Punjab-Haryana High Court
Surinder Pal vs Gurpreet Singh Kangar And Ors. on 16 March, 2005
Equivalent citations: AIR2005P&H251, (2005)141PLR533, AIR 2005 PUNJAB AND HARYANA 251
ORDER S.N. Aggarwal, J.
1. Surinder Pal-petitioner, in this Election Petition is a voter in Rampujra Phul (No. 113) constituency of Vidhan Sabha. Six issues were framed out of which issues Nos. 1 and 2 were treated as preliminary Issues. These preliminary Issues read, as under :-
1. Whether the election petition is liable to be rejected In view of the preliminary objection to the effect that material facts and necessary particulars have not been-stated in the petition? OPR
2. Whether the facts averred In Paragraphs 4 to 6 of the election petition constitute corrupt, practices within the meaning and ambit of Section 123 of the Representation of the People Act? OPP
2. When the file was coming up for arguments on preliminary issues, the petitioner , filed an application for amendment In the Election Petition under Section 86(5) of the Representation of the People Act, 1951 It was contested by respondent No. 1.
3. The arguments have been heard on the preliminary Issues reproduced above and also on the application for amendment of the Election Petition.
4. Hence this order.
5. The general elections to the Vidhan Sabha In the State of Punjab were notified by the Election Commission of India on 26-12-2001 as under :-
a) Date for calling upon the 16-1-20O2 (Wed)
constituency
b) Last date for making nominations 23-1 -2002 (Wed)
c) Date for Scrutiny of 24-1-2001 (Thu)
nominations (24-1-2002)
d) Last date of withdrawal of 28-1 -2002 (Mon)
Candidatures
e) Date of Poll if necessary 13-2-2001 (Wed)
(13 2 2002)
f) Hours of Poll 8 a.m. to 5 pm.
g) Date for counting of votes 24-2-2002 (Sun)
h) Date before which elections 28-2-2002 (Thu)
shall be completed
(Dates were wrongly recorded at c) and e) as 2001. Actually the year admittedly.is 2002)
6.. The result of the election was declared on 24-2-2002. Gurpreet Singh Kangar-respondent No. 1 was the candidate declared elected, while respondent No. 2. Slkandar Singh Maluka was the candidate defeated. The remaining seven respondents were the other candidates who tried their luck In .Rampura Phul constituency of the Vldhan Sabha (No. 113). As stated above, the petitioner was the voter In the said constituency.
7. The petitioner challenged the election of Gurpreet Singh Kangar-respondent No. 1 on the following pleas :-
1) On 5-1-2002, a cultural programme was organised by the Malwa Sabhlacharak .Manch, In which respondent No. 1 (Gurpreet Singh Kangar) made speeches and by promising money to the voters, he committed a gross corrupt practice of bribery as envisaged under Section 123(1) of the Representation of the People Act:
ii) Respondent No. 1 (Gurpreet Singh Kangar) made false statements/publications which he believed to be wrong and false In relation to the personal character and conduct of respondent No. 2 (Slkandar Singh Maluka) and calculated to prejudice the prospects of respondent No. 2.
iii) He took active assistance of a teacher. namely, Manjit Inder Singh of village Bhagta. who was a Government servant. In order to get support from the teachers community and also from a Forest Guard (Government servant), namely, Harinder Singh. Assistance was also taken from many other Government servants.
8. Hence It was prayed that the. election of Gurpreet Singh Kangar. respondent No. 1, be set aside and declared null and void and Sikandar Singh Maluka, respondent No. 2 be declared elected from Rampura Phul constltucncy.
9. In the written reply, respondent No. 1 took preliminary objections and also controverted the allegations made in the Election Petition by the petitioner.
10. Replication was filed, in which the allegations were reasserted.
11. As discussed above, issues were framed.
12. Thereafter, an application for amendr ment under Section 86(5) of the Representation of the People Act, was filed by the petitioner in which he sought to amend Para: graph 5 of the Election Petition, which con; talned the allegations of corrupt practices. It was pleaded that the date when the speeches were made by respondent No. 1 was 10-2-2002. therefore, he wanted to Incorporate the said date in Paragraph 5. Similarly, the place where the speech was made was not Bhagta. It was Rainpura Paul and prayer for amendment was made accordingly-
13. It was further prayed that the petitioner wanted to amplify material particulars of the corrupt practices alleged in Paragraph 5 of the Election Petition in order to ensure a fair and effective trial of the petition. as well as, dispensation of Justice. Out of the ten Incidents of corrupt practices, the petitioner wanted to amplify the allegation of corrupt practice as pleaded In Para 5 (I), 5 (ii), 5 (ill), 5 (vi) and 5 (vii): This application was accompanied by an affidavit of the petitioner as also the amended Election Petition.
14. Its reply was filed by respondent No. 1. Preliminary objections were taken that this application for amendment la wholly nilsconceived. It cannot be permitted, either under Section 86(5) of the Representation of the People Act or under Order 6 Rule 17 of the Code of Civil Procedure. The election petition as filed did not disclose any cause of action and by proposed amendment, the petitioner virtually wanted to introduce a new election petition which cannot be permitted. On merits also, the proposed amendment was contested and its dismissal was prayed.
15. As discussed above, I have gone through the pleadings of the parties with the help of learned counsel for the parties. I have also gone through the law referred-to by them and have also considered their submissions.
16. The first submission made by learned counsel for the petitioner was that he is seeking amendment in the particulars of corrupt practice which fall within the purview of Section 83(1)(b) of the Representation of the People Act, 1951 and he is not seeking any amendment in the concise statement of the material facts which are covered by the provisions of Section 83(1)(a) of "the said Act. Reference was also made to Section 86(5) of the said Act, which lays down that 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.
17. In support of his submission, the learned counsel for the petitioner relies on the judgment of the Hon'ble Supreme Court reported as Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil . Reference was also made to some other judgments rendered by the Hon'ble Supreme Court and reference was also made to the recent judgment of the Hon'ble Supreme Court reported as Mahadeorao Sukaji Shivankar v. Ramratan Bapu, 2005 (1) RCJ 22 : (2004) 6 JT 393 (Paras 5 and 6) in which it was laid down by Hon'ble Supreme Court as under :-
"7. Now, it is no doubt true that all material facts have to be set out in an election petition. If material facts are not stated in a plaint or a petition, the same is liable to be dismissed on that ground alone as the case would be covered by Clause (a) of Rule 11 of Order VII of the Code. The question, however, is as to whether the petitioner had set out material facts in the election petition. The expression '''material facts" has neither been defined in the Act nor in the Code. It may be stated that the material facts are those facts upon which a party relied for his claims or defence. In other words, material facts are facts upon which the plaintiffs cause of action or. defendant's defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish existence of cause of action or defence are material facts and must be stated in the pleading of the party.
8. But, it is equally well settled that there is distinction between "material facts and "particulars". Material facts are primary or basic facts which must be pleaded by the party in support of the case set up by Him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving finishing touch to the basic contours of a picture at ready drawn so as to make it full, more clear and more informative. Particulars ensure conduct of fair trial and would not take the opposite party by surprise."
18. In any case, the petitioner besides seeking amendment in the material particulars of the alleged corrupt practice, also seeks amendment in the date and venue of the speech where respondent No. 1 had allegedly made allegations against respondent No. 2, which allegedly amounted to corrupt practice and which allegedly bleaked the chances of success in election of respondent No. 2.
19. In paragraph 5 of the election petition, it was pleaded by the petitioner as under :-
"The following are the categorical false statements made in relation to the personal character and conduct of respondent No. 2 while making public statements in January 2002 in a Jalsa (Procession) organised by the respondent No. 1 which went on for 4-5 hours till late evening in village Bhagta, Tehsil Phul : The same constitutes corrupt practices under Section 123 of the Act.".
20. Now through the application for proposed amendment, the following prayer for amendment is made by the petitioner :-
"The petitioner prays for permission to amend/amplify the commission of corrupt practices as attributed to respondent No. 1 In paragraph No. 5 of the election petition as having been committed in Rampura Phul (Mandi) on 10-2-2002 instead of having been committed in village Bhagta of Tehsil Phul in January 2002."
21. The submission of learned counsel for respondent No. 1 was that if this amendment is allowed, it will change the whole scenario and would amount to introducing a new case. It would also amount to permitting amendment in the material facts of corrupt practice under Section 83(1)(a), while under Section 86(5) of the said Act, the petitioner can be permitted only amendment in the particulars of any alleged corrupt practice and not in the material facts. Therefore, the permission to amend the date and venue of the alleged corrupt practice as pleaded in paragraph 5 of the election petition is not permitted by law.
22. This is also the clear enunciation of law laid by the Hon'ble Supreme Court in Mahadeorao Sukaji Shivankar's case (2005 (1) Ren CJ 22) (supra), relied upon by learned counsel for the petitioner, in which ii was held by Hon'ble Supreme Court that all material facts have to be set out in an ; election petition and if the material facts are not stated in the plaint or a petition, the same is liable to be dismissed on that ground alone. The change of venue where the speech relating to corrupt practice was allegedly made and the date on which it was made are material facts and not material particulars. Therefore, even the judgment relied upon by learned counsel for the petitioner does not help him on these two aspects.
23. Another submission made by learned counsel for respondent No. 1 was that according to the allegation made in the election petition, these statements were allegedly made by respondent No. 1, when he was not a candidate for being elected as a member of Legislative Assembly. According to the Notification issued by the Election Commission for general election to the Vidhan Sabha in the State of Punjab, the voters of the State including of this Constituency were called upon to elect their Legislature on 16-1-2002 and the last date for filing the nomination was 23-1-2002. Although,' no specific date of January, 2002 ' was pleaded In paragraph 5 when respondent No. 1 had allegedly made a public statement in. village Bhagta,.which constituted corrupt practice but it was mentioned that it was in January, 2002. It was submitted that if the election petition is read as a whole this date of January, 2002 gets fixed up as 5-1-2002.
24. In support of this submission, reference was made to paragraph 4 of the election petition in which the petitioner had pleaded that the speech was made by respondent No. l on .5-1-2002 which constituted corrupt practice under Section 123(1) of the Act. In the later portion of paragraph 4 also, the petitioner had pleaded that in the Jalsa held in January, 2002 at Bhagta, respondent No. 1 had made statement, which constituted gross corrupt practice of bribery under Section 123(i)of the Act. Therefore, it was submitted that if paragraphs 4 and 5 are read together, the picture emerges that respondent No. 1 had allegedly made the statement on 5-1-2002 which amounted to corrupt practice of bribery under Section 123(1) of the Act and which constituted corrupt practice under Section 123(3) and (4) of the said Act. Respondent No. 1 was not a candidate on 5-1-2002 because he could not file the nomination before 16-1 -2002. Since the speech was allegedly made by respondent No. 1 on 5-12002 in Bhagta, it means therefore, that respondent No. 1 was not a candidate at that time. Therefore, the petition under Section 123 of the Act did not disclose any Cause of action. These alleged malpractices under Section 123 of the Act could be committed by a person who was a candidate or by his agent or by any other person with the consent of the candidate or by his election agent. Since respondent No. 1 could not have filed his nomination before 16-1-2002, therefore, he was not a candidate within the scope of Section 123 of the Act.
25. In support of this submission, the learned counsel for respondent No. 1 has placed reliance on the judgment of Hon'ble Supreme Court reported as Ramakant Mayekar v. Smt. Celine D'silva, , in which it was held by Hon'ble Supreme Court that where the speech was allegedly given prior to the date the returned candidate filed his candidature for election, it cannot form basis for alleged corrupt practice.
26. 'In order to appreciate, this submission I deem it necessary to reproduce paragraphs 4 and 5 of the election petition. These read as under:-
"4. That on 5-1-2002, in the afternoon a Sabhiacharak (cultural) program was organized by the Malwa Sabhiacharak Manch in which the respondent No. 1 made speeches, statements and publications which were wrongful and false and constituted corrupt practice under Sections 123(1) of the Act. The respondent No. 1 Sh. Gurpreet Singh Kangar spoke on this occasion and stated to the general public who were the voters of this constituency that in case they vote for him, and he gets elected, then he will be signing the cheques and that they-will be filling up the amount of their own and that the money will be in their pocket. In this way, in a Jalsa organised by respondent No. 1 in January, 2002 at Bhagta, he stated that if he is given votes, then he will give Rs. 1000/- from his own pocket to the voters in addition to the grant made by the Government and that respondent No. 1 only gave the Government grant'. In this way, he committed a gross corrupt practice of Bribery as envisaged under Section 123(1) of the Act.
5. That the returned candidate respondent No. 1 also did his level best to make false statements and publications which he believed to be wrong and false in relation to the personal character and conduct of the respondent No. 2, S, Sikandar Singh Malujka. These statements were made by reasonably calculating to prejudice the prospects of the election of Sh. Sikandar Singh Malukafas wrong and false allegations were directly made against him and as a result of which he lost the election. The following are the categorical false statements made in relation to the personal character and conduct of respondent No. 2 while making public statements in January, 2002 in a Jalsa (Procession) organised by the respondent No. 1 which went on for 4-5 hours till late evening in village Bhagta, Tehsil Phul : The same constitutes corrupt practices under Section 123 of the Act.
I) to X)...
In this way, the respondent No. 1 has. made publication and make statements of fact which are false and which he believed to be false in relation to the personal character and conduct of the respondent No. 2 which he calculated to prejudice the prospects of the respondent No. 2."
27. A perusal of paragraph 4, clearly reveals that in the first part of paragraph 4, date specifically given as 5-1-2002. In the second paragraph it is mentioned that (Gurpreet Singh Kangar) respondent No. 1, spoke on this occasion. Therefore, speech of (Gurpreet Singh Kangar) respondent No. 1 is also related to 5-1-2002. The 3rd sentence of paragraph 4 starts with the words "In this way, in a Jalsa organised by respondent No. 1 in January 2002 at Bhagta...". Therefore, the 3rd sentence of paragraph 4 is also related back to 5-1 -2002 and that it was held at village Bhagta.
28. In paragraph 5 also, the word 'Jalsa' has been used as used in paragraph 4. The month of January is also pleaded in paragraph 5 as' mentioned in 3rd sentence of paragraph 4. Village Bhagta is also pleaded in paragraph 5 as pleaded in 3rd sentence of paragraph 4. It is also mentioned that the Jalsa (Procession) went on for 4-5 hours. Therefore, the wording used in paragraph 5. is specifically the same as pleaded in paragraph 4. It means, therefore, that the allegations made in para 4 and para 5 of the election petition relate to speeches allegedly made by respondent No. 1 on 5-1-2002 In village Bhagta. '
29. If respondent No. 1 had made the speech on 5-1-2002 at Bhagta, then certainly respondent No.1 was not a candidate. .
30. The word candidate has been defined in Section 79(b) of the said "Act as under :-
"79 (b) "candidate" means a person who has been or claims to have been duly nominated as a candidate at any election;"
31. Therefore, only that person is a candidate who has been duly nominated as a candidate at any election or who claims to have been duly nominated as a candidate at any election. On 5-1-2002, therefore, Gurpreet Singh Kangar-respondent No. 1 was neither a duly nominated candidate for any election nor he could have claimed.to have been duly nominated as a Candidate at any election. Respondent No. 1 may be a prospective candidate but he was not a candidate within the meaning of Section 79(b) of the Act, therefore, it cannbt be alleged that he had committed any corrupt practice within the meaning of Section 123 of the Act.
32. It was further submitted' by learned counsel for respondent No. 1 that no case under Section 123(7) of the Act has been made out by the petitioner in the election petition. Paragraph 6 of the election petition which relates to this sub-section reads as under :-
"6. That the respondent No. 1 also resorted to corrupt practice as envisaged under Section 123(7) of the Act. He took active assistance of one Manjit Inder Singh s/o-Pritam Singh r/o village Bhagta who is a teacher and a Government servant for the furtherance of prospects of his election especially from the teachers community. He also took active assistance of Harinder Singh s/o Mohan Singh who is a forest guard'in the deptt. of Forests and is a Govt. servant for the furtherance of prospects of his election. Similarly, assistance was taken by him from many other Govt. servants. The election of Resp. No. 1 is liable to be set aside."
33. According to the petitioner, respondent No. 1 had taken an active support of Manjit Inder Singh-teacher who was a Government servant and also of Harinder Singh, who was forest guard in the department of Forest and was a Government servant in furtherance of his prospects in the elections. However, Section 123(7) of the Act reads as under:-
"123 (7) The obtaining or procuring or abbetting 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 police 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 arrangement, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election.)"
34. Manjit Inder Singh-teacher and Harinder Singh-Forest Guard are not covered in the classes of public servants specified in sub-section 7 of Section 123, of the Act. Therefore, no. case is made out under Section 123(7) of the Act.
35. To sum up the petitioner cannot be permitted to amend the venue of speech and the date of speech allegedly made by respondent No. 1, which constituted corrupt practice under Section 123(3) and (4) of the said Act because these are the material-, facts within the meaning of Section 83(1)(a) of the Act and these are not particulars of corrupt practice as laid down in Section 83(1)(b) of the Act. Therefore, the application, for amendment filed by the petitioner for amendment in the date and venue of the speech is liable to be dismissed.
36. Since the gross corrupt practice of bribery as envisaged under Section 123(1) of the Act and corrupt practices as covered by Section 123(3) and (4) of the Act were allegedly committed by respondent No. 1 on 5-1-2002, at village Bhagta when respondent No, 1 was not yet a candidate, therefore, paragraphs 4 and 5 of the election petition did not disclose any cause of action. Similarly, since the public servants as named in paragraph 6 are not covered by the provisions of Section 123(7) of the Act, therefore, no case is disclosed in paragraph 6 of the election petition, petition, which may have offended the provisions of Section 123(7) of the Act.
37. Therefore, this petition did not constitute any corrupt practice within the meaning and ambit of Section 123 of the Representation of the People Act, 1951.
38. In view of the discussion held above, the application for amendment is dismissed.
39. The preliminary issue Nos. 1 and 2 are decided against the petitioner and the election petition is rejected as the facts averred in paragraphs 4 to 6 of the election petition did not constitute corrupt practice within the meaning and ambit of Section 123 of the Representation of the People Act, 1951.