Bhola Nath Vij vs Kanwar Karan Singh on 4 January, 2011

[Cites 44, Cited by 0]

Delhi High Court

Bhola Nath Vij vs Kanwar Karan Singh on 4 January, 2011

By way of this application filed under Section 151 of the Code of Civil Procedure, the respondent prays for striking out of certain additional facts and particulars which are added in paragraphs 6(a) and 6(d) of the rejoinder of the petitioner, and that the additional documents filed in support thereof may not be taken on the record.

2. A brief background, leading to the filing of the above application, is necessary. The petitioner has filed an Election Petition under Sections 80A and 81A read with Sections 100 and 101 of the Representation of the People Act, 1951 challenging the election of the respondent, Shri Kanwar Karan Singh to the Delhi Legislative Assembly, from Single Member Constituency No.AC 18, Model Town, NCT of Delhi, the result of which was declared on 08.12.2008. Paragraphs 6(a) of the petition, upon which the controversy in the present application, revolves read as under:

"6. That the nomination papers of Respondent No.1 were liable to be rejected on account of following lapses and not meeting the requirements of law:-

Election Petition No.13/2009 Page 2 of 34

(a)That the proforma of affidavit to be filed in terms of judgment of Hon'ble Supreme Court was circulated by the Election Commission of India, true copy of which is annexed herewith and marked as ANNEXURE P-2 wherein in column 3 [Note: Please give separate details for each item]. A true copy of the affidavit submitted by Respondent No.1 along with his nomination paper is anne xed herewith and marked as ANNEXURE P-2A. The relevant portion of Annexure P-2A is reproduced below:-

3. I give herein below the details of my liabilities/overdue to public Financial Institutions and Govt. dues (page 6) [Please give separate details of each item] Sl. Description Name & Address of Amount No. Bank/ Financial outstanding as on Institution/ .....

                                   Departments
      (a)        Loans from Bank   NIL                      NIL
      (i)
      (ii)       Loans        from Ford Endeavor car As on 5.11.2008
                 Financial          from ICICI Bank A/c. Balance due Rs.Nil
                 Institution        LADEL00003779142 (Capitalized in the
                                                         book of Kanwar &
                                                         Company)
                                                         As on 5.11.2008
                                                         balance         of
                                    Maruti Omni loan Rs.68,592/- is due.
                                    from ICICI Bank A/c
                                    No.
                                    LADEL00008328739
      (iii)      Government dues NIL                     NIL
                 (other        than
                 income tax and
                 wealth tax) (No
                 Dues Certificate
                 to be enclosed in
                 case holding or
                 having held any
                 public offices.

On comparision of both the Annexures i.e. Proforma Affidavit issued by the Election Commission and affidavit Election Petition No.13/2009 Page 3 of 34 filed by Respondent No.1 shows that the following paras are missing from the affidavit of Respondent No.1.

3. ...

(a) (i) ...

      (ii)    ...

      S.No. Government Dues
      (iii)

(a) (a)Dues to departments dealing with government accommodation

(b)Dues to departments dealing with supply of water

(c) dues to departments dealing with supply of electricity

(d)dues to departments dealing with telephones

(e)dues to departments dealing with government transport (including aircrafts and helicopters)

(f)other dues, if any The above format contained dues from (a) to (f) which have been totally deleted from the format by the Respondent No.1 and Respondent No.1 being member of legislative assembly holding public office for the last term was duty bound to submit No Dues Certificate from the appropriate authority. The Respondent No.1 had no right to delete the column for

(a) to (f) like dues to Department, dealing government accommodation, water supply, electricity supply, telephones, government transport, etc. Thus this is a material concealment of information as well as non-

disclosure of material information, therefore, the affidavit filed by him alongwith nomination paper was improper/incomplete and not in accordance with the orders/rules passed by the Election Commission of India. Such a violation can not be ignored and his nomination was totally incompetent.

The material concealment of facts by the returned candidate has materially affected the election of the Petitioner as the nomination was accepted improperly by non-compliance of Election Petition No.13/2009 Page 4 of 34 provisions of the Act and Rules and orders passed thereunder. Therefore, the Court has jurisdiction to declare the election of the returned candidate to be void. It is further respectfully submitted the principle to promote integrity in public life and information is necessary in order to ensure free and fair election. The exposure to public scrutiny is one of the best known means of getting clean and less polluted persons to govern the country and therefore, the right of a citizen to information with regard to the assets of the candidate is paramount.

It is apparent that need to control ill effects of money power and muscle power and for overhauling the election system in India has been recognized by the highest court of land, lest the democracy becomes a teasing illusion to a common citizen of the country and in this background that the Hon‟ble Court directed furnishing information regarding assets of the candidate to an election. These directions of the Supreme Court, which are the law of the land and binding on all courts have been implemented by the Election Commission of India vide its order dated 27.3.2003 (Annexure P-1)."

3. In the corresponding paragraph of the written statement filed by the returned candidate, the respondent herein, it was asserted that all the information, as required, had been furnished. It was further asserted that since there were no government dues of any nature whatsoever to be paid by the respondent, Column No.3(iii) was filled up as „Nil‟, and as such, the affidavit in this regard was completely truthful and justified. It was further stated that the respondent had in Election Petition No.13/2009 Page 5 of 34 his possession a „No Due Certificate‟ issued by the Delhi Legislative Assembly Secretariat on 10.11.2008 and another certificate issued by the Sub Divisional Magistrate (HQ) District North West dated 07.11.2008. There had been no concealment of facts, much less any material concealment by the answering respondent. The directions of the Hon‟ble Supreme Court had been followed and complied with in letter and spirit by the respondent.

4. In paragraph 6(a) of the rejoinder, while denying that the answering respondent had furnished all the information in the affidavit as required, the petitioner alleged that the respondent had deliberately deleted Paragraph 3(iii) because he had failed to pay house tax of the residential properties as well as the commercial property owned by him. It was further alleged as under:

"Therefore he deliberately concealed property tax to be paid to the Municipal Corporation of Delhi which are government dues. The house tax payable to the MCD is due for the years since 2004-05, 2006-07, 2007-08, 2008-09. The MCD introduced system of self assessment under the unit area of the properties owned by a person. The answering respondent having admitted that the property bearing no.T-80, Village Rajpura, Gudmandi, Delhi and petrol pump situated at Gurudwara Nanak Paio, GT Karnal Road, Delhi about 500 sq. yds. owned by him as ancestral property and has not paid Election Petition No.13/2009 Page 6 of 34 property tax since 2004 which was a liability of the respondent as a government dues to be paid to the Muncipal Corporation of Delhi. It is worth while to mention here that a sum of Rs.24,69,026/- on account of property tax is outstanding against 700 Sq.Yds. Approximately, which is the part of the aforesaid property for the period upto 31-03-2004 and after introduction of unit area (UAM), the tax payer filed only one property tax return amounting to Rs.6,697/- against the said property on 30-06-2007 by M/s Kanwar & Co. The answering respondent wrongly claimed government dues as nil in the affidavit, therefore, this statement on oath is false on the face of it and the affidavit sworn by him was incomplete and his nomination was improperly accepted by non-compliance of provisions of Act and Rules and orders passed thereunder. It is denied that the affidavit in this regard is completely truthful and justified. The answering respondent having held public office as a member of legislative Assembly was required to submit „No Dues Certificate‟ from the Legislative Assembly Secretariat along with the form. It is evident from the averment in the para that the answering respondent may have obtained „No dues certificate‟ from the Legislative assembly Secretariat after the reading the contents of the petition, thus said certificate is procured one by using influence on the office of the secretariat that itself shows the conduct of the answering respondent who can get the documents fabricated at his askance (sic. asking) and has no regard for truth, rules and regulations. Such certificates procured after filing of nomination are forged document and can not be taken note. If the answering respondent had the genuine one it was required under the rules and regulations to be filed along with the nomination. The alleged certificates purported to be issued by Shri Ranjit Singh Sub- Divisional Magistrate and another have been got fabricated by the answering respondent which have also Election Petition No.13/2009 Page 7 of 34 no value. It is denied that there has been (sic. no) concealment of facts much less any material concealment by the answering respondent. It is further denied the directions of the Hon‟ble Supreme Court have been followed and complied with in letter and spirit by the answering respondent."

5. In paragraph 6(d) of the rejoinder, it is asserted as follows:

"Contents of Para 6(d) of the written statement are wrong and are denied. On the contrary it is respectfully submitted that answering respondent is claiming approximately 500 Sq.yds of land owned by him as ancestral property out of 1200 Sq.Yds. The house tax in respect of the said land is due and reflected in the record of D&C register of the MCD to the tune of Rs.24,69026/- are outstanding against 700 Sq.Yds. approximately, which is the part of the aforesaid property upto 31.3.2004. Thus this information has been deliberately concealed by the answering respondent and the verification of the affidavit is false which clearly stipulates that nothing material has been concealed there from. Content stated in the corresponding para are reiterated and reaffirmed. It is not out of place to mention here that the respondent has also deliberately not disclosed the CNG filing Station in his affidavit, which is running in his name."

6. It is in the aforesaid backdrop that the present application has been filed by the respondent praying for striking out the additional facts and particulars set out in paragraphs 6(a) and 6(d) of the rejoinder of the petitioner, with the further prayer that the additional documents filed by the petitioner may not be taken on the record of Election Petition No.13/2009 Page 8 of 34 the Court. It is the case of the respondent that the petitioner has very cleverly introduced new facts for the first time, which do not form part of the averments made in the election petition, more particularly in paragraphs 6(a) and 6(d), and that the petitioner had also been approached by the respondent to serve a huge compilation of documents to establish these new facts and particulars, which are introduced for the first time in his rejoinder.

7. In reply to the application, it is stated by the petitioner that the case of the petitioner, as set out in the petition, is that the respondent had failed to file affidavit in terms of the judgment of the Hon‟ble Supreme Court, as circulated by the Election Commission of India, in that the respondent failed to provide the information with regard to the government dues under different heads. In the written statement, the respondent had denied that government dues of any nature whatsoever were payable by the respondent, and therefore, it became necessary to show that the respondent had concealed the material facts by filing a false and incomplete affidavit (apart from filing a false affidavit along with a written statement). The petitioner, therefore, obtained information from the concerned department of the Municipal Election Petition No.13/2009 Page 9 of 34 Corporation to show that the petitioner had deliberately omitted paragraphs (a) to (f) from the Affidavit. The present information brought on record in the rejoinder filed by the petitioner clearly shows that the respondent had in fact not paid the property tax since 2004 and did not disclose this fact, in a deliberate attempt to conceal material facts which were necessary to be disclosed at the time of filing of the affidavit before the Returning Officer.

8. In the course of arguments, Mr.V.P.Singh, the learned counsel for the respondent relied upon the judgment in Jeet Mohinder Singh Vs. Harminder Singh Jassi, AIR 2000 SC 256 to contend that the material facts and particulars not forming part of the election petition and alleged for the first time in the replication, cannot be made the subject matter of issues made by the Court. In paragraph 46 of its decision, the Supreme Court observed as under:

"The appellant filed replication to the written statement filed by the respondent. It is in the replication that the appellant has come out with an averment (vide para 8) that some amongst the electors who were threatened by Shri Sangram Singh, SHO were Jagseer Singh (not examined). Dharminder Singh, PW 13, Jaswant Singh (not examined), Jagraj Singh (not examined), and Mander Singh (not examined). Here itself, we may observe that material facts and particulars Election Petition No.13/2009 Page 10 of 34 as to commission of corrupt practice are required to be given in the election petition and not in the replication filed much after the expiry of period of limitation for filing election petition. The material facts and particulars alleged for the first time in the replication and not forming part of averments made in the election petition cannot be tried and cannot be made subject matter of issues framed by the Court. The learned Designated Election Judge has taken care to frame the issues only by reference to the averments made in the election petition and not by referring to the averments made for the first time in the replication. Firstly, the respondent does not have an opportunity of denying the averments - whether facts or particulars, introduced for the first time in replication. Secondly, as already stated, material facts and particulars as to corrupt practice are required to be supported by an affidavit in the prescribed proforma. The replication is not supported by any affidavit in the prescribed proforma."

9. Mr.V.P.Singh also relied upon the judgment in Dhartipakar Madan Lal Agarwal Vs. Shri Rajiv Gandhi, AIR 1987 SC 1577 wherein it was laid down that a new ground cannot be raised or inserted in an election petition by way of amendment after the expiry of the period of limitation. The relevant portion of the judgment reads as under:

"31. ..... At the conclusion of hearing of the appeal before us appellant made applications for amending the election petition, to remove the defects pointed out by the High Court and to render the allegations of corrupt practice in accordance with the provisions of S.33 read Election Petition No.13/2009 Page 11 of 34 with S.123 of the Act. Having given our anxious consideration to the amendment applications, we are of the opinion that these applications cannot be allowed at this stage. It must be borne in mind that the election petition was presented to the Registrar of the High Court, at Lucknow Bench on the last day of the limitation prescribed for filing the election petition. The appellant could not raise any ground of challenge after the expiry of limitation. Order IV, Rule 17 no doubt permits amendment of an election petition but the same is subject to the provisions of the Act. Section 87 prescribes a period of 45 days from the date of the election for presenting election petition calling in question, the election of returned candidate. After the expiry of that period no election petition is maintainable and the High Court or this Court has no jurisdiction to extend the period of limitation. An order of amendment permitting a new ground to be raised beyond the time specified in S.81 would amount to contravention of those provisions and beyond the ambit of S.87 of the Act. It necessarily follows that a new ground cannot be raised or inserted in an election petition by way of amendment after the expiry of the period of limitation. The amendments claimed by the appellant are not in the nature of supplying particulars instead those seek to raise newe ground of challenge. Various paras of the election petition which are sought to be amended do not disclose any cause of action, therefore, it is not permissible to allow their amendment after expiry of the period of limitation. Amendment applications are accordingly rejected."

10. Reference was also made by Mr.Singh to the judgment of the three Judge Bench of the Hon‟ble Supreme Court in KailashVs. Nanhku & Others, (2005) 4 SCC 480, for the proposition that the Election Petition No.13/2009 Page 12 of 34 word 'trial' for the purpose of an election petition includes the entire proceedings commencing from the time of the receipt of the petition until the pronouncement of the judgment and that hearing of an application for amending the pleadings would be a stage in the 'trial' of an election petition . Paragraphs 13 and 14 of the said decision, which deal with the aspect of the commencement of the trial of an election petition are as under:

"Trial" of election petition, when it commences?

13. At this point the question arises: when does the trial of an election petition commence or what is the meaning to be assigned to the word "trial" in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and upto the date of decision therein are included within the meaning of the word "trial".

14. In Harish Chandra Bajpai v. Triloki Singh the narrow and wider sense in which the word "trial" is used came up for consideration of the Court. In its narrow or limited sense, "trial" means the final hearing of the petition consisting of examination of witnesses, filing of documents and addressing arguments. In its wider sense, the word "trial" indicates the entire proceeding Election Petition No.13/2009 Page 13 of 34 from the time when the petition comes before the court until the pronouncement of decision. In the context of an election petition, it was held that the word "trial" must necessarily include the matters preliminary to the hearing, such as settlement of issues, issuance of directions and the like. With the receipt of the petition in the High Court, various steps have to be taken before the stage can be set for hearing it. The respondent has to file his written statement and issues have to be settled. The stages of discovery and inspection, enforcing attendance of witnesses and compelling the production of documents do not form part of the hearing in a trial governed by CPC but precede it. For the purpose of an election petition, the word "trial" includes the entire proceedings commencing from the time of receipt of the petition until the pronouncement of the judgment. It was held that hearing of an application under Order 6 Rule 17 CPC for amending the pleadings would be a stage in the trial of an election petition."

11. Mr.Singh, the learned counsel for the respondent also heavily relied upon the decision of the Supreme Court in Ram Sukh Vs. Dinesh Aggarwal, (2009) 10 SCC 541. In the said case by the impugned order, the High Court upheld the preliminary objection raised by the first respondent and dismissed the election petition on the ground that it did not comply with the mandatory requirements of furnishing the material facts so as to disclose the cause of action and was not supported by an affidavit in the prescribed format. Aggrieved therefrom, the election petitioner preferred an appeal to the Supreme Election Petition No.13/2009 Page 14 of 34 Court. The question which arose before the Supreme Court for consideration was whether the election petition disclosed material facts so as to constitute a complete cause of action. The Supreme Court held that the High Court had been justified in coming to the conclusion that the statement of material facts in the election petition was completely lacking and the petition was, therefore, liable to be rejected at the threshold on that ground. In paragraphs 23 and 24 of its decision, the Supreme Court made the following pertinent observations:

"23. There is no quarrel with the proposition that the instructions contained in the Handbook for the Returning Officers are issued by the Election Commission in exercise of its statutory functions and are, therefore, binding on the Returning Officers. They are obliged to follow them in letter and spirit. But the question for consideration is whether the afore-extracted paragraphs of the election petition disclose material facts so as to constitute a complete cause of action. In other words, the question is whether the alleged omission on the part of the Returning Officer ipso facto "materially affected" the election result. It goes without saying that the averments in the said two paragraphs are to be read in conjunction with the preceding paragraphs in the election petition. What is stated in the preceding paragraphs, as can be noticed from Grounds (i) and (ii) reproduced above, is that by the time specimen signature of the polling agent was circulated 80% of the polling was over and because of the absence of the Election Petition No.13/2009 Page 15 of 34 polling agent the voters got confused, and voted in favour of the first respondent. In our opinion, to say the least, the pleading is vague and does not spell out as to how the election results were materially affected because of these two factors. These facts fall short of being "material facts" as contemplated in Section 83(1)

(a) of the Act to constitute a complete cause of action in relation to the allegation under Section 100(1)(d)(iv) of the Act. It is not the case of the election petitioner that in the absence of his election agent there was some malpractice at the polling stations during the polling.

24. It needs little reiteration that for the purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent was materially affected due to the said omission on the part of the Returning Officer.

Unfortunately, such averment is missing in the election petition."

12. Referring to the provisions of Order VI Rule 1 of CPC, Mr.Singh contended that it was a settled principle of law that evidence beyond the pleadings can neither be permitted to be adduced nor can such evidence be taken into consideration. As such, in the instant case, evidence cannot be permitted to be adduced by the petitioner in respect of the averments made in the rejoinder, which are not even supported by an affidavit. Reliance in this regard was placed by him upon the judgment of the Apex Court in Kattinokkula Election Petition No.13/2009 Page 16 of 34 Murali Krishna Vs. Veeramalla Koteswara Rao & Others, 2010 (1) SCC 466.

13. Countering the aforesaid contentions of Mr.V.P.Singh, Mr.H.S.Phoolka, the learned counsel for the petitioner contended that no new ground was sought to be raised in paragraphs 6(a) and 6(d) of the rejoinder, which was clear from the fact that no issue had been framed or even claimed on the basis of the averments made in the said paragraphs. Mr.Phoolka further submitted that there was a fine, but somewhat subtle distinction between the provisions of Sections 83(a) of the Act which govern the present case and the provisions of Section 83(b) thereof. While Section 83(a) mandates that an election petition shall contain a concise statement of "material facts" on which the petitioner relies, Section 83(b) requires that an election petition shall set forth "full particulars" of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practices and the dates and places of the commission of each such practice. Thus, Mr.Phoolka contended that all that was required of the election petitioner in the instant case, keeping in view the fact that his Election Petition No.13/2009 Page 17 of 34 contention was that the nomination of the returned candidate had been improperly accepted, was to give a concise statement of the "material facts" on which he relied. The requirement of "full particulars" was singularly missing under Section 83(a) and was applicable only to allegations in respect of corrupt practices for which the governing provision is clause (b) of Section 83.

14. As regards the distinction between "material facts" and "full particulars", Mr.Phoolka relied upon the decision of the Supreme Court rendered in the case of Virender Nath Gautam Vs. Satpal Singh & Others, (2007) 3 SCC 617. In the said case in the context of an election petition on the ground of improper and illegal reception and acceptance of votes, the Hon‟ble Supreme Court observed that the election petitioner had challenged the election of the returned candidate on that ground and not on the ground of "corrupt practice". He was, therefore, required to state "material facts" in the election petition under Section 83(1)(a) of the Act. It was not necessary for him to "set forth full particulars", which is the requirement of Section 83(1)(b) of "any corrupt practice". In paragraph 54, it was observed as under:

Election Petition No.13/2009 Page 18 of 34

"The High Court dismissed the petitioner inter alia on the ground that paras 8(i) to (iv) lacked in material particulars. Apart from the fact that the law does not require material particulars even in respect of allegations of corrupt practice but only full particulars and if they are lacking, the petition can be permitted to be amended or amplified under Section 86 of the Act, in the instant case, clause (b) of Section 83(1) had no application and the petition has been dismissed by the High Court by applying wrong test. On that ground also, the order passed by the High Court is unsustainable (vide Harikirat Singh V. Amrinder Singh)."

15. Reliance was placed by Mr.Phoolka on the judgment of the Apex Court in the case of Sushil Kumar Vs. Rakesh Kumar, AIR 2004 SC 230 to contend that though the initial burden to prove that the nomination paper of an election candidate had been wrongly accepted was on the election petitioner in terms of Section 103 of the Indian Evidence Act, the burden of proof thereafter would shift to the returned candidate and more so, in relation to certain matters within the special knowledge of the returned candidate in terms of Section 106 of the Indian Evidence Act. The relevant portion of the judgment in Sushil Kumar's case (supra) reads as under:

"BURDEN OF PROOF :

28. It is no doubt true that the burden of proof to show that a candidate who was disqualified as on the date of the nomination would be on the election petitioner.

Election Petition No.13/2009 Page 19 of 34

29. It is also true that the initial burden of proof that nomination paper of an elected candidate has wrongly been accepted is on the election petitioner.

30. In terms of Section 103 of the Indian Evidence Act, however, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

31. Furthermore, in relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian Evidence Act.

However, the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute (See Orissa Mining Corporation and another v.Ananda Chandra Prusty, AIR 1997 SC 2274).

32. The age of a person, in an election petition has to be determined not only on the basis of the materials placed on records but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of onus of proof becomes academic. (See Union of India and others v. Sugauli Sugar Workds (P) Ltd., (1976) 3 SCC 32, (Para 14) and M/s. Cox and Kings (Agents) Ltd. v. Their Workmen and others, AIR 1977 SC 1666. (Para 36).

Furthermore, an admission on the part of a party to the lis Election Petition No.13/2009 Page 20 of 34 shall be binding on him and in any event a presumption must be made that the same is taken to be established."

16. Mr.Phoolka further contended that the application filed by the respondent was only with a view to oust the evidence with regard to the fact that his nomination papers had been improperly accepted. Mr.Phoolka also pointed out that there was no denial in the written statement by the respondent to the averment made in the election petition that the affidavit filed by the respondent No.1 was not in consonance with the proforma affidavit issued by the Election Commission in terms of the order of the Hon‟ble Supreme Court in Civil Appeal No.7178/2001 Union of India Vs. Association for Democratic Reforms & Another dated 02.05.2002. In response to the averments of the election petitioner that the respondent was guilty of material concealment of information as well as non-disclosure of material information as the affidavit filed by him along with the nomination paper was improper/incomplete, all that the respondent stated was that there were no government dues of any nature whatsoever to be paid by the respondent, and therefore, Column 3(iii) was filled as „Nil‟. The affidavit in this regard, it was stated by the Election Petition No.13/2009 Page 21 of 34 respondent, was truthful and justified. It was to counter this that the election petitioner had been compelled to make inquiries and to come out with the material to prove that the affidavit was incomplete and false.

17. Reference was also made by Mr.Phoolka to the case of M.Karunanidhi Vs. H.V.Handa and Others, AIR 1983 SC 558 wherein a distinction was drawn between that which constitutes an integral part of the election petition and that which is merely a piece of evidence and can by necessary implication be produced at any stage. He contended that in the present case the documents in question were produced by the election petitioner in support of his plea in the election petition that the nomination paper of the respondent was liable to be rejected for material concealment of facts in his affidavit.

18. Next, Mr.Phoolka relied upon the judgment of the Single Judge of this Court in Jaspal Singh Vs. O.P.Babbar, 149 (2008) DLT 205 and in particular referred to paragraphs 43 to 47, which are reproduced as under:

Election Petition No.13/2009 Page 22 of 34

"43. Keeping in view the legislative history leading to the incorporation of Section 33 A of the R.P. Act 1951, Rule 4A of the Conduct of Elections Rules 1961 and Form 26 to the said Rules, it is apparent that the declaration required (with contents) under Section 33 A is mandatory as said information has been held to be the right to know of each voter. Indeed in the decision reported as UOI v. Association of Democratic Reforms and Anr. MANU/SC/0394/2002 : [2002]3SCR 696 it was held that right to get information in democracy is recognized all throughout and it is natural right flowing from the concept of democracy. It was further held that Article 19(1)(a) of the Constitution provides for freedom of speech and expression and that voter‟s speech or expression in case of election would include casting of votes, that is to say, voters speak or express by casting votes and for this purpose the information about the candidates is a must.

44. The use of the word "shall" in Section 33 A of the R.P. Act 1951 also guides to the mandatory character of the legislative provision.

45. To construe Section 33A of the R.P.Act 1951 in any other manner would run contrary to the ratio of the decision of the Hon‟ble Supreme Court in decision reported as UOI v. Association of Democratic Reforms and Anr. MANU/SC/0394/2002: [2002]3SCR696. with Section 33A. But the problem at hand can be looked at from other angle.

47. A nomination paper is a nomination paper properly so called when it complies witih the requirements of Section 33 and 33A of the R.P.Act 1951. A nomination paper not in compliance thereof is a nomination paper improperly so called. It is no nomination paper in the eyes of law. Right to be a candidate at an election Election Petition No.13/2009 Page 23 of 34 commences by filing a nomination paper, which has to be as per law."

19. Finally it was contended by the learned counsel for the respondent that as held by a three Judge Bench decision of the Supreme Court rendered in Sathi Vijay Kumar Vs. Tota Singh & Others, (2006) 13 SCC 353, the power of striking off the pleadings should be exercised sparingly and with extreme caution and circumspection. In paragraph 33, the Court observed:

"33. At the same time, however, it cannot be overlooked that normally a court cannot direct parties as to how they should prepare their pleadings. If the parties have not offended the rules of pleadings by making averments or raising arguable issues, the court would not order striking out pleadings. The power to strike out pleadings is extraordinary in nature and must be exercised by the court sparingly and with extreme care, caution and circumspection (vide Roop Lal Sathi v. Nachhattar Singh Gill; K.K.Modi v. K.N.Modi; United Bank of India v. Naresh Kumar)."

20. After noting the aforesaid rival contentions of the parties, it is deemed expedient in the first instance to reproduce the provisions of Section 83, which relate to the present controversy, in juxtaposition with the relevant provisions of Section 100(1)(d)(i) and (ii):

"83. Contents of petition : (1) An election petition-

Election Petition No.13/2009 Page 24 of 34

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt 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, 1980 (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."

The relevant portion of Section 100 reads as under:-

"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) ...

(b) ...

(c) ...

(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

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) ...

(iv) ...

Election Petition No.13/2009 Page 25 of 34

the High Court shall declare the election of the returned candidate to be void."

21. The provisions of Section 83, reproduced hereinabove, were analysed in detail in the case of Ram Sukh (supra) by the Supreme Court, which is relied upon by the respondent‟s counsel, and it was held that the requirement of the said Section was that :

(a) the election petition must contain a concise statement of "material facts" on which the petitioner relies. Such "material facts", it was held, are primary and basic facts which have to be pleaded by the petitioner to prove his cause of action.

(b) where the petitioner alleges corrupt practices, he should also set forth "full particulars" of the said corrupt practices.

22. Pertinently, the Hon‟ble Supreme Court while analyzing the distinction between "material facts" and "full particulars" in the case of Ram Sukh (supra) emphasized that unlike "material facts", which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that the opposite party is not taken by surprise. "Particulars" are details in support of the material facts, pleaded by the parties. Election Petition No.13/2009 Page 26 of 34

23. A conjoint reading of Section 83(a) and (b) and Section 100(1)(d)(i) and (ii) is sufficient to show that the distinction drawn by the legislature between "material facts" and "particulars" is a significant one. Section 100(1)(d)(i) specifically refers to the improper acceptance of any nomination with which we are concerned in the present case. Section 100(1)(b) refers 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. Section 100(1)(d)(ii) deals with any corrupt practice committed in the interest of the returned candidate by any agent other than his election agent. Thus, while Section 100(1)(d)(i) is clearly relatable to Section 83(1)(a), Section 100(1)(b) and Section 100(1)(d)(ii) relate to Section 83(1) (b) of the Act. To confuse one with the other would lead to Section 83 itself being rendered otiose.

24. It also deserves to be noticed that a reading of Section 81 of the Act shows that 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 45 days from the date Election Petition No.13/2009 Page 27 of 34 of the election of the returned candidate. The provisions of Section 86 of the Act clearly stipulate that the High Court shall dismiss an election petition, which does not comply with Section 81 or Section 82 or Section 117. Section 83 is significantly missing therefrom. Since Section 83 does not find a place in Section 86 of the Act, the question which necessarily arises is: Would the rejection of the pettion under Section 83 of the Act amount to reading into sub- section (1) of Section 86 an additional ground. The question is, however, no longer res integra. A three Judge Bench of the Hon‟ble Supreme Court in Hardwari Lal Vs. Kanwar Singh, 1972 (1) SCC 214 negatived the said plea, A.N.Ray, J. (as His Lordship then was) speaking for the Bench said:

"Under Section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits. A suit which does not furnish cause of action can be dismissed."

25. The aforesaid view expressed by the Supreme Court in the case of Hardwari Lal (supra) was affirmed in Azhar Hussain Vs. Rajiv Gandhi, 1986 Supp. SCC 315, wherein it was held that all the facts which are essential to clothe the petition with complete cause of Election Petition No.13/2009 Page 28 of 34 action must be pleaded. The omission of even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of the Act and an election petition can be and must be dismissed if it suffers from the vice of non-disclosure of material facts, as stipulated under Section 83(1)(a) of the Act. In the instant case, however, the controversy is confined to the alleged violation of Section 100(1)(d)(i) and the allegation of the election petitioner is that the nomination paper of the respondent was improperly accepted by the returning officer, thereby vitiating the election process, in view of the fact that it contained blanks and was incomplete with regard to several columns set out in paragraph-3 thereof. These facts, to my mind, indubitably constitute material facts. It has been so held by the Hon‟ble Supreme Court in the case of Union of India Vs. Association for Democratic Reforms & Another, 2002(3) SCR 696, where the right of a candidate to contest an election has been held to depend upon his filing a nomination paper which is in accordance with law. In the instant case, once it stands proved that the nomination paper was not in accordance with law, it would necessarily follow that it had been improperly accepted by the returning officer. There can be no two Election Petition No.13/2009 Page 29 of 34 views on this aspect. Thus, there is no manner of doubt that the material facts have been disclosed by the election petition insofar as the allegation of the election petitioner with regard to improper acceptance of the nomination paper is concerned. Further facts and figures set out in the rejoinder are to my mind only particulars relating to the incomplete nomination papers alleged to be submitted by the respondent.

26. The reliance placed by the learned counsel for the respondent upon the case of Jeet Mohinder Singh (supra) is also misplaced, inasmuch as paragraph-46 of the said decision, which was specifically referred to and relied upon by Mr.Singh was with reference to the corrupt practice alleged in the petition and not with reference to the improper acceptance of the nomination papers by the returning officer. As a matter of fact, the Supreme Court in the said judgment has from paragraph-6 to paragraph-38, dealt with issue No.1 pertaining to the illegal acceptance of the nomination papers of the respondent and, thereafter, from paragraph-39 onwards has examined how far the appellant has succeeded in proving the allegations as to corrupt practice. The observations made in paragraph-46 of the Election Petition No.13/2009 Page 30 of 34 said judgment, therefore, relate to corrupt practice and not to the improper acceptance of nomination papers.

27. In the case of Dhartipakar (supra), which also is relied upon by Mr.Singh, the Supreme Court while dealing with the alleged corrupt practice of the returned candidate, held that the appellant having failed to plead complete details of the corrupt practice, the amendment application filed by it at the conclusion of hearing of the appeal could not be entertained since a new ground could not be raised or inserted in an election petition by way of amendment after the expiry of the period of limitation. It emphasized: "The amendments claimed by the appellant are not in the nature of supplying particulars instead those seek to raise new ground of challenge". Such is not the position in the present case where, to my thinking, no new ground is sought to be made out in the rejoinder filed by the election petitioner. All that the election petitioner is attempting to do is to amplify the grounds set out by him in paras 6(a) and 6(d) of the election petition, wherein it is specifically asserted that the affidavit filed by the respondent No.1 had missing paras and thus there was material concealment of information as well as non- Election Petition No.13/2009 Page 31 of 34 disclosure of material information and, therefore, the affidavit filed by him along with the nomination papers was improper/incomplete and not in accordance with the orders passed by the Election Commission of India. Such a violation, it is sought to be alleged, cannot be ignored as nomination based on the basis of incomplete affidavit is totally incompetent.

28. Interestingly, as stated above, the respondent does not deny in his written statement that the affidavit filed by him was not in accordance with the orders of the Election Commission and the directions of the Hon‟ble Supreme Court. He, on the other hand, seeks to justify it by saying that the omissions are immaterial as there are no government dues. Such a stand, if taken, can justifiably be rebutted by the election petitioner in the rejoinder by relying upon evidence to the contrary garnered by the election petitioner.

29. Before parting with this aspect of the matter, it may be noticed that an attempt was made by Mr.V.P.Singh to contend with reference to Section 100 of the Act, that there was no pleading in the election petition that the improper acceptance of the nomination of the returned candidate had materially affected the result of the election Election Petition No.13/2009 Page 32 of 34 and it was to cover this lacuna that such pleas were being raised in the rejoinder. Mr.Singh pointed out that the only assertion with regard to the election being materially affected by the improper acceptance of the nomination papers of the respondent was contained in paragraph 6(a) of the petition, but the said assertion was a bald one, in that it was lacking in any material particulars. I do not find any substance in this contention for the reason that what is averred in the election petition is that the material concealment of the facts by the returned candidate has materially affected the election of the petitioner . The election petitioner could not have stated more. It stands to reason that whenever a proper disclosure is not made in a nomination paper on affidavit, it is bound to result in affecting the purity of the election process. Precisely, how it is affected and to what extent, will depend upon the defence taken by the returned candidate and the evidence brought on record during the process of trial.

30. In view of the aforesaid, in my view, there is no merit in the present application. The same is accordingly dismissed with the clarification that nothing stated hereinabove shall on completion of Election Petition No.13/2009 Page 33 of 34 the trial be taken as an expression of opinion on the merits of the case.

31. List the petition before the Joint Registrar concerned on 17th January, 2011 for further proceedings.

REVA KHETRAPAL (JUDGE) January 4, 2011 aks Election Petition No.13/2009 Page 34 of 34

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