Punjab-Haryana High Court
Harmail Singh Tohra vs Lal Singh on 5 September, 2009
Author: Surya Kant
Bench: Surya Kant
In EP No. 4 of 2007. ::-1-::
IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
In EP No. 4 of 2007.
Date of Decision: 5th September, 2009.
Harmail Singh Tohra Petitioner
through
Mr. Sukhbir Singh, Advocate
Versus
Lal Singh Respondent
through
Mr. Harbhagwan Singh, Sr. Advocate
with Mr. Tarunveer Vashisth, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURYA KANT.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
SURYA KANT, J.
This order shall dispose of the respondent's prayer to strike off the pleadings and consequently dismiss the election petition on the strength of the Preliminary Issues No. 4 to 9, which are to the following effect:-
"4. Whether the allegations in the election petition make out ingredients of a corrupt practice as envisaged by Sub- Sections 2, 3 of Section 123 of Representation of Peoples Act, 1951?OPD.
5. Whether the Election Petition and its Paragraphs are vague, scandalous, frivolous, vexatious and tend to prejudice, embarrass and delay the fair trial of Election Petition and is liable to be struck off from the pleadings under Order 6 Rule 16 CPC in view of the preliminary objections?OPR.
6. Whether the election petition is liable to be rejected In EP No. 4 of 2007. ::-2-::
under clause 'a' of Order 7 Rule 11 Code of Civil Procedure as it does not disclose a cause of action?OPR.
7. Whether the verification of the Election Petition is defective. If so, to what effect?OPR.
8. Whether the affidavit to the Election Petition is defective. If so, to what effect?OPR
9. Whether the allegations in the entire petition lack material facts as well as material particulars and hence liable to be dismissed?OPR".
[2]. In order to appreciate the controversy, a vivid reference to the facts may be made.
[3]. The petitioner, respondent and nine other candidates contested the election to the Punjab Legislative Assembly from 73 - Dhakala Assembly Constituency held on 13.2.2007. The respondent
- a candidate of Indian National Congress, was polled 64,442 votes as against 56,332 votes polled in favour of the petitioner - a Shiromani Akali Dal candidate, and was declared elected. The petitioner has questioned the purity and outcome of the election, inter-alia, alleging that the respondent committed gross corrupt practices including obtaining support from the religious community known as Dera Sacha Sauda who has over 20 lacs followers in the State of Punjab. In Para 7[A to Q], the petitioner has attempted to make out a case of the alleged indulgence of the respondent in 'corrupt practices' and 'appealing the voters in the name of religion' within the meaning of Section 123[2] and [3] of the Representation of People Act, 1951. The petitioner alleges that the respondent along with the then Chief Minister of Punjab contacted the head of the Dera Sacha Sauda, who in turn, dictated through the Political Wing of the In EP No. 4 of 2007. ::-3-::
said Dera Sacha Sauda to hold public meetings wherein the gathering was informed that the afore-stated religious sect has taken a decision to support the congress candidates. The voters present in the public meeting were subjected to undue influence by alleging that in case they do not support the Congress candidates, they will incur the displease of Hazur Pita, namely, Head of the Sect and if they do not get his blessings, it could cause losses of their property and lives. These inflammatory speeches are said to have been made by the office bearers of the Political Wing of the religious sect with the express consent of the respondent, who too was present and spoke on those occasions.
[4]. The solitary question that arises for consideration is as to whether or not the election petition contains a concise statement of material facts relied upon by the petitioner and does it set forth full particulars of the corrupt practices alleged to have been committed by the respondent along with specific information regarding the date, place of commission and the persons involved in such corruption practices?
[5]. Counsel for the respondent strenuously urged that paragraph 7 of the election petition lacks material facts in relation to 'undue influence' or appeal of vote in the name of 'religion' alleged to have been made by the respondent. He argued that the averments made in para 7 of the election petition, even if taken on their face value, would amount to a volunteered appeal to vote in favour of the respondent made by a religious leader which is altogether different from an appeal to vote or refrain from voting on the ground of religion In EP No. 4 of 2007. ::-4-::
emanating from some religious leader and attributable to the candidate within the meaning of Section 123[3] of the Act. According to the counsel, unless a candidate makes an appeal himself or through his agent or through his authorized person to vote or refrain from voting on the ground of his 'own' religion, such an appeal does not fall within the mischief of Section 123[3] of the Act and that in the instant case there is not even a whisper by the petitioner that the religious sect who is alleged to have made an appeal to support the respondent, made such an appeal in the name of the respondent's religion. The counsel further argued that the averments made in para 7 alleging 'undue influence' are also vague, evasive and lack in material particulars and since the petitioner has attempted to make out a case within the meaning of proviso [a][ii] to sub-Section [2] of Section 123, he can not rely upon the principal provision of sub-
Section [2] thereof. To be precise, it was urged that the petitioner can not rely upon the expression "any direct or indirect interference or attempt to interference ........ with the free exercise of any electoral right", rather having narrowed down the pleadings within the sweep of proviso [a][ii] only, ought to have shown as to how the respondent has induced or attempted to induce the voters through the religious sect that if the respondent is not supported, they will be rendered an object of "divine displeasure" or "spiritual censure". The counsel has relied upon a series of judgments including [i] Ram Dial v Sant Lal & Ors., AIR 1959 Supreme Court, 855; [ii] Amir Chand Tota Ram, Delhi v Smt. Sucheta Kriplani, Delhi, AIR 1961 Punjab, 383; [iii] Hardwari Lal v Kanwal Singh, AIR 1972 Supreme Court, 515; [iv] In EP No. 4 of 2007. ::-5-::
Rahim Khan v Khurshid Ahmad & Ors., AIR 1975 Supreme Court, 290; [v] Bachan Singh & Anr. V Prithvi Singh & Ors., AIR 1975 Supreme Court, 926; [vi] Charan Lal Sahu v Giani Zail Singh, AIR 1984 Supreme Court, 309; [vii] Surinder Singh v Hardial Singh & Ors, AIR 1985 Supreme Court, 89; and [viii] Ram Singh & Ors. V Col. Ram Singh, AIR 1986 Supreme Court, 3 to support his contentions.
[6]. The counsel for the petitioner, on the other hand, argued that the Election Petition is in consonance with Section 83[1] of the Act and contains all the details of material facts as well as full particulars of the corrupt practices as alleged. He argued that sub- Section [2] of Section 123 on one hand and provisos [a] and [b] thereto on the other hand, are independent to each other. The counsel submitted that any fact event which has tempered with the free exercise of electoral right can be termed as 'undue influence' within the meaning of sub-Section [2] whereas the instances of threats or inducement to a voter in the name of 'social ostracism' and 'ex-communication' or 'expulsion' from any caste or community and/or 'divine displeasure' and/or 'spiritual censure' would fall within the clauses [i] and [ii] of proviso [a]. It was urged that in order to prove 'undue influence', the petitioner has pleaded specific instances along with the date and time of the participants, including the express or implied consent of the respondent on more than one occasions. He argued that in a given case even if there is lack of "material particulars", the petition can not be dismissed on threshold as such material particulars can be provided by way of amendment of the In EP No. 4 of 2007. ::-6-::
election petition, if so required. The counsel vehemently controverted the respondent's claim that the verification of the petition is defective or the affidavit to support the allegations of 'corrupt practices' also suffers from the same infirmity. It is sought to be explained that the petition and the affidavit both are in the prescribed format and the affidavit even discloses the source of information, though not required to be disclosed. According to the counsel, the defect in verification is also curable by way of amendment. In support of his contentions, the counsel relied upon a catena of decisions including [i] Balwan Singh v Lakshmi Narain & Ors., AIR 1960 Supreme Court, 770; [ii] Manubhai Nandlal Amersey v Popatlal Manilal Joshi & Ors., AIR 1969 Supreme Court, 734; [iii] Janak Sinha v Mahant Ram Kishore Dass, AIR 1972 Supreme Court, 359; [iv] Ziyauddin Burhanuddin Bukhari v Brijmohan Ramdass Mehra & Ors., AIR 1975 Supreme Court, 1788; [v] Rahim Khan v Khurshid Ahmed & Ors., AIR 1975 Supreme Court, 290; [vi] S.Harcharan Singh v S.Sajjan Singh & Ors. AIR 1985 Supreme Court, 236; [vii] Ram Saran Yadav v Thakur Muneshwar Nath Singh & Ors., AIR 1985 Supreme Court, 24; [viii] F.A.Sapa v Singora & Ors., AIR 1991 Supreme Court, 1557; [ix] Shri Suryakant Venkatarao Mahadik v Smt. Saroj Sandesh Naib, JT 1995[8] SC, 686; [x] Dr. Ramesh Yeshwant Prabhoo v Prabhakar Kashinath Kunte & Ors., AIR 1996 Supreme Court, 1113; [xi] H.D.Ravanna v G.Puttaswamy Gowda & Ors., AIR 1999 Supreme Court, 768; [xii] Bidesh Singh v Madhu Singh & Ors., 2003[4] RCR [Civil], 823; [xiii] Harkirat Singh v Amarinder Singh, 2006[1] RCR [Civil], 132; In EP No. 4 of 2007. ::-7-::
and [xiv] Mahadeorao Sukaji Shivankar v Ramaratan Bapu & Ors. 2004[7] SCC, 181.
[7]. Counsel for the petitioner, however, fairly conceded that the petition lacks material particulars in respect of the allegations of making any appeal by the respondent or by his agent or any other person with his consent to vote in his favour in the name of the respondent's 'religion'. The counsel conceded that the allegations incorporated in the petition do not make out a case of 'corrupt practice' within the meaning of sub-Section [3] of Section 123 of the Act.
[8]. Having heard counsel for the parties and after giving thoughtful consideration to the rival contentions, I am of the considered view that the averments made in para 7 of the petition can not be said to be too vague or evasive that they do not contain 'material facts' or 'full particulars' of the instances of 'undue influence' amounting to 'corrupt practices' within the meaning of Section 123 [2] of the Act. It shall, however, be an altogether different issue as to whether or not such corrupt practices were committed by the respondent as the said question would be effectively addressed after the parties lead their respective evidence.
[9] It appears to me that Issue No. 4 can not be decided without reference to the evidence to be led by the parties, though in view of the conceded position that there no specific allegations of corrupt practice within the meaning of Section 123[3] of the Act, the pleadings to the extent alleging commission of the corrupt practice under that provision are liable to be over-looked. Similarly, the In EP No. 4 of 2007. ::-8-::
election petition can not be termed as vague, evasive or vexatious at this stage as the petitioner has made precise factual averments and he shall have to lead evidence strictly confining to those allegations only. In the course of pleadings, the petitioner has named certain individuals, given the instances and explained the nature of the alleged undue influences. If proved, these allegations can attract the provisions of Section 123[2], especially sub-clause [ii] of clause [a] of the proviso thereto. Once the petitioner has been noticed to have furnished the material particulars about the manner in which the respondent had allegedly indulged in corrupt practices, the judicial precedents cited on behalf of the respondent need not be referred to in detail at this stage. The situation could be different if the nature of controversy was confined to the legal principals only which would have invited adjudication without reference to any evidence. [10]. In S.Harcharan Singh Brar v Sukhchain Singh, 2004 RCR[Civil], 749, the Hon'ble Supreme Court ruled that even if the Court finds that the pleadings are deficit, it can not be made a ground for dismissing the petition at the threshold and the Court could very well direct the parties to make the deficiency good. As observed earlier, the petitioner has made the pleadings to satisfy the ingredients of Section 123[2] of the Act, though he has failed to make out a case under Section 123[3] thereof.
[11]. For the reasons afore-stated, the prayer of the respondent to struck off the pleadings, especially Paragraph 7 of the election petition can not be accepted and the same is hereby rejected. The objection to delete the allegations/averments alleging In EP No. 4 of 2007. ::-9-::
corrupt practice within the meaning of Section 123[3] of the Act, however, sustains and the pleadings to that extent only are ordered to be struck off. Similarly, no fault is found with the verification of the election petition or the affidavit appended in support of the allegations of commission of corrupt practices.
[10]. List on 14.10.2009. September 05, 2009. ( SURYA KANT ) dinesh JUDGE