| SooperKanoon Citation | sooperkanoon.com/761031 |
| Subject | Election |
| Court | Rajasthan High Court |
| Decided On | May-20-2008 |
| Judge | Gopal Krishan Vyas, J. |
| Reported in | RLW2008(4)Raj2852 |
| Appellant | Smt. Kiran Kanwar |
| Respondent | District and Sessions Judge and ors. |
| Disposition | Petition dismissed |
| Cases Referred | In V.S. Achuthanandan v. P.J. Francis |
Gopal Krishan Vyas, J.
1. In this writ petition petitioner has prayed for quashing the order dated 10/11/2006 (Annex.4) passed by District and Sessions Judge, Bikaner in election petition preferred by respondent No. 3 against the petitioner, who was declared elected on the post of Sarpanch of Gram Panchayat, Jhajhu by a margin of six votes.
2. In the writ petition it is stated by the petitioner that petitioner and respondent nos. 3 and 4 contested the election for the post of Sarpanch, Gram Panchayat, Jhajhu. The said election was held on 21/1/2005 and on the same day result of election was declared in which petitioner was declared elected as he got highest number of votes, more specifically petitioner got 1562 votes, whereas respondent nos. 3 and 4 got 1271 and 1556 votes respectively. Further, it is stated that 123 votes were declared invalid.
3. Against the said result of election, election petition was preferred by respondent No. 3 under Section 43 of the Rajasthan Panchayati Raj Act, 1994 (hereinafter referred to as `the Act of 1994') read with Section 80 of the Rajasthan Panchayat Raj (Election) Rules, 1994 before the District and Sessions Judge, Bikaner. The main ground taken by the election petitioner before the Election Tribunal that corrupt practice was adopted by the husband of petitioner and her supporters. In the election petition, reply was filed by the petitioner and she disputed the allegation of respondent No. 3 with regard to corrupt practice and specific objection was raised that upon perusal of averments contained in election petition No. 5A to 5L, it is clear that those averments do not disclose any cause of action regarding allegation of corrupt practice. As per petitioner, in absence of any specific allegation of corrupt practice, no election petition can be entertained, therefore, at the threshold the Election Tribunal ought to have dismissed the said election petition.
4. After filing written statement, three issues were framed by the Election Tribunal, Bikaner on 10/1/2006 and out of 3 issues framed by the Election Tribunal issue No. 3 was to be decided on as preliminary issue. Accordingly, vide order dated 10/11/2006 issue No. 3 was decided in favour of respondent No. 3 and against the petitioner the said order is under challenge in this petition.
5. Counsel for the petitioner, first of all, vehemently argued that election petition filed against her does not disclose any cause of action and the averments made in the election petition are totally vague and not specific with regard to allegation levelled against husband of petitioner and her supporters and this fact was brought to the notice of Election Tribunal but at the time deciding issue No. 3 the Election Tribunal has committed an illegality in deciding the issue No. 3 in favour of election petitioner. As per counsel for the petitioner the learned Election Tribunal has committed an error while not taking into consideration the principle laid down by this Court and by Apex Court in the matter of corrupt practice, therefore, the order dated 10/11/2006 (Annex.4) deserves to be quashed.
6. Learned Counsel for the petitioner vehemently aruged that not only the Election Tribunal has committed an error while ignoring the fact that there is no existence of cause of action in the election petition but has failed to consider the fact that the Apex Court as well as various High Courts including Rajasthan High Court has specifically laid down the law that allegation regarding corrupt practice should be specific and on the basis of vague allegations the Election Tribunal shall not entertain election petition, therefore, obviously this aspect of the matter has completely been ignored by the Election Tribunal while passing the order dated 10/11/2006, therefore, the order impugned is contrary to the law laid down by the Hon'ble Apex Court and this Court.
7. It is also argued by learned Counsel for the petitioner that there was no material evidence or ground in the election petition that alleged corrupt practice was committed with the consent of petitioner, therefore, in absence of specific allegation of corrupt practice, which was said to be committed by the supporters of petitioner with her consent, no election petition can be entertained because consent of the candidate is essential ingredient in cases of corrupt practice and in absence of which, the charge of corrupt practice cannot be sustained. As per learned Counsel for the petitioner, Election Tribunal has acted illegally in coming to the conclusion that proof regarding corrupt practice in the case where election of Gram Panchayat is under challenge is not too strict as it is required under the Representation of People Act, 1951. In this regard it is submitted that said finding given by Election Tribunal is absolutely without jurisdiction as the burden of proving the charge of corrupt practice is equally applicable on a person challenging the election of a Sarpanch of Gram Panchayat as it is in the case relating to election under Representation of People Act, 1951, therefore, it is obvious that the Election Tribunal has acted in mechanical manner and decided issue No. 3 in favour of respondent No. 3. It is, therefore, prayed that writ petition may be allowed and order impugned may be set aside.
8. In support of his contentions, learned Counsel for the petitioner as invited the attention of this Court towards following judgments:
(i) (1996) 3 WLC 161 Smt. Manju Sharma v. Suji Sharma and Anr.
(ii) : AIR2001SC3689 Hari Shanker Jain v. Sonia Gandhi
(iii) : AIR2006SC713 Harikirat Singh v. Amarinder Singh
9. While citing above judgments it is argued that in the election petition it is necessary that allegations of corrupt practice should be specific and material facts and particulars are required to be disclosed and upon perusal of election petition material facts and particulars are not in existence with regard to alleged corrupt practice committed by the petitioner's husband and supporters with her consent.
10. While referring to 1996 (3) WLC 161 (Smt. Manju Sharma v. Suji Sharma and Anr.) it is submitted that learned Single Judge of this Court has held that election petition must disclose cause of action by pleading all material facts and if petition does not disclose cause of action then said petition is liable to be rejected at preliminary stage. Further it is held that there being no provision for revision or appeal against order of Addl. Civil Judge overruling preliminary objection under Order 7 Rule 11 CPC, writ petition against said order is maintainable. It is also held that provision of Representation of People Act and principles embodied therein shall apply to petitions under Rajasthan Panchyati Act. More specifically learned Counsel for the petitioner invited attention towards para nos. 9, 15 and 16 of said judgment. While citing above judgment, it is submitted that in this case finding of learned Election Tribunal is totally perverse and against the law laid down by court of law.
11. For the purpose of disclosing material facts in election petition, learned Counsel for the petitioner relied upon Hari Shanker Jain's case (supra) and vehemently argued that Hon'ble Apex Court in para nos. 22 and 23 has held that Section 83(1)(a) of Representation of People Ac, 1951 mandates that an election petition shall contain a concise statement of material facts on which the petitioner relies but in this case upon perusal of election petition it will be clear that it does not disclose any cause of action for which election petition can be entertained.
12. While citing above judgment, it is contended by learned Counsel for the petitioner that on the basis of law laid down by Apex court, the Election Tribunal was under obligation to assess the fact whether upon perusal of election petition cause of action arises or not and for the said purpose it was the duty of the Election Tribunal to scan the election petition for the purpose of ascertaining requirement of material facts and existence of cause of action to proceed in the election petition filed against the person. The material facts and specific allegations are required to be stated so as to grant an opportunity to rebut the same at the time of consideration therefore, expression 'cause of action' has been defined to mean every fact which it would be necessary for plaintiff to prove, if traversed, in order to support his right to judgment of the court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. It is also the duty of the party to present full picture of the cause of action with such further information in detail so as to make the opposite party understand the case which is to be met by him. Therefore, order impugned, in which learned Election Tribunal has completely ignored the fact that no material facts and details are given by the election petition, deserves to be set aside.
13. Per contra, learned Counsel for the respondents by way of filing reply submitted that the contention of petitioner is totally baseless because upon perusal of election petition it is obvious that all the allegations levelled against the petitioner contain material facts so also details of facts are given by the election petitioner in the election petition, therefore, issue No. 3 with regard to preliminary objection has rightly been decided by the Election Tribunal against the petitioner. Further it is submitted that issue No. 1 and 2 cannot be decided without taking evidence, therefore, learned Election Tribunal has rightly decided issue No. 3 in her favour and held that election petition is maintainable. As per learned Counsel for the respondents it is wrong to say that all the material facts are not mentioned in the election petition, on the contrary specific allegations have been levelled in the election petition and evidence is required to be taken in trial and opportunity to prove those allegations is required to be given to answering respondent No. 3, who has filed election petition. The Election Tribunal has correctly decided the issue No. 3 and now the matter is required to be decided after taking evidence against the serious charges of corrupt practice levelled in the election petition. As per respondents, scheme of Rajasthan Panchayati Raj Act and Rules categorically provide that what is the corrupt practice and the question of corrupt practice can only be decided after taking the evidence which is yet to be recorded by the Election Tribunal. The Election Tribunal is under obligation to decide the election petition expeditiously as per Rules 85 to 87 of the Rules of 1994. In these circumstances, the order passed by learned Election Tribunal upon issue No. 3 is totally within four corners of law laid down by this Court and Apex Court and does not require any interference by this Court.
14. I have considered the rival submissions and material on record. First of all, there is no quarrel with the verdict of Hon'ble Apex Court and of this Court that in election petition there must be a cause of action and election petition must contain material information with regard to corrupt practice and must disclose specific facts so as to give an opportunity to opposite party to rebut the same.
15. In Para 22 and 23 of Hari Shanker's case (supra) the Hon'ble Apex Court held as follows:
22. We now proceed to examine whether the pleadings of any of the two election petitioners disclose any cause of action and raise a triable issue which should have been put to trial.
23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression 'cause of action' has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a 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. Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead 'material facts' is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.
16. The Hon'ble Apex Court in Harkirat Singh's case (supra) in para nos. 50 and 51 has specifically held as under:
50 A distinction between `material facts' and `particulars' however, must not be overlooked. `Material facts' are primary and 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 pleadings, 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.
17. It is obvious from the law laid down by the Hon'ble Apex Court and this Hon'ble Court in aforesaid case that necessary information and material facts are required to be disclosed in the election petition. The law laid down by Hon'ble Apex Court is having binding force under Article 141 of the Constitution of India upon all subordinate courts, therefore, there is no quarrel with regard to proposition of law, but in this case election petition which is filed along with writ petition as Annex.1 is required to be seen for adjudication of present controversy. I have perused the election petition and bare perusal of election petition it is crystal clear that all the allegations are specifically mentioned by the respondent No. 3 in election petition for which Election Tribunal is under obligation to take evidence and to decide the petition on merit. Upon perusal of sub-para (a) to (i) of para 5 it is clear that each and every detail with regard to allegation against the petitioner has been given by the election petitioner. In Sub para 5 (h), (k) and (i) specific allegations are levelled which are as follows:
(h) ;g fd ernku ds nkSjku yxHkx 3%45 cts 'kke dks >xM+k gksus ds i'pkr izkfFkZuh i{k }kjk ernku dsUnz esa tkudkjh ysus ij crk;k x;k fd ml oDr rd yxHkx 4200 er iM+s gS A mlds i'pkr iqu% ernku gh ugh gqvkA 'kke 5 cts ds i'pkr izkfFkZuh o vizkfFkZuh la[;k 3 vFkok muds vf/kd`r ,tsUVks dh vuqifLFkfr esa erisfV;kWa lhy dh xbZ o tksuy eftLVsV ds tkus ds i'pkr yxHkx 7 cts erx.kuk izkjaHk gqbZ] rks erisfV;ksa es 4512 er ik;s x;s tcfd ernku can gksus ds le; rd yxHkx 4200 er gh iM+s Fks A bl izdkj vizkFkhZuh la[;k 2 us vizkFkhZ la[;k 1 ds lkFk feydj izkfFkZuh o vizkFkhZuh la[;k 3 dh vuqifLFkfr esa QthZokM+k dj yxHkx 300 QthZ er vius i{k esa erisfV;ksa es M+ky fn;s A bl tYnckth esa erisfV;ksa dh lhy ds le; 4514 er Fks tcfd erisfV;ksaa [kqyus ij 4512 er ik;s x;s rFkk 2 eri= xk;c dj fn;s x;s A bl izdkj vizkFkhZuh la[;k 2 dh vksj ls ernku dsUnz ij vkard iSnk dj yxHkx vizkFkhZ la[;k 1 dh feyh Hkxr ls yxHkx 300 er QthZ rjhds ls vius i{k esa Mky fn;s A oLrqr% vizkFkhZuh la[;k 2 ds leFkZdksa us cwFk dSipfjax dj yh Fkh ijarq vizkFkhZ la[;k 1 ls lkaBxkaB gksus ds dkj.k muds }kjk bl ckcr dksbZ fjiksZV ugh nh xbZ A
(k) ;g fd erx.kuk ds nkSjku Hkh vizkFkhZ la[;k 1 us [kqYyh /kka/kyh dh] 123 erksa es ls 67 er tks Li'Vr% vizkFkhZuh la[;k 3 ds i{k ds Fks] mUgs fcuk fdlh dkj.k ds voS/k ?kksf'kr dj fn;k rFkk 17 er euekus rjhds ls izkfFkZuh ds i{k ds Fks] mUgs voS/k ?kksf'kr dj fn;k x;k rFkk nks eri= xk;c ik;s x;sA bl izdkj ;fn vizkFkhZuh la[;k 3 ls 67 eri=ksa dks vuqfpr rjhds ls voS/k ?kksf'kr ugha fd;k tkrk rks fuf'pr :i ls vizkFkhZuh la[;k fuokZfpr ?kksf'kr gksrh o ;fn izkFkhZuh i{k ds yxHkx 300 ernkrkvks dks cyiwoZd ernku ls oafpr ugh fd;k tkrk rks fuf'pr :i ls izkFkhZuh fuokZfpr ?kksf'kr dh tkrhA bl izdkj vizkFkhZ la[;k 1 o vizkFkhZuh la[;k 2 dh ijLij lkBxkaB i{kikriw.kZ ,oa Hkz'V vkpj.k ls mDr pquko nq'izHkkfor gqvk gS rFkk pquko ifj.kke ij lkjHkwr izfrdwy izHkko iM+k gS A
(l) ;g fd erx.kuk ds nkSjku izkFkhZuh o vizkFkhZuh la[;k 3 ds ,tsUV~l }kjk voS/k erks ds ckcr ?kksj fojks/k O;Dr fd;k] ijUrq mudh dksbZ lquokbZ ugh dh xbZ RkFkk tks er Li'Vr% izkFkhZuh o vizkFkhZuh la[;k 3 ds dkye esa fn[k jgs Fks] mUgs voS/k eku fy;k x;k A ml oDr iquZerx.kuk dh Hkh ekax dh A ijarq mls Hkh euekus rjhds ls vLohdkj dj fn;k x;k A bl izdkj vizkFkhZuh la[;k 2 dh vksj ls u dsoy ernku ls iwoZ /kka/kyh o Hkz'V vkpj.k fd;k x;k] vfirq erx.kuk esa Hkh vizkFkhZ la[;k 1 ls lkaBxkaB dj [kqyh /kka/kyh dh xbZ A
18. Therefore, for those allegations which are specifically averted in the election petition, evidence is required to be taken by the Election Tribunal for adjudicating the election petition on merit but when preliminary objection was raised by the petitioner then obviously learned Election Tribunal was under obligation to decide the said preliminary objection first while framing three issues. In my opinion, election petition bears all requirements, material facts and details which is specifically given by the respondent No. 3 in her election petition, therefore, learned Election Tribunal has rightly decided the issue No. 3 in favour of respondent No. 3 and held that election petition is maintainable. The order under challenge is in consonance with the law laid down by Hon'ble Apex court.
19. In this view of the matter, in my opinion, election petition filed by respondent No. 3 against the petitioner discloses all the material facts and details required as per law laid down by Hon'ble Apex Court. Therefore, the writ petition is hereby dismissed.