Karnataka High Court
C. Kannan vs Returning Officer on 25 January, 1989
Equivalent citations: ILR1989KAR1081, 1989(1)KARLJ409
ORDER Bopanna, J.
1. Issues in this election petition were settled on 30-11-1988 and the case was posted for trial on 23-1-1989. Parties had filed their respective lists of documents and witnesses as directed by this Court and the case was taken up for trial on 23-1-1988. On that day Respondent-2 filed an application under Section 151, Order 14 Rule 2, Order 7 Rule 11, Order 6 Rule 16 of the Code of Civil Procedure read with Sections 83 and 87 of the Representation of the People Act, 1951 (In short the Act). In that application he had made the following prayer:
a) that issue numbers 1 and 2 be tried as preliminary issues. A finding thereon in favour of Respondent No. 2 will dispose of Issues 3 to 7, 14 and 16, and obviate recording of voluminous evidence;
b) that in view of the fact that the petitioner has not complied with the mandatory requirements of Section 83 of the Act the petition should be dismissed in limine and as that question is a pure question of law which could be decided on the material on record that should also be treated as a preliminary issue.
Since copy of this application was not given In advance to the petitioner, the learned Counsel for the petitioner prayed for time to file his objections and this Court granted him time to file the same and those objections have been taken on record. The reasons for making this application briefly stated are:
a) There is a total lack of jurisdiction to go into Issue Nos. 1, 2, 3 to 7 and 16 since those issues relate to the validity of the electoral roll in question which cannot be challenged in an election petition In view of the relevant provisions of the Representation of People Act, 1950 (in short the 1950 Act);
b) The allegations of corrupt practices pleaded in para 5 of the petition do not comply with the mandatory requirement of Section 83 of the Act inasmuch as:
i) No particulars of date, time and place of any part of the corrupt practice are furnished;
ii) Material averments about Annexures F 1 and F 2 are missing, so also identity of the person/persons who paid the alleged amount of Rs. l lakh to each M.L.A.;
iii) No proper or adequate affidavit in support is filed; and
iv) No such affidavit accompanied the petition. It was filed only on 13th May 1988 after the prescribed period of 45 days had already expired.
c) This Court may and must suo moto take cognizance of this defect and dismiss this part of the petition in the light of the rulings of the Supreme Court in (1) AZHAR HUSSAIN v. RAJIV GANDHI , (2) DHARTI-PAKAR MADAN LAL AGARWAL v. SHRI RAJIV GANDHI and (3) SAMAR SINGH v. KEDAR NATH AND ORS .
According to Respondent-2, if the preliminary issues are held against the petitioner and so also the second ground raised on the basis of the alleged non-compliance of the mandatory requirement of Section 83 of the Act, the entire petition requires to be dismissed and/or rejected.
2. In the statement of objections filed by the petitioner he contended among other things that the application is not maintainable since it was not filed in the proper form; that the contention of Respondent-2 that the Election Petition can be disposed of on a pure question of law without recording any evidence is wholly misconceived; that Issue Nos. 1 and 2 are the issues consequential to Issue No. 6 and therefore they involve mixed questions of law and facts necessitating the recording of evidence and hence the election petition cannot ;be disposed of at the preliminary stage Itself; that Order VII Rule 11 has no application to the facts of the case; that the prayer seeking the relief of striking down certain paras in the election petition on the ground that the said paras lack full details of corruption charges nas to be rejected since no pleadings can be struck off for non-disclosure of full facts under Order VI Rule 16 of the Code of Civil Procedure; that all the particulars required under Section 83 have been furnished in para 5 of the petition; that even assuming, but not accepting, that all the particulars are not there, the pleadings cannot be struck off on that ground; that Respondent-2 had not raised any objections as to non-compliance of Section 83 of the Act or any other provisions of law in his written statement; that what has not been raised in the written statement cannot be added under the guise of presenting an Interlocutory application; that the application is highly belated and bereft of bona fides since the pleas that are raised in the application were not taken in the written statement, that the conduct of Respondent-2 in raising the preliminary objections at this belated stage Is highly deplorable and that the application Is the result of afterthought with the sole object of causing obstruction to the proceedings and hence the same should be dismissed.
3. I have heard the learned Counsel for the petitioner as also the learned Counsel for Respondent-2.
4. The objections taken by the petitioner on the form of the application filed by Respondent-2 do not merit serious consideration though the application is not verified In the manner required under the Code of Civil Procedure. What all this application raises are certain questions of law without any reference to new facts but which are already pleaded in the petition. The facts on which these preliminary objections are raised are found in the averments made in the petition itself and, therefore, though the application is not in the proper form inasmuch as no separate application has been filed for the distinct reliefs claimed by Respondent-2, it is open to this Court to consider the questions of law raised in the application as no prejudice to the case of the petitioner is caused by a consolidated application.
5. The first question that arises for determination is whether this Court is precluded from going into issue Nos. 1 and 2 and whether any finding In favour of Respondent-2 on these issues would dispose of the petition in so far as it relates to Issue Nos. 3 to 7, 14 and 16. The first 2 issues read as under:
1. Whether this Court has jurisdiction to decide whether on or about the 8th of March, 1988, Respondent No. 2 was ordinarily residing in Bangalore?
2. Whether the determination by the Electoral Officer in that behalf is final and conclusive and cannot be challenged in these proceedings?
Issue Nos. 3 to 7, 14 and 16 read as under:
3. Whether Respondent No. 2 was validly nominated as a candidate at the elections to the Rajya Sabha held in March, 1988?
4. Whether the objection to the said nomination was properly rejected and Respondent No. 2's nomination validly accepted?
5. Whether Respondent No. 2 ordinarily resides within the State of Karnataka and so resided in March 1988 within the meaning, of the Representation of the People Act, 1950?
6. Whether the petitioner proves that Respondent No. 2 got his name fraudulently included in the list of voters as pleaded in para 4 of the petition, by making a pre-dated application purporting to be of 8-3-1988 on 15-3-1988 for inclusion of his name in the voters list of Bangalore City?
7. Whether the petitioner proves that the said inclusion was not on merits but under the directions of the then Chief Minister of Karnataka, as pleaded in the said paragraph 4 of the petition?
14. Was the 1988 Electoral Roll in force when Respondent No. 2 filed his nomination on 15-3-1988?
16. Has this Court no jurisdiction to entertain the petition in so far as it relates to Issues Nos. 2, 3, 4, 5 and 14?
6. It should be noted that the proceedings before the Electoral Officer culminated in an order in favour of Respondent-2 in Appeal No. ClASUE 10 CHUMAPA 88 dated 5-1-1988 and it is submitted by Respondent-2 that this order Is challenged in this Court and is pending consideration in a separate Writ Petition. This order was made under Section 24 of the 1950 Act. So the proceedings under this Act are governed by the relevant provisions of the said Act and it is well settled by a series of decisions of the Supreme Court that the validity of the Electoral Roll is not open to challenge in an election petition. If at all any authority is necessary, the 3 decisions of the Supreme Court on this point may be noted. They are (1) KABUL SINGH v. KUNDAN SINGH AND ORS ; (2) SHRI SHREEVANT KUMAR CHOUDHARY v. SHRI BAIDYANATH PANJIAR ; (3) HARI PRASAD MULSHANKAR TRIVEDI v. V.B. RAJU AND ORS . Learned Counsel for the petitioner has not seriously challenged this proposition of law. But, what he contended is that he has not challenged the validity of the electoral roll but he has challenged the nomination of Respondent-2 as one of the candidates for election to Rajya Sabha on the ground that he had committed a corrupt practice within the meaning of Section 123(7) of the Act. That is also his case which is evident from the pleadings in para 4 of the petition. What he says is that "The method adopted by the 2nd respondent of getting his name fraudulently included in the List of Voters is an Electoral Corrupt Practice and therefore, his election is liable to be set aside."
7. Now the point for consideration is whether the method allegedly adopted by Respondent-2 in getting his name Included In the Voters List would amount to an Electoral Corrupt Practice as contended by the learned Counsel for the petitioner. Section 123(7) of the Act reads as:
"The following shall be deemed to be corrupt practices for the purposes of this Act:-
... ...
(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, from any person in the service of the Government and belonging to any of the following classes, namely:-
(a) Gazetted Officers;
(b) Stipendiary Judges and Magistrates;
(c) Members of the Armed Forces of the Union;
(d) Members of the Pplice Forces;
(e) Excise Officers;
(f) Revenue Officers other than village Revenue Officers known as lambardars, malguzars, patels deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
(g) such other class of persons in the service of the Government as may be prescribed:
Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent, (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election.
Explanation - (1) in this Section the 'agent' includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidates' election if he acts as an election agent of that candidate.
(3) For the purposes of clause (7), notwithstanding anything contained in any other law, the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the administration of a Union Territory) or of a State Government shall be conclusive proof -
(i) of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service, such person ceased to be in such service with effect from the said date."
8. Mr. Subbalah, the learned Counsel for the petitioner, submitted that the allegations made against Respondent-2 in para 4 of the petition would bring his case with the ambit of Corrupt practice as defined under Section 123(7) of the Act. He did not in so many words plead in para 4 of the petition that the corrupt practice alleged against Respondent-2 is covered by Section 123(7) of the Act. Perhaps realising that the weight of authority is against him he wants this Court to give a ruling on the interpretation of Section 123(7) of the Act which according to him would attract the vice of corrupt practice alleged against Respondent-2 in para 4 of the petition. In my view, the corrupt practice within the scope of Section 123(7) of the Act would not be applicable to the validity of the electoral roll if it Is challenged even on grounds of fraud. The word 'election' as it occurs in Sub-section (7) of Section 123 makes the position clear and so also the word 'candidate' In that Section. The word 'candidate' as defined under Section 79(b) of the Act reads as:
" 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election."
Section 79 of the Act provides that in Part VI and in Part VII of the Act unless the context otherwise requires 'candidate' means a person duty nominated to the election. Section 123 comes under Chapter VII of the Act and, therefore, the word 'candidate' as it occurs in Section 123(7) should be understood as defined under Section 79(b) of the Act. On the plain terms of that Section It is not possible to contend that Section 123(7) covers cases Involving the validity or otherwise of the electoral roll. 'Election' means an election to fill a seat or seats In either House of Parliament or In the House or either House of the Legislature of a State other than the State of Jammu and Kashmir. As observed by the Supreme Court in the cases adverted to above, the provisions of 1950 Act constitute a complete Code by themselves and, therefore, any dispute relating to the inclusion of Respondent-2's name in the electoral roll would not be the subject matter of an election petition. Accordingly, Issues Nos. 1 and 2 could be tried as preliminary issues on the pleadings of the parties alone. If they are tried as preliminary issues, the finding on these issues would necessarily go in favour of Respondent-2 as there Is a complete embargo to go into the validity of these 2 issues in an election petition in view of the aforesaid decisions of the Supreme Court.
9. But certain observations made by the Supreme Court in BAIDYANATH PANJIRA v. SITA RAM MAHTO AND ORS . and in WOPANSAO v. N.L. ODYUO AND ORS . support the case of Mr. Subbalah. But they will have to be explained in the light of the decision of the Constitution Bench of the Supreme Court in Hari Prasad Mulshankar Trivedi v. V.B. Raju and ors.
He also relied on the Judgment of the Supreme Court in NARENDRA MADIVALAPPA KHENI v. MANIKRAO PATIL AND ORS . which arose from the decision of this Court under the provisions of the Mysore Village Panchayats Act, 1959. In Baidyanath Panjira v. Sita Ram Mahto and ors. the facts were that names of certain persons who were electors, under the Representation of People Act, 1951, were Included in the electoral roll after the last date for making nominations. in view of provisions of Section 62 of the Act read with Section 23(3) of the 1950 Act every person who is for the time being entered in the electoral roll of a constituency as it stood on the last date for making nominations for an election in that constituency is entitled to vote unless it is shown that he is prohibited by any of the provisions of the Act from exercising his vote. Accordingly, an objection was taken to the effect that an elector whose name was included in the electoral roll after the last date for making nominations has no right of franchise in the election. The election In question was challenged in the election petition under the relevant provisions of the Act. Justice Hegde speaking for the Court rejected the preliminary objection as to the maintainability of the election petition. The Constitution Bench of the Supreme Court in Hari Prasad Mulshankar Trlvedi v. V.B. Raju and ors. considered the earlier cases on the point and in paras 26 to 29 of its Judgment observed as follows:
"The only question is whether the ground taken in the election petition that since these respondents were not ordinarily resident in any of the Parliamentary constituencies of Gujarat, they had not fulfilled one of the conditions necessary to be satisfied for registration in the electoral roll, can be gone into by the High Court in trying an election petition.
We think that neither the decision of this Court in which took the view that violation of Section 23(3) of the 1950 Act in entering or deleting the names of persons in the electoral rolls after the last date for making nomination relates to lack of power, nor the decision in which also suggests that where there was lack of power, the question can be gone into by the Court trying an election petition, can, by analogy, be extended to an entry in the electoral roll on the basis of a wrong adjudication of the question of ordinary residence. Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic Case, (1967) 3 W.L.R. 382, we do not think that the distinction between the two has been completely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it. The difficulty has arisen because the word 'jurisdiction' is an expression which is used in a variety of senses and takes its colour from its context, (see Per Diplock, J. at page 394 in the Anisminic Case). Whereas the 'pure' theory of jurisdiction would reduce jurisdictional control to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry. 'At bottom the problem of defining the concept of jurisdiction for purpose of judicial review has been one of public policy rather than one of logic' and viewed from the aspect of public policy as reflected in the provisions of the 1950 and 1951 Acts we do not think that a wrong decision on a question of ordinary residence for the purpose of entering a person's name in the electoral roll should be treated as a jurisdictional error which can be judicially reviewed either in a civil Court or before an election Tribunal.
And concerned as we are in this case only with the question whether the High Court trying an election petition has jurisdiction to try and decide whether these respondents were ordinarily resident in the respective parliamentary constituency in Gujarat, we should think the matter is concluded by the decision of this Court in Jatti's case, .
The requirement of ordinary residence as a condition for registration in the electoral rolls is one created by Parliament by Section 19 of the 1950 Act, and as we said, we see no reason why Parliament should have no power to entrust to an Authority other than a Court or a Tribunal trying an election petition the exclusive power to decide the matter finally. We have already referred to the observations of this Court in Kabul Singh's case. that Sections 14 to 24 of the 1950 Act are integrated provisions which form a complete code in the matter of preparation and mainte nance of electoral rolls. Section 30 of that Act makes it clear that Civil Courts have no power to adjudicate the question. In these circumstances we do not think that it would be incongruous to infer an implied ouster of the jurisdiction of the Court trying an election petition to go into the question. That inference is strengthened by the fact that under Section 100(l)(d)(iv) of the 1951 Act the result of the election must have been materially affected by non-compliance with the provisions of Constitution or of that Act or of the Rules, orders made under that Act in order that High Court may declare an election to be void. Non-compliance with the provisions of Section 19 of the 1950 Act cannot furnish a ground for declaring an election void under that clause."
(Emphasis supplied)
10. This statement of law by the Constitution Bench would put an end to the controversy regarding the jurisdiction of this Court to go into the validity of the inclusion of the name of Respondent-2 in the electoral roll. As noticed earlier the matter is pending consideration in a Writ Petition before this Court and therefore I do not think that any further reasoning is necessary to reject the contention of Mr. Subbaiah that this Court has jurisdiction to go into the validity of the electoral roll in the light of the earlier decisions of the Supreme Court in Baidyanath Panjira v. Sita Ram Mahto And Ors. and in Wopansao v. N.L. Odyuo And Ors.. The decision in Narendra Madivalappa Kheni v. Manikrao And Ors. on which Mr. Subbaiah relied was rendered by a Bench of 2 Judges of the Supreme Court. There the question for consideration was whether the Inclusion of any of the electors in the electoral roll was illegal. Though the Supreme Court held that question could be gone into, the decision of the Constitution Bench of the Supreme Court in Hari Prasad Mulshankar Trivedi v. V.B. Raju and ors. was not brought to the notice of the learned Judges in that case and, therefore, no reliance could be placed on that decision for sustaining the contention of Mr. Subbaiah.
Further as observed by the Supreme Court in Kabul Singh v. Kundan Singh And Ors :
"We cannot travel outside those provisions to find out whether a particular vote was a valid vote or not. In view of Section 30 of the 1950 Act, Civil Courts have no jurisdiction to entertain or adjudicate upon any question whether any person is or is not entitled to register himself in the electoral roll in a constituency or to question the illegality of the action taken by or under the authority of the electoral registration Officer or any decision given by any authority appointed under that Act for the revision of any such roll. Part III of the 1950 Act deals with the preparation of rolls in a constituency. The provisions contained therein prescribe the qualifications for being registered as a voter (Section 19), disqualifications which disentitle a person from being registered as a voter (Section 16), revision of the rolls (Section 21), correction of entries in the electoral rolls (Section 22), inclusion of the names in the electoral rolls (Section 23), appeals against orders passed by the concerned authorities under Sections 22 and 23 (Section 24). Sections 14 to 24 of the 1950 Act are integrated provisions, they form a complete code by themselves in the matter of preparation and maintenance of electoral rolls. It is clear from those provisions that the entries found in the electoral roll are final and they are not open to challenge either before a Civil Court or before a Tribunal which considers the validity of any election. In B.M. Ramaswamy v. B.M. Krishna-murthy, , this Court came to the conclusion that the finality of the electoral roll cannot be challenged in a proceeding challenging the validity of the election."
11. On the facts of this case there is a total lack of jurisdiction to question the power of the Electoral Officer for including the name of Respondent-2 in the Electoral List. The allegation against Respondent-2 is that he had committed fraud in getting his name included in the electoral roll. That is not one of the corrupt practices which comes within the scope of the provisions of Section 123 of the Act as noticed by me earlier. The contention that Section 123(7) of the Act covers the alleged corrupt practice against Respondent-2 is not pleaded in the petition and even otherwise it is not tenable. In the circumstances Issues Nos. 1 and 2 will have to be held against the petitioner and consequently the other issues, viz., Issues Nos.3 to 17, 14 and 16 do not for consideration.
12. That takes me to the second contention of the learned Counsel for Respondent-2, i.e., whether this petition should be dismissed in limine since the allegations of corrupt practices made In para 5 of the petition do not satisfy the requirements of Sections 81 and 83 of the Act. This contention necessarily takes me to the relevant averments made by the petitioner in para 5 of the petition, to the annexures filed by the petitioner along with the petition and to the affidavit filed by the petitioner in support of the allegations of corrupt practices as required under the proviso to Section 83(1)(c) of the Act. To quote the relevant portion of Para 5 of the petition in so far as It relates to corrupt practices alleged against Respondent-2:
"The 2nd respondent had, therefore, sufficient reason to fear that he may be defeated in the election. Tn the background of such fear, the 2nd respondent, in combination of the Chief Minister of Karnataka, hatched a plan to purchase votes from the Congress (I) Legislators by distributing money through one of the Cabinet Ministers, Dr. Jeevaraj Alva. Dr. Jeevaraj Alva, the Minister for Education, having thus engaged by the 2nd respondent for the job of purchasing votes by paying money from the Congress (I) Members, in turn took the assistance of one of the Janata Party Legislator by name Mr. Venkatesh, and did everything within his power to purchase as many votes as possible from the Congress (I) Legislators by paying money. When Dr. Jeevaraj Alva, the Minister for Education, and Mr. Venkatesh, Janata M.L.A. from Periyapatna Constituency, went round with their money bags to purchase the Congress (I) Votes and making approaches to the Congress (I) Members of the Legislative Assembly. Some of the Congress (I) Members, particularly Mr. Adyantaya and Mr. Umarabba, hatched a plan to trap them and expose their design to the general public. According to such plan, both Mr, Adyantayya and Mr. Umarabba pretended that they would oblige Dr. Jeevaraj Alva and collected the money offered to them amounting to the sum of Rupees one lakh each. When Mr. Adyantaya accepted the money, he was given with a model ballot paper suggesting in what manner he should exercise his vote. The copies of the model Ballot Papers thus supplied to Mr. Adyantaya and Mr. Umarabba, which contains the ink written figures against the name of various candidates in the handwriting of Dr. Jeevaraj Alva or Mr. Venkatesh, are herein produced as Annexures-El and E2. At the bottom of Annexure-E1, it is written 'Mangalore-Anna in ink, which writing is either in the hand writing of Dr. Jeevaraj Alva or Mr. Venkatesh. 'Mangalore-Anna' is the Code word used by Dr. Jeevaraj Alva for Mr. Adyantaya Similarly, copies of two more model ballot papers, which contains writings at the bottom respectively as Mysore and Border-M, both being the code words relating to certain M.L.As belonging to Congress (I), are herein produced as Annexures-Fl and F2. The object of purchasing votes from the Congress (I) Legislators by the 2nd respondent in a manner aforesaid was not to increase his votes but to reduce the voting strength of the candidates sponsored by Congress (I), the 4th Respondent herein, so as to ensure the success of the 2nd Respondent by indirect method. This is a clear case of Electoral Corrupt practice indulged in by the 2nd respondent as a result of which, his election is liable to be set aside."
Under what sub-section of Section 123 of the Act the corrupt practice was committed by Respondent-2 is not mentioned in this paragraph. That apart, in this paragraph the petitioner does not mention the material facts which give a cause of action against Respondent-2 for holding him guilty of the corrupt practices alleged against him and the material particulars which he has to plead in terms of Section 83(1)(a) and (b). Section 83(1)(a) of the Act prescribes that the election petition should contain a concise statement of the material facts on which the petitioner relies and Section 83(1)(b) of the Act prescribes that an election petition 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. Section 83(1)(c) provides that an election petition shall be signed by the petitioner and verified In the manner laid down In the Code of Civil Procedure 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.
Under Section 83(2) any Schedule or Annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
13. Relying on these provisions of Section 83, Sri Jalsinghani, learned Counsel for Respondent-2 submitted that both the material facts and the particulars are lacking in the pleadings of the petitioner in para 5; that the distinction between the material facts and particulars are Illusory; but, what Is necessary to be pleaded is that all these particulars which are necessary to bring home the charge of corrupt practices against Respondent-2 should be pleaded as If it were a criminal charge; that the material facts which are not pleaded and which ought to have been pleaded are:
13.1. Who paid the amounts to the M.L.As Is not clear;
13.2. Date and time of offer of Rs. 1 lakh each to these M.L.As are not stated;
13.3. Place of offer is also not stated;
13.4. That the date and time of payment and the place of payment, if they had been stated, Respondent-2 would have noticed the same and he would have filed a proper defence to meet the allegations. The contention Is that the petitioner could have got these facts from these 2 M.L.As who had allegedly taken the money from the so called agents of Respondent-2. But, he has not pleaded in the petition that he was unable to get these facts from these 2 M.L.As.
13.5. Respondent-2 engaged Dr. Jeevaraj Alva to bribe these 2 M.L.As but no material particulars are furnished as to the date on which he was engaged by Respondent-2 and what he did to purchase as many votes as possible from Congress (I) Legislators by paying money is also not particularised. What the petitioner says is that Respondent-2 did everything within his power to purchase as many votes as possible by payment money;
13.6. No overt act has been pleaded in regard to Dr. Jeevaraj Alva offering to purchase votes;
13.7. Who are the other members who laid the plan to trap them is also not pleaded;
13.8. Who gave the ballot papers to Dr. Jeevaraj Alva and the other M.L.A. of Periyapatna Constituency; when they were given and where they were given are not mentioned in the petition;
13.9. That it is not possible to gather whether Annexures E-1 and E-2 and F-1 and F-2 were given after payment;
13.10. That Annexures E-1 and E-2 and F-1 and F-2 relied upon by the petitioner in proof of these corrupt practices do not disclose that the 2 supporters of Respondents-2 had persuaded the M.L.As in question to cast the first preference votes to Respondent-2 obviously because by Annexures F-1 and F-2 Respondent-2 gets only the 3rd preference votes and by Annexures E-1 and E-2 Respondent-2 does not get any preferential votes at all since the column against his name is left blank in both these annexures;
13.11. That this is not explained in the petition though the petitioner has relied on Annexures E-1 and E-2 and F-1 and F-2 in his petition to drive home the charge against Respondent-2.
14. I will consider the arguments based on Section 83(1)(a) and (b) of the Act presently and then I will go on to the contention based on the provisions of Section 83(1)(c) of the Act and the proviso to Sections 83(1)(c) and 83(2) of the Act. Before I go to the contentions and the decisions of the Supreme Court on these points, I will briefly state the contentions of Mr. Subbaiah.
Mr. Subbaiah submitted that in the light of the provisions of Section 86(1) of the Act this Court should dismiss the petition only if the petitioner does not comply with the provisions of Section 81 or 82 or Section 117 of the Act; that non-compliance with the requirement of Section 83 is not fatal to the petition since under the provisions of Section 86(5) of the Act, this Court may upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in Its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. Mr. Subbaiah also made a grievance on the manner in which these 2 preliminary objections were sought to be raised when the case was set down for trial. I must put on record that though I was disagreeably surprised by the preli minary objections on the day the case was set down for trial, the Court has to go by the law laid down by the Apex Court on these points and an emotive approach to a situation that presents itself in the course of the trial will not be a judicious way of disposing of this petition.
15. The triology of cases of the Supreme Court on this point are found in the Judgments of the Supreme Court in Azhar Hussain v. Rajiv Gandhi in Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi and in Samar Singh v. Kedar Nath and ors. Before 1 proceed to consider these cases of the Supreme Court, a reference may be made usefully to the earlier decision of the Supreme Court in SAMANT N. BALAKRISHNA ETC. v. GEORGE FERNANDEZ AND ORS. ETC . in order to appreciate the contentions raised by Respondent-2 on the distinction between material facts and particulars. In Samant N. Balakrishna Etc. v. George Fernandez And Ors. etc, the Supreme Court had occasion to consider the distinction between material facts and particulars. The relevant portion of the Judgment in the said decision is found in paras 23, 24, 29 and 37. In paras 24 and 25 of the Judgment Chief Justice Hidayatullah speaking for the Court observed:
"Section 81 of the Representation of the People Act, 1951 enables a petitioner to call in question any election on one or more of the grounds specified in Section 100(1) and Section 101 of the Act, The petition must be made within 45 days from the date of election. Sections 100 and 101 enumerate the kind of charges which, if established, lead to the avoidance of the election of a returned candidate and the return of some other candidate. The first sub-section of Section 100 lays down the grounds for declaring an election to be void. These include corrupt practices committed by the candidate, his election agent and any person with the consent of the returned candidate or his election agent. The second subsection lays down an additional condition which must be satisfied before the election can be declared to be void even though the corrupt practice is committed by an agent other than the election agent. Section 101 sets forth the grounds on which a candidate other than the returned candidate may be declared to have been elected. Section 101 actually does not add to the grounds in Section 100 and its mention in Section 81 seems somewhat inappropriate, Sections 100 and 101 deal with the substantive law on the subject of elections. These two Sections circumscribe the conditions which must be established before an election can be declared void or another candidate declared elected. The heads of substantive rights in Section 100(1) are laid down in two separate parts: the first dealing with situations in which the election must be declared void on proof of certain facts, and the second in which the election can only be declared void if the result of the election in so far as it concerns the returned candidate, can be held to be materially affected on proof of some other facts. Without attempting critically to sort out the two classes we may now see what the conditions are. In the first part they are that the candidate lacked the necessary qualification or had incurred disqualification, that a corrupt practice was committed by the returned candidate, his election agent or any other person with the consent of a returned candidate or his election agent or that any nomination paper was improperly rejected. These are grounds on proof of which by evidence, the election can be set aside without any further evidence. The second part is conditioned that the result of the election, in so far as it concerns a returned candidate, was materially affected by the improper acceptance of a nomination or by a corrupt practice committed in his interest by an agent other than an election agent or by the improper reception, refusal or rejection of votes or by any non-compliance with the provisions of the Constitution or of the Representation of the People Act or Rules or orders made under it. This condition has to be established by some evidence direct or circumstantial. It is, therefore, clear that the substantive rights to make an election petition are defined in these Sections and the exercise of the right to petition is limited to the grounds specifically mentioned.
Pausing here, we may view a little more closely the provisions bearing upon corrupt practices in Section 100. There are many kinds of corrupt practices. They are defined later in Section 123 of the Act and we shall come to them later. But the corrupt practices are viewed separately according as to who commits them. The first class consists of corrupt practices committed by the candidate or his election agent or any other person with the consent of the candidate or his election agent. These, if established, avoid the election without any further condition being fulfilled. Then there is the corrupt practice committed by an agent other than an election agent. Here an additional fact has to be proved that the result of the election was materially affected. We may attempt to put the same matter in easily understandable language. The petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with the consent of the candidate or his election agent, in which case he need not establish what the result of the election would have been without the corrupt practice. The expression 'any other person' in this part will include an agent other than an election agent. This is clear from a special provision later in the Section about an agent other than an election agent. The law then is this: If the petitioner does not prove a corrupt practice by the candidate or his election agent or another person with the consent of the returned candidate or his election agent but relies on a corrupt practice committed by an agent other than an election agent, he must additionally prove how the corrupt practice affected the result of the poll. Unless he proves the consent to the commission of the corrupt practice on the part of the candidate or his election agent he must face this additional burden. The definition of agent in this context is to be taken from Section 123 (Explanation) where it is provided that an agent 'includes an election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate'. In this explanation the mention of 'an election agent' would appear to be unnecessary because an election agent is the alter ego of the candidate in the scheme of the Act and his acts are the acts of the candidate, consent or no consent on the part of the candidate."
(Emphasis supplied)
16. Having now ascertained the substantive rights In the making of the petition, I must examine what the alleged corrupt practices are and whether the corrupt practices alleged come within the scope of Section 123 of the Act, that is to say whether this Court should presume that (since the petitioner has not specifically mentioned in the petition) Respondent-2 has committed corrupt practices within the meaning of Section 123(1)of the Act. Section 123(1)deals with 'bribery', that is to say:
"(A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing (a) a person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at an election, or (b) an elector to vote or refrain from voting at an election, or as a reward to (i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his Candidature; or (ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward (a) by a person for standing or not standing as, or for wi thdrawing or not withdrawing from being, a candidate; or (b) by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature. I Explanation - For the purposes of this clause the term 'gratification' is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in Section 78."
17. Now I may revert to the petition averments. As noticed earlier, the petitioner does not say In so many words that Respondent-2 has committed corrupt practices within the meaning of Section 123(1)of the Act. Perhaps, that may be a highly technical plea, but do the facts pleaded make out that the corrupt practices alleged to have been committed by Respondent-2 come within the scope of Section 123(1)of the Act and if so may it be open to this Court to examine the said corrupt practices in the light of the language of Section 123(1)of the Act? What all he says is already excerpted in para 12 above. Nowhere in the petition the petitioner has averred that Dr. Jeevaraj Alva, Minister for Education, was the agent of Respondent-2 or any other person with the consent of Respondent-2 or his election agent offered gratification to the 2 Members of Congress (I) political party and nowhere in the petition it is pleaded that this offer of gratification was made for inducing those 2 candidates belonging to a rival political party to vote or refrain from voting at the election for Rajya Sabha or as a reward to Respondent-2 for having so stood or for making it an offence of bribery under the latter portion of Section 123, i.e., under Section 123(1)(3) of the Act. Narration of the facts in this regard in para 5 of the petition falls woefully short of the requirement of Section 123(1)of the Act and that is amply borne out by the subsequent observations made by the Supreme Court in Samant N. Balakrishna Etc. v. George Fernandez And Ors. etc. The Supreme Court in para 29 of the Judgment observed thus:
"Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of the People Act. Here we have to consider Sections 81, 83 and 86 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub-section alone is material here. It provides that an election petition may be presented on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101.That as we have shown above creates the substantive right. Section 83 then provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also 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. The Section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is the difference between material facts and 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 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. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the characters and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus 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 do 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. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the Sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture. This distinction is brought out by the provisions of Section 86 although the penalty of dismissal is taken away. Sub-section (5) of that Section provides:
(5) 'The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.' The power of amendment is given in respect of particulars but there is a prohibition against an amendment 'which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.' One alleges the corrupt practice in the material facts and they must show a complete cause of action. If a petitioner has omitted to allege a corrupt practice, he cannot be permitted to give particulars of the corrupt practice. The argument that the latter part of the fifth sub-section is directory only cannot stand in view of the contrast in the language of the two parts. The first part is enabling and the second part creates a positive bar. Therefore, if a corrupt practice is not alleged, the particulars cannot be supplied. There is however a difference of approach between the several corrupt practices. If for example the charge of bribery of voters and the particulars give a few instances, other instances can be added; if the charge is use of vehicles for free carriage of voters, the particulars of the cars employed may be amplified. But if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa. In the scheme of election law they are separate corrupt practices which cannot be said to grow out of the material facts related to another person. Publication of false statements by an agent is one cause of action, publication of false statements by the candidate is quite a different cause of action. Such a cause of action must be alleged in the material facts before particulars may be given. One cannot under the cover of particulars of one corrupt practice give particulars of a new corrupt practice. They constitute different causes of action."
(Emphasis supplied)
18. In this case it is needless to say that the petitioner did not rely on the provisions of Section 123(1)of the Act since he did not choose to mention under which sub-section of Section 123 he was alleging that Respondent-2 committed the electoral corrupt practice. Further he did not make up this deficiency In his pleading by alleging facts which come within the ambit of Section 123(1)of the Act. In rny view, the petitioner has failed to mention the material facts i respect of the alleged corrupt practices committed by Respondent-2. But, though the petitioner has sought for amendment of the petition he did not choose to do so by making a separate application and therefore, it is not proper for this Court to permit the petitioner to amend the petition at this stage. Even otherwise, could this Court permit him to amend the petition as a whole? I have already noticed the material facts that the petitioner should have pleaded in order to drive home the charge against Respondent-2 under Section 123(1)of the Act.
19. With this backdrop of the law on the requirement of pleadings in an election petition, the law laid down in the 3 decisions of the Supreme Court to which I have adverted to earlier should be noticed. In Azhar Hussain v. Rajiv Gandhi the Supreme Court before going into the allegation of corrupt practice alleged against the respondent therein considered its earlier decisions which had been cited before it in regard to the requirement of the pleading of material facts and particulars under Section 83(1) of the Act. The Supreme Court posed the following question for its answer;
"(1) What are material facts and particulars?
Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have Riven a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. - Manubhai Nandlal Amarsey v. Popatlal Manilal Joshi).
(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a Government servant, the following facts are essential to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded: - Hardwari Lal v. Kanwal Singh).
a) mode of assistance;
b) measure of assistance; and
c) all various forms of facts pertaining to the assistance.
(3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to obtain or procure the assistance of Government servants in election it is absolutely essential to plead the following:
a) kind or form of assistance obtained or procured;
b) in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election candidate for promoting the prospects of his election. .
(4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the persons from whom the actual and specific assistance was procured .
(5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered. (supra).
(6) The election petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in the particulars. (supra).
And having restated the settled position in regard to the content of the expression 'material facts', the time is now ripe to proceed to deal with the grounds on which the election of the returned candidate is assailed, seriatim."
(Emphasis supplied) The Supreme Court dealt with the specific acts of corrupt practices alleged against the respondent in that case and negatived all the contentions raised by the appellant in support of his plea in the election petition. I will take only one specific instance of corrupt practice alleged in that case in order to satisfy myself whether the petitioner in this petition has pleaded the necessary material facts and particulars which would persuade me to take the view that Respondent-2 could be found guilty of the alleged corrupt practice in case he did not choose to contest the petition. The alleged corrupt practice against the respondent in that case is stated in para 16 of the Decision:
"The election of the respondent is liable to be set declared void because the respondent was guilty of the following corrupt practice as defined under Section 123(7) of the Representation of the People Act, 1951, read with Sections 100(1)(b) and 100(d)(ii) of the said Act, the said corrupt practice was committed with the consent of the respondent returned candidate and of other workers of his with his consent. In any event, it was committed by the respondent's agents in the interests of the returned candidate and the said corrupt practice has materially affected the result of the election in so far as it concerns the returned candidate. One M.H. Beg who at one time was the Chief Justice of the Supreme Court of India and is a close friend of the Nehru family and is personally known to and friendly with the respondent, appeared on the Government controlled news media and made a speech praising the respondent and comparing his entry into politics as the birth of new Arjuna, the insinuation being that the opposition were the Kauravas. His appearance on the television was relayed day after day on the Government controlled media. Television sets had been installed in practically every election office of the respondent in Amethi constituency and throughout the election campaign thousands and thousands of voters were exposed to the television appearance and speech of the said Mr. Beg. Mr. Beg is a Gazetted Officer, being the Chairman of the Minori ties Commission. His services were procured and obtained by the respondent, his agents and other persons with the consent of the respondent with a view to assist the furtherance of the prospects of the respondent's election. Mr. Beg was seen and heard on the television as late as 21st December, 1984. Propaganda about Mr. Beg's was done particularly amongst the members of the Muslim community. Apart from being gross misuse of the office of Chairman of the Minorities Commission, the same constitutes a gross corrupt practice under the election law."
The High Court had held that the material facts and particulars were absent in that case and hence the facts pleaded did not disclose a cause of action. To quote the words of the Supreme Courts "The averments contained in paragraph A pertaining to Ground No. 1 do not satisfy the test prescribed in Manubhai Amarsey v. Popatlal Manilal Joshi and Hardwari Lal v. Kanwal Singh (supra). The most important test which remained unsatisfied is as regards the omission to satisfy in what manner the assistance was obtained and procured by the election candidate for promoting the prospects of his election. All that has been stated is:
'His services were procured and obtained by the respondent, his agents and other persons with the consent of the respondent with a view to assist the furtherance of the prospects of the respondent's election....' It is not mentioned as to who procured or obtained the services of Shri Beg, in what manner he obtained the services and what were the facts which went to show that it was with the consent of the respondent. Unless these 'essential facts which would clothe the petition with a cause of action and which will call for an answer from the returned candidate are pleaded' as per the law laid down in Manubhai Nandlal Amarsey v. Popatlal Manilal Joshi (supra) it cannot be said that the petition discloses a cause of action in regard to this charge. In the absence of these material facts and particulars the Courts could not have rendered a verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition. It is not sufficient to show that a Government servant had appeared on the public media to praise one of the candidates. It must also be shown that the assistance of the Government servant was obtained either by the respondent or his agent or by any other person with the consent of the election candidate or his election agent. The averments made in the petition do not show (i) who had obtained or procured the assistance from Shri Beg; (ii) how he had obtained or procured the assistance of Shri Beg; and (iii) how it was said that it was with the consent of the respondent or his election agent. Nor is it shown which, if any, facts went to show that it was in furtherance of the prospects of the respondent's election. In the absence of material facts and particulars in regard to these aspects, the petition would not disclose the cause of action. The High Court was therefore, perfectly justified in reaching this conclusion. The petition also does not disclose the exact words used in the speech; or the time and date of making such a speech. Now, unless the relevant or offending passage from the speech is quoted, it cannot be said what exactly Shri Beg had said, and in what context, and whether it was calculated to promote the election prospects of the respondent. Be that as it may, inasmuch as these material facts and particulars to show that the services of Shri Beg were procured by some one with the consent of the respondent or his election agent are not there, the averments pertaining to the charge do not disclose a cause of action...."
20. The test prescribed by the Supreme Court is equally applicable to the case against Respondent-2. In this case, it is alleged that Respondent-2 had engaged the Minister for Education for the job of purchasing votes by paying money to Congress I members, who In turn took the assistance of one of the Janata Party Legislator by name Mr. Venkatesh and Respondent-2 did everything within his power to purchase as many votes as possible from the Congress (I) Legislators by paying money. Neither the consent of Respondent-2 for taking the assistance of one of the Janata Party Legislator by name Mr. Venkatesh nor the time of engagement of the Minister for Education is pleaded in the petition. What exactly is meant by the word 'engaged' the Education Minister is not clear, that is to say whether he was employed or was engaged as an agent or whether he appeared for Respondent-2 for any consideration or out of political affinity is not clear. Hence, the pleading in this case as regards the corrupt practice alleged against Respondent-2 falls short of the test laid down by the Supreme Court In Azhar Hussain v. Rajiv Gandhi.
The next decision of the Supreme Court is Dharti-pakar Madan Lal Agarwal v. Shri Rajiv Gandhi. The contention raised in the appeal before the Supreme Court should be noticed. The 3 submissions raised by the learned Counsel for the appellant in that case before the Supreme Court are:
"(i) the High Court had no jurisdiction to entertain preliminary objections under Order VI, Rule 16 or to reject the election petition under Order VII, Rule 11, C.P.C. before the respondent had filed his written statement to the petition. In rejecting the petition under Order VII, Rule 11 the High Court deprived the appellant opportunity of amending the petition by supplying material facts and particulars, (ii) allegations contained in various paras of the election petition constituted corrupt practice which disclosed cause of action within the meaning of Section 100 of the Act. The High Court committed error in holding that the petition waa defective, on the premise that it did not disclose any triable issue, (iii) the election petition disclosed primary facts regarding corrupt practice and if there was absence of any particulars or details the High Court should have afforded opportunity to the appellant to amend the petition."
The Supreme Court answered these contentions in paras 8, 9, 10, 13 and 14 of the Judgment. Mr. Subbaiah has also raised similar objections in this petition as to the jurisdiction of this Court under Order VI Rule 16 C.P.C. to reject the application under Order VII Rule 11 C.P.C. at the preliminary stage. Even in this case written statement had been filed by the respondents and the matter was set down for trial after the issues were framed by this Court. The Supreme Court in para 8 of its Judgment observed as follows:
"The first question which falls for our determination is whether the High Court had jurisdiction to strike out pleadings under Order VI, Rule 16 C.P.C. and to reject the election petition under Order VII, Rule 11 of the Code at the preliminary stage even though no written statement had been filed by the respondent. Section 80 provides that no election is to be called in question except by an election petition presented in accordance with the provisions of Part VI of the Act before the High Court. Section 81 provides that an election petition may be resented on one or more of the grounds specified in Section 100 by an elector or by a candidate questioning the election of a returned candidate. Section 83 provides that an election petition shall contain a concise statement of material facts on which the petitioner relies and he shall set forth full particulars of any corrupt practice that he may allege including full statement of the name, of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. Section 86 confers power on the High Court to dismiss an election petition which does not comply with the provisions of Sections 81 and 82 or Section 117. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any Rules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, Order VI Rule 16 and Order VI Rule 17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of Sections 81, 83, 86 and 87 of the Act, it is apparent that those paras of a petition which do not disclose any cause of action, are liable to be struck off under Order VII Rule 16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the ditty of the Court to examine the plaint and it need not wait till the defendant files written statement and points out the defects. If the Court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI, Rule 16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. If after striking out the pleadings the Court finds that no trial issues remain to be considered, it has power to reject the election petition under Order VI Rule 11."
(Emphasis supplied) The Supreme Court considered its earlier decisions in K. KAMARAJA v. KUNJU THEVAR , in UDHAV SINGH v. MADHAV RAO SCINDIA , BHAGWATI PRASAD v. RAJIV GANDHI and in UNION OF INDIA v. SURJIT SINGH ATWAL . After considering all these cases, the Supreme Court in para 13 of its Judgment observed thus:
"The appellant's grievance that in entertaining the preliminary objections and rejecting the election petition under Order VII Rule 11 the High Court deprived the appellants's opportunity to amend the petition and to make Rood the deficiencies by supplying the necessary particulars and details of the corrupt practice alleged in the petition, is devoid of any merit. Firstly, the appellant was free to file amendment application, but at no stage he expressed any desire to make any amendment application nor he made any application to that effect before the High Court. It was open to the appellant to have made that application but he himself did not make any such application. The High Court was under no legal obligation to direct the appellant to amend pleadings or to suo motu grant time for the same. Secondly, the allegations of corrupt practice as required by Section 33 were not complete and the same did not furnish any cause of action, any amendment made after the expiry of the period of limitation could not be permitted which would amount to raise a new ground of challenge. The question, however, does not arise as the appellant did not file any amendment application . During the course of hearing of this appeal before us the appellant has made applications for amendment of the election petition which we shall deal later."
(Emphasis supplied) In para 15 of its Judgment the Supreme Court went into the allegation of corrupt practice in order to satisfy itself whether those allegations disclosed any cause of action. The Supreme Court found that the imputations alleged did not disclose any cause of action and, there-fore, it was a fit case where the High Court was justified in throwing out the election petition at the stage of filing of the written statement.
21. The next decision of the Supreme Court is Samar Singh v. Kedar Nath and ors.. The contention of Mr. Subbaiah is that Respondent-2 having filed his written statement and also having agreed for the commencement of the trial on the date fixed for trial, he should not be permitted at this stage to raise these preliminary objections. The Supreme Court dealt with the same question In paras 4, 5 and 7 of its Judgment. The Supreme Court observed:
"The question whether the High Court while trying an election petition has power to reject an election petition summarily under Order 7 Rule 11 of CPC is no longer res integra as this controversy has been set at rest by this Court In Azhar Hussain v. Rajiv Gandhi , Bhagwati Prasad v. Rajiv Gandhi and Dharti-pakar Madan Lal Agarwal v. Rajiv Gandhi . In these cases, this Court after detailed consideration held that an election petition is liable to be rejected summarily at the threshold under Order 7 Rule 11 of the CPC. However, the appellant contended that once written statement was filed and after the Court applied its mind to the pleadings, raised by the parties and framed issues, it should be presumed that triable issues had been raised in the election petition and therefore the Court could not thereafter summarily reject the petition under Order 7 Rule 11 of CPC. In substance the argument is that once issues are framed the Court must proceed with the trial, record evidence and only thereafter it should deal with the preliminary objection raised by the returned candidate that the election petition does not dis-close any cause of action. Similar argument was considered and repelled by this Court in Azhar Hussain case in the following words:
'In substance, the argument is that the Court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned Counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise the mind of the respondent.' Proceeding further the Court observed:
'The Courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the Court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time and resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matters pertaining to Ordinary Civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections.' The above view was reiterated by this Court in Bhagwati Prasad v. Rajiv Gandhi (supra) and Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi, (supra). If an election petition does not disclose cause of action, it can be dismissed summarily at the threshold of the proceeding under Order 7 Rule 11 of the Code of Civil Procedure. If an election petition can be summarily rejected at the threshold of the proceeding we do not see any reason as to why the same cannot be rejected at any stage of subsequent proceeding. If after framing of issues basic defect in the election petition persists (absence of cause of action) it is always open to the contesting respondent to insist that the petition be rejected under Order 7 Rule 11 and the Court would acting within its jurisdiction, in considering the objection. Order 7 Rule 11 does not place any restriction or limitation on the exercise of Court's power; it does not either expressly or by necessary implication provide that power under Order 7 Rule 11 CPC should be exercised at a particular stage only. In the absence of any restriction placed by the statutory provisions, it is open to the Court to exercise that power at any stage. While it is true that ordinarily preliminary objection to the maintainability of the petition on the ground of absence of cause of action should be raised by the respondent as early as possible but if a party raises objections after filing written statement the preliminary objection cannot be ignored. If the election petition does not disclose any cause of action, the respondent's right to raise objection to the maintainabilty of the petition, or the Court's power to consider the objection is not affected adversely merely because the objection is raised after filing of written statement or framing of issues. The Court would be acting within its jurisdiction in exercise of its power under Order 7 Rule 11 in rejecting the same even after settlement of issues.
In Devnarayan Ramsumar Tewari v. State of Bombay (now Gujarat) (supra) a learned Single Judge held that an order rejecting the plaint after the issues had been framed was clearly wrong. In coming to that conclusion the learned Judge placed reliance on Order 5 Rule 5 and Order 14 of Rule 1, sub-rule (5) and Order 9 Rule 1, C.P.C. The learned Judge observed that under Order 5 Rule 1 when a suit is instituted and the summons are issued to the defendant to appear and answer the claim on a day to be stated therein, the Court may indicate if the summons are issued for the settlement of issues or for the final disposal of the suit and the summons shall contain a direction accordingly. The learned Judge placing reliance on Order 9 Rule 1 held that the plaint cannot be rejected after the issues are framed; after summons are served on the defendant, the suit can be dismissed but the plaint cannot be rejected. The view taken by the learned Single Judge is not sustainable in law. Normally, when a suit is instituted the Court is to satisfy itself that the suit is maintainable and it disclosed cause of action and only thereafter the Court may issue summons to the defendants but merely because the summons are issued, the defendant's right to raise preliminary objection for rejection of the plaint on the ground that it disclosed no cause of action is not affected. If a plaint or an election petition does not disclose any cause of action, it does not stand to reason as to why the defendant or the respondent should incur costs and waste public time in producing evidence when the proceedings can be disposed of on the preliminary objection. There is basic difference between a suit and an election petition. A suit is initiated by a plaint, by a party against the defendant and generally the dispute is confined to the parties whereas an election petition raises dispute relating to election which affects and involves the entire contituency; the dispute is not confined between the parties to the petition. The provisions of the Civil Procedure Code as applicable to trial of suits have been made applicable under Section 92 to the trial of election petition as nearly as possible. It is well settled that the provisions of the CPC do not apply in their entirety to the trial of the election petition but the provisions of Order 7 Rule 11 apply to an election petition and the High Court has jurisdiction to reject a plaint which does not disclose any cause of action. It would be in the interest of the parties to the petition and to the constituency and in public interest to dispose preliminary objection and to reject an election petition if it does not disclose any cause of action. In our opinion, the High Court acted with jurisdiction in entertaining the preliminary objection and rejecting the election petition."
(Emphasis supplied) Rest of the Judgment of the Supreme Court is not relevant for the purpose of this case since that deals with the facts of the particular case before it. But the enunciation by the Supreme Court as regards the power of this Court to dispose of the preliminary objection at any stage of the trial even after the framing of the issues is a pointer for this Court to consider whether the application made by Respondent-2 was made bona fide with a view to put an end to the litigation as early as possible. In this case, this Court has gone a step further after the framing of the issues and that is it has posted the case for evidence. But before the trial could commence, Respondent-2 has filed this application. In substance, filing of the application before the commencement of the trial or after the framing of the issues would not make any difference to the power of this Court to go into the question whether the election petition was maintainable in view of the defects in the petition regard being had to the provisions of Section 83(1)(2) and (3) of the Act.
22. At this stage what is the right of the disputant in an election petition should be noticed. Is it a common law right, is it a right founded in equity or is it a statutory right? The first decision of the Supreme Court on this point is found in JAGANNATH v. JASWANT SINGH AND ORS. of its Judgment, Chief Justice Mahajan speaking for the Court observed as follows:
"The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions however has any application if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it."
These observations were made by the Supreme Court prior to change in the law as regards the power of this Court to throw out an election petition if the same is not in accordance with the requirement of Sections 81, 82 or Section 117. Section 86 was incorporated in the Statute Book by Act No. 47 of 1966 and it came Into force with effect from 14-12-1966. So we have to take the development of law as propounded by the Supreme Court after 14-12-1966. That statement of law is found in ARUN KUMAR BOSE v. MOHD. FURKAN ANSARI AND ORS. . The Supreme Court adverted to Its earlier Judgment in JYOTI BASU AND ORS. v. DEBI GHOSAL AND ORS . and observed as follows:
"What was said in Jagan Nath's case continues to be the law binding this Court and in the recent case of Jyoti Basu v. Debi Ghosal at pp.986-87), this Court reiterated the position by saying:
'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 right 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 of 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 statu-torily 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, concern ing the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by lifferent 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 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 bound by the decision of the larger Bench and we are in agreement with what has been said in Jyoti Basu's case."
I have summed up the law relating to the power of this Court to deal with the election petition either at the preliminary stage or at the stage of final disposal.
23. The contention of the learned Counsel for Respondent-2 is, since this petition does not satisfy the requirement of Sections 81 and 83 of the Act, this petition should be dismissed in limine. According to the learned Counsel, the petition should have been filed within 45 days from the date of election of the candidate. But, in this case if the affidavit filed by the petitioner as required by the proviso to Sub-section (c) of Section 83(1) of the Act is taken into consideration, the petition itself was not filed within a period of 45 days as provided under Section 81(1) of the Act. Consequently, he contended that under Section 86, though there is no express mention of the provisions of Section 83 of the Act in that Section, the High Court should, if it Is found that the provisions of Section 83 have also not been complied with, exercise its power to dismiss the petition. Under Section 86 of the Act, the High Court should dismiss the election petition if it does not comply with the requirement of Sections 81 or 82 or Section 117 of the Act. Section 83 does not find a place In Section 86. So naturally, the point for consideration is whether the violation of provisions of Section 83 of the Act would confer a right on Respondent-2 to contend that the petition should be dismissed under Section 86 in llmlne on the ground that the petition does not satisfy the requirement of Sections 83(1) or 83(2) of the Act.
The Supreme Court had occasion to consider this aspect of the case in Azhar Hussain v. Rajiv Gandhi, The contention raised was that inasmuch as Section 83(1) is not adverted to in Section 86 it follows that non-compliance of Section 83(1) even though mandatory does not have the legal consequences of dismissal of the election petition. In paras 8 to 11 of the Judgment the Supreme Court observed:
"The argument is that inasmuch as Section 83(1) is not adverted to in Section 86 in the context of the provisions, non-compliance with which entails dismissal of the election petition, it follows that non-compliance with the requirements of Section 83(1), even though mandatory, do not have lethal consequence of dismissal. Now it is not disputed that the Code of Civil Procedure (CPC) applies to the trial of an election petition by virtue of Section 87 of the Act. Since CPC is applicable, the Court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a) which read thus:
'Order 6, Rule 16: 'Striking out pleadings. - The Court may at any stage of the proceedings order to be struck out or amend any matter in any pleading -
a) which may be unnecessary, scandalous, frivolous or vexatious, or
b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or
c) which is otherwise an abuse of the process of the Court, Order 7, Rule 11: 'Rejection of plaint - The plaint shall be rejected in the following cases :-
a) where it does not disclose a cause of action;
XXX XXX XXX 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.
There is thus no substance in this point which is already concluded against the appellant in Hardwari Lal v. Kanwal Singh, 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:
'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.' 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. This Court in Samant's case has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh's case the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice, the first ground of challenge must therefore fail."
(Emphasis supplied) By this statement of law, it is possible to come to a definite conclusion that the power under Section 86 of the Act could be exercised by this Court even in cases where there is non-compliance of the mandatory requirement of Section 83(1) and (2) of the Act.
24. In the earlier part of this Judgment, I had dealt with the contentions of Respondent-2 as to the absence of material facts which give rise to a cause of action against him. The second limb of argument in support of his plea that the mandatory requirement of Section 83 of the Act is not complied with is that the petition is not signed by the petitioner and verified in the manner laid down in C.P.C. for the verification of the pleadings; that the affidavit filed by the petitioner in support of the allegation of corrupt practice was not filed within time and that affidavit was filed after a period of 45 days from the date of the result of the election; it does not satisfy the requirement of the proviso, and consequently the petition also should be treated as having been filed after 45 days; that since the sworn statement made by the petitioner reads that "the petitioner in the accompanying petition calling in question the election of Ram Jethamalani, Respondent No. 2 in the said petition make solemn affirmation that the statement made in paragraphs 4 and 5 of the accompanying petition about the corrupt practice of Respondent-2 and the particulars of such corrupt practice mentioned in those paras of the petition are true to his knowledge" the petition itself should be treated as having been filed on 13-5-1988 after the expiry of 45 days. The provisions of the Civil Procedure Code in relation to the verification of the pleadings, in the petition are found in Order VI Rule 15(2) of the said Code which read as under:
"The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true."
The verification as found in the petition reads as under:
"I.C. Kannan S/o Sri. M. Chinnappa, aged about 40 years, residing at No. 125, Muslim Colony, Austin Town Layout (B.D.A.), Bangalore, now at Bangalore, the petitioner in the above Election Petition, hereby solemnly affirm and state as follows:
1. I am the petitioner herein and I am well conversant with the facts of the case.
2. The statements set out in paras 1 to 8 of the accompanying Election Petition are true to my knowledge and belief.
3. I state that Annexures ' A' to 'F2' are the true copies of the originals."
On the plain terms of Order Rule 15(2) of the Code of Civil Procedure, this verification does not satisfy the requirement of law. What are the facts which are based on personal knowledge and what are the facts which are based on information, which he believes to be true are not clear in the petition Itself. The petition averments disclose that petitioner was neither present at the time the alleged bribery took place nor was he present at the time when the two M.L.As in question were induced to vote for Respondent-2 on account of the illegal gratification said to have been received by them. On this aspect of the case, Annexures E-1 and E-2 and F-2 and F-2 become very material in order to test whether the petitioner had any personal knowledge of the alleged inducement offered by Respondent-2 through Dr. Alva And Anr. M.L.A. to the two Congress (I) M.L.As in question and whether the two M.L.As would have cast their votes in favour of Respondent-2. In Annexure E-1 filed by the petitioner the preferential vote to be cast in favour of Respondent-2 is nil as the column meant for that purpose is left blank. One Abdul Sarnad Siddiqui gets the first preferential vote, Javali Jwalakumar gets the second preferential vote, one Mohammed Nazeer Ahmed who is Respondent-7 gets the 4th preferential vote. As noticed earlier, Respondent-2 does not get any preferential vote at all and one H. Hanumanthappa, who is Respondent-5, gets the third preferential vote. Likewise, in Annexure E-2, Respondent-2 does not get any preferential vote at all. Annexures F-1 and F-2 disclose that Respondent-2 gets only the third preferential vote. The verification of these Annexures is in the following terms:
"I.C. Kannan the petitioner hereby state that this is the Annexure referred to as Annexure E in the petition."
He does not say that the contents of those Annexures viz., Annexures E-1 and E-2 and F-1 and F-2 are true to his knowledge or they are based on information believed to be true.
On these undisputed facts, the point whether there has been compliance with Section 83(1)(c) and also Section 83(2) of the Act arises for consideration.
Mr. Subbaiah's argument is that these defects are curable defects and hence it is open to the petitioner to make a suitable application for amendment of the verification of the petition, the Annexures and also the recitals In the affidavit filed by the petitioner. Whether the amendment of these verifications and the recitals in the affidavit to satisfy the requirement of Section 83(1)(c) and the proviso thereof and also Section 83(2) of the Act is permissible arises for consideration. A similar question arose before the Supreme Court in SHARIFF-UD-DIN v. ABDUL GANI LONE . That case involved the provisions of Section 89(3) and Section 94 of the Jammu and Kashmir Representation of the People Act (4 of 1957). Section 89(3) corresponds to Section 81(3) of the Act and Section 94 corresponds to Section 86(1) of the Act. The contention raised before the Supreme Court in that case was that the requirement under Section 89(3) of the Jammu and Kashmir Act that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is not a mandatory requirement. The attestation was done in that case by the Advocate for the petitioner not by the petitioner. The argument advanced before the Supreme Court Was that the provisions of Section 89(3) and Section 94 of the Jammu and Kashmir Act which correspond to Sections 81(3) and 86(4) of the Act are not mandatory and any defect in the attestation of the copies of the petition as also the annexures to the petition could be rectified by suitable amendment. The Supreme Court considered this argument In para 9 of the Judgment. Justice Venkataramlah speaking for the Court observed thus:
"The difference between a mandatory Rule and a directory Rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the Rule is enacted. Certain broad propositions which can be deduced from several decisions of Courts regarding the Rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find but the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But then a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner the former has to be regarded as a mandatory one. A procedural Rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out of a subsequent stage unless by according such permission to rectify the error later on, another Rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."
(Emphasis supplied)
25. Having regard the law thus, the Supreme Court considered the earlier cases on this point in K. Kamaraja Nadar v. Kunju Thevar and ors.; CH. SUBBARAO v. MEMBER, ELECTION TRIBUNAL, HYDERABAD 1964 SCR 213; JAGAT KISHORE PRASAD NARAIN SINGH v. RAJENDRA KUMAR PODDAR AND ORS .; SATYA NARAIN v. DHUJA RAM AND ORS .; and in KAMALAM (M) v. DR. V.A. SYED MOHAMAD and observed as follows:
"It was argued by the learned Counsel for the appellant that the object of enacting Sub-section (3) of Section 89 of the Act which was merely procedural in character being that the respondents should be able to secure copies of the election petition as early as possible to enable them to file their statement of objections to it early, it would be sufficient compliance with the said provision if the true copies are filed along with it and since in the instant case, there had been no allegation that the copies which were filed were not exact copies of the original election petition, the petition should have been disposed of on its merits instead of dismissing it under Section 94 of the Act. He contended that the attestation made by the advocate on the copies was sufficient to assure the respondent that the copy served on him was in reality a true copy of the election petition. He also contended that if a suit instituted in a Civil Court was not to be dismissed on the ground that the copy of the plaint was not authenticated to be a true copy by the plaintiff under his own signature, there was no justification for treating the second part of Section 89 of the Act as mandatory. It is true that Section 89(3) of the Act is purely procedural in character and that ordinarily procedural law should not be Riven that primacy by Courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, Courts have no option but to enforce the law as it is. A Rule of limitation, for example, which is generally considered as procedural in character is strictly enforced by Courts since the Rule lays down that no Court shall entertain a suit, an appeal or an application which is barred by time.
An election to a Legislative Assembly can be called in question only by filing an election petition and not otherwise. The right to challenge the election by filing an election petition is a statutory right and not a common law right. A successful candidate is entitled to enjoy the privileges attached to the membership of the Legislative Assembly unless his right to do so is successfully challenged in an election petition filed within the prescribed period and in accordance with law. Section 89(3) of the Act consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part of Section 89(3) of the Act has been held to be a mandatory requirement by this Court in the case of Satya Narain, (supra) as this Court was of the view that the copies of the election petition should be filed along with it in order to prevent the delay in the disposal of the election petitions. The question whether a provision of law is mandatory or not, as observed already, depends upon its language, the context in which it is enacted and its object. Subsection (3) of Section 89 of the Act provides that a copy of the petition shall be attested by the petitioner 'under his own signature' to be a true copy of the petition. The emphasis in the above provision appears to be on the words 'under his own signature'. We do not find the same expression used in Section 91(1) (c) of the Act which provides that an election petition shall be signed by the petitioner and verified in the manner laid down in the Jammu and Kashmir Code of Civil Procedure (Act X of 1977), for the verification of pleadings. Sub-section (3) of Section 89 of the Act was inserted by Jammu and Kashmir Act 1 of 1962. Section 94 of the Act which requires the High Court to dismiss an election petition when the petitioner has not complied with the provisions of Section 89 was enacted in the place of the former Section 94 of the Act by Jammu and Kashmir Act XI of 1967 by the Legislature with the full knowledge of the requirements of Section 89(3) of the Act. The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition appears to be that the petitioner should take full responsibility for its contents and that the respondent or respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the original petition after it is filed into Court. We have no doubt that the records and documents in the custody of Courts are taken due care of by the Courts and the Courts would not by themselves give any scope for tampering with them. But still experience shows that allegations are sometimes made that records in the Court have been tampered with notwithstanding the care and caution taken by Courts. Such allegations may not always be without basis. It is probably to obviate any scope for such an allegation being made or to protect the interest of the respondent, the Legislature thought of enacting sub-section (3) of Section 89 of the Act so that the respondent may rely on the copy served on him when he finds that the original document in the Court contains allegations different from those in the copy in his custody. A respondent would not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself. The attestation by the Advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature. If the requirement of the second part of Section 89(3) that copy of the petition should contain the signature of the petitioner himself is not one of substance, there was no need to enact it as the first part of subsection (3) of Section 89 of the Act would have been sufficient for it provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the word 'copies' mentioned therein can only mean 'true copies'. The importance of the provision contained in Section 94 of the Act which makes it obligatory on the part of the High Court to dismiss a petition when it is established that Section 89 of the Act had not been complied with also cannot be overlooked in this context."
If this be the legal position in relation to the attestation of copies and the annexures annexed to the petition, the same consequences should follow in cases where the petitioner who takes the responsibility of verifying the correctness of the pleadings In the petition and also the responsibility of filing an affidavit in respect of the alleged corrupt practice against Respondent-2 does not satisfy the requirement of Section 83(1)(c) of the Act and the proviso thereto and also the provisions of Section 83(2) of the Act. These are mandatory provisions and that is also clear from the Rules framed by this Court for the trial of election petition. This Court in exertion of the power conferred under Article 225 of the Constitution for the disposal of the election petition under the Act has framed certain Rules regarding the filing of the petition. Rule 7 of the Election Petitions Procedure Rules is as under:
'The election petition complete in all respects along with necessary copies may be presented to the Registrar at any time during the Court hours. Immediately after it is presented, the date of presentation shall be entered in a special register maintained for the registration of election petitions."
26. So what is an election petition? It is a petition which should be complete in all respects, i.e., the election petition that should satisfy the requirement of Section 83(1)(a) and (b) which relates to the contents of election petition, Section 83(1)(c) which relates to the verification of the pleadings In the election petition, the proviso to Section 83(1)(c) which relates to the filing of the affidavit along with the petition In case allegation of corrupt practice is made in petition, as in this case, and also the requirement of Section 83(2) of the Act which provides for the verification of the contents of the annexures filed by the petitioner along with the electron petition. None of these requirements are satisfied by the petitioner as noticed earlier, and therefore it cannot be said that the election petition is complete in all respects as required under Rule 7 of the High Court Rules. Since the requirements of Section 83 are mandatory and Mr. Subbaiah is not able to cite any decision which has taken a contrary view, this Court perforce must come to the conclusion that the election petition filed by the petitioner was not an election petition complete In all respects as provided for under Rule 7 of the Rules. If the same is not complete in all respects, then the provisions of Section 81 of the Act as also the provisions of Section 83 of the Act are not complied with on the facts of this case, with the result It is open to this Court In exertion of power under Section 86(1) of the Act to dismiss the petition on the ground that the petitioner had not complied with the mandatory requirement of Sections 81 and 83 of the Act.
27. Mr. Subbalah has relied on certain decisions of the various High Courts in support of his contention that the petitioner should be permitted to amend the pleadings In the petition and also to comply with the requirements of Section 83(1)(c), the proviso thereto and Section 83(2) of the Act. In my view the decisions of the High Courts should be understood on the facts of the respective cases and they are not applicable to election petitions to be tried under the Act. In NARESH KUMAR v. PRAKASH NARAIN AWASTHI AND ORS. , the learned Judge of the Allahabad High Court has ruled thus:
"A petition is to be verified like a plaint on account of Rule 15(2) of Order VI C.P.C. which is applicable to an election by virtue of Section 83(l)(c) of the Act. The verification clause in a plaint, under this Rule, is only to specify by reference to the numbered paras of the pleading, what the person verifying the plaint verifies of his own knowledge and what he verifies upon information received and believed to be true. There is no requirement that the source of knowledge or information be disclosed by the person who is verifying the plaint. In Ramji Pandeyfs case , as mentioned by B.D. Agarwal, J. himself, even the requirements of Rule 15(2) were not complied with. Failure to disclose the source of information or knowledge either in the affidavit filed in support of an election petition or in the verification clauses of the petition, as far as this Court is concerned, cannot be treated to be breach of any mandatory Rule. In the present case, the absence of recital as to the source of knowledge or information in the affidavit can have no material bearing on the trial of the petition."
Attention of the learned Judge in that case was not drawn to the decision of the Supreme Court in Sharif-Ud-Din v. Abdul Gani Lone on which I have relied while dealing with this aspect of the case. In RAM BABU SINGHAL ENTERPRISES (P) LTD. v. DIGAMBER PARSHAD KIRTI PARSHAD AJER 1988 Allahabad 299 a learned Judge of the Allahabad High Court was dealing with a case arising under Section 21 and Order 14, Rule 2 of the Code of Civil Procedure and not an election petition arising under the Act. That decision is not applicable to the facts of this case. In MADHABANANDA RAY AND ANR. v. SPENCER AND COMPANY LTD., a Division Bench of the Orissa High Court has taken the view that -
"Order 14 of the Civil Procedure Code deals with settlement of issues and for determination of the suit on issues of law where it is so possible. Issues are of two kinds, namely, issues of fact and issues of law. Sub-rule (3) of Rule 1 thereof provides that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Therefore, in Civil Revision No. 439 of 1978 decided by Justice P.K. Mohanti (as he then was) the issue relating to the jurisdiction of the Court really involved two issues, namely, whether the opposite party is a workman as defined in the Industrial Disputes Act and secondly if he is found to be a workman whether the suit would be cognizable by the Civil Court. The second one is a pure issue of law depending upon the decision of the first one. Similarly in Civil Revision No. 2 of 1979 decided by Justice R.N. Misra (as he then was) the question of pecuniary jurisdiction involved was one issue of fact And Anr. issue of law. The issue of fact was what was the real valuation of the suit lands and depending upon the decision of, that issue, the further issue to be decided was whether the Court had pecuniary jurisdiction to entertain the suit. Here also the second issue though a pure issue of law was dependent upon the decision of an issue of fact. Under Order 14, Rule 2 C.P.C. it is not permissible for the Court to decide an issue of fact as a preliminary issue. It, therefore, follows that where an issue of fact is necessary to be decided before an issue of law relating to jurisdiction comes up for consideration, such issue cannot be taken up as a preliminary issue within the meaning of Order 14, Rule 2 C.P.C."
The considerations which present themselves In an election petition are different from those that arise in trying a civil suit. So the observation of the learned Judges in Division Bench in Orissa case will have to be understood on the facts and circumstances of that particular case. A Division Bench of the, Punjab High Court in PRATAP SINGH KAIRON v. GURMEJ SINGH declined to try certain preliminary issues as questions of law under Order 14 Rule 2 C.P.C. That decision was rendered by the Division Bench prior to the amendment of the provisions of Sections 80 and 83 of the Act and therefore that decision does not help the case of the petitioner.
A learned Judge of this Court in MOHAMMAD IQBAL DASTAGIRSAB AND ORS. v. MOHAMADGOUS LALAMIYA SANGOLLI AND ORS AIR 1983 Karnataka 35 while dealing with the preliminary issue as to the existence of the relationship of landlord and tenant between the parties to a suit observed that such an Issue cannot be decided by the Court as preliminary issue. In SMT. RAM KALI AND ANR. v. SOHAN LAL and DALJIT SINGH v. JOGINDER SINGH SEKHON , a learned Judge of the Punjab High Court has ruled that an issue of law requiring evidence cannot be tried as preliminary issue. There cannot be any quarrel In regard to this proposition. But in this case the jurisdiction of this Court to go into issues which are sought to be tried as preliminary issues Is not founded on the determination of any questions of facts. The bar of jurisdiction is founded on the statutory provisions and those statutory provisions are found in the 1950 Act. Additionally the law laid down by the Supreme Court in Hari Prasad Mulshankar Trlvedi v. V.B. Raju And Ors. is a complete answer to the contentions of Mr. Subbaiah on the 1st point raised in this application. One more Judgment of the Supreme Court which requires to be considered and was cited by Sri Subbaiah Is the decision rendered in K.M. MANI v. P.J. ANTONY AND ORS. . The point that arose for consideration in that case was whether the election petition was not properly verified if it is not stated which of the averments in paragraph 3 to 63 in that petition are according to the information of the petitioner and which are believed by him to be true. The attention of the Supreme Court was invited to Its earlier Judgment in VIRENDRA KUMAR SAKLECHA v. JAGJIWAN AND ORS. . The Supreme Court observed:
"Form No. 25 of the Conduct of Election Rules requires the deponent of an affidavit to set out which statements are true to the knowledge of the deponent and which statements are true to his information. The source of information is required to be given under the provisions in accordance with Rule 7 of the Madhya Pradesh High Court Rules. In so far as form No. 25 of the Conduct of Election Rules requires the deponent to state which statements are true to knowledge there is no specific mention of the sources of information in the form. The form of the affidavit and the High Court Rules are not inconsistent. The High Court Rules give effect to provisions of Order 19 of the Code of Civil Procedure."
But in this case, the petitioner does not say that the statement made by him in paragraph 1 to 8 of the petition are true to his Information. The averments disclose that the petitioner does not have any personal knowledge of the allegations against Respondent-2 since he was not present when Respondent-2 allegedly engaged the services of Dr. Jivaraj Alva and that person in turn induced one Venkatesh to bribe the 2 M.L.As in question. At best, the averments made in paragraphs 1 to 8 were only based on Information and not based on any personal knowledge or belief. But what the petitioner says In the petition is that those averments made in paragraphs 1 to 8 are true to his personal knowledge and information which he believes to be true' and therefore that verification is violative of the mandatory requirement of Section 83(1)(c). As regards the annexures filed by him, the verification made by him is no verification at all. What all he says is that "this Is the Annexure referred to as Annexure In the petition." The requirement of law is very clear. Even the annexures must also be verified in the manner required under Section 83(1)(c) of the Act and I have noticed earlier that those annexures on which he has relied in paragraph 5 of the petition do not provide a cause of action against Respondent-2 and hence, it is impermissible for this Court to permit the amendment of the verification of the petition, the amendment of the verification of the annexures and also the amendment of the affidavit filed by him in terms of the proviso to Section 83(1)(c) of the Act. Hence, the decision of the Supreme Court In K.M. Mani v. P.J. Antony And Ors. is of no avail to the petitioner.
28. One more decision to be noticed on the question of verification, though it was not cited by either of the learned Counsel before me, Is the decision of the Constitution Bench of the Supreme Court In BHIKAJI KESHAO JOSHI AND ANR. v. BRIJUAL NANDLAL BIYANI AND ORS. . The verification as required under Section 83(1)(c) of the Act came up for consideration in that case. The verification in that case was on the following terms:
"The above named applicants hereby affirm that the contents of the above petition are true to information received from the press reports and several other electors and believed by them to be true."
... ....
"The above named applicants affirm that the contents in this schedule are true to information received and believed by us to be true.'"
The Supreme Court observed:
"It is urged, therefore, that there was no scope and hence no need to specify which were based on personal knowledge and which upon information. We agree with this contention. It is to be noticed that a verified pleading is different from an affidavit which, by virtue of Order 19, Rule 3, is specifically required to be confined to such facts as the deponent is able of his own knowledge to prove (except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated).
But there is not - and in the nature of things there cannot be - any such limitation for pleadings. Hence it became necessary in the verification of a pleading to demarcate clearly between the two. The allegations in the petition in this case purport to be based only on information. Since the verification clauses refer to the entirety of the petition and the attached schedule, absence of enumeration of the various paragraphs therein as having been based on information cannot be considered to be a defect. The verifications are accordingly defective only as regards the requirement of the dates thereof."
The Supreme Court further observed:
"The question is whether the petition is liable to dismissal on this ground. Though there may be cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of absence of date of verification . In such a case the applicants should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission."
The facts are not similar in this case. As noticed earlier, the petitioner says that the averments in paras 1 to 8 are based on personal knowledge and information believed to be true. What are the facts based on personal knowledge and what are the facts which are based on information he does not say In the verification portion of the petition. Likewise, the annexures produced by him do not bear any verification at all as required under law, but he only identifies them as exhibits filed along with the petition. Likewise, the affidavit filed by him under the proviso to Section 83(1)(c) is also defective, in that, that affidavit is supposed to be an affidavit accompanying the petition. But the petition had already been filed on 10th May, 1988. Therefore, the affidavit which is a solemn document, which he has to file in terms of the proviso to Section 83(1)(c) of the Act is not an affidavit In the eye of law and since that affidavit could not have accompanied the election, petition which was filed three days earlier. Assuming that affidavit should be treated as part of the election petition, then the election petition necessarily has to be treated as having been filed on 13th May, 1988, in which event, the election petition is barred by time, since what Is necessary for the registration of the election petition Is an election petition which is complete In all respects as provided in Rule 7 of the High Court Rules. Therefore, viewed from any angle the defective verification of the pleadings of the petition, the absence of the verification of the annexures filed along with the petition and the defective averments made in the affidavit filed in respect of the corrupt practice alle-ged against respondent-2 would lead to the irresis-table conclusion that the said election petition is not an election petition in the eye of law. Consequently, the petition has to be dismissed in limine in the exercise of the power under Section 86 of the Act.
29. Mr. Subbaiah also contended that Issue No. 6 cannot be tagged on to Issue Nos. 1 and 2 since there is an allegation of fraud against Respondent-2 as pleaded in paragraph 4 of the petition. That allegation of fraud, according to him, would bring his case within the scope of the corrupt practice as defined in Section 123(7) of the Act. I have dealt with this argument in the earlier part of this Judgment. What all is pleaded in paragraph 4 of the petition in regard to corrupt practice said to have been committed by Respondent-2 is that the method adopted by Respondent-2 in getting his name fraudulently included in the list of voters is an electoral corrupt practice and therefore his election is liable to be set aside. The relevant provisions of Section 123 under which the allegation of fraud against Respondent-2 in getting his name fraudulently Included would amount to an electoral corrupt practice are not mentioned in the petition. The decision of the Supreme Court in Samant N. Balakrishna Etc. v. George Fernandez And Ors. etc. does bear out that the plea of corrupt practice should also be supported by the relevant statutory provisions of Section 123 of the Act. Even otherwise, without being hypertechnical, the material facts for bringing this corrupt practice within the scope of Section 123(7) should have been pleaded by the petitioner. I have already excerpted the relevant provisions of Section 123(7) of the Act. The person in service of the Government who according to the petitioner had rendered necessary assistance in the fraudulent act of Respondent-2 is the Assistant Electoral Registration Officer. The allegation against him is that without making an enquiry as required under law, he submitted himself to "the dictates of the Chief Minister, entered the name of the 2nd respondent in the Electoral Roll concerned knowingly very well that the declaration given by the 2nd respondent Is false and he is not an ordinary resident of 12, Brunton Road, Bangalore City." This allegation against the Electoral Officer touches upon the question of ordinary residence of Respondent-2 at No. 12, Brunton Road, Bangalore City. I have already adverted to the decision of the Supreme Court wherein it is held that the question of ordinary residence for the purpose of inclusion of a candidate's name in the electoral roll would not be a subject matter of an election petition on the ground that the candidate has committed electoral corrupt practice within the scope of Section 100 of the Act. Only the Electoral corrupt practice which falls within the scope of Section 123(7) of the Act gives a cause of action in favour of the petitioner under Section 100 of the Act and empowers the Court to declare the election as void. In my view, the plea of fraud against Respondent-2 in getting his name included In the electoral roll would not bring the case of the petitioner within the scope of Section 123(7) of the Act and therefore Issue No. 6 also would not be a triable issue as the answers to Issue Nos. 1 and 2 are in favour of Respondent-2.
30. In sum
(a) This Court has no jurisdiction to try Issue Nos.1 and 2 and consequently Issue Nos. 3 to 7, 14 and 16 do not survive for consideration;
(b) the averments made by the petitioner In paragraph 4 of the petition do not make out a cause of action against Respondent-2 since the material facts relating to corrupt practice allegedly committed under Section 123(7) of the Act are wholly lacking in the pleadings of the petitioner In the said paragraph;
(c) In the light of the decision of the Supreme Court In Azhar Hussaln v. Rajiv Gandhi and also in Samar Singh v. Kedar Nath And Ors., the election petition is not an election petition at all which comes within the scope of Rule 7 of the High Court Rules inasmuch as the petition does not satisfy the mandatory requirement of Section 83(1)(a)(b) and (c) and Section 83(2) of the Act;
(d) the election petition is barred by time as It was not accompanied by an affidavit in the prescribed form within the prescribed time and the averments made in the affidavit do not satisfy the requirement of the proviso to Section 83(1)(c) of the Act;
(e) the annexures attached to the petition are not verified in the manner prescribed for verifying the petition and these defects in the election petition, in the affidavit and in the annexures are not amenable to any correction by amendment at a subsequent stage of the proceedings; and
(f) in the result, the provisions of Section 86(1) of the Act are attracted to the facts of this case and this petition has to be dismissed under Section 86(1) of the Act on the ground that the petition is not in compliance with the provisions of Sections 81 and 83 of the Act. The order of dismissal shall be an order deemed to be made under clause (a) of Section 98 of the Act, that means to say; the order that should be made under Section 86(1) of the Act would be an order dismissing the election petition.
For these reasons, this petition is liable to be dismissed and accordingly it is dismissed.
31. A short epilogue is warranted on the facts of this case. As noticed earlier, the application raising the preliminary objections was filed by Respondent-2 only on the date of commencement of the trial. Needless to say that Respondent-2 is a lawyer of repute and a Parliamentarian to boot and it cannot be said that he was not properly advised in filing his written statement. These preliminary objections could have been taken by him even before filing the written statement. Whether these objections were not taken at the earlier stage for want of proper legal advice or whether it was a part of the litigation strategy adopted by him in order to take the petitioner by surprise is an intriguing aspect of this case, but it is unnecessary to dwell further on that aspect as I have found that the petition is liable to be dismissed for non-compliance with the provisions of Sections 81 and 83 of the Act.
Though the order of dismissal is made by this Court under Section 86(1) of the Act, it amounts to an order of dismissal under Section 98(a) of the Act.
However, as the petition is dismissed before trial, direct the parties to bear their own costs.