Patna High Court - Orders
Lal Das Rai vs The State Of Bihar & Ors on 18 September, 2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Election Petition No.10 of 2009
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Lal Das Rai, son of late Jaglal Rai, resident of Mohalla Meerganj Bans Tal,
Post Chowk Ara, P.S. Ara Town, District Bhojpur.
.... .... Petitioner
Versus
1. Sri Hulas Pandey, son of late Kameshwar Pandey, resident of Mohalla
New Area, Ward No. 25, Dalmia Nagar, Post and Police Station Dalmia
Nagar, District Rohtas, presently lodged in Sasaram Jail, Post Sasaram,
P.S. Sasaram Mofassil, District Rohtas
2. Sri Radha Charan Sah, son of Harbansh Sah, resident of Mohalla Babu
Bazar, Post Ara, P.S. Ara Town, District Bhojpur.
3. Sri Bisheshwar Ojha, son of late Raj Kishore Ojha, resident of village
Ojhawalia, Post Ishwarpura, P.S. Shahpur, District Bhojpur.
4. Sri Ashok Kumar, son of Mukhi Ram, resident of village and Post
Belawati, P.S. Shahpur, District Bhojpur
5. Sri Mohammad Muslim, son of Mohammad Sanisuddin, resident of
village Araila, Post Manudihari, Police Station Tiyar, District Bhojpur
6. Sri Rajesh Kumar Singh, son of Dadan Singh, resident of village &
Post Bagwan, P.S. Garahani, District Bhojpur
7. Sri Rajendra Singh, son of late Gorakh Singh, resident of village
Amarpur Makhtiya, Post Dhamar, P.S. Ara Muffasil, District Bhojpur
8. Sri Shiv Narayan Singh, son of Gauri Shankar Singh, resident of village
Garhaiya, P.S. Sikrol, P.S. Sikrol, District Buxar.
9. Sri Ramanuj Pandey, son of Kameshwar Pandey, resident of village
Nawadih, Post Nasariganj, P.S. Karakat, District Rohtas. .
.... .... Respondents
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For the Petitioner : M/s Rajendra Narayan, Sr. Advocate,
Sanjay Kumar and Surendra
Kumar Choubey, Advocates
For Respondent no.1 : M/s S. N. P. Sharma, Sr. Advocate and
Amarendra Kumar Singh, Advocate
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P R E S E N T HONOURABLE MR. JUSTICE S.N. HUSSAIN
ORDER
37 18-09-2012Learned counsel for both the parties had been heard on application dated 08.08.2011, which was filed by respondent- Hulas Pandey under the provision of section 86(1) of the Representation of People Act, 1951, read with Order VII Rule 11 Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 2/16 of the Code of Civil Procedure 1908, for summary dismissal of this election petition on the ground that in a case where there is allegation of corrupt practice, the objector has to plead the facts and to produce all the relevant papers and omission of a single material fact would lead to an incomplete cause of action and the statement of claim becomes bad and on that ground alone, the election petition has to be summarily rejected.
2. The said application was considered in detail by this Court on 30.09.2011 and it was found from a perusal of the record that the aforesaid respondent Hulas Pandey had throughout been trying to delay the proceedings of this election petition till the expiry of the term of his membership of the Legislative Assembly, but when it became clear to him that every formality of the election petition having been completed, the hearing was going to be started and the date of hearing of the election petition was fixed by the Court, on which date the petitioner was contemplating to come with his witness, the said application dated 08.08.2011 was filed by him.
3. After hearing the parties on the said application dated 08.08.2011, it was held by this Court vide order dated 30.09.2011, that the objection raised by respondent-Hulas Pandey in his Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 3/16 aforesaid application was based on disputed facts, which could more appropriately be decided at the time of final hearing of the election petition when all the materials and evidences would be before the Court. It was also found that in case of Samant N. Balakrishnan and another vrs. Geroge Fernandez and others, reported in A.I.R. 1969 S.C. 1201 and in case of Chandrashekhar Singh vrs. Sarjoo Prasad Singh and others, reported in A.I.R. 1961 Patna 189, orders were also passed similarly in a situation when the concerned cases were finally heard. Hence it was ordered that the interlocutory application of respondent-Hulas Pandey dated 08.08.2011 be considered at the time of hearing of the election petition, which was directed to be listed for final hearing on 14.10.2011, when all the parties were directed to come prepared.
4. It transpires that the said order dated 30.09.2011 was challenged by respondent-Hulas Pandey before the Apex Court in Civil Appeal No. 2051 of 2012, but without arguing on the merit or otherwise of the said order of this Court, a consensus emerged amongst learned counsel for both the parties that the aforesaid order dated 30.09.2011 passed by the Patna High Court be set aside with a direction to consider the preliminary objection raised by respondent-Hulas Pandey first and then proceed with the matter on merits, if necessary. Accordingly, with the aforesaid Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 4/16 observations/directions, the aforesaid Civil Appeal was disposed of by the Apex Court vide order 13.02.2012. Hence the matter i.e. preliminary objection raised by respondent-Hulas Pandey in his application dated 08.08.2011 was again placed before this Court and both the parties were heard at length.
5. Learned counsel for the Objector-respondent (Hulas Pandey) had specifically claimed that it is the settled principle of law that the allegation regarding commission of corrupt practice requires to be stated in the election petition in mandatory terms with material facts and full particulars and omission to state a single material fact would lead to an incomplete cause of action and in such circumstances an election petition is fit for summary dismissal under Order VII Rule 11 of the Code of Civil Procedure. He further stated that in the instant case the election petition filed by the petitioner also suffers from the same defect as no complete cause of action had been stated therein, particularly any allegation of corrupt practice. Hence he claimed that the election petition is fit to be dismissed on the said ground alone.
6. Learned counsel for the respondent also submitted that sections 80, 81 and 83 of Chapter II of Part VI of the Representation of People Act, 1951 (hereinafter referred to as `the Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 5/16 Act' for the sake of brevity ) provide that only when an election petition is presented in accordance with the provisions of that Part, such election can be called in question and such election petition can be presented on one or more of the grounds specified in sections 100 and 101 of the Act and such election petition must contain a concise statement of the material facts, on which the petitioner has relied and shall also set forth full particulars of any corrupt practice that the petitioner alleges etc.
7. Learned counsel for the respondent also averred that although section 101 of the Act is not relevant in the instant case, but section 100(1) of the Act provides grounds for declaring election to be void and out of those grounds, grounds no.(a), (b),
(c) and (d)(iv) are relevant in this respect and for those grounds material facts were necessary to be stated and corrupt practices should have been mentioned in detail therein and hence the election petition was fit to be dismissed on the aforesaid preliminary objection.
8. Learned counsel for the election petitioner opposed the contentions of learned counsel for objector-respondent and submitted that this election petition was filed on 24.08.2009, whereafter in May, 2010 respondent no. 1 Hulas Pandey appeared Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 6/16 although his Vakalatnama was dated 07.01.2010 and hence four months' delay occurred on that count alone at the initial stage. Even several months thereafter, he filed his written statement on 03.08.2010 and finally lists of witnesses and lists of documents were filed by both sides by 08.07.2011 and learned counsel for the parties were permitted to inspect the records and the date of hearing was fixed as 12.08.2011.
9. He further averred that only thereafter on 08.08.2011 respondent no.1 filed his application raising preliminary objection, which was directed to be placed on 26.08.2011 vide order dated 12.08.2011. On 02.09.2011, learned counsel for the respondents took adjournment inspite of the fact that learned counsel for the petitioner had filed affidavit of his witness regarding examination-in-chief and had produced him for his cross- examination. Finally both the parties were heard by this Court on the application of the respondents and after considering the matter in detail this Court, by order dated 30.09.2011, directed that since the matter was being unnecessarily delayed by the respondents, the application of the respondents would be considered at the time of final hearing of the election petition itself, for which 14.10.2011 was the date fixed for hearing. Hence, he claimed that respondent no.1-Hulas Pandey was delaying the disposal of this matter Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 7/16 although his objection was absolutely frivolous and misconceived and was bad in law as well as on facts.
10. Considering the arguments raised by learned counsel for the parties and the materials on record, it is quite apparent that certain provisions of the Act are necessary to be considered for arriving at a proper legal conclusion in the instant matter. The said provisions are sections 80, 81, 82, 83, 86, 100 and 117 of the said Act, which read as follows :-
"80. Election Petition- No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.
81. Presentation of petitions.-(1) An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not either than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates.
82. Parties of the petition.- A petitioner shall join as respondents to his petition-
(a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.
83. Contents of petition.-(1) An election petition -
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b)shall set forth full particulars of any corrupt Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 8/16 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; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 ( 5 of 1908) 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.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
86. Trial of election petitions.-
(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or 92 or section 117.
Explanation.- An order of the High Court dismissing an election petition under this sub- section shall be deemed to be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section(2) of section 80-A. (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation- For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 9/16 commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.
(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.
(6) The trial of an election petition shall, so far as its practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
100. Grounds for declaring election to be void - (1) Subject to the provisions of sub-section (2), if the High Court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or
(b) that any corrupt practice has been 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; or
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of any nomination, or Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 10/16
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent other than his election agent, of any corrupt practice, but the High Court is satisfied-
(a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent, of the candidate or his election agent;
(b) omitted
(c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void.
117. Security for costs.-
(1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the rules of the High Court a sum of two thousand rupees as security for the costs of the petition.
(2) During the course of the trial of an election petition, the High Court may, at anytime call upon the petitioner to give such further security for costs as it may direct."
Patna High Court E.P. No.10 of 2009 (37) dt.17-09-201211/16
11. From the aforesaid provisions of the Act, it is quite apparent that according to section 80, no election can be called in question except by an election petition presented in accordance with the provisions of Chapter II of Part VI of the Act, whereas, section 81 provides that the election petition can be presented on one or more of the grounds specified in section 100 of the Act and it must contain a concise statement of the material facts, on which the petitioner relies and it shall set forth full particulars of any corrupt practice that the petitioner alleges. Section 86 of the Act provides for the High Court to dismiss the election petition if it does not comply with the provisions of section 81 or section 82 or section 117 of the Act. Section 100 of the Act provides various grounds for declaring election to be void, whereas, section 117 provides that at the time of presenting an election petition, the petitioner shall deposit in the High Court the fixed amount as security for the costs of the petition.
12. In the instant case, it is not in dispute that the petitioner has already deposited the entire cost as respondent no.1- Hulas Pandey has not raised any objection with respect thereto and has only mentioned section 117 of the Act in his argument. Furthermore, all the relevant parties have been impleaded by the Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 12/16 petitioner, who seeks himself to be declared duly elected in place of the respondent (Hulas Pandey) and the said respondent has not raised any such objection with respect thereto. Similarly it is not in dispute that the election petition has been filed within time fixed vide section 81 of the Act along with the required papers and hence no objection can be raised by the respondents with respect thereto. Section 86 of the Act provides that where the election petition does not comply with the provisions of section 81, or section 82 or section 117 of the Act, it has to be dismissed, but as discussed above, sections 81, 82 and 117 of the Act not being attracted, section 86 would also be irrelevant for the purposes of the instant matter. In the said circumstances, sections 81, 82, 86 and 117 of the Act are not applicable in the instant matter and have been unnecessarily raised by learned counsel for respondent no.1-Hulas Pandey merely with a view to create complications and confusions.
13. Now the relevant provisions of the Act, which require to be considered in the instant matter are sections 83 and 100 of the Act, out of which section 83 provides that an election petition must contain a concise statement of the material facts on which the petitioner relies and shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 13/16 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, whereas, section 100 provides for grounds for declaring the election to be void, which include that on the date of his election a returned candidate was not qualified; or that any corrupt practice has been 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; or that any nomination has been improperly rejected; or that the result of the election, in so far as it concerns a returned candidate, has been materially affected by any non-compliance with the provisions of the Constitution or of this Act or of any rules and orders made under this Act.
14. It may be noted that section 100 of the Act is for the Courts, which are considering such election petition and provides that the Courts can declare any election to be void only on the basis of the conditions mentioned therein. However, the said provision of sub-section (1) of section 100 of the Act would be subject to the provisions of sub-section (2) of section 100 mentioned in the Act.
15. Now, it has to be seen as to whether the contents of the Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 14/16 election petition are in accordance with section 83 of the Act and whether the corrupt practice, alleged against the returned candidate, namely, respondent-Hulas Pandey or his agent is in accordance with section 123 of the Act or whether there are grounds mentioned in the election petition as required under section 100 of the Act or whether the cause of action has been given in the election petition as required under Order VII Rule 11 of the Code of Civil Procedure.
16. From a bare perusal of the election petition, it appears that full particular of facts with dates have been given in paragraphs 2,4,5 and 6 of the election petition. Furthermore, the grounds taken by the election petitioner and the cause of action have also been stated in detail in paragraphs 11 to 35 of the said election petition. Furthermore, paragraphs 36 to 38 of the election petition are about the contesting respondents coming within the definition of the corrupt practices as defined under section 123 of the Act.
17. An election petition has to be considered as a whole and if the instant petition is considered as such, it would be apparent that all the requirements of law have been fulfilled by the election petitioner, who has impleaded the returned candidate and Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 15/16 has raised the main points, namely, illegal acceptance of nomination of the returned candidate, use of corrupt practice by the returned candidate and non-compliance of the provisions of the Constitution of India as well as the provisions of the Representation of the People Act, 1950 and 1951 and the rules and regulations provided thereunder.
18. Thus, it is quite apparent that the statements made in the election petition sufficiently mention material facts and corrupt practice alleged by the petitioner giving full details and the grounds taken for declaring the election of respondent-Hulas Pandey to be void and furthermore the cause of action for filing this election petition is also quite apparent from the contents of the election petition and from the aforesaid facts and circumstances of the case, it is quite apparent that material facts are definitely present in the election petition in question.
19. However, the particulars might not have been entirely mentioned, but there is a clear distinction between material facts and full particulars as has been held by the Apex Court in its decision in case of V.S. Achuthanandan P.J. vrs. Francis and another, reported in (1999) 3 S.C.C. 737 and in case of Sardar Harcharan Singh Brar vrs. Sukh Darshan Singh and Patna High Court E.P. No.10 of 2009 (37) dt.17-09-2012 16/16 others, reported in A.I.R. 2005 S.C. 22, from which it is quite apparent that material facts even if one, must be present, but absence of full particulars would not lead to cursory dismissal of election petition, because if the Court sees any deficiency in such particulars, it may direct the petitioner to file further affidavit in that regard for proper adjudication of the matter under the provision of section 86(5) of the Act. In this regard reference may also be made to two decisions of the Apex Court in case of H.D. Revanna vrs. G. Puttaswamy Gowda & ors., reported in (1999) 2 S.C.C. 217 and in case of T.M. Jaicob vrs. C. Poulose and ors., reported in A.I.R. 1999 S.C. 1359.
20. Considering the mater in issue and the respective claims raised by the parties, it is held that Objector-respondent Hulas Pandey has failed to substantially support his objection on any valid ground and hence his objection application dated 08.08.2011 for summary dismissal of the instant election petition is hereby rejected.
21. Put up this case under the heading `For Hearing' on 21.09.2012.
MPS/- (S.N. Hussain, J)