Allahabad High Court
Kashi Nath Misra vs Vikramaditya And Others on 17 August, 1992
Equivalent citations: AIR1993ALL32, (1992)2UPLBEC1239, AIR 1993 ALLAHABAD 32, 1992 ALL. L. J. 1243 (1992) 2 UPLBEC 1239, (1992) 2 UPLBEC 1239
ORDER
1. This is an application under O.6, R. 16, read with O.7, R. 11 of the Code of Civil Procedure (C.P.C.) and S. 86(1) of the Representation of People Act, 1951 (briefly, the Act) by respondent No. 1 to strike out paragraphs No. 14 and 15 of the election petition and then to dismiss the election petition under O. 7, R. 11, C.P.C., read with S. 86(1) of the Act.
2. Respondent No. 1 was elected as a member of the U.P. Legislative Assembly from 227 Ballia Legislative Assembly constituency, district Ballia when that constituency had undergone poll on 15-6-1991. Next to respondent No. 1 was the petitioner who was defeated with a margin of 2008 votes. Thereafter the petitioner filed this election petition calling in question the election of respondent No. 1 on grounds of corrupt practice and reception of invalid votes and rejection of valid votes as stated in grounds A, B, C and D in para 13 of the election petition. Grounds A and B relate to the corrupt practice of booth capturing, as inserted in the Act by Act No. 1 of 1989 with effect from 15-3-1989. In Ground C, it is stated that the election petition is liable to be dismissed on ground of contravention or non-compliance of the provisions of the Act, of the Conduct of Election Rules, 1961 (for short, the Rules), directions and orders issued by the Election Commission time to time as envisaged by S. 100(1)(d)(iv) of the Act. Ground D is covered by S. 100(1)(d)(iii) of the Act.
3. By means of this application, respondent No. 1 contends that the petitioner having failed to disclose the material facts and full particulars relating to the charge of corrupt practice and other grounds all the sub-paragraphs comprised in paras 14 and 15 in which material facts and particulars relating to the aforesaid grounds are said to have been stated, deserve to be struck out under O. 6, R. 16, C.P.C. and material facts constituting the cause of action having not been disclosed in paras 14 and 15 of the petition, the whole election petition which cannot survive in the absence of the material facts, is liable to be dismissed under O.7, R. 11(a), C.P.C.
4. First, I take up Grounds A and B. The question is whether material facts relating to the charge of corrupt practice raised under those grounds, have been disclosed. What are the material facts and particulars of a corrupt practice within the meaning of S. 83(1)(a) and (b) of the Act. The material facts required to be stated in S. 83(1) of the Act are those facts which can be construed as materials supporting the allegations made. In other words there must be such fact as to afford a basis for the allegations made in the petition. S. 83 is mandatory and requires the election petition to contain first a concise statement of material facts and then requires fullest possible par culars. The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information and detail as to make the opposite party understand the case he wit have to meet. There may be some overlapping between material facts and particulars but two are quite distinct. The material facts will show the grounds of corrupt practice and complete cause of action and particulars will give the necessary information to present a full picture of the cause of action. In stating that material facts, it will not do merely to quote the words of section because then efficacy of the words 'material facts' will be lost. The fact which constitute the corrupt practice must be stated and the facts must be co-related to one of the heads of corrupt practice. An election petition without material facts and material particulars relating to a corrupt practice is no election petition at all. 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. In short, all those facts which are essential to clothe the petition with a complete cause of action are 'material facts' which must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of S. 83(1)(a). 'Particulars' on the other hand are the details of the case, set up by the parties. Material particulars within the contemplation of clause (b) of S. 83(1) can 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 already drawn to make it full, more detailed and more informative. (See Jitendra Bahadur Singh v. Krishna Behair, (AIR 1970 SC 276), Samant N. Balakrishna etc. v. George Fernadez, (AIR 1969 SC 1201), Uday Singh v. Madhav Rao Scindia, (AIR 1976 SC 744) and Daulat Ram Chauhan v. Anand Sharma, (AIR 1984 SC 621)).
5. In Daulat Ram Chauhan (supra), the Supreme Court dilating upon the question as to what are the material facts and particulars in regard to the charge of corrupt practice, observed:
"We must remember that in order to constitute corrupt practice, which entails not only the dismissal of the election petition but also other serious consequences like debarring the candidate concerned from contesting a future election for a period of years, the allegations must be very strongly and narrowly construed to the every spirit and letter of the law. In other words in order to constitute the corrupt practice, the following necessary particulars, statement of facts and essential ingredients must be contained in the pleadings :
(1) Direction and details nature of corrupt practice as defined in the Act.
(2) Details of every important particular must be stated giving the time, place names of persons use of words and expressions etc, (3) It must clearly appear from the allegations that the corrupt practices alleged were Indulged in by (a) the candidate himself (b) his athorised election agent or any other person with his express or implied consent."
6. Equating the charge of corrupt practice with a criminal offence, the Supreme Court in Surinder Singh v. Hardial Singh, (AIR 1985 SC 89) held thus:
"It is well settled that allegations of corrupt practice are quasi-criminal charges and the proof that would be required in support of such allegations would be as in a criminal charge. Charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials."
7. Whether or not, material facts and particulars relating to the offence of boom capturing have been adequately set out in the election petition -- this question has to be considered in the light of the aforementioned legal position. In sub-para (XXIII), it is averred that respondent No. 1, his workers, supporters and agents captured the booths and threatened the voters of polling centres Nos. 5, 6, 7, 34, 145, 146 and 147. In sub-para (XXIV), it is averred that in the after noon at about 10.45 a.m., respondent No. 1, his Workers, supporters and agents reached the polling booths Nos. 5, 6 and 7 Primary Pathshaala Midhha Madhya Pashchimi and Purvi and have forcibly snatched the bundles of ballot papers from the polling staff and put the seal on the ballot papers against the name of respondent No. 1 and inserted all such ballot papers bearing seal marks in the ballot box. The details of this charge are said to have been given in Schedule 3 to the petition. In column 5 of Schedule 3, the petitioner has named respondent No. 1 and his associates, who allegedly captured polling booths. It is also stated in Schedule 3 to the petition that offence of corrupt practice was committed by "respondent No. 1, his election agents, supporters, workers and other persons with his consent and with the consent of his election agent". In sub-para (xxiii) no reference has been made to 'other persons' and 'election agent'. According to the averment made in sub-para (xxiii) charge of corrupt practice has been labelled only against respondent No. 1, his workers, supporters and agents without clarifying that such agent was election agent. In Schedule 3, corrupt practice of booth capturing is said to have been committed even by other persons and election agents inter alia. No reason for such discrepancy has been stated. Charge of corrupt practice being a criminal offence, above variation in the pleas of the petitioner has to be attached due weight. It shows that the charge of corrupt practice has been labelled against respondent No. 1 casually. The names of the polling staff from whom bundles of ballot papers are said to have been snatched by the persons, named in column 5 of Schedule 3, have not been given. Serial number of ballot papers which were allegedly snatched and inserted in the ballot box after having put the seal mark, have not been disclosed. In whose presence the offence was committed, who put the seal mark on the ballot papers forcibly snatching them from the polling staff, who actually inserted the ballot papers into the ballot box and who did the corrupt practice with whose consent -- all these facts being material facts in regard to the offence of booth capturing must have been stated, but have not been disclosed. Similar omissions are there in sub-para (xxv) and (xxvi) relating to the remaining polling booths. In sub-para (xxvii) it is averred that some of the persons accompanying respondent No. 1 as named in Scheduled 3 to the petition were armed with fire arms. Who possessed which arm these material facts are omitted. In sub-para (xxviii), it is stated that the persons accompanying respondent No. 1 who possessed fire arm, silenced the polling agents of the petitioner by having threatened them with dire consequences. Who threatened whom and that actual words for extending threat were used -- these material facts are conspicuously absent. In sub-para (xxx) it is averred that an F.I.R. was lodged regarding the scuffle that took place during booth capturing. No first information report has been filed with the petition. In sub-para (xxxi) it is stated that the persons who were beaten by respondent No. 1 and by other persons who accompanied him, were medically examined at the District Hospital, Ballia on 15-6-1991. No medical examination report has been filed.
8. From the aforesaid discussion, it is clear that material facts and particulars relating to the offence of booth capturing have not been furnished by the petitioner in para 14.
9. Though Grounds A and B relate only to the charge of booth capturing, a concise statement of material facts of which is said to have been given in para 14, but it will be seen, that facts regarding the charge of booth capturing have been stated in sub-paragraph (xxiii) and onwards in the petition and the averments made in sub-paras (i to xxii) of para 14 revolved round a different plea altogether that respondent No. 1 who was then a cabinet minister in the Government of U.P., managed to keep a District Magistrate of his choice posted in district Ballia who being under the influence of the then Prime Minister, out rightly favoured respondent No. 1 and that the votes of the electors who were either dead or were out of station, were also polled in favour of respondent No. 1. It is also averred that in disregard of the directions dated 13-4-1991, more than 90% of the votes polled at certain polling stations in favour of the respondent No. 1, were also counted. It is not disclosed as to who ascertained the fact of the electors having remained absent from the constituency and the fact who of the electors were dead. Whether any body..... kept a note of the dead persons or other absentees after a due inquiry, who died when and who was out of station in which connection and from which date..... these facts have not been disclosed. In sub-para (xxii), it is averred that if the votes of dead persons and absentees polled at various polling stations are excluded then the petitioner would stand declared elected. The basis of such averment has not been disclosed.
10. It must, therefore, be held that the material facts constituting cause of action relating to the offence of booth capturing, have not been disclosed throughout para 14 raising the pleas which are frivolous, scandalous or vexatious, must be struck out under O.6, R. 16, C.P.C. and since no cause of action has been disclosed, the petition relating to the Grounds A and B deserves to be dismissed under O. 7, R. 11(a), C.P.C. It is a misnomer to say that the petition cannot be dismissed for non-compliance of S. 83(1) under S. 86(1) of the Act, as S. 83(1) is not referred to in S. 86(1). In Azhar Hussain v. Rajeev Gandhi (AIR 1986 SC 1253), it was held that an election petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirement enjoined by S. 83 to incorporate the material facts and particulars relating to the alleged corrupt practice in the election petition are not complied with. As a plaint in a civil suit can be rejected for non-disclosure of cause of action under O. 7, R. 11(a), C.P.C., similarly an election petition not complying with the provisions of S. 83(1), that is not disclosing material facts constituting cause of action, has to be dismissed under O.7, R. 11(a), read with O. 6, R. 16, C.P.C. and Ss. 83(1) and 87 of the Act. Because an election petition can be dismissed under O. 7, R. 11(a), C.P,C. this explains the omission of S. 83 in S. 86.
11. Then I switch on to the Grounds C and D, facts in respect of which has been stated in para 15. The averments made in para 15 by the petitioner as broadly stated, are that the figures appearing in Form 16 Part I have not been correctly transposed in Form 16 Part II and from Form 16, Part II to Form 20; that the ballot papers which did not bear seal mark and signature of the Presiding Officer, were counted in favour of respondent No. 1 but the ballot papers having same lacuna were rejected in the case of the petitioner; that votes of respondent No. 1 were inflated by 2000 but votes of the petitioner were deflated by 1500, that the ballot papers of the petitioner were surreptitiously removed and mixed up in the bundle of ballot papers of respondent No. 1; that 1200 valid votes of the petitioner were illegally rejected; that of 1200 votes, 200 votes were rejected for want of signature of Presiding Officer, which was merely a slip on the part of the Presiding Officer; that 400 ballot papers of the petitioner were rejected as dim seal mark protruded in the column of respondent No. 1, that 350 ballot papers of the petitioner were rejected on ground of being faint, and that an application for a recount was made by the petitioner but that was rejected and that the counting agents were not permitted to note down the serial number of the ballot papers and therefore, that have not been disclosed in the petition. In Ram Sewak Yadav v. Hussain Kamil Kidwai (AIR 1964 SC 1249) which is a leading case on the point of recount, their Lordships adverting to Rr. 53, 55, 56, 57, 58, 60 and 63 of the Rules observed in para 9:
"There can, therefore, be no doubt that at every stage in the process of scrutiny and counting of votes, the candidate or his agents have an opportunity of remaining present at the counting of votes, watch the proceedings of the returning officer, inspecting any rejected votes and to demand a re-count.
Therefore, a candidate who seeks to challenge on the ground that there has been improper reception, refusal or rejection of votes at the time of counting, has ample opportunity of acquainting himself with the manner in which the ballot boxes were scrutinised and opened and votes were counted. He has also opportunity of inspecting the rejected ballot papers and of demanding a recount. It is in the light of the provisions of S. 83(1) which requires a concise statement of material facts on which the petitioner relies and to the opportunity which a defeated candidate had at that time pf counter, watching and claiming a recount that the application for inspection must be considered."
12. In view of R. 56(3) of the Rules which states that before rejecting any ballot paper under sub-rule (2), the Returning Officer shall allow to each counting agent present a reasonable opportunity of inspecting the ballot papers, the plea of the petitioner that his counting agents were not permitted to note the serial number of ballot papers at the time of counting, cannot be accepted and in the absence of serial numbers of the ballot papers which petitioner claims to have been illegally rejected and which according to him were illegally accepted, all the sub-paragraphs relating to such pleas in para 15 have to be struck out. A copy of the order of the Returning Officer who allegedly rejected the application for recount said to have been made to him by the petitioner, has not been filed. Rule 63(4) enjoins upon the Returning Officer to pass an order in writing and give reasons if he chooses to reject the application for recount under sub-rule (3). No details have been furnished by the petitioner as to who were the counting agents and who were not permitted to inspect the ballot papers by counting staff. Details of counting staff who denied the right of inspection, are also not given. No basis has been furnished in support of the figures which have been stated in-various sub-paragraphs of para 15. It must, therefore, be held that material particulars in support of the grounds falling under S. 100(1)(d)(i) of the Act have not been stated. Rule 38 of the Rules mandates that every ballot paper before it is issued to an elector, shall be stamped on the back and shall be signed in full on its back by the Presiding Officer. Requirement of signature of Presiding Officer being mandatory, assertion of the petitioner that his ballot appers bereft of signatures were wrongly rejected, has no legal basis. In sub-para (xxxviii) of para 15 it is stated that objections were raised against the ballot papers being mixed up. No details have been given whether such objection was made orally or in writing, now many ballot papers were mixed up what were their serial numbers, who raised the objection whether the petitioner or the counting agent or the election agent, his worker or supporter.
13. Election is the mirror of the will of the people and that should not be cursorily set aside. Also recount should not be allowed on the frivolous, vexatious and scandalous pleas made by the petitioner as he did in the instant petition. In Bhabhi v. Sheo Govind (AIR 1975 SC 2117), the Supreme Court reversed the order of the Allahabad High Court allowing sample inspection of the ballot papers saying that application made by the petitioner was such which could have been easily verified at the spot by the Presiding Officer if his attention were drawn to those facts by an application made under R. 63 of the Rules and that the Allahabad High Court overlooked that the respondents had not given material particulars of the case on the basis of which he wanted sample inspection of the ballot papers. The Supreme Court added that no serial number of the ballot papers was mentioned in the petition, nor were any particulars of the bundle containing the ballot papers which were alleged to have been wrongly rejected, given by the respondent. The factual position of the instant case is no better than the case which was before the Supreme Court and, therefore, no inspection as prayed for can be allowed, as necessary material facts have not been disclosed in para 15. For the reasons, I hold that para 15 deserves to be struck out under O.6, R. 16, C.P.C.
14. Sub-paragraphs of paras 14 and 15 having been struck out under O.6, R. 16, C.P.C., I hold that the election petition as a whole deserves to be dismissed under O.7, R. 11(a), C.P.C., read with S. 83(1) of the Act, as no cause of action has been, disclosed therein.
15. In the result, the application made under O.6, R. 16, C.P.C. by respondent No. 1 is allowed; the election petition is dismissed with costs assessed at Rs. 300/- under O. 7, R. 1l(a), C.P.C., read with S. 83(1) of the Act. The balance security amount shall be refunded to the petitioner upon his making a proper application in that behalf.
16. Order accordingly.