Punjab-Haryana High Court
**** vs Charanjit Singh on 6 December, 2010
Author: Surya Kant
Bench: Surya Kant
EP No.19 of 2007.doc -1-
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
****
In EP No.19 of 2007 (O&M) Date of Decision: 06.12.2010 **** Satwant Kaur Sandhu . . . . Petitioner VS.
Charanjit Singh . . . . . Respondents
****
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?
**** Present: Mr. KS Sidhu, Senior Advocate with Mr. Vikrant Arora, Advocate for the petitioner Mr. Anupam Gupta, Advocate for the respondent ***** SURYA KANT J.
(1). This order shall dispose of two Preliminary Objections raised by the respondent/returned candidate, namely,
(i) Whether the election petition is liable to be dismissed summarily under Order 7 Rule 11(a) CPC read with Sections 83 and 87 of the Representation of the People Act, 1951 (in short, 'the Act') for failing to disclose any 'cause of action' or raise any 'triable issue' ?; and (ii) whether the election petition is liable to be dismissed being absolutely vague and completely lacking in material facts and particulars on all counts? (2). Both the preliminary issues have arisen out of the election petition seeking to set aside the election to the EP No.19 of 2007.doc -2- State Assembly from 67-Chamkaur Sahib Constituency held in February, 2007. While the petitioner was the official candidate of Shiromani Akali Dal (Badal), the respondent contested as an Independent candidate and was declared elected by a margin of 1758 votes. The petitioner has assailed the election on the following four grounds :-
(i) the nomination papers of the respondent were improperly accepted;
(ii) the respondent, while seeking votes in the name of religion/caste/community, indulged in 'corrupt practice' within the meaning of Section 123(3) of the Act;
(iii) the respondent further indulged in 'corrupt practice' within the meaning of Section 123(5) of the Act; and
(iv) the respondent also adopted 'corrupt practice' within meaning of Section 123(7)(a) of the Act as he procured the assistance of persons in the service of the Government holding Gazetted posts.
(3). The respondent, besides controverting the allegations on merits, in his written statement has taken a preliminary objection that the election petition does not disclose any 'cause of action' nor does it raise any EP No.19 of 2007.doc -3- 'triable issue'; is absolutely vague and is completely lacking in material 'facts' and 'particulars' and is liable to be rejected summarily.
(4). Since issues No.(vi) & (vii) were ordered to be treated as preliminary issues, learned counsel for the parties have been heard in reference thereto and the pleadings have been minutely perused with their able assistance.
(5). Catena of decisions enlightening various provisions of the Act, especially, as to what constitutes to 'material facts' and 'material particulars' and/or the factors to be kept in view by the High Court while striking off the pleadings, have been cited at the bar though only a few of them, close to the preliminary issues reproduced above, are being referred to avoid repetition. These binding or persuasive precedents authoritatively lay down that :-
a) an election petition is liable to be dismissed under Order 7 Rule 11(a) CPC if it does not contain the concise statement of material 'facts' and 'particulars' and does not set forth full particulars relating to the alleged 'corrupt practices' in the election;
b) the election petition can be summarily dismissed if it does not furnish the 'cause of action'; EP No.19 of 2007.doc -4-
c) there must not be any vagueness in the allegations as the returned candidate must know the case he has to meet and vague and evasive allegations for a fishing or roving enquiry are impermissible;
d) an election petition which does not comply with the provisions of Section 81, 82 or 117 can be dismissed under Section 86 of the Act, the one lacking in material 'facts' and 'particulars' in terms of Section 83 can be dismissed by the High Court under the provisions of CPC;
e) Failure to plead even a single material fact leads to incomplete 'allegations' and 'cause of action', and such charges are liable to be struck off under Order VI Rule 16 CPC;
f) 'Material Facts' would include the complete chain of the material 'events' and the 'basis' in support of the allegations;
g) The material 'Particulars', on the other hand, are the descripted narration of 'events' of the 'material facts' pleaded to "amplify, refine and embellish" the material facts to make them more clear and more informative;
h) The 'material facts' would, thus, mean a composite bundle of facts which are sufficient EP No.19 of 2007.doc -5- enough to give rise to 'cause of action' and must be specifically averred as to how the result of an election has been materially affected.
i) The power to strike off the pleadings should be exercised by the High Court sparingly and with extreme caution and circumspection;
j) Where the allegations of 'corrupt practices' along with the facts necessary to formulate a complete 'cause of action' are pleaded and the particulars have also been given, though insufficient, the High Court ought not to dismiss the election petition and should give an opportunity to the party under Section 86(5) of the Act to make good the deficiency;
k) An election petition founded upon the ground of improper rejection of Ballot Papers, even if lacking in material facts, cannot be dismissed at the threshold as the petitioner is entitled to furnish better particulars thereof;
l) While the 'material facts' cannot be introduced after the expiry of the period of limitation, the 'material particulars' can be permitted to be introduced even at a belated stage provided that the material facts in relation thereto have already been pleaded;EP No.19 of 2007.doc -6-
(6). Reference may be made to the decisions in (i) Harkirat Singh v. Amarinder Singh, AIR 2006 SC 713(1); (ii) Virender Nath Gautam v. Satpal Singh and Ors., AIR 2007 SC 581; (iii) Sardar Harcharan Singh Brar v. Sukh Darshan Singh and others, AIR 2005 SC 22; (iv) Mahadeorao Sukaji Shivankar v. Ramaratan Bapu and Ors., JT 2004 (6) SC 393; (v) Bidesh Singh v. Madhu Singh and Ors., (2003) 11 SCC 448; (vi) Mahendra Pal v. Ram Dass Malanger and Ors., AIR 2000 SC 16; (vii) VS Achuthanandan v. P.J. Francis and Anr., AIR 1999 SC 2044; (viii) HD Revanna v. G. Puttaswamy Gowda and Ors., AIR 1999 SC 768; (ix) Raj Narain v. Smt. Indira Nehru Gandhi and Ors., AIR 1972 SC 1302; (x) Balwan Singh v. Lakshmi Narain and Ors., AIR 1960 SC 770; (xi) D. Ramachandran v. RV Janakiraman and Ors. AIR 1999 SC 1128, as relied upon by the learned counsel for the election petitioner as well as to the decisions in (i) Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253; (ii) Dhartipakar Madan Lal Aggarwal v. Sh. Rajiv Gandhi, AIR 1987 SC 1577; (iii) Subhash Desai v.
Sharad J.Rao & Ors., AIR 1994 SC 2277; (iv) Hari Shanker Jain v. Sonia Gandhi, (2001) 8 SCC 233;
(v) Sudarsha Avasthi v. Shiv Pal Singh, (2008) 7 EP No.19 of 2007.doc -7- SCC 604; (vi) Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310; (vii) Ram Sukh v. Dinesh Aggarwal; (2009) 10 SCC 541; (viii) Hardwari Lal v. Kanwal Singh, AIR 1972 SC 515;
(ix) Samant N. Balakrishna etc. v. George Fernandez & Ors., AIR 1969 SC 1201; (x) V. Naranayaswamy v. C.P. Thirunavukkarasu, (2000) 2 SCC 294; (xi) Sathi Vijay Kumar v. Tota Singh & Ors., (2006) 13 SCC 353; (xii) Pothula Rama Rao v. Pendyala Venakata Krishna Rao & Ors., (2007) 11 SCC 1; (xiii) Ch. Razik Ram v. Ch. J.S. Chouhan & Ors., AIR 1975 SC 667; (xiv) Dadasaheb Dattatraya Pawar & Ors. V. Pandurang Raoji Jagtap & Ors., AIR 1978 SC 351; (xv) Mahender Pal v. Ram Dass Malanger & Ors., (2000) 1 SCC 261; (xvi) Sardar Harcharan Singh Brar v. Sukh Darshan Singh & Ors., (2004) 11 SCC 196; (xviii) Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511 referred to by the learned counsel for the respondent/returned candidate. (7). Since the objections raised by the respondent do not pertain to non-compliance of Sections 81, 82 or 117 which could entail outright dismissal of the election petition under Section 86 of the Act, the answer to the core issues need to be traced out from within the four EP No.19 of 2007.doc -8- corners of Section 83 of the Act read with the settled principles of law summarized above.
(8). Section 83 of the Act mandates that an election petition shall contain a concise statement of the 'material facts' on which the petitioner relies and if so pleaded, it shall set forth full particulars of any 'corrupt practice', possibly including 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 election petition along with the Schedule or the Annexures, besides the petitioner's affidavit in the prescribed form, are required to be signed & verified by the petitioner in the manner laid down in the CPC for the verification of pleadings.
(9). As has been noticed briefly, the petitioner assails the election of the returned candidate on four counts. In support of the first ground i.e. improper acceptance of the nomination paper of the respondent, the petitioner has specifically averred in para 5 of the election petition that one of the proposers of the nomination form, namely, Mansa Singh (Sr.No10) is said to have thumb-marked the nomination form though he never appeared before the Returning Officer or any other Officer nominated for that purpose at the time of filing EP No.19 of 2007.doc -9- of the nomination form or its scrutiny. His thumb- mark has, allegedly, not been attested in accordance with the Election Rules of 1954. It is further alleged that "even signatures of some of the proposers are also forged." Para 6 of the election petition also contains similar allegations regarding erroneous thumb- marking of the nomination papers of Surinder Singh. (10). In my considered view the averments made in paragraphs 5 and 6 of the election petition regarding improper acceptance of the nomination papers of the respondent or Surinder Singh cannot be said to be lacking in material 'facts' or 'particulars' though the petitioner is under a heavy onus to substantiate these allegations with cogent evidence. However, the allegation to the effect that "even signatures of some of the proposers are forged", is totally vague and wild as neither the names of the proposers nor the manner and nature of forgery etc. have been disclosed. The said allegation lacks material facts and particulars and is ordered to be struck off.
(11). Similarly, para 8 of the election petition contains concise but specific allegations as to how the respondent is said to have procured the assistance of his wife Dr. Kanwaljit Kaur who is serving as a Medical Officer in Health Department of Government EP No.19 of 2007.doc - 10 - of Punjab "for furtherance of his election and prospects" and that of his brother Manmohan Singh who holds the post of Superintending Engineer in the PWD Department, Government of Punjab. From the conjoint reading of the averments made in paras 8 and 9(a)(b)(c)&(d) of the election petition, it cannot be said that the petitioner has failed to satisfy the ingredients of Section 123(7)(a) of the Act in the context of the alleged assistance procured by the respondent from two Gazetted Officers, namely, his wife (Dr. Kanwaljit Kaur) and his brother (Manmohan Singh). In the last part of para 8 although the petitioner alleged that "the respondent procured the assistance of his another brother Dr. Manohar Singh, PCMS-I, who is posted as a Medical Officer in Police Lines, Ropar". Yet no material particulars of the mode or manner of assistance extended by Dr. Manmohan Singh to the respondent within the meaning of Section 123(7) of the Act have been disclosed or pleaded.
(12). The averments made in para 8 of the election petition regarding procurement of assistance by the respondent from Dr. Manmohar Singh, thus, lack material facts and particulars and to that extent the pleadings are liable and is ordered to be struck off. EP No.19 of 2007.doc - 11 - (13). The petitioner in para 10 of the election petition has averred that the respondent engaged for reward about 15 vehicles for ferrying voters from their residences to the polling booths which amounts to 'corrupt practice' within the meaning of Section 123(5) of the Act. The petitioner while furnishing material particulars, has specifically disclosed that the vehicles bearing registration Nos.PB-12C-1156, PB-12-F-8837, PB-23- D-0362, and PB-12-G-5740 were impounded by the police on his complaint. The details of the DDRs, Police Station etc. are also averred.
(14). Section 123(5) of the Act contemplates that hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of the candidate or an election agent or the use of such vehicle or vessel for the free conveyance of any elector to or from any polling station, amounts to 'corrupt practice' subject to the exception that the hiring of vehicle or vessel by elector(s) at their own cost for the purpose of coming to and from any polling station or place fixed for the poll does not amount to 'corrupt practice'. The petitioner has specifically averred and given particulars of four vehicles allegedly 'engaged' by the respondent for reward for ferrying the voters from EP No.19 of 2007.doc - 12 - their residences to the polling booths. These vehicles were allegedly impounded and in the presence of the persons mentioned in sub-paras (a)(b)&(c) of para 10 of the election petition on the complaint(s) made by the petitioner. These allegations, if proved by leading credible evidence, can attract the sweep of Section 123 (5) of the Act. The petitioner has at the same time failed to plead even broad particulars of all the '15' vehicles allegedly hired by the respondent or on his behalf, nor the places (villages etc.) where such vehicles were used for the offending purpose(s), have been disclosed. The pleadings in support of the allegations within the meaning of Section 123(5) of the Act are, thus, an amalgam of vague and specific allegations. While the allegations regarding use of '15 vehicles' lack material 'facts' as well as the 'particulars' and are liable to be struck off, the pleadings in respect of four vehicles allegedly used by the respondent are quite specific and sufficient to entertain the allegation of "corrupt practice" under Section 123(5) of the Act at this stage.
(15). This takes us to the last plea taken by the petitioner to nail the election result, namely, that the respondent and his wife (Dr. Kanwaljit Kaur) visited Village Moghul Majra at 9.30 am on 1st February, 2007 in the EP No.19 of 2007.doc - 13 - presence of Sher Singh, Ex-Sarpanch and his brother Jarnail Singh and "distributed Money and liquor to garner voters in favour of respondent by collecting the votes at Village Dharamshala, where `100/- were given to each of about 200 voters present, for polling votes in favour of respondent". The said act of 'illegal gratification', according to the petitioner, amounts to 'bribery' within the meaning of Section 123(1) of the Act and the result of the election is said to have been materially affected by such like 'corrupt practices'. (16). In Sudarsha Avasthi v. Shiv Pal Singh, (2008) 7 SCC 604,the election of the returned candidate was assailed on the ground that he adopted corrupt practice by giving illegal gratification to Ram Pratap Singh, Pardeep Kumar and SP Singhal with a view to induce them to contest as candidates and/or to withdraw their nominations.
(17). Notwithstanding the specific instances with exact amount of bribe given to the named person(s) having been pleaded, the High Court as well as the Hon'ble Supreme Court while explaining the scope of Section 123 of the Act rejected those allegations at the threshold after holding that the allegations appeared to be a 'cock and bull' story as it was not believable EP No.19 of 2007.doc - 14 - that a person would accept illegal gratification in public view.
(18). In V.Narayanaswamy v. C.P. Thirunavukkarasu, (2000) 2 SCC 294, there were allegations of bribing the MLAs for election to Rajya Sabha. It was ruled that in a petition alleging 'corrupt practices', the 'cause of action' cannot be equated with the 'cause of action' as normally understood because of the consequences that follow in a petition based on such allegations. Such like allegations must be supported by an affidavit to the effect that the allegations are true to the petitioner's knowledge and believed by him to be true, the allegation should be clear, precise & specific and should not be open to more than one inference. (19). In Ch. Razik Ram v. Ch. J.S. Chouhan and others, AIR 1975 SC 667, it was held that a charge of 'corrupt practice' is substantially akin to a 'criminal charge' as it entails serious penal consequences and therefore, the standard of proof of such allegations has to be the same as in the criminal trial.
(20). If the averments made in para 11 of the election petition are tested on the touchstone of the above cited settled principles, in my considered view, the allegations of distributing money and liquor to 'bribe' the voters by the respondent are absolutely vague, EP No.19 of 2007.doc - 15 - evasive, stereotype and far from convincing. The petitioner, though begins para 11 of his election petition by referring to both the distribution of 'money' and 'liquor', but in the very next breath, he conspicuously skips the allegation of distributing 'liquor'. If about 200 voters were bribed with `100/- each in the presence of a former Sarpanch of the village, it is beyond apprehension that the said former Sarpanch could identify none or give any particulars to the petitioner.
(21). The contents of the alleged complaint made in this regard by the election agent of the petitioner - Dharam Singh to the Election Observer are also vague and evasive as it is not known whether the complaint was oral or in writing. No such complaint has been appended or included by the petitioner in the list of documents in 'Form-BB'. Similarly, the date and time when Dharam Singh made the complaint to the Election Observer has not been disclosed. Likewise, the incident is said to have taken place on 1st February, 2007 i.e. 12 days before the polling was held on 13.02.2007 and the petitioner who had sufficient time to report the matter to the authorities, is totally silent on her inaction. The only material particular averred in support of this allegation is the EP No.19 of 2007.doc - 16 - oral version of former Sarpanch of the village and his brother, which is wholly insufficient. The contents of para 11 of the election petition alleging 'illegal gratification' within the meaning of Section 123(1) of the Act, thus, lack material 'facts' and 'particulars' and are accordingly ordered to be struck off from the pleadings.
(22). For the reason afore-stated, the Preliminary Issues raised on behalf of the respondent sustain partly and as a consequence thereto, the last line of para-5, the allegations regarding procuring assistance of Dr. Manmohan Singh contained in the last part of para-8, use of '15 vehicles' in violation of Section 123(5) of the Act in para-10 and the entire para-11 of the election petition are ordered to be struck off.
(23). Post for further hearing on 11.02.2011. (24). The parties are directed to file their respective list of witnesses before the adjourned date.
(25). Dasti.
(SURYA KANT)
JUDGE
06.12.2010
vishal shonkar