Madras High Court
Sivakumar @ J.K.Ritheesh vs V.Sathiamoorthy on 28 February, 2011
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.02.2011
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
Application No.6915 of 2009
in
Election Petition No.1 of 2009
Sivakumar @ J.K.Ritheesh .. Applicant
Vs.
1.V.Sathiamoorthy
2.Su.Thirunnavukkarasar
3.Priscila Pandian
4.Saleemulla Khan.S
5.Singai Jinnah.S
6.Mohammed Abith Ali.R
7.Kalimuthu K
8.Shanmugaiya Pandian.S
9.Swartz Durai.S
10.Chella Durai
11.Balamurugan
12.Baskaran, P.
13.Murugendran.G.
14.Jahangeer M.I.
15.The Returning Officer-cum-
District Collector,
Ramanathapuram
16.The Chief Election Officer,
Fort St. George,
Chennai-9.
17.The Chief Election Commission of India,
New Delhi. .. Respondents
Application No.6915 of 2009 is preferred under Order XIV Rule 8 of O.S. Rules read with Order VI Rule 16 of the CPC seeking to strike off the election petition filed by the first respondent herein as not maintainable in law, vague and abuse of process of law.
For Applicant : Mr.AR.L.Sundaresan, SC
for Mr.A.R.Nambunayagam for R-1
For Respondents : Mr.K.Moorthy for R-1
Mr.S.Thiruvenkataswamy for R-2
Mr.G.Murugendran, R-13 party-in-person
Mr.M.R.Raghavan, Standing Counsel
for RR15,16 and 17
- - - -
ORDER
The applicant herein is the first respondent in the election petition and also a candidate who was declared elected from Ramanathapuram Parliamentary Constituency. The election petition was presented by the first respondent under Sections 80 to 84, 100(1)(b), 100(1)(d)(i)(ii),(iii),(iv), 123(1),(2),(3) (3-A)(4), 135(1), 135-A(e), 65(1) of the Representation of People Act, 1951 and Rule 54A of the Conduct of Election Rules read with Rule 2 of Madras High Court Election Petition Rules, 1967. The election petition was presented on 12.6.2009 by the first respondent. After scrutiny of papers, the matter was allotted to this Court by the Hon'ble Chief Justice.
2.When the matter came up on 31.8.2009, this Court admitted the election petition and ordered notice to the respondents. All parties were served either through the court or by substituted service. Accordingly, the first respondent, elected candidate, had entered appearance. He had filed the present Application No.6915 of 2009 under Order 14 Rule 8 of O.S. Rules read with Order 6 Rule 16 of CPC to strike off the election petition No.1 of 2009 filed by the first respondent. On notice on this application, a counter affidavit, dated 18.1.2010 was filed by the first respondent / Original election petitioner. The 13th respondent appearing as party-in-person had filed a counter affidavit, dated 1.3.2010. Arguments were heard on various dates. The application was reserved for orders on 27.4.2010. Subsequently, the matter was reposted on 10.2.2011 for certain clarifications. After getting clarifications from the parties, it was again adjourned for delivering the orders in the application.
3.Before proceeding to deal with the allegations made in the application, it is necessary to set out the allegations made in the original Election Petition. The admitted facts in the election petition are as follows:
The election to the 15th Lok Sabha was notified by the Election Commission of India on 23.3.2009. Insofar as the State of Tamil Nadu was concerned, the date of polling was notified on 13.5.2009 and declaration of results was to be made on 16.5.2009. Unlike previous polling, elections were held by exercising franchise through Electronic Voting Machines (for short EVM). In the election held to the Ramanathapuram constituency, the applicant was declared as returned candidate by the 15th respondent under the 17th respondent. It is claimed that the first respondent / the original election petitioner is an Advocate by profession. He was brought into the politics by the former late Chief Minister M.G.Ramachandran. He was a member of the Tamil Nadu legislative assembly for the year 1980-1984 for the first term and during 1991-96 for the second term. He was the Chairman of the Panchayat Union Council at Kadaladi during 1986-1990. His worth was noted by the then Chief Minister Selvi J.Jayalalitha. He was inducted as a Minister in her cabinet holding the Commercial Tax Department. He was elected as a Member of Parliament during the year 1998-99. He was also the District Secretary of the AIDAMK party from January, 2009 and held the office of the State Organizing Secretary and State Headquarters Secretary on earlier occasions.
4.He had contested in the election as an official candidate of the AIADMK. The first respondent was hopeful that being a strong candidate, he would get elected in the election. The pre-poll predictions also clearly indicated that he would get elected in the election. Further, for spending money towards election propaganda, a ceiling has been fixed. The applicant had contested the election for the same constituency being an official candidate of Dravida Munnetra Kazhagam (DMK). He was a novice to politics. He had also occasionally acted in some Tamil films. It is the stand of the first respondent that the applicant and his party had spent more than Rs.25 crores in the Ramanathapuram constituency alone and had indulged in large scale of corruption. The police were mute spectators to the large scale of corruption indulged by the applicant for securing votes. They had registered cases on complaints selectively. The complaints lodged by the Village Administrative Officers were not acted upon. The first complaint was made to the knowledge of the first respondent on 4.5.2009 by one Karumalai, VAO, Nainarkoil against one Diwakar, the Panchayat Union Secretary of the DMK party and the son of Suba Thangavelan, who is the Minister in the State Cabinet. The case was registered under Section 171-E read with 188 IPC in Crime No.41/2009 on the file of the Nainarkoil Police Station. The said case was not investigated on account of the fact that the accused was the son of the Minister Suba Thangavelan. The Minister himself was not lagging far behind his son's activities. He had also indulged in electoral corruption. An FIR in Crime No.25 of 2009 was registered against him at the instance of one Subramaniam, VAO.
5.It was claimed that he was seen distributing money on 11.5.2009 around 10.00 a.m. along with his party men. They were also distributing Rs.100/- for every Aarathi taken for him by the women of that locality. The applicant himself was found on 2.5.2009 promising construction of an Amman Temple at Ariyankottai village and sought for votes for himself and also for his party. He used his two lorries for supply of building materials for the construction of temple. The VAO Rajendran had lodged a complaint which was registered in Crime No.75/2009 on 4.5.2009 with R.S.Mangalam Police station. The registration of that complaint did not deter the applicant. On 6.5.2009 around 11.00 p.m., he had canvassed at Peraiyur village seeking for votes and was seen distributing money to the voters. A complaint was lodged by one Muthuraman, VAO against the applicant under Sections 188 and 171E of IPC with the Peraiyur Police station. The corrupt practices engaged by the Minister Suba Thangavelan and by the applicant who is an aspirant for the post of Member of Parliament has created an indelible doubt about the free poll process. The public documents created in this regard were filed as annexures to the original election petition.
6.The Election Commission though was fully aware of these activities but did not put a check on their conduct. The details of corrupt practices indulged by the applicant along with the Minister Suba Thangavelan and the members of his party were set out in paragraph 9 of the election petition and relates to as many as 9 items. Two criminal cases in Crime No.75 of 2009, dated 4.5.2009 registered by R.S.Mangalam Police Station as well as Crime No.22 of 2009, dated 7.5.2009 registered by Peraiyur Police Station related to the applicant. The first complaint related to the construction of Ammankoil in which it was found two vehicles owned by him were used to bring sand for construction. The second case related to the distribution of Rs.100/- to those who took Arathi on 6.5.2009. According to the first respondent/original election petitioner, these are all only few instances. The first respondent had spoken to the then Chief Election Commissioner about the corrupt practices indulged by the applicant. The Election Commissioner had recorded his statement. The FIR's, complaints given in writing by the first respondent and his party men and the complaints made over phone as recorded by the Chief Election Commissions is requested to be treated as part of the election petition.
7.Apart from the Election Commission, even the Superintendent of Police, Ramanathapuram was apprised of the corrupt practices in distributing money by the applicant. It is stated that on 13.5.2009, i.e., on the date of election, one Rajan of DMK party was apprehended near Taluk Office Road in Kamudhi Town while distributing money and he was handed over to the police along with the cash balance of Rs.1 lakh. Soon after his arrest, Minister Suba Thangavelan had arrived at the police station and ensured that no case was registered regarding the incident. Even the cash that was entrusted to the police was taken away by him. After public protest raised by one Muthuramalingam, the Inspector of Police had issued a CSR, dated 13.5.2009. A serious case of violation of code of conduct can be seen from the said complaint. Likewise, in front of Paramakudi Emaneswaram Middle School, one Thangavel of DMK was distributing money near polling booth. He was apprehended and the same was reported in the newspaper "Dinamalar". But, no case was registered. On 9.5.2009, the applicant was found distributing money to the voters in Aranthangi. That incident was also videographed. But the police bungled the show. The incident was also reported in all newspapers. Another Cabinet Minsiter Thangam Thennarasu during May, 2009 on the eve of election, undertook a tour to various places canvassing for his party for the election and was found distributing money to the villagers in the name of payment of wages received under the Central Government Schemes. This was nothing but misuse of the Government machinery. The applicant had portrayed that he had taken care of the family of late Immanuel who was responsible for prosecuting Muthuramalinga Thevar. But, however, the prosecution had ended in acquittal. It is further claimed that the applicant by distributing handbills informed that his party was instrumental in protecting the cause of the members belonging to Immanuel's clan and had sought for their votes for the DMK party. Pamphlets were also issued in the name of the kin of late Immanuel. The language in that pamphlet was in bad taste and had created mutual hatred and caused tension between different castes and communities.
8.The VAO of that village and one Mr.Haridoss, a practicing Lawyer had lodged a complaint about the offer made by the applicant for construction of places of worship. The construction materials, i.e., bricks and sand were supplied by the vehicles marked as "JKR" at Pappanandal, Mettukolai and other villages. This incident took place on 3.5.2009. Complaints were also made to the Additional Chief Election Commissioner, Chennai through Fax messages on 12.5.2009 by Haridoss, a member of the AIADMK and a well known Advocate. The substance of the complaint was that on 11.5.2009 under the leadership of Suba Thangavelan, the DMK party men were engaged in distributing money in Peraiyur, Mudukulathoor during night time which had resulted in a complaint being lodged. Similarly, the DMK party men had distributed money to all Self Help Groups in Ramanathapuram District. On 12.5.2009 around 12.00 p.m. At Sowrashtra colony in Paramakudi-Mudukulathur Salai, a white Scorpio vehicle with registration No.TN 65 E 1001 was employed by the DMK party for distribution of booth slips and money. The Poll observer Mr.Rajesh Vajera was informed of these incidents, but no action was taken. At Narikudi, Mr.Thangam Thennarasu, a Cabinet Minister had distributed funds to the voters. The distribution of funds was rampant at Kadaladi and Sayalkudi. At Kadaladi, Mr.Ponraj, a former Town secretary of DMK was found distributing funds in the Pillaimar Street. He was apprehended and was handed over to the Kadaladi Police. But the police did not register any case against him.
9.It was further claimed that intimidation was made to the rival party members from campaigning in the elections stating that criminal complaints will be lodged against them. False cases were registered with a view to prevent the people owing allegiance to opposition parties from voting in the election. The first respondent/original election petitioner was forced to file a Criminal O.P.No.2961 of 2009 for securing anticipatory bail in Crime No.100 of 2009 and he got bail on 13.5.2009. Another false case was registered at the instance of the ruling party persons. The applicant was also found distributing tea cups to various tea shops with the poll symbol of his party "Rising Sun" printed on it. He had also sought for votes by distributing hand fan, caps, T-shirts, dhoties and sarees. For canvassing votes for his candidature, women self help groups were distributed with funds. For each assembly constituency, there was not less than 1500 of such groups. The amount distributed to each group ranged from Rs.2000/- to Rs.5000/-. A complaint was also lodged in violation of election conduct rules. After notification of the election, nearly 250 village persons were engaged in each panchayat as workers under the NREGA scheme. In the year 2008, only less number of people were engaged comparing to the engagement of such persons during the election time. On 4.5.2009, the VAO had reported that the applicant and one Diwakar the Union secretary of DMK had convened workers' meeting and sumptuously fed them with Biriyani and other items. Though it was arranged as a cadre meeting, but voters from neighbouring villages were treated with biriyani feast and votes were canvassed for his party. Likewise, feasts were arranged for the voters throughout the constituency. A FIR was registered in the R.S.Mangalam Police Station in Crime No.75 of 2009.
10.It was further claimed that on 09.05.2009, (just four days before the election), a complaint was lodged by one Pandimurugan in Kalkurichi police station in Crime No.92 of 2009 complaining of the branch secretary of DMK along with his men including four teachers and a Central Government servant were engaged in distributing of funds in front of the house of one Arumugham. They were apprehended and handed over to the police. Likewise, on 10.5.2009, DMK men were found in the vehicle bearing registration No.TN 72/C 9588 distributing money at Thiruchuzhi. A complaint to that effect was lodged at Narikudi in Crime No.104 of 2009. The Code of Conduct of election specifically prohibits the misuse of Government/Municipal properties for the purposes of advertisements. The applicant along with Diwakar, son of Suba Thangavelan and the members of ruling party had misused the Government properties for advertisement and gathered votes for DMK. A complaint was lodged in Crime No.46 of 2009 at Nainarkoil police station on 11.5.2009 by the VAO for placing placards, digital banners and advertisement boards. The expenditure incurred in this regard had crossed the permissible limit of expenditure by several crores. The corrupt practices indulged by the applicant included bribing of voters, intimidation of members of the rival political parties, canvassing within 100 meters of the polling booth, holding of meetings within 48 hours of the date for poll and distributing of money on the date of poll even in areas which were in close proximity to the polling booth.
11.It was further claimed that Minister Suba Thangavelan had misused the official machinery. M/s.Anwar Raja, a former Minister and Udayakumar, agent of the first respondent and State Student wing secretary have lodged a complaint on 4.5.2009 regarding distribution of money between 6.30 and 9.00 p.m. A further complaint was also lodged to the Election Commission on 10.5.2009. Series of complaints were given on 2.5.2009 to 13.5.2009. Telephones and cell phones of the voters were used to canvass votes for DMK. Canvassing through telephone was not subjected to any time period.
12.Apart from these allegations, it was further claimed that the applicant was born in Kandy, Srilanka. His parents were the residents of Srilanka. It was not clear as to how he had secured Indian citizenship. He had made a misrepresentation as if he was a citizen of India. He is not entitled to stand or contest in the election to become a member of Parliament. He had given false status in the affidavit filed before the election officer at the time of filing of his nomination.
13.Thereafter, it was further submitted that the Electronic Voting Machines (EVM) were unreliable and there was no possibility of finding out the actual votes polled and to whom it was voted. The cross verification was impossible. The entire operation was done by a micro chip. It was possible to corrupt and manipulate the chip. In many polling booths in the Ramanathapuram constituency, there were complaints that on the button being pressed in favour of the first respondent, votes were transferred in favour of the applicant. In the manual voting system, verification was possible. But in the EVM machines, no such verification was possible. Substantial electorate in the Ramanathapuram constituency were illiterates. They were not fully conversant in pressing buttons in the EVM machines. In one of the booth at Rameswaram, when the first voter entered to tender his vote, he found that there were already 64 votes were entered even before his entry. The first respondent is willing to substantiate the unreliability of EVM machines.
14.It was further claimed that on 13.5.2009, it was disclosed in the media that the total votes polled in Ramanathapuram Constituency was 64.5% after closure. But next day's announcement showed that it was 68.5%. These figures were given by the Election Commission itself thereby giving rise to considerable doubt that election was not properly conducted. The control boxes attached to the EVMs were kept away from the polling agents thereby finding it difficult to know whether they were tampered or not. None of the candidates or agents were allowed to physically verify the fate of EVMs which were entrusted to the State officials. Even in the counting hall, there were 12 tables in each hall with one A.R.O. per table. The agents were allowed to monitor the 12 tables, but were not permitted to monitor the ARO's table where all the votes from the 12 tables were pooled and counted. The agents were also not allowed to cross check the individual votes. The Election Commission was bound to establish the credibility of the instruments employed at the time of election. The para-military force (CRP) which were engaged to guard the polling stations were not found anywhere near the polling station which led distribution of funds on the election day by Rajan Nadar. The public had apprehended and handed over him to the police. The first respondent had also spoken to Mr.Naresh Gupta and lodged a complaint informing that a sum of Rs.5 Crores was kept in the house of Mudukuluthur DMK poll agent Murugavel for distribution to the voters in Ramanathapuram. The complaint was recorded in his phone and he was assured that appropriate action will be taken.
15.It was also submitted by the first respondent that complaints were given by M/s.M.Kanagaraj, S.Naganathan, V.Muthu, Kannan, Muniyandi, Karuppiah, Vellaiyan, Sundaramoorthy to Anwar Raja, former Minister belonging to AIADMK and to the first respondent. They had spoken about the distribution of funds for securing votes. Likewise, M/s.Rajendran, Muniyandi and Karuppiah, responsible officer bearers of AIADMK party also drew attention of the first respondent to the electoral abuses indulged by the applicant and the amounts distributed in various areas were disclosed. The distribution of money by the applicant and his party men were videographed and it was handed over to the Revenue Divisional Officer/Assistant Returning Officer, Aranthangi. A copy of the compact disc was produced for appreciation by this court.
16.Finally, it was submitted that the first respondent had polled more votes than the applicant. Because of corrupt practices indulged by the applicant, he had lost in the election. The fifth respondent had informed that the first respondent had polled 2,25,030 votes. In the event of applicant's election being set aside, it was further claimed that the first respondent should be declared elected for Ramanathapuram constituency. It is with these allegations, he had sought for the declaration of the applicant's election from Ramanathapuram Constituency in the election held on 13.5.2009 as null and void and for declaration that the first respondent as the duly elected member of Member of Parliament from the Ramanathapuram constituency and cost for the petition. In support of these allegations, the first respondent had enclosed 42 documents along with the election petition. The 43rd item was a copy of compact disc to which a reference was made in paragraph 34 of the Original Election Petition.
17.The applicant did not file any counter in the main Election Petition. On the other hand, he had filed the present application No.6915 of 2009 seeking for striking off the Election Petition No.1 of 2009 filed by the first respondent as not maintainable in law, it is vague and an abuse of the process of law.
18.In the application filed in support of the application, he had stated that he was representing the DMK party and had contested for election on 13.5.2009. He was declared elected with a winning margin of 69,915 votes. He had submitted that the election petition filed by the first respondent was against the provision of the Representation of People Act, 1951 (for short RP Act). Under Section 80 of the RP Act, no election can be called in question except by an election petition presented in accordance with the provisions of Part II of the Act. Under Section 80A, it can be tried only by a Court having jurisdiction to try an election petition and it shall be the High Court. Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court. The Chief Justice shall from time to time assign one or more judges for this purpose. The election petition will have to be presented within 45 days from the date of election of the returned candidate as per Section 81 of the Act. The term "High Court" has been defined under Section 79(e) of the RP Act to mean that the High Court within the local limits on whose jurisdiction the election to which the election petition relates, has been held. In the present case, since the election related to the Ramanathapuram Constituency, it falls within the jurisdiction of Madurai Bench of this High Court. After formation of the Madurai Bench pursuant to the Presidential notification issued with effect from 24.7.2004 and elections having taken took place on 13.5.2009 and results were declared on 16.5.2009, the jurisdiction of the present election petition vest with the Madurai Bench of this Court. Only if it is presented to that court, it can be entertained. Since the first respondent had filed the election petition before the Principal Bench, the election petition filed by the first respondent deserves to be rejected on this short ground.
19.It was further stated that election petition was not accompanied by the affidavit in the prescribed format as mandatorily required by the proviso to Section 83(1) of the Act . Hence it deserves to be rejected. Without prejudice to these submissions, it was further contended that the allegation of corrupt practices are vague and bereft of material facts and did not satisfy the requirement of Section 83. On account of vague nature of allegations and lack of material facts, no cause of action arose for entertaining the election petition. The corrupt practices alleged to have been committed by the applicant were not set out with full particulars, but were narrated in a casual manner. They lack in substance and do not satisfy the requirement of Section 83. The corrupt practices alleged to have been committed were not precisely stated and are not supported by any affidavit which are mandatorily required under the proviso to Section 83.
20.With reference to improper acceptance of his nomination alleged, the applicant had stated that he is an Indian citizen. It is admitted even by the first respondent and he himself never raised any objection at the time of scrutiny of nomination.
21.There are no averments in the petition regarding the corrupt practices in terms of Section 100(1)(d)(iii) or (d)(iv). With reference to section 135(1) and 135A, absolutely there are no other alelgations. Section 65(1) of the RP Act is not attracted in the present case. The allegation pertaining to the use of EVM machines were based on assumptions and presumptions. No complaint was made by the first respondent at the time of election. The deployment of EVM machines is part of the policy decision of the Election Commission. It has been used throughout India. The averments made in paragraph 30 of the election petition was bereft of material facts. The averment that the first respondent got more votes than the applicant was also bereft of material particulars. The averments that the electorate were induced by gratification with gift materials and undue influence was exercised directly and the same interfered with the electoral rights of the people were all vague and bereft of material facts. The election petition is liable to be rejected on the ground of want of jurisdiction, non filing of the affidavit in support of the allegations and other corrupt practices as well as on grounds of lack of material facts. By the nature of pleadings made in the election petition, there is no cause of action arose for entertaining the petition. The election petition is nothing but an abuse of the process of law. Therefore, it was prayed for striking off the election petition.
22.On notice from this application, the first respondent who is the original election petitioner filed a counter affidavit dated 18.1.2010 and had stated that the application is not maintainable. It is not necessary to file a petition in the Madurai Bench of Madras High Court, since the Madurai Bench has not been conferred with any original jurisdiction. A complaint made against the applicant was made even by the Government officials. Paragraphs 6 to 16 clearly indicate serious charges to be answered by the applicant. When allegations were substantiated with records, it is not open to the applicant to dillydally the matter.
23.The allegations made in paragraph 26 in the petition is something within the knowledge of the applicant and no evidence can be let in before commencement of trial. At the appropriate stage, the applicant would be confronted with records both relating to the place of his birth as well as his citizenship.
24.In paragraphs 11,12 and 13 in the application, the allegations made are meaningless. The applicant is not an expert on EVM. It is unsafe to use such machines. It is the duty of the applicant to establish that the charges levelled against him by the original election petitioner were false. The counsel also submitted that they had filed an affidavit supporting the allegations of corrupt practices raised in the Election Petition.
25.The 13th respondent appearing in party in person in his counter affidavit, dated 1.3.2010 had contended that the presentation of the petition before the Principal Bench was valid. The Madhya Pradesh High Court in Devendra Nath Gupta Vs. Returning Officer had held that improper presentation of the election petition before the appropriate Bench was not valid and dismissed the OP as time barred. The Supreme Court had upheld the decision of the High Court. Section 86 of the R.P. Act empowers the High Courts to dismiss an election petition at the threshold if it does not comply with the provisions of Sections 81, 82 or 117. Once it is scrutinized by the ministerial act, there is no scope for further enquiry under Section 86 to ascertain the deficiencies in an election petition. Therefore, he prayed for dismissing the application and for proceeding with further trial on the Election Petition.
26.From the averments made in the application for striking off the election petition and the counter affidavits filed by the original election petitioner as well as by the 13th respondent, the following issues arise for consideration by this Court :
(1)Was the Election Petition properly presented before this Court ?
(2)Was the introduction of Electronic Voting Machine (EVM) vitiated the election process?
(3)Whether the allegation that the applicant is not an Indian Citizen and therefore disqualified from contesting election can be accepted?
(4)Whether a copy of the Compact Disk produced as item No.3 filed along with the Election Petition can be received as material evidence?
(5)Whether the application filed for rejecting the Election Petition outright even at the threshold without a trial is justified?
27.Issue No.1:Was the Election Petition properly presented before this Court ?
27.1.Mr.AR.L.Sundaresan, the learned Senior Counsel appearing for the applicant first submitted that the first respondent by presenting the Election Petition to the Assistant Registrar (O.S.-I) of the Principal Bench was not valid as the cause of action for filing the petition arose under the exclusive jurisdiction of the Madurai Bench of the Madras High Court. The argument that the Madurai Bench is not clothed with a Original Jurisdiction is immaterial.
27.2.In this context, he referred to a judgment of the Supreme Court in Nasiruddin Vs. STAT reported in (1975) 2 SCC 671 and referred to the following passage found in paragraph 38, which reads as follows:
"38..... the expression cause of action with regard to a civil matters means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction."
27.3.He further referred to the judgment of the Supreme Court in U.P. Rashtriya Chini Mill Adhikari Parishad v. State of U.P., reported in (1995) 4 SCC 738. Reliance was placed on the following passages found in paragraphs 14 and 16 which are as follows:
"14.While reaching the above conclusion this Court kept in view the plain language of clause 14 of the Amalgamation Order. No provision of the Code of Civil Procedure was noticed, referred to or taken into consideration directly or indirectly. The territorial jurisdiction of a court and the cause of action are interlinked. To decide the question of territorial jurisdiction it is necessary to find out the place where the cause of action arose. We, with respect, reiterate that the law laid down by a four-Judge Bench of this Court in Nasiruddin case2 holds good even today despite the incorporation of an Explanation to Section 141 to the Code of Civil Procedure.
16...... It is not disputed that in the present case the order/notification and the advertisement were issued by the State Government at Lucknow. Without there being an order/notification by the Government there could be no cause of action at all. The petitioner got aggrieved only from the order/notification which arose from Lucknow. The grievance of the petitioner arose at Lucknow which is within the Oudh area and as such on the plain reading of the relevant provisions of clause 14 of the Amalgamation Order, the Bench at Lucknow had the jurisdiction to deal with the matter."
27.4.The learned Senior Counsel then referred to the judgment of the Supreme Court in Rajasthan High Court Advocates' Assn. v. Union of India reported in (2001) 2 SCC 294 and quoted the following passages found in paragraphs 17 and 18 which are s follows:
"17...... The Chief Justice of the High Court has not been conferred with the legislative competence to define cause of action or to declare where it would be deemed to have arisen so as to lay down artificial or deeming test for determining territorial jurisdiction over an individual case or class of cases. The permanent Bench at Jaipur has been established by the Presidential Order issued under sub-section (2) of Section 51 of the Act. The territorial jurisdiction of the permanent Bench at Jaipur is to be exercised in respect of the cases arising in the specified districts. Whether the case arises from one of the specified districts or not so as to determine the jurisdictional competence to hear by reference to territory bifurcated between the principal seat and the Bench seat, shall be an issue to be decided in an individual case by the Judge or Judges hearing the matter if a question may arise in that regard. The impugned explanation appended to the order of the Chief Justice dated 23-12-1976 runs counter to the Presidential Order and in a sense it is an inroad into the jurisdiction of the Judges hearing a particular case or cases, pre-empting a decision to be given in the facts of individual case whether it can be said to have arisen in the territory of a particular district. The High Court is right in taking the view which it has done.
18..... The cases are to be heard accordingly, unless the Chief Justice may exercise in his discretion the power vested in him by the proviso to para 2 of the Presidential Order. Clauses (1) and (2) of Article 226 of the Constitution provide how territorial jurisdiction shall be exercised by any High Court. Although the said clauses do not deal with principal seat or permanent Bench of any High Court but in our opinion, there is no reason why the principle underlying thereunder cannot be applied to the functioning of the bifurcated territorial jurisdiction between the principal seat and permanent Bench seat of any High Court. In case of a dispute arising whether an individual case or cases should be filed and heard at Jodhpur or Jaipur, the same has to be found out by applying the test from which district the case arises, that is, in which district the cause of action can be said to have arisen and then exercising the jurisdiction under Article 226 of the Constitution."
27.5.The learned Senior Counsel further referred to a decision of this court in K.Kavitha and others Vs. Subramanian @ V.S.Mani and others reported in 2007 (5) CTC 707 and referred to the following passages found in paragraphs 16 and 24 which are as follows:
"16.A notification, similar to be one issued in case of establishment of Permanent Bench of Madras High Court at Madurai, had been issued in case of Rajasthan High Court with exactly similar proviso giving a discretionary power to the Chief Justice to order any case or class of cases arising within the districts allotted to the Permanent Bench of Jaipur to be heard at Jodhpur. A similar issue arose before the Honourable Supreme Court in respect of the jurisdiction of the Principal Bench, High Court of Rajasthan at Jodhpur and its Permanent Bench at Jaipur. The Supreme Court in clear and unambiguous terms held that the establishment of a Permanent Bench at Jaipur with powers to exercise jurisdiction over the districts allotted to it, had effected a bifurcation of the State for the purpose of exercise of jurisdiction by the said Benches of Rajasthan High Court, with the only exception that the Chief Justice of the said High Court was given a discretionary power to direct that any case or class of cases arising in any of the districts within the territorial jurisdiction of the Permanent Bench at Jaipur shall be heard at Jodhpur.
24.On the other hand, I am of the considered view that the Principal Bench at Chennai and the Permanent Bench at Madurai shall be construed as separate, for the practical purpose of exercise of jurisdiction, even though the Judges are interchangeable at the discretion of the Chief Justice. The only exception is the discretion conferred upon the Chief Justice to direct any case or class of cases arising within the jurisdiction of Permanent Bench at Madurai to be heard at Chennai. This view alone will be in consonance with the proposition enunciated by the Supreme Court in the cases discussed above. Therefore, the first contention raised by the learned counsel for the petitioners is hereby rejected."
27.6.Therefore, the learned Senior Counsel contended that inasmuch as the Election Petition was presented to the Original Side of the Principal Bench, it ought not to have been acted upon and should have been rejected on the ground of improper presentation. Since Ramanathapuram District comes within the Madurai Bench of Madras High Court, it ought to have been presented only before the Madurai Bench. No doubt, after such presentation, the Hon'ble Chief Justice could have allotted the matter to any of the Judges of this court whether sitting at Madurai Bench or at Chennai. But, when the cause of action arose within the Madurai Bench of Madras High Court, the Election Petition should have been presented only before the Madurai Bench. On this ground, the Election Petition is liable to be rejected for improper reception.
27.7.Before going into the contentions raised by the respondents, it is necessary to refer to the relevant provisions found in Chapter II of the Representations of the People Act relating to the presentation of the Election Petition. It is necessary to refer to Sections 80, 80A and 81 of the R.P. Act, which are as follows:
80. Election petitions.No election shall be called in question except by an election petition presented in accordance with the provisions of this Part.
80-A. High Court to try election petitions.(1) The Court having jurisdiction to try an election petition shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall, from time to time, assign one or more Judges for that purpose:
Provided that where the High Court consists only of one Judge, he shall try all election petitions presented to that Court.
(3) The High Court in its discretion may, in the interests of justice or convenience, try an election petition, wholly or partly, at a place other than the place of seat of the High Court.
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 earlier 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."
27.8.It is also necessary to see the relevant rules framed by the High Court. This Court by virtue of the power exercisable under Article 225 read with Letters Patent and Section 80-A of the R.P. Act, had framed Rules of the Madras High Court - Election Petitions, 1967. Rule 7 reads as follows:
"7.Every Election Petition shall be presented by the petitioner before the II Assistant Registrar, Original Side, High Court or in his absence, before such Officer of Court, as the Registrar of the High Court may direct."
In this case, the election petition was presented before the designated authority as set out in the rule.
27.9.In this context, it is necessary to refer to a judgment of the Allahabad High Court in Nawab Khan Vs. Vishwanath Shastri reported in AIR 1993 Allahabad 104. Though Section 81 talks about presenting of an Election Petition to the High Court, it does not mean that the Chief Justice and the entire body of the Judges should receive such a petition. The High Court can frame convenient rules for the reception of the petition and such a rule cannot be held to be vitiated. Therefore, it is necessary to refer to the following passages found in paragraphs 6,7 and 10 of the said judgment, which are as follows:
"6....From the very circumstance that the High Court is a large body which cannot sit in full strength now and then ony to perform ministerial act, it is imperative that roles regulating ministerial duties of routine nature must be framed to further the object of the statute. The framers of the Constitution or the Legislature might not have envisaged giving priority to the ministerial task over the judicial task of the High Court. I am, therefore, of the firm view that such a wooden interpretation as suggested by Sri Jain, cannot be given to Section 81. The words "High Court" have been substituted in Section 81 for the words "Election Commission" by Act No.47 of 1961. Though election petition is to be presented to the High Court institutionally but that does not mean that ministerial act of receiving election petition has to be performed necessarioy by the High Court consisting of a Chief Justice and companion Judges. In the High Court not only election petitions are presented but several other proceedings equally important, namely, appeal, revision, reference, writ petition etc. are instituted.There seems to be no good reason for the Parliament to make a special provision for the presentation of an election petition only. Whereas most of the other proceedings are instituted in the Registry, presentation of an election petition literally to the Chief Justice and to the entire body of Judges is neither expedient nor necessary, rather presentation of an election petition to the Registrar of the High Court will be more convenient, practicable and feasible. Since no special purpose will be served by presenting an election petition to the Chief Justice and the entire body of his colleagues, it is difficult to accept the contention of Sri Jain that presentation of the instant petition to the Registrar under Rule 3, Chapter XV-A of the Rules is vitiated.
7.....When no manner for presenting an election petition to the High Court is prescribed by the sttute or the rules framed thereunder then it is open to the High Court to frame appropriate rules to discharge its constitutional and statutory duty, namely, trial of the election petitions filed before it by election petitioners. Once an election petition is brought to the High Court, it cannot refuse to entertain the same on the ground that no procedure for presenting them before it has been prescribed by the appropriate Legislature. An election petition can be presented only to the High Court and, therefore, it is for High Court to regulate the presentation and trial of the election petition.
10.....The power to frame rules can be traced to Article 235 of the Constitution which provides that control over the District Court and courts subordinate thereto, shall be vested in the High Court. The Supreme Court held that power conferred by Article 235 of the Constitution on the High Court can be exercised only by framing rules for regulating the manner in which the control vested in it, may be exercised. So the rule making power is embedded in the power conferred by the Constitution on any authority to do something. In the case in hand, a conjoint reading of Article 329(b) of the Constitution, Section 80 and Section 81 of the Act clearly points out that election petitions presented to the High Court have to be tried thereby. When power to hold trial has been conferred on the High Court, power to make regulatory provisions is incidental to that power and, therefore, apart from Article 225, the power to make rules under Chapter XV-A for regulating election petitions can be found to exist under Article 329(b) of the Constitution itself and under the relevant statutory provisions."
(Emphasis added) 27.10.Further, the Gauhati High Court held that the act of receiving the election petition is clerical in character and no exercise of judicial review is contemplated in the act of presentation and its acceptance vide its judgment in Banendra Kumar Mushahary Vs. Md. Mohibul Haque reported inAIR 2002 Gauhati 118. It is relevant to extract paragraph 20 of the said judgment, which reads as follows:
"20.The above observation of the Hon'ble Supreme Court that "this is a ministerial act" sets at rest the controversy at hand. The function involved in the presentation of an election petition is essentially clerical in character. No exercise of judicial power is contemplated in the act of presentation and its acceptance. What is needed is the scrutiny of the election petition which is essentially clerical. Section 81 has been quoted hereinbefore. There appears to be a vacuum which speaks of presentation before the High Court and not the manner of presentation. This vacuum, in my opinion, can be filled up by the high Court in exercise of its inherent powers since the Rule in this behalf will not be in clash with any provisions of law made by the appropriate legislature. It is for this purpose, the continuance of the Rule appears to be indispensible till appropriate legislature provide the manner by legislation. Therefore, Rule 1 of Chapter VIII A of the Gauhati High Court Rules need not be interfered on the given back ground." (Emphasis added) 27.11.While framing rules relating to dealing with the Election Petition, the High Court is not only guided by the rule framed under the R.P. Act, but also the source of power from Article 225 and Section 129 CPC. Under these provisions, the Court can frame rules regulating the procedure to deal with the election petition. Further Section 87 of the R.P. Act itself gives power to the High Court to frame appropriate rules. In this context, it is necessary to refer to a judgment of the Supreme Court in Kailash v. Nanhku reported in (2005) 4 SCC 480 = AIR 2005 SC 2441, wherein similar contentions regarding the source of power for framing rules have been dealt with. It it necessary to refer to the following passage found in paragraph 10, which is as follows:
"10.Section 169 of the Act confers power on the Central Government to make rules for carrying out the purposes of the Act. The Central Government is empowered to make rules which may govern the procedure of trial of election petitions. Although this subject is not specifically mentioned as one of the matters in sub-section (2), which specifies the topics on which the Central Government may frame rules, however, clause (i) of sub-section (2) is a residuary clause which empowers the Central Government to frame rules regarding any other matter required to be prescribed by this Act. Sub-section (1) of Section 87 of the Act also gives an indication that the statute contemplates the framing of rules under the Act to govern the procedure of trials before the High Court, which, read with the preamble to the Act, is the source of power for making the rules laying down the procedure for the trial of election petitions. There is no provision in the Act which empowers the High Court to frame the rules governing the procedure of trials before the High Court. However, the High Court is not entirely powerless in the matter of framing the rules of procedure. Article 225 of the Constitution confers powers on the High Court, inter alia, to make rules of court for the purpose of hearing, trying and deciding any matter lying within the jurisdiction of the High Court. The High Court can thus frame rules of procedure regarding the trial of election petitions under Article 225 of the Constitution. This source of power emanates from the Constitution and is, therefore, very potent. Section 129 CPC is another source of power of the High Court to make rules to regulate its own procedure in the exercise of its original civil jurisdiction. This will include election petitions also as they are tried in the original civil jurisdiction of the High Court. " (Emphasis added) 27.12.In the light of the above, this Court having framed rules and the Election Petition has been presented before the designating authority of which the Hon'ble Chief Justice had passed an order assigning the work to this court, no exception can be taken for hearing the Election Petition. It cannot be said that it was improperly presented before the wrong authority. As long as no other authority is specified (whether functioning in the Principal Bench or in the Madurai Bench), there is no illegality or want of jurisdiction in hearing the petition. The objection raised by the applicant will have to be necessarily rejected. Accordingly rejected.
28.Issue No.2 :Was the introduction of Electronic Voting Machine (EVM) vitiated the election process?
28.1.These allegations are made in broad terms and no details were given. The Election Commission of India had made a policy decision to introduce the Electronic Voting Machines. It is not only used for the applicant's constituency, but used throughout the India. This issue cannot be gone into in the absence of any material particulars showing that the EVMs used in the applicant's constituency were programmed in such a way that every vote even if pressed in respect of the other candidate will result in it registering votes in favour of the applicant. Since material particulars are lacking, such broad and vague allegations cannot be gone into in this application. Hence this allegation stands rejected.
29.Issue No.3 : Whether the applicant is an Indian Citizen ?
29.1.Under Article 84(a) of the Constitution, only an Indian citizen can contest the election and become a Member of Parliament. Article 84(a) reads as follows:
"84.Qualification for membership of Parliament.-A person shall not be qualified to be chosen to fill a seat in Parliament unless he-
(a)is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;"
29.2.In paragraph 26, the original Election Petition, the first respondent had raised the issue that the applicant is not an Indian citizen as he was born in Kandy at Srilanka and that he had secured the Indian citizenship by making misrepresentation and also giving false status in his affidavit filed before the Election Officer at the time of filing. This allegation was strongly denied in paragraph 10 of the application. It was stated that at the time of filing of the affidavit, no objection was raised by the Election Officer and no particulars were given in paragraph 26 of the Election Petition with reference to this allegation.
29.3.In answer to this averment, in paragraph 4 of the counter filed by the applicant, it is stated that it is personal to the applicant. The applicant cannot expect evidence before commencement of trial and that at the appropriate state, he would be confronted with the records. Therefore, the allegation made against the applicant is clearly lacks in material particulars. In the absence of the first respondent furnishing such details in the election petition, he cannot shift the burden on the applicant. He also cannot reserve his right only for producing such evidence at the trial stage.
29.4.Though this court constituted as an Election Tribunal not only decides the question of corrupt practices, can even decide the question of citizenship in considering the disqualification. But, in the absence of any material particulars, this issue raised herein is not worth postponing for a trial. In this context, it is necessary to refer to a judgment of the Supreme Court in Hari Shanker Jain v. Sonia Gandhi reported in (2001) 8 SCC 233. The following passages found in paragraphs 23,24,33 and 34 may be usefully extracted below:
"23.Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression cause of action has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna v. George Fernandez18, Jitendra Bahadur Singh v. Krishna Behari19.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis20 this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead material facts is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.
24.It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings.
33.Without further burdening this judgment by dealing with each and every other averment made in the two election petitions, it would suffice to say that we have carefully read each of the two election petitions and heard each of the two election petitioners (appellants) in very many details especially on the aspect of the election petitions suffering from the vice of not satisfying the mandatory requirement of pleading material facts as required by Section 82(1)(a) of RPA, 1951 and we are satisfied that the two election petitions do not satisfy the requirement statutorily enacted and judicially explained in umpteen number of decisions. The petitions are hopelessly vague and completely bald in the allegations made, most of which could not possibly be within the personal knowledge of the petitioners but still verified as true to their knowledge, without indicating the source. Such pleadings cannot amount to disclosing any cause of action and are required to be rejected/dismissed under Order 7 Rule 11 CPC.
34.To sum up, we are of the opinion that a plea that a returned candidate is not a citizen of India and hence not qualified, or is disqualified for being a candidate in the election can be raised in an election petition before the High Court in spite of the returned candidate holding a certificate of citizenship by registration under Section 5(1)(c) of the Citizenship Act. A plea as to constitutional validity of any law can, in appropriate cases, as dealt with hereinabove, also be raised and heard in an election petition where it is necessary to decide the election dispute. The view of the law, stated by the learned designated Election Judge of the High Court of Allahabad cannot be sustained. To say the least, the proposition has been very widely stated in the impugned order of the High Court. However, in spite of answering these questions in favour of the appellants yet the election petitions filed by them cannot be directed to be heard and tried on merits as the bald and vague averments made in the election petitions do not satisfy the requirement of pleading material facts within the meaning of Section 82(1)(a) of RPA, 1951 read with the requirements of Order 7 Rule 11 CPC. The decision of the High Court dismissing the two election petitions at the preliminary stage, is sustained though for reasons somewhat different from those assigned by the High Court. The appeals are dismissed but without any order as to the costs." (Emphasis added) 29.5.The first respondent himself has admitted that the applicant is in possession of citizenship though by misrepresentation. In such case, whether this court can go into the issue of his citizenship is doubtful. The Supreme Court in Thampanoor Ravi v. Charupara Ravi reported in (1999) 8 SCC 74 in paragraph 12 had observed as follows:
"12.Under Article 329(b) of the Constitution no election to a legislature shall be called in question except by an election petition presented to such authority and in such manner as may be provided by or made by the appropriate legislature. Under Section 80-A of the RP Act, the forum for adjudication of an election petition is the High Court. The scope of this provision is considered by this Court in Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki2. In that decision, the question was whether an order made on an interlocutory application in an election petition could be the subject of a letters patent appeal. It was observed in that decision that conferment of power under the RP Act to try any election does not amount to enlargement of the existing jurisdiction of the High Court. The jurisdiction exercisable under the RP Act is a special jurisdiction conferred on the High Court by virtue of Article 329(b) of the Constitution. Therefore, even though the High Court may otherwise exercise ordinary and extraordinary jurisdiction it would be difficult to envisage a situation that while trying an election petition in exercise of the jurisdiction conferred by the RP Act it can adjudicate upon the vires of the RP Act or any rule or order made thereunder and the election petition has to be tried in accordance with the provisions of the RP Act and thus the court cannot entertain and pronounce upon matters which do not fall within the ambit of Section 100 of the RP Act. Even an ordinary civil court will not have jurisdiction to decide questions arising under insolvency enactments; much less a special authority like the High Court when it is not invested with such power under the Insolvency Act. This Court in Bhagwati Prasad Dixit Ghorewala v. Rajeev Gandhi3 reversed the view taken in Bhagwati Prasad1 on which reliance was placed by the respondent that the High Court can decide whether a person has acquired citizenship or lost citizenship. In that case a question arose as to whether in an election petition the High Court had jurisdiction to determine the citizenship of a person. The High Court had taken the view that notwithstanding the statutory bar contained in Section 9(2) of the Citizenship Act that wherever a question arises as to whether, when and how a person has acquired the citizenship of another country it shall be determined by such authority in the manner prescribed by the rules of evidence as may be prescribed in that behalf; that since by virtue of Article 329(b) of the Constitution all questions arising in an election petition filed under the RP Act were exclusively triable in an election petition, it had the jurisdiction to decide the question whether a candidate had ceased to be an Indian citizen. This Court took the view that when such a question arises it would be a matter to be decided by the authority constituted under the Citizenship Act and when no decision is given by the competent authority under the Citizenship Act, the question whether he ceased to be a citizen of India could not be adjudicated in an election petition."
(Emphasis added) 29.6.In the light of the above, the allegation that the applicant is not an Indian citizen and therefore, he is disqualified from contesting Parliament election has to be necessarily rejected and pleadings made in this regard in paragraph 26 stand struck off.
30.Issue No.4 : Can the material evidence in the shape of Compact Disc produced be received ?
30.1.The original election petitioner has produced a copy of the compact disc and listed it as Serial No.43 along with the Election Petition and made averments regarding the same in paragraph 34 of the Election Petition. It is for the purpose of showing distribution of money by the applicant and his party men which were videographed. A copy was handed over to the Revenue Divisional Officer-cum-Assistant Returning Officer, Aranthangi. Even when the Election Petition came up after notice, Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the applicant submitted that he was not given a copy of the Compact Disc along with the election petition. He does not now the contents of the same. After taking one or two adjournments, a copy was furnished. It must be noted that the copy that was filed before this court itself was stated to be a copy of the Compact Disc. But, if it is an integral part of the Election Petition, it should have been served along with the Election Petition and not thereafter. Even the averments made in paragraph 34 does not contain precise details so as to disclose the material particulars. Therefore, in the absence of the original election petitioner furnishing a copy of the Compact Disc which formed an integral part of the Election Petition and also not disclosing the material particulars found in the Compact Disc, the said Compact Disc cannot be received as an evidence. To that extent, Sl.No.43 will have to be eschewed from being considered at the time of trial.
30.2.In this context, it is necessary to refer to a judgment of the Supreme Court in U.S. Sasidharan v. K. Karunakaran reported in (1989) 4 SCC 482. The following passages found in paragraphs 9,10,12,15,18,28,29,30 and 32 may be usefully extracted below:
"9.We are concerned with Section 81(3) which enjoins that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Section 81(3), however, does not provide for giving of copies of the documents either referred to in the election petition or filed in the proceedings. We may now refer to Section 86(1) of the Act which reads as follows:
86. (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.
10.Section 86(1), therefore, is a mandate on the court to dismiss an election petition if there be a non-compliance with the provision of Section 81(3). In other words, both Section 81(3) and Section 86(1) are mandatory in nature and if there be any non-compliance with the mandatory provision of Section 81(3), the court will be bound to dismiss the election petition.
12.It is apparent from clauses (a) and (b) of Section 83(1) that an election petition shall contain a concise statement of the material facts and also set forth full particulars of any corrupt practice. These two requirements are also mandatory in nature. So, whenever there is an allegation of corrupt practice, the election petition shall contain a concise statement as to the material fact on which the petitioner relies and also must set forth full particulars of the corrupt practice alleged by the petitioner.
15.We have already referred to Section 83 relating to the contents of an election petition. The election petition shall contain a concise statement of material facts and also set forth full particulars of any corrupt practice. The material facts or particulars relating to any corrupt practice may be contained in a document and the election petitioner, without pleading the material facts or particulars of corrupt practice, may refer to the document. When such a reference is made in the election petition, a copy of the document must be supplied inasmuch as by making a reference to the document and without pleading its contents in the election petition, the document becomes incorporated in the election petition by reference. In other words, it forms an integral part of the election petition. Section 81(3) provides for giving a true copy of the election petition. When a document forms an integral part of the election petition and a copy of such document is not furnished to the respondent along with a copy of the election petition, the copy of the election petition will not be a true copy within the meaning of Section 81(3) and, as such, the court has to dismiss the election petition under Section 86(1) for non-compliance with Section 81(3).
18.Keeping in view the above principles, let us consider whether the video cassette, as mentioned in para 5(xi) in the election petition, forms an integral part of the election petition. It is not disputed that a copy of the video cassette was not served on the first respondent along with the copy of the election petition. Indeed, the same was submitted by the appellant in a sealed cover with an application praying for keeping the video cassette in the sealed cover till the state of examination of witnesses. It is, therefore, apparent that not only the copy of the video cassette was not served on the first respondent, but also the appellant had no intention of serving a copy of the same on the first respondent.
28.The decision in Karunanidhi case4 fully supports the view which we take, namely, the video cassette formed an integral part of the election petition because without a copy of the video cassette the first respondent was not in a position to know whether the video cassette recording the speeches of the two government servants could be said to have been used by the first respondent for the purpose of any assistance in furtherance of the prospects of his election. Karunanidhi case4 was referred to and approved in a subsequent decision of this Court in Mithilesh Kumar Pandey v. Baidyanath Yadav5.
29.Mr Poti has, however, urged that if the averments in para 5(xi) of the election petition are (sic not) full and complete or, in other words, if they do not give particulars of the corrupt practice, in that case the said averments may be struck out under the provisions of Order 6 Rule 16 of the Code of Civil Procedure, but the entire election petition cannot be dismissed. It has already been noticed that under clauses (a) and (b) of Section 83(1) of the Act, an election petition shall contain a concise statement of the material facts and shall set forth full particulars of any corrupt practice. The material facts and the full particulars of corrupt practice will constitute cause of action for the election petition. If the material facts are not supplied or full particulars of corrupt practice are not given in the election petition, as a consequence of which the election petition does not disclose any cause of action, it is liable to be dismissed under the provision of Order 7, Rule 11(a) of the Code of Civil Procedure. See Azhar Hussain v. Rajiv Gandhi6.
30.Apart from striking out the whole of the election petition when it does not disclose a cause of action, the court can strike out any statement which is irrelevant, scandalous or has nothing to do with the cause of action under the provision of Order 6, Rule 16 of the Code of Civil Procedure. It is submitted by Mr Poti that if the averments in para 5(xi) of the election petition are irrelevant or do not disclose any cause of action, at the most the said paracan be struck out by the court under the provision of Order 6, Rule 16 of the Code of Civil Procedure. We are afraid, we are unable to accept the contention. We are not concerned with whether para 5(xi) can be struck out by the court under the provision of Order 6, Rule 16 of the Code of Civil Procedure as not disclosing any cause of action, but really we arc concerned with the question as to whether the copy of the election petition which has been served on the first respondent without a copy of video cassette is a true copy of the election petition or not within the meaning of Section 81(3) of the Act. We have come to the conclusion that the appellant has not served on the first respondent a true copy of the election petition inasmuch as, admittedly, a copy of the video cassette which forms an integral part of the election petition, was not served along with the election petition. There is, therefore, no substance in the contention which is rejected.
32.On the basis of the above observations, it is submitted that if para 5(xi) of the election petition suffers from a deficiency of material particulars, the court has a discretion to allow the appellant to supply the required particulars even after the expiry of limitation. The above observations have been made in a different context and are quite inapplicable to the facts and circumstances of the instant case which, as noticed already, relate to the question as to whether the video cassette is an integral part of the election petition and whether non-furnishing of a copy of the video cassette to the first respondent along with a copy of election petition is non-compliance with the mandatory provision of Section 81(3) and, as such, liable to be dismissed under Section 86(1) of the Act. The question of exercise of discretion by the court in permitting the appellant to supply the particulars does not arise at all." (Emphasis added) 30.3.U.S.Sasidharan's case (cited supra) came to be followed by the Supreme Court in Manohar Joshi v. Nitin Bhaurao Patil reported in (1996) 1 SCC 169. In paragraph 26 of the said judgment, it was observed as follows:
"26.In the present case, the video cassettes, non-supply of a copy of transcript of which is urged by Shri Jethmalani to be a ground for non-compliance of Section 81(3), were not even filed in the High Court with the election petition in the High Court. This is, therefore, not a case of non-supply of a copy of a document which was filed along with the election petition. What was supplied to the returned candidate in the present case, was a true copy of the election petition as it was presented in the court without the video cassettes of which mere mention was made without incorporating its contents by reference or enumerating it in the election petition. It is not the case of the election petitioner that the full contents of the video cassettes or their transcripts are incorporated by reference in the election petition in order to make the video cassettes an integral part of the election petition, inasmuch as no video cassette was filed along with the election petition as it was presented in the High Court. Reliance is placed by the election petitioner on the video cassettes produced later during the trial as only evidence of the pleading in paras 32 and 33 of the election petition. It is, therefore, clear that the contents of the video cassettes, except to the extent pleaded in paras 32 and 33 of the election petition, cannot be treated to be incorporated by reference in the election petition as a part of the pleadings and its use is sought to be made by the election petitioner only as evidence of the averments contained in paras 32 and 33 of the election petition. Admittedly, a true copy of the election petition as presented in the High Court was furnished to the returned candidate along with the notice of the election petition. There was thus no non-compliance of sub-section (3) of Section 81 of the R.P. Act. The election petition was, therefore, not liable to be dismissed under Section 86(1) even on the ground of non-compliance of Section 81(3) of the R.P. Act." (Emphasis added) In view of the above, this issue is answered against the original Election petitioner.
31.Issue No.5 : Whether the application filed for rejecting the Election Petition outright even at the threshold without trial is justified ?
31.1.Before proceeding to deal with this allegation, it is necessary to set out the legal provisions as well as the legal precedents in this regard. Section 83 of the R.P.Act requires the nature of contents that should form part of the Election Petition. Section 83 of the Act reads as under:
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 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. 31.2.In interpreting Section 83, in Sudarsha Avasthi v. Shiv Pal Singh reported in (2008) 7 SCC 604, the Supreme Court in paragraph 11 had observed as follows :
"11.....As per Section 83 of the Act, it is the duty of the person who files the election petition and levels the allegation of corrupt practice to disclose the material facts on which he relies and that he should set forth the full particulars of a corrupt practice that the petitioner alleges, including the full statement as far as possible disclosing the names of the parties alleged to have committed such corrupt practice and the date and place of commission of each such practice and the same shall be filed by the petitioner and verified in the manner as laid down in the Code of Civil Procedure. Apart from this, he has to file an affidavit in the prescribed form in support of the allegation of such corrupt practice and he should disclose the particulars thereof. If he wants to rely on any document then it should be annexed to the petition signed by the petitioner and verified in the same manner as the petition."
31.3.The petition is presented under Order VI Rule 16 and that the provisions should apply to the Election Petition came to be considered by the Supreme Court in Azhar Hussain v. Rajiv Gandhi reported in 1986 Supp SCC 315. In paragraphs 8 and 9, the Supreme Court had observed as follows:
"8...... it is not disputed that the Code of Civil Procedure (CPC) applies to the trial of an election petition by virtue of Section 87 of the Act2. Since CPC is applicable, the court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a) which read thus:
Order 6, Rule 16: Striking out pleadings.The court may at any stage of the proceedings order to be struck out or amend any matter in any pleading
(a) which may be unnecessary, scandalous, frivolous or vexatious; or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or
(c) which is otherwise an abuse of the process of the court.
Order 7, Rule 11: Rejection of plaint.The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;....
9.The fact that Section 83 does not find a place in Section 86 of the Act does not mean that powers under the CPC cannot be exercised.
31.4.What should be the material facts and particulars which an Election Petitioner should incorporate in his Election Petition came to be considered by the Supreme Court in Azhar Hussain's case (cited supra) and in paragraph 14, it was observed as follows:
"14.Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as it emerges from the numerous decisions of this Court which have been cited before us in regard to the question as to what exactly is the content of the expression material facts and particulars, which the election petitioner shall incorporate in his petition by virtue of Section 83(1) of the Act.
(1) What are material facts and particulars? Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the court could have given a direct verdict in .favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition6.
(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a government servant, the following facts are essential to clothe the petition with a cause of action which will call for an answer from the returned candidate and must therefore be pleaded3:
(a) mode of assistance;
(b) measure of assistance; and
(c) all various forms of facts pertaining to the assistance.
(3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to obtain or procure the assistance of government servants in election it is absolutely essential to plead the following:
(a) kind or form of assistance obtained or procured;
(b) in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election candidate for promoting the prospects of his election3.
(4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured3.
(5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered3.
(6)The election petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in the particulars3. 31.5.The nature of pleadings that should be made in the Election Petition and in relating to the charge of corrupt practice, what should be the material fact that should be pleaded came to be considered by the Supreme Court in Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar reported in (2009) 9 SCC 310. The following passages found in paragraphs 57 to 59 may be usefully reproduced below:
"57.It is settled legal position that all material facts must be pleaded by the party in support of the case set up by him within the period of limitation. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact will entail dismissal of the election petition. The election petition must contain a concise statement of material facts on which the petitioner relies.
58.There is no definition of material facts either in the Representation of the People Act, 1951 nor in the Code of Civil Procedure. In a series of judgments, this Court has laid down that all facts necessary to formulate a complete cause of action should be termed as material facts. All basic and primary facts which must be proved by a party to establish the existence of cause of action or defence are material facts. Material facts in other words mean the entire bundle of facts which would constitute a complete cause of action. This Court in Harkirat Singh case313 tried to give various meanings of material facts. The relevant para 48 of the said judgment is reproduced as under: (SCC pp.526-27) 48. The expression material facts has neither been defined in the Act nor in the Code. According to the dictionary meaning, material means fundamental, vital, basic, cardinal, central, crucial, decisive, essential, pivotal, indispensable, elementary or primary. [Burtons Legal Thesaurus (3rd Edn.), p. 349.] The phrase material facts, therefore, may be said to be those facts upon which a party relies for its claim or defence. In other words, material facts are facts upon which the plaintiffs cause of action or the defendants defence depends. What particulars could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or defence are material facts and must be stated in the pleading by the party.
59.In the context of a charge of corrupt practice, material facts would mean all basic facts constituting the ingredients of the particular corrupt practice alleged, which the petitioner (the respondent herein) is bound to substantiate before he can succeed on that charge. It is also well settled that if material facts are missing they cannot be supplied after expiry of period of limitation for filing the election petition and the pleading becomes deficient."
31.6.It is in the light of these provisions, Mr.AR.L.Sundaresan, learned Senior Counsel contended that the allegations made against the applicant are vague, lack in material particulars. Therefore, the entire election petition should stand rejected outrightly without trial.
31.7.Though it may be true that some of the allegations are vague and too remote to be connected with the applicant, there are enough allegations made against the applicant which has direct bearing on the election held. If proved in trial, they may amount to corrupt practice. Not only the Election Petition and the affidavit referred to those allegations, but documents produced, i.e., Document Nos.2,6,12,20,22,23,25 and 30, which qualifies the Election petition for a trial in respect of those allegations. The Election Petition cannot be thrown out at the threshold without trial. To the extent of these allegations covered by the documents referred to above, there are material facts and particulars available for being tried in the Election Petition.
31.8.At the stage of considering the application under Order VI Rule 16, it is unnecessary to elaborate those hearing. It is suffice to state that this Court is satisfied that these materials require a full trial at the time of framing of the issue in the main Election Petition and recording of evidence. Certainly, the Election Petitioner will not be allowed to let in evidence on material facts and particulars which do not satisfy the criteria stipulated above.
31.9.In this context, it is necessary to refer to a judgment of the Supreme Court in Harkirat Singh v. Amrinder Singh reported in (2005) 13 SCC 511. In paragraph 83 of the said judgment, it was observed as follows:
"83.We, therefore, hold that the High Court was wrong in dismissing the election petition on the ground that material facts had not been set out in the election petition and the election petition did not disclose a cause of action. The order passed by the High Court, therefore, deserves to be quashed and set aside."
31.10.Subsequently, in Umesh Challiyill v. K.P. Rajendran reported in (2008) 11 SCC 740, in paragraph 20, the Supreme Court had forewarned the rejection of Election Petition only on the basis of certain defects pointed out. Paragraph 20 reads as follows:
"20.However, in fairness whenever such defects are pointed out then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6 Rule 16 or Order 7 Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of CPC but in the present case we regret to record that the defects which have been pointed out in this election petition were purely cosmetic and do not go to the root of the matter and secondly even if the Court found them of serious nature then at least the Court should have given an opportunity to the petitioner to rectify such defects."
31.11.The Supreme Court once again in Ram Sukh v. Dinesh Aggarwal reported in (2009) 10 SCC 541 dealt with the meaning of the phrase "material facts". In paragraph 13, the Supreme Court had observed as follows:
"13.The phrase material facts has neither been defined in the Act nor in the Code and, therefore, it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, material facts are facts upon which the plaintiffs cause of action or the defendants defence depends. (See Mahadeorao Sukaji Shivankar v. Ramaratan Bapu3.) Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by the plaintiff or defence by the defendant are material facts. Material facts are facts which, if established, would give the petitioner the relief asked for. But again, what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down."
32.If it is seen in the light of the above factual matrix and the legal precedents, then the application filed by the applicant cannot be allowed in its entirety. Only in relation to citizenship issue, receipt of copy of Compact Disc and Electronic Voting Machines, the applicant is entitled to succeed. In respect of reception of the Election Petition and lack of territorial jurisdiction and striking of the entire Election Petition, the application must necessarily fail.
33.The 13th respondent had orally stated that the original election petitioner has now defected from the AIADMK party and had joined the ruling DMK party to which the applicant belongs. Hence the election petitioner is not likely to prosecute the election petition. Therefore, he claims that the burden all the more falls the persons like the 13th respondent to conduct the case in case of any default on the part of the original Election petitioner. However, at this stage, this court is not inclined to make any observation on this point in the absence of any proof to that effect being brought by way of pleadings before this court.
34.In the light of the above, the application is partly allowed to the extent indicated above. The parties are allowed to bear their own costs. Post the main Election Petition on 14.3.2011. Written Statement if any must be filed before that date.
vvk Post the ELP No.1 of 2009 on 14.3.2011 at 10.30 AM before the Court.
To
1.The Returning Officer-cum-
District Collector, Ramanathapuram
2.The Chief Electoral Officer, Fort St. George, Chennai-9.
3.The Chief Election Commission of India, New Delhi