Karnataka High Court
Sri Ramu vs Sunil Vallapure And Ors. on 21 March, 2005
Equivalent citations: ILR2005KAR2823, 2005(5)KARLJ143
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER Shylendra Kumar, J.
1. This is an election petition presented under Section 81 of the Representation of the People Act, 1951, (for short the Act) by a candidate who had aspired to get elected to the Karnataka Assembly from Shahabad constituency in Chittapur Taluk of Gulbarga District. It was a case of so near and yet so far for the petitioner who had managed to poll a total number of 31,602 valid votes as against 32,610 votes polled by the respondent No. 1 who was declared elected by the Returning Officer while announcing the result of the elections.
2. It is this declaration that is called in question through this election petition by the petitioner, the nearest rival to the elected candidate. A perusal of the pleadings in the election petition, inter alia, indicates that the election is sought to be set aside mainly on the ground of the returned candidate having indulged in corrupt practices and also that he was disqualified on the date of the election for contesting the election to the Assembly.
3. Petitioner has also sought for a declaration in his favour on the premise that if the result in favour of the elected candidate is set aside, the petitioner being the nearest person who had polled the next highest votes, should be declared as the duly elected candidate from this constituency.
4. Election Petition had been registered and summons had been issued to the respondents amongst whom figure the elected candidate as respondent No. 1.
5. The respondent No. 1, on entering appearance through counsel though had filed his written statement has, nevertheless, come up with several applications. I.A. No. 2/2004, filed under Order VII Rule 11 of Code of Civil Procedure, is for dismissing the election petition on the premise that the petition does not disclose a cause of action, I.A. No. 3/2004 is one purporting to have been under Order VI Rule 17 of CPC for striking off the pleadings, I.A. No .4/2004 is also for striking off the pleadings but under Order VI Rule 16 of CPC.
6. Submission of Sri. Ashok Haranahalli, learned counsel appearing for the applicant is that I.A. Nos. 3/2004 and 4/2004 are both for one and the same purpose; that while filing I.A. No. 3/2004 by mistake the provision of law had been mentioned as Order VI Rule 17 of CPC instead of Order VI Rule 16 of CPC and the respondent No. 1 who had filed the application has therefore filed another application under the correct provision of law for the same relief and seeks for permission of the court to withdraw I.A. No. 3/ 2004 as I.A. No. 4/2004 serves the purpose for which I.A. No.3/ 2004 had been filed.
7. No objection to this course of action on behalf of the petitioner by Sri Malipatil, Learned Counsel for the petitioner, who submits that the request for dismissing I.A. No.3/2004 as not pressed may be granted. Accordingly I.A. No.3/2004 is dismissed as not pressed.
8. What survives for consideration is accordingly I.A. Nos. 2/ 2004 and 4/2004. Though both these applications could have been heard together and even as submitted by Sri. Ashok Haranahalli, learned counsel appearing for respondent No. 1 the prayers in such applications have been dealt with in common in several decisions of the Supreme Court, for the sake of convenience, the applications are taken in the order of priority in which the provisions of law occur in the Code of Civil Procedure. Accordingly, I.A. No.4/2004 filed under Order 6 Rule 16 of CPC is taken up for consideration.
9. The prayer in the application is for striking off the pleadings in Paragraphs 6,8,9 and 10 of the petition. The application is supported by an affidavit sworn to by the applicant which, inter alia, states that the allegations of corrupt practices said to have been committed by the respondent No. 1 as averred in the writ petition is by carrying of arrack sachets in a Tata Sumo vehicle; that the respondent No. 1 has secured all votes held in his favour by indulging in corrupt practices; that such averments are bald, vague, unnecessary and frivolous and serves no point in allowing such averments to remain on record; that the averment as alleged by itself does not even amount to an allegation of corrupt practice as is understood under the provisions of the Act and therefore the application for striking off the pleadings.
10. Before taking up the actual objection taken in the application and supported by the affidavit, it may be useful to notice the contents of these paragraphs which read as under:
"6. That the respondent No. 1 has secured 32610 votes by corrupt practice. The Returning Officer had issued vehicle passes far election canvas to the respondent No. 1. The passes issued by the Returning Officer was containing the registration number of vehicle which was used for such election canvas. One of such vehicles Tata Sumo bearing No. KA-28 M 1402 was checked by the Excise Department on 19.4.2004 at about 6 a.m. at 'Dominate Dhaba' near Bhankure village on Shahabad Road and found that 1410 arrack sachets containing 100 ml. Each (total 141 ltrs.,) in the said vehicle Tata Sumo and the driver has run away and Excise Department ceased (sic) 1402 sachets, (100 ml each) of arrack from the said vehicle and it was found that the pass issued by the Returning Officer was pasted on the glass of the vehicle saying that the vehicle was permitted for the use to canvas of Bhartiya Janatha Party candidate of (SC) 11 Shahabad Assembly Constituency. The Excise Department Special Officer filed a complaint on 19.4.2004 at about 4.30 p.m. and registered a case by the Excise inspector namely Mr. Suryakanth Kadam of Special Investigation Squads of Gulbarga Divn., Gulbarga as FIR No. 561/2004 in Shahabad Rural Police Station, Shahabad. The above facts were came to know through Police Station next day as the FIR was registered and the FIR No. 561/2004 was sent to the 2nd Addl. JMFC Court, Gulbarga along with application did 19.4.2004 are produced as Annexures-B and C.
8. That the 1st respondent has been elected by corrupt practice by distributing arrack sachets to voters on the previous day of the election, the exercise squad along with the guards found the vehicle allowed to use for canvas by the respondent No. 1 by issuing the vehicle passes was ceased along with arrack sachets of 1410 containing 100 ml. the total quantity of 141 ltrs., Hence, the votes secured by the 1st respondent by corrupt practice. Hence the declaration of 1st respondent as Returned candidate in the election is illegal and void."
9. That the 1st respondent not only used arrack sachets for distribution to the voters in the village called Bhankure, which is coming under the Assembly Constituency of Shahabad (SC)11 to secure votes by corrupt practice.
10. That the respondent No. 1 before contesting for Karnataka Assembly Election, he was Class-1 Civil Contractor and he was doing the work under the State Government. Hence he had disqualification for contesting the Assembly Election. The copy of the certificate issued by the PWD Authorities will be produced after obtaining the certified copy at the time of evidence."
11. The objection taken to the averments in Paragraph-6 of the petition is that it does not go beyond stating that there was a seizure of Tata Sumo jeep carrying arrack sachets by the excise authorities; that the vehicle was one which was authorized by the competent Officer to be used for canvassing purposes on behalf of the respondent No. 1; that the mere averment of seizure of the vehicle carrying arrack sachets by itself does not amount to an allegation of corrupt practice; that the allegation or the averment is not even supported by further particulars giving details as to how that very incident by itself could constitute an act of corrupt practice on the part of the respondent No. 1 nor that the paragraph contains any plea that either arrack sachets were meant for distribution to the voters and for such reasons the averment in paragraph-6 as it does not constitute an allegation of corrupt practice, should be struck off.
12. The objection taken with regard to the contents of paragraph-8 of the petition is that the statement in the paragraph is misleading and vague; that a statement to the effect that certain arrack sachets were seized from the jeep cannot by itself constitute either an act of corrupt practice and the averment is a contradiction in terms, in as much as, once the arrack sachets are seized, there is no occasion for distribution of the arrack sachets to the voters etc., that particulars of distribution of arrack sachets to voters is lacking in the paragraph; that there is no averment that, in fact, any other arrack sachets were distributed to the voters and as such, paragraph should be struck off.
13. So far as averment in Paragraph-9 of the petition is concerned, the objection is that the sentence does not make proper sense; that even here the averment that any arrack sachets were distributed to voters in the constituency is lacking; that no particulars of any distribution, place, time and persons involved are pleaded; that the averment is vague and nebulous and therefore should be struck off.
14. The objection taken to averments in paragraph-6, 8 and 9 are with reference to the requirements of the contents of allegation of corrupt practice in the election petition.
15. With regard to Paragraph-10 of the election petition, the objection is on the ground that this paragraph, in fact, is one lacking in material facts; that while the paragraph seeks to allege that the respondent No. 1 was disqualified from contesting the election as he was a Civil Contractor before contesting the election, the paragraph is not one containing any averment that the respondent No. 1 had a subsisting contract with the Government on the date of the election; that it is lacking in pleading about the particular contract with reference to which the disqualification is sought to be attached; that the averment in the last part of this paragraph that certain certificate issued by the Public Works Department authorities shall be produced after obtaining certified copy at the time of the evidence in itself amounts to admission on the part of the petitioner that the petitioner does not have material facts nor is he in the knowledge of such material facts which is not obviously pleaded in the petition; that there is no scope for either producing any certified copy by way of evidence at a later point of time which is not so disclosed at the time of presentation of the petition; that if the details to constitute a material fact is lacking in the petition itself, the paragraph cannot be sustained as it does not comply with the requirement of Section 83(1)(a) of the Act and applying the principles of Order VI Rule 16 of CPC, this paragraph also should be struck off.
16. Objection have been filed on behalf of the petitioner to these applications. The assertion on behalf of the petitioner in the objections filed to I.A. No. 4/2004 are that the application itself lacks material facts; that the application is not tenable; that the application is liable to be dismissed; that the averments contained in Paragraphs 6, 8, 9 and 10 of the petition are not misleading or vague; that the averments indicate that the seized vehicle was used to carry the arrack sachets for distribution to the voters in the Assembly constitutency and while carrying the arrack sachets, the Excise Department had seized the vehicle and that the pleadings as contained in these paragraphs are material pleadings, question of striking off such pleadings does not arise; that they are relevant and self sufficient; that in the light of the averment in the written statement filed on behalf of the respondent No. 1 indicating that the respondent No. 1 denies that he had supplied arrack sachets found in the vehicle which was permitted to be used for election petition, it cannot be said that the election petitioner had not placed material particulars in the context of the petition pleadings; that the application lacks substance and merit and is required to be dismissed.
17. The burden of the objections in opposition to the application is that the petition does contain material facts as also the particulars of allegations of corrupt practice; that the specific allegation is that the respondent No. 1 had distributed the arrack sachets to the voters in the constituency on the previous day of elections which amount to corrupt practice; that the respondent No, 1 was, in fact, caught red handed in this act and therefore there are sufficient pleadings and particulars in the petition; that it is not deficient in any manner; that the application requires to be dismissed and the matter taken to trial.
18. I have heard Sri. Ashok Haranahalli and Sri. Krishnamurthy, learned counsel for the applicant and Sri. S.M. Chandrashekar and Sri. Malipatil, learned counsel appearing for the election petitioner.
19. Submission on behalf of the applicant is that the averments as contained in paragraphs No. 6, 8 and 9 even when they are all read together neither reveal a clear allegation of precise corrupt practice with supporting particulars nor do they have material facts to constitute a proper plea of an allegation of corrupt practice. Submission of the Learned Counsel is that the averments like, "that the respondent No. 1 secured 32,610 votes by corrupt practice".
"that 1st respondent has been elected by corrupt practice by distributing arrack sachets to voters on the previous day of the election" and "that the respondent No. 1 not only used arrack sachets for distribution to the voters in the village called Bhankure, which is coming under the Assembly constitutency of Shahabad (SC) 11 to secure votes by corrupt practice"
by themselves do not constitute allegations of corrupt practice until and unless particulars supporting these allegations are forthcoming in the petition itself. Submission is that none of the other averments in paragraphs 6, 8 and 9 read together constitute any particulars which is supportive of such allegation of corrupt practice. In the absence of any supportive particulars, a general allegation of corrupt practice by itself cannot stand as the three allegations referred to above by themselves do not indicate the manner in which the indulgence in corrupt practice has roped in the voters in favour of the respondent No. 1; that the distribution of arrack sachets to voters on the previous day of elections is not at all averred with date, place and time and the persons involved in the same nor the description of any other type of corrupt practice with particulars are forthcoming and as such these allegations as they cannot stand by themselves are required to be struck off.
20. In support of the submission that an allegation of corrupt practice which is not backed by full and proper particulars of the precise corrupt practice and averments which even when read together do not indicate as the averment describing the precise corrupt practice, are averments which do not constitute a cause of action in support of the petition for seeking the relief, learned counsel for the applicant has drawn the attention of the court to the following decisions:
(a) 'Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi AIR 1987 SC 1577 (Paras 8, 10, 11 and 14)
(b) 'R.P. Moidutty v. P.T. Kunju Mohammed and Anr.' AIR 2000 SC 388 (Paras 30, 31, 33 and 35)
(c) 'Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253 (Paras 11, 12 and 22)
(d) 'Jaipal Singh v. Smt. Sumitra Mahajan and Anr.' 2004 (4) SCC 522 (Para 9)
21. The objection taken with regard to the averments in paragraph-10 of the petition is in the context of the requirement of Section 83(1)(a) of the Act that the averment lacks material facts. In this context, Mr. Ashok Haranahalli draws the attention of the court to the provisions of Section 9-A of the Act which occurs in Part-II of the Act which provides for the qualification and disqualification of the candidates contesting an Assembly or parliamentary election. Section 9-A is the specific disqualification for a person who continues to hold a contract in his favour entered into between the Government, in this case the State Government, for executing the contract for supply of goods or any services and which continues and subsists on the relevant date. Learned Counsel points out that the paragraph does not say as to what is the contract which was subsisting on the election date as between the respondent No. 1 and the Government; that the paragraph only indicates that the respondent No. 1 was a contractor prior to the election but does not ever that he had a subsisting contract with the Government on the date of the election and even for providing any particulars, the averment expressly relegates that occasion to a later date when the petitioner applies and obtains certified copy and it will be produced at the stage of the evidence. Submission is that the paragraph by itself while lacks in material facts, the request for production of some evidence at a later point to make up this deficiency is not permitted in law and assuming that it can be so produced, it cannot constitute a plea with material facts as at the time of presentation of the petition and as such this paragraph is also required to be struck off applying the principles of Order VI Rule 16 of CPC. In this regard, learned counsel has placed reliance on the decision of the Supreme Court reported in 'Azhar Hussain v. Rajiv Gandhi' (Supra) at Paragraph-28 to the effect that if anything is claimed as an integral part of the petition and is not so produced at that time, it cannot be said that the petition has complied with the requirements of containing material facts as envisaged under Section 83(1)(a) of the Act. Learned Counsel also submits that withholding of the information on such plea from the respondent by not so pleading in the petition also amounts to deprivation of an opportunity to the respondent to meet the averment and as much what is lacking as of now cannot be permitted to be made good later either by way of producing evidence or in any other manner.
22. In so far as the request for striking off the pleadings in Paragraph-10 of the petition is concerned, Sri. Ashok Haranahalli, Learned Counsel for the applicant has called in aid two additional grounds. It is firstly contended that the contents of this paragraph has not been supported in the affidavit filed along with the petition either as averments within the knowledge of the petitioner or based on the information the petitioner has received. Submission is that in the absence of an averment in the affidavit indicating the basis for the averment in the petition, the averment cannot be sustained.
23. The alternative submission in this context is that the manner of verification of a plaint in the present case, the election petition, as contemplated under Order VI Rule 15 of the Code of Civil Procedure is that apart from the verification, it should be supported by an affidavit of the plaintiff. If this requirement is applied, as per the submission of the Learned Counsel, there being no averment at all in the affidavit with regard to the contents of Paragraph-10, requirement of Order VI Rule 15 of CPC is not at all met in so far as it related to the contents of Paragraph-10 of the petition and for such reason also the contents of the paragraph should be struck off. In support of the submission, the Learned Counsel has relied upon the following decisions:
(a) 'R.P. Moidutty v. P.T. Kunju Mohammed and Anr.' (Supra)
(b) 'Jaipal Singh v. Smt. Sumitra Mahajan and Anr.' (Supra)
24. Per contra, submission of Sri. Chandrashekar, learned counsel for the Election Petitioner and the respondent in the application is that the contents of paragraph-6 does indicate that the respondent No. 1 had indulged in the action of distribution of arrack sachets to the voters which is an allegation of corrupt practice within the meaning of provisions of Section 123 of the Act; that the contents of paragraph-8 also indicate that the respondent No. 1 had, in fact, got elected by distribution of arrack sachets to voters on the previous day of election; that this action is in the nature of an allegation of corrupt practice; that the averment is a relevant averment and the other parts of these paragraphs are particulars supporting this allegation of corrupt practice and if so no part of paragraphs 6 and 8 can be characterized as either unnecessary, frivolous or vexatious, leave alone being scandalous and therefore, there is no occasion to strike off these pleadings in the petition.
25. Drawing attention to the contents of the application and the affidavit in support of the application, Learned Counsel submits that the objection taken is only on the ground of want of full particulars. Learned Counsel submits that this objection is not tenable as the allegation of corrupt practice is linked to the act of seizure of the Tata Sumo vehicle carrying arrack sachets and the plea with regard to the incident of seizure of this vehicle carrying arrack sachets constitutes the particulars of the allegation of corrupt practice and as such the averments in this paragraph contains both allegations and particulars and cannot be struck off as sought for in the application.
26. Even with regard to the objection taken about the contents of paragraph-8 of the petition, submission is that the affidavit in support of the application for striking off the pleadings does not specifically pin point as to which particular plea or averment is unnecessary, frivolous or scandalous and as such the application does not achieve the purpose for which it is filed. Submission with regard to the prayer for striking off the contents at Paragraph-9 is also on the same lines.
27. With regard to the prayer for striking off the plea in paragraph-10 of the petition is concerned, learned counsel for the petitioner submits that the plea specifically avers that the respondent No. 1 was under a disqualification at the time of the election, a plea which is very relevant for the purpose of deciding the election petition; that the plea, in fact, is one which conforms to the disqualification referred to in Section 9-A of the Act; that the plea being categorical and clear, production of a certified copy to evidence at a later point of time; that the respondent No. 1 had suffered such disqualification at a later point of time cannot and does not detract from the plea; that, in fact, when the Courts have taken the view that for amplifying the full particulars of corrupt practice, an amendment may be permitted on similar lines and for amplifying the particulars with regard to the plea in paragraph-10 about disqualification of the respondent No. 1 for contesting the election also, the petitioner can be permitted to amend by such production and if that is permissible, there is no occasion to strike off the contents of this paragraph.
28. Sri. Chandrashekar, learned counsel for the petitioner, further submits that with regard to non-compliance of the requirements of Section 83(1)(c) of the Act and the affidavit in support of the petition not making a distinction between the averments based on the personal knowledge and the averments based on the information as contained in the election petition, Courts have interpreted that the provisions of Section 83(1)(c) of the Act are not mandatory; that assuming that something is lacking, it can be supplemented or made good by indicating the actual position with regard to the averments already contained in the petition. In this regard, Learned Counsel for the petitioner places reliance on the decision of the Supreme Court in the case of 'Chandrakanth Uttam Chodankar v. Dayanand Rayu Mandrakar and Ors.' 2005 AIR SCW 19
29. The question that arises in the context of the application under Order VI Rule 16 of CPC is as to whether any part of the petition pleadings is required to be struck off applying the principles of Order VI Rule 16 of the Code of the Civil Procedure.
30. While the provisions of Order VI Rule 16 of the Code of Civil Procedure is an enabling provision which allow the Court to focus attention on the contents of pleadings, in the sense that, the pleadings should be relevant for the purpose of the suit or a petition; that it should be precise, it should not be one malign the image or the reputation of the defendant or be unduly lengthy which could ultimately result in missing the real issue in the case. The object is obviously to retain only such pleas which are relevant for the purpose of deciding the case.
31. While this is an enabling provision under the Code of Civil Procedure, the more important aspects of contents of election petition in the context of a prayer for setting aside an election or declaring the result of the same are found in Section 83 of the Act. The basic requirement of every election petition is that it should contain concise statement of material facts on which the petitioner relies in terms of Section 83(1)(a) of the Act and if the petition is one involving allegations of corrupt practice, it should further contain as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the particulars of such names, place, date and time of commission of each such practice, nature of corrupt practice to be described in full as per Section 83(1)(b) of the Act.
32. In the decisions cited above, referred to earlier, the Courts have interpreted that the provisions of Sections 83(1)(a) and 83(1)(b) of the Act are mandatory and in the absence of the compliance with the requirements mentioned in this provision, an election petition does not take off.
33. In the present case, the election petition is presented on the ground of commission of corrupt practice on the part of the respondent No. 1 as also on the ground of the respondent No. 1 suffering under a disqualification in terms of Section 9-A of the Act.
34. On an overall reading of the contents of the petition, particularly, paragraphs 6, 8 and 9, it can be understood that these paragraphs are in the context of an allegation of corrupt practice on the part of the respondent No. 1. The allegation of corrupt practice as noticed earlier can be understood to be that the respondent No. 1 has secured all his votes by corrupt practice which corrupt practice is further sought to be pin point as one indulged in by the respondent No. 1 by distribution of arrack sachets to the voters on the previous day of the election. These sentences contained in paragraphs-6 and 8 can definitely constitute an allegation of corrupt practice. To that extent, it cannot be characterized that they do not contain a relevant plea.
35. In so far as contents of paragraph-9 is concerned, the contents can be understood as one elaborating the earlier allegation that the respondent No. 1 had used arrack sachets for distribution amongst voters and that it had happened in the village called Bhankure and though the sentence is left incomplete and there was an attempt to make this good by an application for amendment of the plea, that application having been rejected, the pleadings has remained as pleaded in the original petition and at the best it can be understood as one either the respondent No. 1 had used other modes also apart from distribution of arrack sachets in the village of Bhankure or in the alternative that such arrack sachets were distributed not only in this village but in other villages also. Such understanding can only be by a process of reasoning and not by what is actually pleaded.
36. Be that as it may, the question is as to whether the rest of the pleas in paragraph-6, 8 and 9 apart from what is noticed above as an allegation of corrupt practice also remains in the petition for final determination.
37. This can happen if the rest of the pleadings are in the nature of full particulars supporting the allegation of corrupt practice. As noticed earlier, allegation of corrupt practice can at best be understood as one of distribution of arrack sachets to the voters for winning the election by the respondent No. 1. If the other averments in the three paragraphs are in the nature of full particulars with relevant names, place, date etc., it also answers the requirements of Section 83(1)(b) of the Act and can sustain the allegation of corrupt practice also.
38. The incident referred to as constituting full particulars of the allegation of corrupt practice is an incident of seizure of the Tata Sumo vehicle bearing registration No. KA 28 M 1402 by the Excise Department and a check of the vehicle at about 6 a.m. on 19.4.2004 at 'Dominate Dhaba' near Bhankure village and as it was found that the vehicle contained about 1,410 sachets of arrack; the driver ran away and the Excise Department seized the arrack sachets as well as the vehicle and they also noticed in the vehicle a pass issued by the Returning Officer indicating that the vehicle had been permitted for use for election canvassing of Bharatiya Janata Party candidate of SC-11, Shahabad constituency wherein the respondent No. 1 had contested. It also says that the Special Officer of the Excise Department filed a complaint on the same day against the driver, owner and the respondent No. 1. The complaint is said to have been received on 19.4.2004 at 4.30 p.m. and that the case had been registered at Shahabad Rural Police Station in FIR No. 561/2004, the copy of the application filed by the investigation agency-the Police before the JMFC, Gulbarga and the copy of the FIR are also produced as Annexures-B and C to the petition.
39. A perusal of Annexure-C indicates that the complaint is with regard to possessing unauthorizedly 1,410 sachets of arrack, in all about 141 ltrs., and transporting it without a valid permit etc., and being caught in such act. The link to the respondent No. 1 is that the vehicle had been authorized to be used for the election canvassing on behalf of the respondent No. 1. The FIR indicates that the cases that can be registered are for violations under the Excise Act.
40. The narration about this incident as also the contents of the complaint does not anywhere indicate that the authorities found that the arrack sachets were being distributed to any of the voters or for any other person for that matter. The complaint by itself does not indicate that there was distribution of arrack sachets to the voters. A reading of the rest of the pleas in paragraphs-6, 8 and 9 also indicate that there is no plea that the arrack sachets were, in fact, distributed to any voter at a particular place and time. The particulars if at all as could be found in paragraph-9 is general and more amounting to an allegation in particular which reads "that the respondent No. 1 not only used arrack sachets for distribution to the voters in the village called Bhankure"
and there is no other supporting plea which can constitute particulars in support of the allegation of corrupt practice as noticed earlier as can be called out on a combined reading of paragraph-6 and 8 of the petition. Unless an allegation of corrupt practice, assuming that it does pass the test of containing material facts in terms of Section 83(1)(a) of the Act is also supported by Ml particulars, in furtherance of such facts, the further test of full particulars being not answered in terms of Section 83(1)(b) of the Act, the allegation of corrupt practice cannot survive on its own and it has to be struck off.
41. The contents of paragraphs 6, 8 and 9 being one for the purpose of averments relating to the allegation of corrupt practice levelled against the first respondent and if the allegation of corrupt practice viz., the first respondent had obtained all the votes polled in his favour by resorting to the practice of distribution of arrack sachets to the voters in the constituency, cannot survive for the reason that it is not supported by full particulars as contemplated under Section 83(1)(b) of the Act, then none of the averments in paragraphs 6, 8 and 9 remain for consideration in the election petition and all these three paragraphs are required to be struck off.
42. In so far as the averments contained in paragraph-10 of the election petition are concerned, the averments are one relating to disqualification the first respondent had incurred, one coming within the scope of Section 9-A of the Act and a disqualification which the petitioner alleges against the first respondent is for the reason that the first respondent had a contract for execution of certain works in favour of the State Government.
43. When the averments in paragraph-10 are not one relating to any allegation of corrupt practice, provisions of Section 83(1)(b) of the Act is not attracted, but the test can only be under Section 83(1)(a) of the Act. Here again, the submission of Sri Ashok Haranahalli, Learned Counsel appearing for the first respondent, who has filed the application for striking off pleadings, is that this paragraph does not contain the material averments even for the purpose of bringing it within the scope of a disqualification referred to in Section 9-A of the Act.
44. The arguments are many-fold. It is firstly contended that the averments in paragraph-10 do not even assert that the first respondent had a subsisting contract for the supply of goods or execution of any work on the relevant date. Learned Counsel for the first respondent submits that the relevant date can be the date fixed for filing of nomination papers or the date of election, depending upon the stage and proceedings in which the particular date assumes significance and importance. It is submitted that the disqualification of this nature can be used before the Returning Officer for the purpose of seeking rejection of the nomination papers in terms of the provisions of Section 36(2)(a) of the Act, and in such circumstances, the date of scrutiny will be important and the averments should be that on the date of scrutiny, the candidate had a subsisting contract between him and the Government for the purpose referred to above. This having not happened and the petitioner having not objected to the filing of nomination paper, Learned Counsel for the first respondent submits that the next date can only be the date of election, in the sense the date of declaration of the result, as defined under Section 67A read with Section 100(1)(a) of the Act, as the petitioner has invoked the grounds referred to in Clause (a) of Sub-section (1) of Section 100 of the Act, for the purpose of invalidating the declaration (of election) in favour of the first respondent. The Learned Counsel for the first respondent submits that the averments in paragraph-10 of the petition do not positively indicate that on the election date i.e. on the date of declaration of results, the first respondent had such disqualification. It is also the submission of Learned Counsel for the first respondent that in fact no particulars or the details of the contract, its validity period, nature of the contract etc., are also forthcoming in this paragraph. In this context, Learned Counsel for the first respondent submits that the contents of paragraph-10 are woefully bereft of material facts that are required to be pleaded in terms of Section 83(1)(a) of the Act. The other contention of the Learned Counsel for the first respondent is in respect of the manner of verification with regard to the contents of this paragraph.
45. Though Sri S.M. Chandrashekar, Learned Counsel for the petitioner has sought to contend that the averments in paragraph-10 of the petition can be clearly undertstood as averments for the purpose indicating a disqualification as against the first respondent in terms of 9-A of the Act, the question is as to whether the contents of this paragraph when read as a whole, contains such material facts as are required to support the version of the petitioner that the first respondent had incurred a disqualification?
46. While the contents of paragraph-10 do not categorically assert that the first respondent had a disqualification for contesting the election on the date of the election, but only vaguely says that before contesting the election, the first respondent was a class-I contractor and was doing works under State Government, the further particulars such as nature of the contract or its subsistence as on the relevant date are conspicuously absent, but the furnishing of the same is sought to be relegated to a later day i.e. after obtaining a copy of the certificate issued by the public works department authorities, to be produced at the time of evidence. A plea cannot be relegated to be pleaded at the time of evidence. Evidence is only to support the plea and not to supplant a plea.
47. In an election petition, pleadings are very essential, relevant and precise pleadings are inevitable and though, no doubt, in terms of the provisions of the Code of Civil Procedure, such pleading is required even in respect of plaints presented before a Civil Court, it is afortiori so in the case of election petitions presented under the provisions of the Act. While scrutiny as to the compliance of the requirements of the Rule is rather slack in the case of a plaint, in a civil suit, in an election petition, the compliances are insisted scrupulously and non-compliance of the essential requirement is fatal to the petitioner. Such is the law developed in the context of consideration of an election petition by Courts and it is precisely in this context the decisions of the Supreme Court in the cases of Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi (Supra) R.P. Moidutty v. P.T. Kunju Mohammed and Anr. and Azhar Hussain v. Rajiv Gandhi (Supra) referred to earlier assume significance.
48. Though Sri S.M. Chandrashekar, Learned Counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar (Supra) it can have significance only in the context of insistence of procedural compliances and cannot have any bearing on the compliance with regard to substantial provisions. The petition averments are deficient on material facts not merely due to procedural non-compliance, but also due to non-compliance with substantial provisions, in the sense the petition does not contain necessary averments at all. The manner in which the affirmation affidavit is sworn to and the affirmation affidavit is not one in respect of the contents of paragraph-10 of the election petition, there is definitely a non-compliance of requirement of Order VI Rule 15 of the Code of Civil Procedure, as the contents of this paragraph, whatever it contains, are also not affirmed on oath. The petition itself contains verification including this paragraph at the end of the petition, but here again, the argument on behalf of the first respondent is that the very verification is also more an amalgam of personal knowledge and information and no distinction has been maintained.
49. It is not necessary for the purpose of this case and the petition to go into further details in regard to requirement of compliance with the provisions of Order VI Rule 15 of Code of Civil Procedure, as I am of the clear view that the contents of paragraph-10 read as a whole, however liberally or generously, does not contain the material facts to come up with the allegation that the first respondent had a disqualification for contesting the elections, a disqualification which can be termed as one contemplated under Section 9-A of the Act. If the material facts, particularly with reference to the precise averments of a particular disqualification incurred by the first respondent, is lacking in the petition, then there is no scope for retaining this paragraph in the election petition. It is accordingly struck off.
50. An application under Order VI Rule 16 for striking off unnecessary and irrelevant pleadings, even if allowed, by itself, does not achieve the purpose of the application, in the sense, the petition still remain the election petition minus the paragraphs struck off. It is precisely for this reason that another application is filed invoking the provision of Order VII Rule 11 for dismissing the election petition on the ground that the petition does not disclose a cause of action for the purpose of maintaining the election petition.
51. While the application in IA-II /2004 under Order VII Rule 11 of the Code of Civil Procedure is for the purpose of praying for dismissal of the election petition on the premise that it does not disclose any cause of action, there is not much dispute between the two Learned Counsels that the petition or contents of the petition that survive after the paragraph 6, 8, 9 and 10 are struck off, is one which does not reveal much of a cause of action for the purpose of maintaining an election petition. Sri S.M. Chandrashekar, Learned Counsel for the petitioner fairly submits that if the averments contained in paragraphs 6,8,9 and 10 of the petition are removed, nothing much remain in the petition and the petition itself cannot survive without these paragraphs. In the circumstances, the election petition, after deleting paragraphs 6, 8, 9 and 10 of the petitioner, does not remain for the purpose of consideration of the election petition or to take it to trial in the sense that it does not reveal a cause of action for examination by the Courts.
52. Accordingly, this election petition has to be rejected, allowing the application in IA-II/ 2004.
53. In the result, IA II/2004 and IA-IV/2004 are allowed. Consequently, the election petition itself is dismissed.