Madhya Pradesh High Court
Doman Singh Nagpure vs Pradeep Jaiswal on 14 July, 2011
HIGH COURT OF MADHYA PRADESH : JABALPUR
Election Petition No.30/2009
Doman Singh Nagpure, son of Bhaulal Nagpure
aged about 64 years, Resident of 320,
Khairlanji, Distt. Balaghat ...Petitioner
Versus
Pradeep Jaiswal, son of Amritlal Jaiswal,
aged about 42 years, resident of Ward No.5
Waraseoni, Distt. Balaghat ...Respondent
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Shri L.D.S. Baghel, Advocate for the petitioner.
Shri P.D. Gupta, Advocate for the respondent.
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ORDER
(14.07.2011) This order shall govern disposal of the following interim applications moved on behalf of the respondent -
(i) I.A. No.55/2009, which is an application, under Order VII Rule 11 of the Code of Civil Procedure (for brevity 'the Code') read with Sections 83, 86 and 87 of the Representation of the People Act, 1951 (for short 'the Act') for rejection of the petition inter alia on the ground that the petition does not disclose any cause of action as it does not contain material facts and particulars of the alleged corrupt practices.
(ii) I.A. No.56/2009, which is an application, under Order VI Rule 16 of the Code read with Sections 83, 86 and 87 of the Act for striking out the pleadings contained in Para No.5.1 to 5.12 on the ground that they are unnecessary, scandalous, frivolous or vexatious and tend to prejudice or embarrass the trial.
2. In this petition, validity of election of the returned candidate viz. the respondent to the M.P. Legislative Assembly Constituency No.112 Waraseoni (hereinafter referred to as the 'Constituency') has been called in question on the ground of corrupt practices as :: 2 ::
Election Petition No.30/2009 contemplated under sub-Sections (4) and (6) of Section 123 of the Act. According to the petitioner, the respondent not only contravened the provisions of Section 77 of the Act by incurring excess expenditure than what was permissible thereunder but also deliberately propagated a false statement that he had already withdrawn his candidature in favour of the respondent. However, in reply to I.A. No.55/2009 (supra), the petitioner has candidly conceded that he has challenged the election mainly on the ground that expenditure incurred by the respondent in connection therewith, had exceeded the prescribed limit of authorized expenses, under Rule 90 of the Conduct of Election Rules, 1961.
3. Petitioner's pleadings relevant to the alleged corrupt practice by incurring/authorizing expenditure above the limit may be summed up as under -
In the accounts of expenditure furnished to the District Election Officer, the respondent admitted on oath that during the election campaign, he had incurred a total expenditure of Rs.7,23,994/- including Rs.3,72,800/- towards fuel expenses in respect of the vehicles used therefor whereas on the basis of the prevailing rates as mentioned in the circular-dated 14/11/2008 (Annexure P-4) issued by Additional Collector, an amount of Rs.6,02,000/- ought to have been added as rent of the vehicles described in the statement of accounts. Thus, the actual expenses incurred by the respondent were much above the prescribed limit of Rs.10 lacs.
4. In the wake of objection that the pleadings were vague and incomplete, the petitioner, by way of I.A. No.62/2009, sought permission to amend the election petition by adding -
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Election Petition No.30/2009
(a) averments as to source of information regarding the number of days on which vehicles were put to service by the respondent during the election campaign.
(b) statement of expenditure as against the fuel consumed in the vehicles as well as that of the hire charges.
(c) names of party workers viz. Anand Vasnik and Charandas Chichkhede as the persons who had seen Meena Rusia, supporter of the respondent, distributing calendars, posters and pamphlets (Annexures P/1, P/2 and P/3) to the voters residing in village Lalpur on 25.11.2008 at about 9 a.m..
(d) name of party worker viz. Dulichand Uike who had seen Swapnil Dongre, Block President of Congress Party and agent of the respondent, distributing calendars, posters and pamphlets to the voters residing in village Mangejhari on 25.11.2008 at about 10 a.m.
(e) name of party worker viz. Adme Guriji, who had seen Sayeed Khan, Vice President of District Congress and agent of the respondent, distributing calendars, posters and pamphlets to the voters residing in village Dongergoan on 25.11.2008 at about 11 a.m.
(f) name of party worker viz. Tiwarilal Lillare, who had seen Gokul Gautam, a member of the Zila Panchayat and agent of the respondent, distributing calendars, posters and pamphlets to the voters residing in village Aarambha on 25.11.2008 at about 5 p.m. However, for the reasons recorded in the order-dated 03.02.2010, the IA No.62/2009 under Order VI Rule 17 of the Code read with Section 86(5) of the Act, was allowed in part and the petitioner was permitted to incorporate the proposed amendment in respect of expenses incurred on the vehicles.
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Election Petition No.30/2009
5. According to the respondent, even the petition in its amended form would not satisfy necessary requirements of the pleadings with regard to the corrupt practice envisaged in sub-section (6) of Section 123 of the Act.
6. Meanings of the words 'material facts', 'full particulars' as used in clauses (a) and (b) of sub-Section (1) of Section 83 of the Act have already been explained by the Apex Court in a series of decisions. However, it is not essential to burden this order with various authorities on the point. For the purpose of the present discussion, suffice, would be, to refer to the following elucidation of the expressions as provided in Para 42 and 43 of the decision rendered in Shri Udhav Singh v. Madhav Rao Scindia (1977) 1 SCC 511 -
"42. All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are 'material facts'. In the context of a charge of corrupt practice 'material facts' would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the petitioner with a complete cause of action are 'material facts' which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).
43. 'Particulars' on the other hand are 'the details of the case set up by the party'. 'Material particulars' within the contemplation of clause (b) of Section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). 'Particulars' serve the purpose of finishing touches to the basic contours of a picture :: 5 ::
Election Petition No.30/2009 already drawn, to make it full, more detailed and more informative."
7. Coming to the pleadings in the present case, it may be observed that some clerical/typographical errors have crept in the petition. Learned counsel for the petitioner, while acknowledging the existence of errors, has submitted that for deciding the interim applications, the particulars given by the respondent as to number of the vehicles, (b) make of the vehicles and (c) respective days on which the vehicles were put to use, may be taken as true and correct. As per the statement, vehicles of the following descriptions were deployed on the respective days, constituting a total of 987 days.
S. Types of Vehicle Number Days
No.
1 Jeep 1 8
2 Tata Sumo 51 831
3 Qualis 2 38
4 Marshall 3 53
5 Scorpio 1 10
6 Bullero 1 5
7 Maruti Car 1 15
8 Pick-up 2 27
Total 62 987
8. A bare perusal of the circular (Annexure P-4) would reveal that the candidates were required to assess the expenditure incurred on conveyances on the basis of the following rates -
S. No. Types of Vehicle Specified
rates of hiring
1 Jeep Rs.500/-
2 Tempo Rs.200/-
3 Tata Sumo Rs.600/-
4 Qualis Rs.700/-
5 Car Rs.500/-
6 Three Wheeler Rs.450/-
7 Cycle Rickshaw Rs.150/-
8 Truck Rs.1500/-
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Election Petition No.30/2009
9. The controversy, therefore, lies within a very narrow compass. The point for determination is as to whether the hiring charges of conveyances ought to have been included in the total expenditure by assessing the same on the basis of the rates mentioned in the circular (Annexure P-4).
10. However, in absence of averment that the respondent did incur the expenditure of hiring the aforesaid vehicles for the specified number of days or that he had authorized his election agent for hiring such vehicles or that he had authorized any other person for hiring such vehicles to whom he has undertaken to reimburse the amount, it must be held that material facts in relation to an allegation of corrupt practice within the meaning of Section 123(6) read with S.77 of the Act are lacking (Kamalnath v. Sudesh Verma AIR 2002 SC 599 referred to). In that case, the petitioner had averred that an helicopter had been used for a number of hours and the normal rate of hiring a helicopter being in the minimum Rs. 2,12,000/- per day and the helicopter having been used for 14 days, the returned candidate must have been required to pay more than the prescribed limit towards the expenses of the helicopter. Observing that this cannot be held to be an assertion of material fact and on the other hand, it would be in the realm of conjecture, requiring the Court to draw inference by adopting an involved process of reasoning and that would not satisfy the requirement of the pleadings of material facts, the Supreme Court set aside the order passed by a co-ordinate Bench of this Court, dismissing the application for rejection of election petition for want of material facts.
11. Moreover, as pointed out by the Apex Court in L.R. Shivaramagowda v. T.M. Chandrashekar AIR 1999 SC 252, mere assertion that the returned candidate was guilty of corrupt practice inasmuch as he had not maintained/furnished true and correct accounts of expenditure incurred or authorized would not satisfy the :: 7 ::
Election Petition No.30/2009 requirements of pleadings in an election petition based on the ground contemplated in Section 123(6) read with 100(1)(b) of the Act. For a ready reference, the relevant observations may be reproduced as under -
"Sub-sections (1) and (2) of S.77 deal only with the maintenance of account. Sub-section (3) of S.77 provides that the total of the election expenses referred to in sub- section (1) shall not exceed such amount as may be prescribed. Rule 90 of the Conduct of Election Rules prescribes the maximum limit for any Assembly Constituency. In order to declare an election to be void, the grounds were set out in S. 100 of the Act. Sub-section (1)(b) of S. 100 relates to any corrupt practice committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent. In order to bring a matter within the scope of sub-section (1)(b), the corrupt practice has to be one defined in S. 123. What is referred to in sub-section (6) of S. 123 as corrupt practice is only the incurring or authorising of expenditure in contravention of S.77. Sub-
section (6) of S. 123 does not take into its fold, the failure to maintain true and correct accounts. The language of sub-section (6) is so clear that the corrupt practice defined therein can relate only to sub-section (3) of S. 77 i.e. the incurring or authorising of expenditure in excess of the amount prescribed. It cannot by any stretch of imagination be said that the non-compliance with S. 77(1) and (2) would also fall within the scope of S. 123(6). Consequently, it cannot fall under S.100(1)(b)".
As explained further, the pleadings in the election petition as to the expenses incurred by the appellant per vehicle per day and the total number of vehicles used by him were not the material facts and therefore, it cannot be said that by themselves they proved that he had incurred an expenditure exceeding the prescribed limit.
12. Needless to say that the petitioner cannot be permitted to bring the case within the ambit of Section 100(1)(d)(ii)or(iv) of the Act, for the purpose of which it is necessary to plead specifically that the result of the election in so far as it concerns the returned candidate has been materially affected due to the said corrupt :: 8 ::
Election Petition No.30/2009 practice or non-compliance with the instruction contained in the circular (Annexure P-4).
13. For these reasons, even if the averments made in the election petition are taken at their face value and accepted in their entirety, no triable issue between the parties would arise in absence of complete, precise and specific pleadings in respect of the alleged corrupt practice. The corresponding pleadings, being deficient, can be directed to be struck down under Order VI Rule 16 of the Code and the petition itself can be rejected as not disclosing a cause of action under Clause (a) of Rule 11 of Order VII of the Code (See. Hardwari Lal v. Kanwal Singh AIR 1972 SC 515 that has been followed recently in Ram Sukh v. Dinesh Aggarwal AIR 2010 SC 1227). Need for striking a balance in ascertaining the purity of election and at the same time in preventing waste of public time and money and in keeping the sword of Damocles hanging on the head of returned candidate for an indefinite period of time was also emphasized in Dhartipakar Aggarwal v. Rajiv Gandhi AIR 1987 SC 1577. Accordingly, non-compliance with the provisions of Section 83 of the Act should lead to dismissal of the petition if the matter falls within the scope of the Order VI Rule 16 and Order VII Rule 11 of the Code.
14. In the result, both the I.As are allowed and the petition stands rejected, under Order VII Rule 11(a) of the Code, for want of any cause of action. The parties shall bear their own costs.
15. A copy of this order be forwarded to the Election Commission as well as to the Speaker of the State Legislative Assembly.
Petition rejected.
(R.C. Mishra) JUDGE :: 9 ::
Election Petition No.30/2009 14.07.2011