given in the case of Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar : AIR2005SC547
31. Per contra, it was the submission of the learned Counsel for the election petitioner that insignificant defects and omissions in the election petition are curable. To support his submission, learned Counsel took the assistance of two judgments of the Hon'ble Apex Court rendered in the case of T. Phunjathang v. Hangkhanlian and Ors. : AIR2001SC3924 and that of G Mallikarjanappa v. Shamanur Shivashankarappa : AIR2001SC1829 .
31.1 I need not discuss the aforesaid authorities in detail inasmuch as the facts of the authorities are not befitting in the situation before me. In the case at hand, only the annexures to the election petition were filed in the court without verification and a preliminary objection was also raised earlier by the respondent in this regard. The aforesaid objection was registered as MC (Elec.Petn.) Case No. 4 of 2007 and vide order dated 21.8.2007, verified annexures were accepted by this Court. Hence, it is not permissible for me to re-open the decided issue.
32. Ground No. (v): Omission of material facts:
Lastly, Shri N.PC Singh, learned senior counsel for the respondent No. 1 pointed out that Section 83 of the ROP Act postulates reciting of concise statements of material facts on which the election is assailed. The learned Counsel also submitted that an election petition can also be rejected under Order VII Rule 11 of the Code of Civil Procedure, where it does not disclose cause of action inasmuch as Section 87 of the ROP Act permits invoking of the provisions of CPC. According to the learned Counsel, although the election of the respondent No. 1 has been assailed on the ground of adopting corrupt practices but sufficient details of such corrupt practices have not been disclosed in the election petition and as such, it is total non-compliance of Section 83. Elaborating his submission in this regard, learned Counsel for the respondent No. 1 submitted that corrupt practice has been defined in Section 123, which includes interference and influencing free exercise of franchise by the voters or any process of the election. This submission was made with the aid of Section 83(2) of ROP Act. Learned Counsel further contended that even Order 7 Rule 11 of the Code of Civil Procedure also prescribes rejection of a plaint where the plaintiff fails to disclose cause of action. In support of this submission, learned Counsel relied upon the judgment of Hon'ble Supreme Court given in the case of Azhar Hiissain v. Rajiv Gandhi reported in : [1986]2SCR782 , Harkirat Singh v. Amarinder Singh : AIR2006SC713 and Virender Nath Gautam v. Satpal Singh and Ors. : AIR2007SC581 .
33. Per contra, Shri H.N.K. Singh, learned senior counsel for the election petitioner submitted that cause of action is a bundle of facts and it has to be ascertained after harmonious reading of the pleading. It was also contended that the election of the respondent has been basically challenged on the ground of noncompliance of guidelines issued by the Election Commission of Indiaregarding use, preservation and storing of EVMs and not on the ground of corrupt practice. Learned Counsel for the election petitioner also referred to Section 83 and pleaded that lull particulars of the allegations are required only if there is any allegation of adopting corrupt practice by the returned candidate and if the election is challenged on other grounds, brief and concise statement would suffice the urge of the law. Learned Counsel also cited authorities from the Hon'ble Supreme Court rendered in the case of Bhagwati Prasad v. Chandramaul : [1966]2SCR286 , Udhop Singh v. Madhav Rao Schindia (1997) 1 SCC 511 and that of Rajasthan High Court given in the case of Kalyan Mal Mina v. Ratan Lal Tambi .
34. In the case of Bhagwati Prasad (Supra), it has been held that considerations of form cannot over-ride the legitimate considerations of substance. It has been further observed that what the court has to consider in dealing with such an objection regarding deficiency in pleading has to ascertain whether the defence is able to determine the disputes involved in the suit and that they have led evidence in that regard. Apparently, these observations have been made in a civil suit. In other words, the aforesaid authority is not based on the strict principles of ROP Act.
35. In the case of Udhop Singh (supra), the Hon'ble Apex Court has held that the pleading has to be read as a whole to ascertain its true import. Their Lordships further distinguished 'material facts' and 'material particulars' and held that while material facts must be incorporated in the election petition, material particulars can be supplied later on during the course of the trial.
36. The judgment of Kalyan Mal Mina (supra) from the Rajasthan High Court is not an authority on the question whether incomplete disclosure of facts in the election petition would entail its dismissal.
37. In the case of Harkirat Singh (supra), relied upon by the respondent No. 1, the Hon'ble Supreme Court has distinguished the phrases 'material facts' and 'material particulars' in the following words:
50. A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise.
51. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.
38. The question whether an election petition can be summarily rejected at it's threshold for want of furnishing of essential facts was considered by the Hon'ble Supreme Court in the case of Hardwari Lal v. Kanwal Singh : [1972]2SCR742 . The Apex Court enunciated the law in this way:
The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to which kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen of the charge of corrupt practice within the meaning of Section 123 (7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action. Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the Act. It was emphasized that Section 83 did not find place in section 86. Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure 1908 to the trial of the suits. A suit which does not furnish cause of action can be dismissed.
39. Yet again in the case of Azhar Hussain v. Rajiv Gandhi : [1986]2SCR782 , the Hon'ble Supreme Court has held that an election petition can be dismissed in limine for non-supply of material facts with the aid of Order 6 Rule 16 CPC for non-compliance of requirements of Section 83 of the ROP Act. While holding so the Hon'ble Apex Court has thoroughly approved the view taken in the case of Hardwari Lal (supra). The relevant observations made in the case of Rajiv Gandhi (supra) are extracted below:
9. The fact that Section 83 does not find a place in Section 86 of the Act does not mean that powers under the CPC cannot be exercised. 10. There is thus no substance in this point which is already concluded against the appellant in Hardwari Lal v. Kanwal Singh : [1972]2SCR742 wherein this Court has in terms negatived this very plea in the context of the situation that material facts and particulars relating to the corrupt practice alleged by the election petitioner were not incorporated in the election petition as will be evident from the following passage extracted from the Judgment of A.N. Ray, J, who spoke for the three-judge Bench: (passage has already been quoted in the preceding paragraph).
11. In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with....
40. In the light of the aforesaid authorities, there can be no two views that while ascertaining the actual issues involved in the suit, it is necessary to go into thematic contents of the entire pleading as a whole. However, while entertaining the election petition, the aforesaid principle of law has to be applied in letter with all rigidity sans spirit of the general law, namely the Code of Civil Procedure. I am fortified to hold so in the light of the observations made by the Apex Court in the cases of Jyoti Basu; Harkirat Singh and Rajiv Gandhi (supra).
41. For the purpose of this case, only the definition of corrupt practice given in Section 123(2) of the ROP Act is relevant. Hence, for ready reference, the said provision of law is reproduced below:
123. Corrupt practice.- The following shall be deemed to be corrupt practices for the purposes of this Act:
(1) **** ***** *****
**** ***** *****
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that -
(a) Without prejudice to the generality of the provisions of this clause any such person as is referred to therein who -
(i) Threatens any candidate or any elector, or any person in whom a candidate or an elector is interested with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or
(ii) Induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.
42. Now, it has to be ascertained whether the election petitioner has, in fact, challenged the election of the respondent No. l on the allegation of corrupt practice. This finding is necessary because Section 83 is very specific, which requires setting forth of full particulars of corrupt practice allegedly adopted by the returned candidate. There were rival claims in this regard. While the learned Counsel for the respondent No. 1 insisted that there is allegation of corrupt practice whereas according to the learned Counsel for the petitioner, election has not been challenged on the ground of corrupt practice. In my considered opinion, this scrutiny assumes importance since the election petition can be rejected at its threshold if it is found that election has been challenged on the ground of adopting corrupt practice by the returned candidate, without specifying the same in the pleading.
43. To resolve the above controversy, it is necessary to look at the allegations made in the election petition. In paragraph No. 11, the petitioner has mentioned about discrepancies, inter-alia, in the number of votes shown to have been polled as per form No. 17-C and the difference of votes counted by the EVMs in few polling stations. Apparently, this allegation does not come within the sweep of 'corrupt practice'. In other words, the allegation made in paragraph No. 11 of the election petition is covered by the ground No. (d) (iii) of Section 100(1) of the ROP Act. However, the objection of the respondent is with regard to the allegations made in paragraph No. 17. For ready reference, statements made in this paragraph are reproduced be-low:
17. That the returned candidate, the respondent No. l was holding the portfolio of Education and Revenue Departments and most of the election officers utilized in the aforesaid voting and the counting of votes i.e. in the whole process of election are admittedly all his subordinate Officers.
44. As noticed earlier, the definition of 'corrupt practice' given in Section 123 is elaborate and an exhaustive one. It embodies any kind of influence, interference, attempt to interfere with the free exercise of franchise, threat to any candidate or elector, etc. or any kind of inducement to a candidate or an elector. In paragraph No. l 7, the election petitioner has alleged that the respondent No. 1 was earlier holding the portfolio of Education and Revenue Departments and good number of officers from the aforesaid departments were utilized in the election process. A careful reading of the statements clearly goes to show that the election petitioner has made the allegation of using one time subordinate officers by the returned candidate to influence the, election in his favour.
45. Under section 83 of ROP Act, an election petition must contain a concise statement of material facts and particularly set-forth full particulars of corrupt practice, if alleged. In the case at hand, the language of paragraph No. 17 clearly indicates adopting corrupt practice through the officers of Education and Revenue Departments but the petitioner has stoically and intentionally withheld to elaborate the manner and method of prejudicially affecting the election. Even otherwise, the petitioner was duty bound to elaborate his : allegation, be it covered in the ground of corrupt practice or not. Hence, it is a clear case of non-furnishing of concise statements of material facts as embodied under section 83 of the ROP Act.
46. Shri H.N.K. Singh, learned senior counsel for the election petitioner submitted that the election of the respondent No. 1 has been challenged only under section 100 (1) (d) (iii) and (iv) of the ROP Act and as such, the petitioner was not obliged to supply particulars of the allegation of misuse of one time subordinate officers. After going through the allegations made in paragraph No. 17,1 find no difficulty to bold that the allegation of participation of officers of Education and Revenue Department having allegiance to the respondent No. 1, being his one time subordinate officers, clearly indicates that the returned candidate had used those officers to influence the election in his favour by way of tampering the EVMs.
47. In my considered opinion, it is immaterial that the election petitioner has not invoked Clause (d) (ii) of Section 100 (1) of the ROP Act, which speaks about challenging the election on the ground of adopting 'corrupt practice'. The sum and substance of the allegation is of corrupt practice and as such, the petitioner was duty bound to state material facts as to how few officers of Education and Revenue Departments had influenced the election. For not doing so, it can be safely hold that the petitioner has suppressed material facts and the election of the respondent No. 1 has been assailed with vague allegations.
48. In view of the law laid by the Hon'ble Apex Court in the cases of Hardwari Lal and Rajiv Gandhi (supra), the election petition is also liable to be dismissed in view of the material, significant and statutory deficiency in the election petition.
49. For the reasons alluded and assigned hereinabove I am constrained to hold that the Election Petition is not maintainable in law for non-deposit of security money in time and also for non-disclosure of material facts of corrupt practice. In other words I find sufficient force in the preliminary objections and those are accepted. Both the miscellaneous applications are hereby accepted and allowed. However, there shall be no separate order to cost.