Rajasthan High Court - Jaipur
Sanjay Gurjar vs Shri Dushyant Singh And Ors. on 10 March, 2008
Author: K.S. Rathore
Bench: K.S. Rathore
ORDER K.S. Rathore, J.
1. The present election petition has been filed by petitioner Sanjay Gurjar under Section 80-A r/w Section 100(b) & (d)(ii) of the Representation of People Act, 1951 (for short 'the Act of 1951') challenging the election of respondent No. 1 Shri Dushyant Singh from the Parliamentary Constituency (15) Jhalawar, result of which was declared on 13.05.2004 and respondent No. 1 Shri Dushyant Singh was declared elected as Member of Parliament.
2. Brief facts of the case are that the petitioner filed his nomination papers as a candidate of Indian National Congress Party, respondent No. 1 Shri Dushyant Singh filed his nomination papers as a candidate of Bhartiya Janta Party, respondent No. 2 Shri Ratan Lal filed his nomination papers as a candidate of Bahujan Samaj Party and the respondent No. 3 Shri Jakir Hussain filed his nomination papers as an independent candidate to contest the elections of Parliament from Jhalawar Parliamentary Constituency (15). As per the election calender notified by the Election Commission, the date of polling was fixed as 05.05.2004 and the date of counting of the votes and declaration of the election result was fixed as 13.05.2004. After scrutinising the nomination papers, all the above four candidates i.e. the petitioner and respondent Nos. 1, 2 and 3 were declared eligible to contest the election from the Parliamentary Constituency of Jhalawar(15).
3. The result of the election of Jhalawar Parliamentary Constituency(15) was declared on 13.05.2004 and as per the result, the returned candidate respondent No. 1 Shri Dushyant Singh was declared elected. The final result sheet was published under Rule 56(ga) 2 (ga) and the result was in the prescribed form (under Section 66 of the Representation of People Act, 1951) and as per the final result sheet, respondent No. 1 Shri Dushyant Singh secured 3,03,845 votes, respondent No. 2 Shri Ratan Lal secured 16,336 votes and respondent No. 3 Jakir Hussain secured 25,164 votes in their favour whereas the petitioner secured 2,22,266 votes.
4. The present election petition has been preferred by the petitioner on the ground that since beginning that is just after publication of the programme of election by way of notification by the Chief Election Commissioner of India, during the course of canvassing and thereafter during the course of polling on 05.05.2004 and on the date of re-polling i.e. 07.05.2004, the returned candidate respondent No. 1 Shri Dushyant Singh, his election agents, his mother Smt. Vasundhara Raje Scindia, the Hon'ble Chief Minister of State of Rajasthan have adopted corrupt practices in the interest of returned candidate respondent No. 1 Shri Dushyant Singh and in spite of various complaints by the petitioner, his agents, his party leaders as well as the polling agents though re-polling was ordered by the Election Commission but only for thirteen polling booths, whereas such corrupt practice was adopted by the returned candidate, his mother and his election agents at all the polling booths.
5. It is alleged that there was continuous misuse of the government machinery by the ruling Bhartiya Janta Party for canvassing of the returned candidate, who is son of the Hon'ble Chief Minister of the State of Rajsthan. It is also alleged that there were incidents of booth capturing by the Bhartiya Janta Party workers and also supplied liquor to the voters just before a day of polling and about 900 bottles of liquor were recovered by the police from the factory premises belonging to Bhartiya Janta Party's leader Shri Satish Gupta. To this effect, the petitioner also made several complaints to the Chief Election Commissioner.
6. After alleging allegations of corrupt practice, the petitioner by way of the instant election petition has prayed that election of respondent No. 1 Shri Dushyant Singh as Member of Parliament from the Parliamentary Constituency of Jhalawar(15) be declared illegal and void on account of corrupt and mal practices adopted in the interest of the returned candidate by returned candidate himself, his election agents, workers of Bhartiya Janta Party as they were under the influence of the mother of the returned candidate, the Hon'ble Chief Minister of the State of Rajasthan Smt. Vasundhara Raje Scindia.
7. Onbehalfofreturnedcandidate (respondent No. 1) Shri Dushyant Singh two applications have been filed; one under Order 6 Rule 16 and another under Order 7 Rule 11 of the Code of Civil Procedure. By way of application under Order 6 Rule 16 CPC moved on behalf of the returned candidate respondent No. 1 Shri Dushyant Singh, the relief has been claimed that the offending portion in paragraphs 2, 3, 3(1), 3(2), 3(3), 3(4), 3(5), 4, 6, 7 and 8 of the election petition may kindly be struck out or in the alternative this Court may kindly direct the petitioner to suitably amend the election petition before commencement of further proceedings in the election petition filed by the petitioner.
8. In response to the application under Order 6 Rule 16 CPC, the petitioner has not filed any reply and without filing any reply the petitioner only wants to submit the legal submissions to the application under Order 6 Rule 16 CPC.
9. Another application has been moved on behalf of the returned candidate respondent No. 1 under Order 7 Rule 11 CPC claiming relief to reject the election petition under Order 7 Rule 11 CPC mainly on the ground that no cause of action is made out and no triable issue arises from the pleading and as such the trial of the election petition would be only a vexatious and futile exercise.
10. In response to the aforesaid application filed on behalf of the returned candidate (respondent No. 1) Shri Dushyant Singh under Order 7 Rule 11 CPC, the petitioner has filed reply and the same is on record.
11. In application under Order 6 Rule 16 CPC filed by the returned candidate, it is contended that the averments made in the election petition are vague, unnecessary, frivolous and vexatious in the context of the purported cause of action on which the present election petition has been filed.
12. Learned Counsel appearing for the respondent No. 1 referred para 2 of the election petition wherein vague averment has been made that since so many complaints were made regarding corrupt practices adopted in the interest of respondent No. 1 as well as regarding booth capturing at various places
13. After referring the averments made in para 2 of the election petition, learned Counsel for the respondent No. 1 submits that the aforesaid averments are vague and bald, simply a mere mechanical repetition of the language without giving details of the allegations and are frivolous, vexatious and deserve to be struck out.
14. Similarly in para 3 of the election petition, the averments are made that during the course of canvassing and thereafter during the course of polling on 5th May, 2004 and on the date of re-polling on 7th May, 2004, the returned candidate Shri Dushyant Singh, his election agent and his mother Smt. Vasundhara Raje Scindia, Hon'ble Chief Minister of Rajasthan, adopted corrupt practices in the interest of the returned candidate.
15. After quoting the allegations alleged in para 3 of the election petition, the learned Counsel for the applicant/respondent submits that the aforesaid averments at the instance of the petitioner is again very generalised in character and vague made with the sole purpose of embarrassingtheapplicant/respondent.The reference of Smt. Vasundhara Rajeh Scindia, the Hon'ble Chief Minister of the State of Rajasthan is deliberately made without being necessary to the laying of a challenge to the election of the returned candidate under Section 100(b) and (d)(ii) of the Act of 1951, which pertain to the corrupt practice alleged and attributed to the returned candidate, the election agent and the acts of other agents with the consent of the returned candidate and not to mother of the returned candidate even if a Chief Minister and, therefore, being vague and frivolous allegations alleged in para 3 of the election petition deserve to be struck out.
16. Further allegations made in para 3 of the election petition are that corrupt practice was adopted by them i.e. by the returned candidate, his election agent and his mother at all election booths, similar to the averments made earlier and the said averment is vague and vexatious and wholly frivolous made not so much to support the charge of corrupt practice or provide the basis/foundation of such a charge but with the sole purpose of creating sensationalism and scandalizing this Court. The allegations aforesaid do not supply a ground or the foundation of the election petition in accordance with law and, therefore, the same deserves to be struck out.
17. Further in para 3(1) of the election petition, it has been averred that continuous use of government machinery by the ruling B.J.P. party for canvassing of the returned candidate who is the son of the Chief Minister of Rajasthan. This averment is also without material particulars, again wholly scandalous in nature and liable to be struck out. Similar averments are also made in para 3(2) and 3(3) of the election petition.
18. Learned Counsel for the applicant/ respondent also referred the averments made in para 3(4) of the election petition, wherein it has been alleged that the returned candidate, his elected agent and Smt. Vasundhara Raje Scindia, Chief Minister, threatened and beaten the Presiding Officer and Administrative Officers trying to conduct free and fare election of Jhalawar Parliamentary Constituency, are wholly false, for neither the polling booth nor the Presiding Officer nor the Administrative Officers allegedly threatened or be laboured at the instance of the returned candidate.
19. Learned Counsel Mr. Alok Sharma also referred para 3(5) of the election petition, wherein the petitioner levelled allegation regarding recovery of 900 bottles of liquor from the factory premises of an alleged B.J.P. leader Shri Satish Gupta, which do not constitute a cause of action for laying a challenge to an election petition under Section 100(b) and 100(d)(ii) of the Act of 1951.
20. He also referred para 4 of the election petition and submits that the allegations made in para 4 of the election petition are false as they are even otherwise irrelevant.
21. Further referred paras 6, 7 and 8 of the election petition. In para 6 of the election petition, it has been averred that it was obligatory on part of the Presiding Officer to allow voters have their documents verified and only thereafter to permit voting by them. It has been stated that on the failure of the voters to identify themselves with reference to their driving licence, ration card, passport, PAN card, identity card, Below Poverty Line card, Jamabandi/land pass book and domicile certificate issued by the competent authority, they should not have been allowed to cast their votes.
22. The averments made in para 6 of the election petition are contrary to the Circular dated 12.04.2004 in issue itself and even otherwise fly in the face of the statutory right on an elector conferred under Section 62 of the Act of 1951, which provides statutory right of a voter to cast his vote.
23. Further in para 7 of the election petition, it has been averred that the Presiding Officers were under the pressure of the Chief Minister and committed so many irregularities. This averment is again generalised, non-specific, completely vague and without detail in material particulars to constitute a cause of action to lay a challenge to an election petition on the ground of corrupt practices as alleged.
24. Para 8 of the election petition has also been referred, wherein it has been averred that corrupt practices were adopted by the District Authorities of District Jhalawar and workers of the B.J.P. party under the influence of the Chief Minister and again these allegations are generalised without having any basis and foundation.
25. After referring the pleadings made in the election petition filed by the petitioner, the learned Counsel appearing for the applicant/ respondent in support of his application filed under Order 6 Rule 16 CPC, has prayed that offending portion in paragraphs 2, 3, 3(1), 3(2), 3 (3), 3(4), 3(5), 4, 6, 7 and 8 of the election petition be struck out by this Court or in the alternative this Court may direct the petitioner to suitably amend the election petition before commencement of further proceedings.
26. Another application under Order 7 Rule 11 CPC has been filed on behalf of the returned candidate respondent No. 1 Shri Dushyant Singh, wherein it has been stated that under Section 80 of the Act of 1951, no election is to be called into question except by an election petition presented in accordance with the provisions of Part VI of the Act of 1951. Further Section 83 of the Act of 1951 stipulates what shall be the contents of the election petition and Clause (a) of Sub-section (1) provides that the petition shall contain a concise statement of material facts on which the petitioner relies. Clause (b) of the said Sub-section (1) provides that the petition shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. The proviso to Sub-section (1) of Section 83 of the Act of 1951 states that where the petitioner alleges any corrupt practice the petition shall necessarily be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof. Corrupt practice is defined in Section 123 Part VII of the Act of 1951 and inter-alia includes various practice deemed to be corrupt for the purpose of the Act of 1951.
27. It is further submitted that the ground for declaring the election of the applicant/respondent as void as set up in the petition is one under Clause (b) of Sub-section (1) of Section 100 of the Act of 1951 and the other under Sub-clause (ii) of Clause(d) of Sub-section (1) of Section 100 of the Act of 19. It is further submitted that upon reading Section 83 with Section 100 as also Section 123 and 135-A of the Act of 1951 together, it is clear that if the election petition filed does not satisfy the requirement of the statutory provision, the whole election petition is liable for being rejected on the ground of not disclosing a cause of action. It is, therefore, imperative that to be maintainable in law the election petition must aver that one or more of the grounds contained in Section 100 have been made out on the basis of material fact and only in such an eventuality the petition would be maintainable and entitled to be put to trial.
28. After referring the provisions of Sections 80 and 83 of the Act of 1951, the learned Counsel for the applicant/respondent submits that the election petition as filed does not comply with the provisions of the Act of 1951 in more than one ways as in the terms of Clause (b) of Sub-section (1) of Section 83 of the Act of 1951, the mandatory requirement is of setting forth full particulars of the corrupt practice alleged including a full statement of the names of th parties alleged to have committed such corrupt practice and the date and place of commission of such corrupt practice have not been laid out in the election petition. Thus, the election petition is palpably vague and mechanically and repetitively invokes the language of the statute under certain sub-sections of Section 123 of the Act of 1951 without, in any manner whatsoever, setting forth the full particulars of the corrupt practice alleged as mandated by law.
29. Learned Counsel for the applicant/ respondent further submits that even otherwise the petition as laid is liable to be rejected for an ex-facie non-compliance with the proviso to Sub-section (1) of Section 83 of the Act of 1951 inasmuch as the petition has not been accompanied by an affidavit prescribed under Rule 94-A of the Conduct of Election Rules, 1961 (for short 'the Rules of 1961') in the format provided for in form 25 of the forms appended to the Rules of 1961.
30. With regard to the meaning of corrupt practice under the Act of 1951, learned Counsel Mr. Alok Sharma, appearing for the applicant/ respondent submits that the petitioner has not set out any material fact and particulars which would provide the basis foundation for the ground of any corrupt practice alleged against the applicant/ respondent, his agent or in any event in terms of his consent.
31. Further, as per the mandatory provisions of Section 83(1)(a) of the Act of 1951, it is obligatory and mandatory upon the petitioner to specifically state and plead all facts essential to his cause of action as sought to be made out. In fact, Clause (b) of Sub-section (1) of Section 83 of the Act of 1951 imposes a heavier duty on the petitioner to set forth full particulars of the corrupt practice allegation including the details thereof.
32. On behalf of the applicant/respondent, it is further submitted that the issue of false identification certificates does not constitute a ground for laying the petition under Section 100(1)(b) and Section 100 (1)(d)(ii) of the Act of 1951. It is submitted that it has also not been pleaded that the false identification certificates were issued with the consent of the applicant/ respondent or that in any event that the so called holders of false certificates were to the benefit of the applicant/respondent.
33. It is also submitted on behalf of the applicant/respondent that the allegations of influence are again bald and mechanical and the essential facts to sustain a ground of undue influence have not been set out in the election petition. The essential particulars to make out a case of corrupt practice under Section 123(1) of the Act of 1951 are not even remotely made out.
34. Learned Counsel for the applicant/respondent in support of his application under Order 7 Rule 11 CPC has submitted that no cause of action has been made out and no triable issue arises from the pleadings and as such the trial of the election petition would only be a vexatious and futile exercise and, therefore, prayed that while allowing the application under Order 7 Rule 11 CPC moved on behalf of the applicant/respondent, the election petition filed by the petitioner be rejected.
35. In support of both the applications i.e. application under Order 6 Rule 16 CPC and application under Order 7 Rule 11 CPC moved on behalf of applicant/respondent No. 1 Dushyant Singh, learned Counsel Mr. Alok Sharma referred Sections 81 and 83 of the Act of 1951 and after referring the aforesaid provisions, he submits that the cause of action is a term of art and has been described by the Hon'ble Supreme Court as also by this Court as a concise statement of material facts as also full particulars (where corrupt practice at an election is alleged) on which the petitioner relies for making out corrupt practice as a ground for setting aside an election. A cause of action challenging an election on the ground of corrupt practice requires as full a statement as possible of the names of the parties alleged to have committed the corrupt practice and the details, date and place of the commission of such corrupt practice.
36. In support of his submissions, the learned Counsel for the applicant/respondent Mr. Alok Sharma placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Daulat Ram Chauhan v. Anand Sharma , more particularly para Nos. 18, 19 and 20 of the judgment which are reproduced hereunder:
18. We must remember that in order to constitute corrupt practice, which entails not only the dismissal of the election petition but also other serious consequences like debarring the candidate concerned from contesting a future election for a period of six years, the allegations must be very strongly and narrowly construed to the very spirit and letter of the law. In other words, in order to constitute corrupt practices, the following necessary particulars, statement of facts and essential ingredients must be contained in the pleadings:
(i) Direct and detailed nature of corrupt practice as defined in the Act;
(ii) Details of every important particular must be stated giving the time, place, names of persons, use of words and expression etc.;
(iii) It must clearly appear from the allegations that the corrupt practices alleged were indulged in by (a) the candidate himself (b) his authorized election agent or any other person with this express or implied consent.
19. A person may, due to sympathy or on his own, support the candidature of particular candidate but unless a close and direct nexus is provided between the act of the person and the consent given to him by the candidate or his election agent, the same would not amount to a pleading of corrupt practice as contemplated by law. It cannot be left to time, chance or conjecture for the court to draw an inference by adopting in involved process of reasoning. In fine, the allegation must be so clear and specific that the inference of corrupt practice will irresistibly admit of no doubt or qualm.
20. Asalogical consequence of the principles enunciated by us, it follows that where the allegation of fraudulent practice is open to two equal possible inferences, the pleading of corrupt practice must fail. For instance, A, or in this case Sodd or Batish, joined or participated or was present in an election rally or crown and may have shouted slogans on his own without taking the consent of the candidate concerned, this would not be a corrupt practice within the meaning of Section 123(2) because the element of consent is wholly wanting.
37. The petitioner invokes Clause (b) of Sub-section (1) of Section 100 as well as Sub-clause (ii) of Clause (d) of Sub-section (1) of Section 100 of the Act of 1951 for laying a challenge to the election of the applicant respondent to the Jhalawar Parliamentary Constituency. The petition as filed does not meet the requirement of law and is liable for dismissal at the threshold for not disclosing a cause of action as held by the Hon'ble Supreme Court that election law should be strictly construed and election petition is not to be tried only based on common principle of justice and notion of equity. The Court has further held that the law provides procedural safeguard against frivolous and vexatious allegations. Particular of charge must be precisely and clearly stated in the petitioner.
38. Reliance has been placed by the learned Counsel for the applicant/respondent on the judgment rendered by the Hon'ble Supreme Court in the case of F.A. Sapa v. Singora , more particularly para Nos. 17 and 29 which read as under:
17. ...But while there is sufficient justification for the law to be harsh with those who indulge in such practices, there is also the need to ensure that such allegations are made with a sense of responsibility and concern and not merely to vex the returned candidate. It is with this in view that the law envisages that the particulars of such allegations shall be set out fully disclosing the name of the party responsible for the same and the date and place, of its commission. A simple verification was considered insufficient and, therefore, the need for an affidavit in the prescribed form. These procedural precautions are intended to ensure that the person making the allegation of corrupt practice realizes the seriousness thereof as such a charge would be akin to a criminal charge since it visits the party indulging in such practice with a twofold penalty. That is why this Court described it as quasi criminal in nature in Manphul Singh v. Surinder Singh and reiterated the same in K.M. Mani v. P.J. Antony. Hence, the insistence that each ingredient of the charge must be satisfactorily proved before a verdict of guilt is recorded by the Court. In Mani case this Court held that the allegations must be established beyond reasonable doubt and not merely by a preponderance of probability. It is therefore, equally essential that the particulars of the charge or allegation are clearly and precisely stated in the election petition to afford a fair opportunity to the person against whom it is levelled to effectively counter the same.
29. A charge of corrupt practice has a two dimensional effect: its impact on the returned candidate has to be viewed from the point of view of the candidate's future political and public life and from the point of view of the electorate to ensure the purity of the election process. There can, therefore be no doubt that such an allegation involving corrupt practice must be viewed very seriously and the High Court should ensure compliance with the requirements of Section 83 before the parties go to trial. This is quite clear from the observations of this Court in the case of KM Mani v. PJ Antony.
39. Learned Counsel for the applicant/respondent further placed reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Azhar Hussain v. Rajiv Gandhi 1986 (Suppl.) SCC 315, more particularly para Nos. 8, 9, 11, 14 and 25 which are reproduced hereunder:
8. The argument is that inasmuch as Section 83(1) is not adverted to in Section 86 in the context of the provisions, non compliance with which entails dismissal of the election petition, it follows that non compliance with the requirements of Section 83(1), even though mandatory, do not have lethal consequence of dismissal. Now 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 Act. 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 pleading 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.
11. In view of this pronouncement there is not escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the a foresaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samant case has expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh case the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basis facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge leveled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(a). An election petition therefore can be and must be dismissed if it suffers any such vice.
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 establish he dwould 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 petition.
(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 the returned candidate and must therefore be pleaded:
(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 produced;
(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 election.
(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 specif assistance was procured.
(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 rendered.
(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 particulars.
25. In this case also, no time, date and place of the speeches delivered by the espondent have been mentioned. No exact extracts from the speeches are quoted. Nor have the material facts showing that such statement imputed to the respondent were indeed made been stated. No allegation is made to the effect that it was in order to prejudice the election of any candidate. Or in order to further the prospects of the election of the respondent. The essential ingredients of the alleged corrupt practice have thus not been spelled out. So far as the meeting is concerned, the principle laid down in Nihal Singh case discussed in the context of the charge contained in Ground II is attracted. The view taken by the High Court is therefore unexceptionable.
40. Similar view has been taken by the Hon'ble Supreme Court in the case of Hardwari Lal v. Kanwal Singh , wherein in para Nos. 19 and 21 the Hon'ble Supreme Court has held as under:
19. The requirements in an election petition as to materialfactsandthe consequences of lack of such allegation of material facts and came up for consideration in this Court in the recent decision in Samant N. Balakrishna etc. v. George Fernandes and Ors. etc. In that case reference was made to Section 81, 83 and 86 of the Act as the procedure provisions of election petition. Section 81 deals with presentation of petitions. Section 83 deals with contents of petitions. Section 86 deals with trial of petitions. Hidayatulla, C.J., speaking for the court laid down these propositions. First Section 83 of the Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. Second omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of person with the date, time and place. Fifth, material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. Sixth, in stating the material facts it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice must be correlated to one of the heads of corrupt practice. Seventh, an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless the exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further the prospects of the election are alleged as statements of facts.
21. The necessity of clear and precise allegations to support a plea of corrupt practice was emphasized by this Court in Harish Chandra Bajpai and Anr. v. Trilok Singh. Venkatarama Ayyar, J., speaking for the court in dealing with the powers of the Court to allow amendment in respect of illegal or corrupt practice said that where the allegation in the election petition in regard to the corrupt practice was that the respondents could in furtherance of their election enlist the support of Government servants, the words 'could enlist' did not amount to an averment that in fact they enlisted their support. In other words, it was observed that the words 'could enlist' did not allege a fact which happened. Therefore, the happening of a fact as well as the fact itself is material. Judged by that test in the present case there is no allegation which will amount to any averment of any assistance as a fact in the absence of the kind of assistance being set out as a fact.
41. After placing reliance on the aforesaid judgments, learned Counsel appearing for the applicant/respondent referred Order 7 Rule 11 CPC and after referring the provisions of Order 7 Rule 11 CPC, submits that even otherwise the election petition is liable to be rejected for ex facie non compliance with the proviso of Sub-section (1) of Section 83 of the Act of 1951 inasmuch as the petition has not been accompanied by the affidavit prescribed under Rule 94-A of the Conduct of Election Rules, 1961 in the format provided for in Form 25 of the Forms appended to the Rules of 1961. It is submitted that an affidavit in Form 25 under Rule 94-A of the Election Rules relating to the proviso to 83(1) of the Act of 1951 is an integral part of the election petition. Non compliance with the mandatory requirement of an affidavit in Form 25 where corrupt practice is alleged tantamount to filing of an incomplete petition which entails complete absence of cause of action and, therefore, the petition deserves dismissal.
42. Learned Counsel for the applicant/ respondent also referred Section 83 of the Representation of the People Act, 1951 which reads as under:
83. Contents of Petition: (1) An election petition-
(a) shall contain a concise statement of 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 the 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 of annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
43. After referring the provisions of Section 83 of the Act of 1951, learned Counsel for the applicant/respondent relied on the judgment rendered by the Hon'ble Supreme Court in the case of Ravinder Singh v. Janmeja Singh , wherein in para 11 the Hon'ble Supreme Court has observed that Section 83 of the Act is mandatory in character and requires not only a concise statement of material facts and full particulars of the alleged corrupt practice, so as to present a full and complete picture of the action to be detailed in the election petition but under the proviso to Section 83(1) of the Act, the election petition leveling a charge of corrupt practice is required by law, to be supported by an affidavit in which the election petitioner is obliged to disclose his source of information in respect of the commission of that corrupt practice. The reasons for this insistence is obvious. It is necessary for an election petitioner to make such a charge with full responsibility and to prevent any fishing and roving inquiry and see the returned candidate from being taken by surprise. In the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practices of the bribery, the allegation pertaining thereto could not be put to trialthe defect being fatal in nature.
44. The instant petition alleging corrupt practice is not supported by an affidavit in the prescribed form and thus suffers from a fatal defect and, therefore, the same is liable to be dismissed under Order 7 Rule 11 CPC without being put to trial.
45.He also placed reliance on the judgment rendered by this Court in the case of R.D. Sharma v. Ram Prasad Goyanka and Ors. wherein in para 43 it has been held by this Court that for deciding preliminary objections it has been seen whether the contents of the petition are in accordance with Section 83 of the Representation of the People Act of not.
46. Thus, the affidavit in prescribed form as required by the proviso to Section 83(1) is a part of the mandatory requirement as held by this Court and the Hon'ble Supreme Court.
47. Learned Counsel appearing for the returned candidate respondent No. 1 further referred Rule 94-A of the Conduct of Election Rules, 1961 which reads as under:
Rule 94-A: Form of affidavit to be filled with election petition The affidavit referred to in the proviso to Sub-section (1) of Section 83 shall be sworn before a magistrate of the first class or a notary or a commissioner of oath and shall be in Form 25.
49. It is submitted that the affidavit in Form 25 as appended to the Conduct of Election Rules, 1961 is not an idle exercise in futility and the structure of the prescribed affidavit is in line with Section 83(1)(a) and (b) of the Act. There is need to specifically set out the corrupt practice alleged and more importantly specified and set out the particulars of the corrupt practice alleged. The intent clearly is to eschew an election petition with the necessary pleadings as required.
50. Learned Counsel for the applicant/ respondent also contended that without specific pleading consent, cause of action in an election petition, based on allegations of corrupt practice is incomplete and the petition liable to be dismissed and in support of his submissions, he placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Moreshwar Save v. Dwarkadas Yashwantrao Pathrikar , wherein in para 8 the Hon'ble Supreme Court has held as under:
8. There is no clear pleading or finding of the appellant's consent which is a constituent part of the corrupt practice resulting from an act of any person other than the candidate or his agent. This alone would indicate the absence of one of the constituent parts of the alleged corrupt practice. Case in the election petition is based only on the ground contained in Section 100(1)(b) and not Section 100(1)(d)(ii) of the RP Act. Admittedly, neither Manohar Joshi nor Bal Thackrey were the election agents of the appellant to dispense with the requirement of consent for the ground under Section 100(1)(b) to declare the election void. Any further inquiry into this matter is, therefore, futile and sheer waste for the only ground on which the election petition and the judgment are based.
51. He also placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Ramakant Mayekar v. Celine D'silva , more particularly para 15, wherein the Hon'ble Supreme Court has observed as under:
15. The pleading in respect of speeches in the public meeting held at Shivaji Park, Dadar on 24.2.1990 is in paragraphs 22, 23 and generally in paragraph 27 of the election petition. These are the only portions of the election petition on which reliance is placed by learned Counsel for the respondent as the pleading on this point. It is pleaded in paragraph 22 that the speeches were made by Bal Thaceray and other leaders of the alliance in the meeting where the present appellant (respondent in the election petition) and all other candidates of Shiv Sena-BJP alliance were present. Thereafter, in paragraphs 23 and 27, there is only a general averment that the appeal made by Bal Thaceray and other leaders to the voters was with the consent of the appellant (respondent in the election petition). No fact other averment of personal presence of the appellant was pleaded to make out the consent of the appellant required for constituting the corrupt practice. As earlier indicated, the High Court has held that the presence of the appellant at that meeting has not been proved. Thus, the only basis for pleading and attempting to prove the appellant's consent to the making of those speeches in the meeting held on 24.02.1990 has been held to be not proved. There is thus no foundation even for a tentative finding of any corrupt practice on the basis of speeches alleged to have been made by Bal Thakeray and some other leaders in this case against the present appellant, inasmuch as a necessary ingredient of the corrupt practice, i.e., consent of the appellant has been found to be not proved. There being not even a tentative basis to hold the charge of this corrupt practice proved against the appellant, the further question of invoking Section 99 to name any other person for the commission of that corrupt practice along with the returned candidate does not arise.
52. With regard to the submission that consent has not even been pleaded, the learned Counsel for the applicant/respondent placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Azhar Hussain v. Rajiv Gandhi (supra), more particularly para Nos. 21 and 22, wherein the Hon'ble Supreme Court has held as under:
21. There is a glaring omission to mention the names of the workers said to have been employed by the respondent or his agents who have allegedly painted the slogans. So also no material particulars are given as regards the vehicles on which the saids slogans have been said to have been painted. There are no material particulars or facts. We are of the view that inasmuch as the material facts and particulars in regard to this alleged practice were not mentioned the High Court was justified in taking the view that it has taken. The averments contained in regard to this charge also do not satisfy the test laid down by the various decisions of this Court adverted herein above. A Division Bench of this Court in Nihal Singh v. Rao Birendra Singh speaking through Bhargava, J., has observed:
The pleading was so vague that it left a wide scope to the appellant to adduce evidence in respect of a meeting at any place on any date that he found convenient or for which he could procure witnesses. The pleading, in fact, was so vague and was wanting in essential particulars that no evidence should have been permitted by the High Court on this point.
22. The principle laid down is that the pleading in regard to matters where there is scope for ascribing an alleged corrupt practice to a returned candidate in the context of a meeting of which dates and particulars are not given would tantamount to failure to incorporate the essential particulars and that inasmuch as there was a possibility that witnesses could be procured in the context of a meeting at a place or date convenient for adducing evidence, the High Court should not even have permitted evidence on that point. In other words, no amount of evidence could cure the basis defect in the pleading and the pleading as it stood must be construed as one disclosing no cause of action. In the light of the aforesaid principle laid down by the Supreme Court which has held for more than 15 years, the High Court was perfectly justified in reaching the conclusion called into question by the appellant.
53. Learned Counsel for the applicant/respondent further submits that there is no pleading to make out complete cause of action and in support of his submissions he referred the judgment of the Hon'ble Supreme Court rendered in the case of T.H. Musthaffa v. M.P. Verghese And Ors. , wherein in para Nos. 4 and 10, the Hon'ble Supreme Court has observed as under:
4. On these pleadings 17 issues have been raised. As regards Issues 1, 2, 3, 4 and 5 pertaining to preliminary points raised by Respondent 1, the High Court held that the election petition was not liable to be rejected for non-compliance with Section 86(1) of the RP Act and the parties were directed to go for trial.
10. The pleading raised in the case does not refer to either Rule 39 or Rule 56 of the rules much less to the Pamphlet Showing Illustrative Cases of Valid and Invalid Postal and Ordinary Ballot Papers issued by the Election Commission of India, nor are any specific allegations found in the case. The allegation made in the course of the petition is that there is wrong acceptance of invalid votes polled for Respondent 1. It is not made clear as to how many votes are liable to be rejected for using wrong instrument by the voters for expressing their preference. There is no further indication as to how many of such votes had been polled in favour of Respondent 1 so as to materially affect the result of the election. In the absence of such plea the learned Judge could not have granted the relief of recount. Therefore, the view taken by the High Court that the pleadings are insufficient to order re-count is perfectly in order. So far as the evidence that had been adduced in the case is concerned, it need not have been looked at by the learned Judge in the absence of appropriate pleadings in that regard. However Shri E.M.S. Anam, the learned Counsel for the appellant submitted that the fact that votes in the two polling stations at Varikoli School and Puttannoor School had been cast by using wrong instrument was not in dispute and the evidence of the Returning Officer clearly indicated the use of the wrong instrument in the two polling stations which amounted to an admission in the case and, therefore, even in the absence of an appropriate pleading in that regard the evidence could be looked at. We fail to appreciate this argument. Unless the appellant had put forth his case in the pleading and the respondents are put on notice, the respondents cannot make an admission at all and there is no such admission in the course of the pleadings. If the pleadings did not contain the necessary foundation for raising an appropriate issue, the same cannot go to trial. Any amount of evidence in that regard, however, excellent the same may be, will be futile. Therefore, the learned Counsel is not justified in making the said submission and the same is rejected. The learned Judge noticed that the appellant, though had raised objection in this regard in the application for re-count, did not reiterate the same in second application much less any averment is made in the petition. The learned Judge held, in our view, rightly that there is no pleading in this regard and the evidence adduced cannot be looked into as no issue thereto arises.
54. The petitioner in the election petition failed to make out a case regarding improper reception of votes to the advantage of the applicant/respondent. Further it has not been averred that the alleged improper reception of votes have materially affected the result of the election whereby the petitioner was defeated by the applicant/respondent. The essential material facts for laying a challenge on improper reception of votes as alleged and its effect on outcome of the election is missing and consequently no cause of action is made out for entertaining the election petition.
55. Per contra, learned Counsel Mr. Lokesh Sharma, appearing for the petitioner in reply to the applications filed on behalf of the returned candidate respondent No. 1 Dushyant Singh under Order 7 Rule 11 and under Order 6 Rule 16 CPC, has submitted that the applicant/respondent No. 1 Shri Dushyant Singh has filed the aforesaid applications just only to delay the proceedings of the election petition and in fact such applications on his behalf are not likely to be entertained solely for the reasons that the applicant/respondent failed to file written statement within the time prescribed.
57. It is further contended that as alleged by the applicant/respondent in his application under Order 7 Rule 11 CPC that full particulars of corrupt practice, name of parties alleged to have committed such corrupt practice, date and place of commission of each such practice are not disclosed in the contents of the election petition and by virtue of the provisions contained in Section 83(1), the allegations of corrupt practice shall also be supported by an affidavit in the prescribed form, it is reiterated by the petitioner that a bare perusal of the contents of the election petition would reveal that the allegations levelled against the applicant/respondent Dushyant Singh, his mother and his election agents are specific and looking to the allegations, prima-facie it is established that the action of these persons is corrupt practice as defined in Section 123 of the Act of 1951.
58. It is specifically contended on behalf of the petitioner that all the complaints which are annexed with the present election petition as Annexure-3, 4 and 5 discloses the allegations as alleged by the petitioner in the election petition. The complaints Annexure-3 dated 02.05.2004, Annexure-4 dated 06.05.2004 and Annexure-5 dated 11.05.2004 which are annexed with the election petition and are part and parcel of the election petition, clearly discloses the fact that on 05.05.2004 the persons named in the complaint those who belong to Bhartiya Janta Party viz. Jagannath Verma, Ram Gopal Verma and others illegally captured the various polling booths and casted votes and such illegality was committed by them at village Beragarh, Amarpura and at other polling booths mentioned in the complaint Annexure-4 dated 06.05.2004 and the other allegations of adopting unfair means are also contended in the subsequent complaint Annexure-5 dated 11.05.2004. Even in the contents of para 4 of the election petition, it is specifically mentioned that the Hon'ble Chief Minister of the State of Rajasthan who herself was monitoring the illegal activities and the authorities those who issued forged identification certificates to the forged voters and the details regarding the persons those who committed such offence and were accompanied with Jagannath Verma and his son Anil Verma as well as Ex-Sarpanch Shri Kalu Lal Verma, is also mentioned.
59. By referring Annexures 7, 8, 9, 10 and 11 and the complaints filed along with the election petitioner, the learned Counsel for the petitioner submits that in the facts and circumstances of the case, it is wrong on the part of the applicant/respondent to say that the election petition filed by the petitioner does not satisfy the requirement of the statutory provisions, on the contrary, the election petition and the grounds raised therein are disclosing the cause of action and are in accordance with the provisions contained in the Act and, therefore, the application filed under Order 7 Rule 11 CPC deserves to be rejected.
60. In reply to the maintainability of the application under Order 6 Rule 16 CPC, the learned Counsel for the petitioner submits that since all the allegations levelled in para Nos. 2, 3, 4, 6, 7 and 8 are supported by the documentary proof which is available on record as the copies of all the complaints and allegations are enclosed here along with the election petition and all these annexures and documents are part and parcel of the election petition, the application filed under Order 6 Rule 16 CPC also deserves to be rejected with exemplary cost.
61. I have heard rival submissions of the respective parties, carefully gone through the averments made in the applications filed on behalf of the returned candidate respondent No. 1 under Order 6 Rule 16 CPC and under Order 7 Rule 11 CPC and perused the relevant provisions of the Representation of the People Act, 1951 as also the provisions of the Code of Civil Procedure. I have carefully also gone through the judgments referred by the learned Counsel for the applicant/respondent in support of his submissions.
62. Vide application under Order 6 Rule 16 CPC moved on behalf of the returned candidate applicant/respondent No. 1 Shri Dushyant Singh, it has been prayed that offending portion in paragraphs 2, 3, 3(1), 3(2), 3(3), 3(4), 3(5), 4, 5, 6, 7 and 8 of the election petition may kindly be struck out.
63. Further vide application under Order 7 Rule 11 CPC, the applicant/respondent has prayed for rejection of the election petition.
64. The provisions of Order 6 Rule 16 of the Code of Civil Procedure read as under:
16. Strikingout pleadings.- The Court may at any stage of the proceedings order to be struck out or amended 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.
65. As contended on behalf of the applicant/respondent that the averments made in the election petition particularly in paragraphs 2, 3, 3(1), 3(2), 3(3), 3(4), 3(5), 4, 6, 7 and 8 are unnecessary, scandalous, frivolous and vexatious and simply wants to prejudice and embarrass the applicant/respondent, his mother the Hon'ble Chief Minister of the State of Rajasthan, the agents of the applicant/respondent and the B.J.P. workers.
66. In para 2 of the election petition, as pointed out by the applicant/respondent, vague averments have been made that since so many complaints were made regarding corrupt practices adopted in the interest of the respondent No. 1 as well as regarding booth capturing at various places.
67. After referring the pleadings made in para 2 of the election petition, the election petitioner has not substantiated the allegations levelled against the returned candidate respondent No. 1 Shri Dushyant Singh, although the complaints which were sent by the petitioner are annexed here along with the election petition but the averments made in the complaints are not made part of the pleadings and not specifically pleaded as to what corrupt practices have been adopted in the interest of the returned candidate respondent No. 1.
69. It is also not disputed that on few of the complaints made by the petitioner as well as by others, the Election Commission of India after considering the same, ordered for re-polling on certain booths and after re-polling the petitioner has to plead specifically that even after repolling on certain booths, the allegations which are though not specifically made regarding corrupt practices still survives.
70. The petitioner merely alleged that during the course of canvassing of the returned candidate, the mother of the returned candidate, Hon'ble the Chief Minister of the State of Rajasthan threatened the voters but these allegations also not substantiated and the details of allegation is missing in the election petition.
71. Thus, as per the ratio decided by the Hon'ble Supreme Court in the case of Daulat Ram Chauhan v. Anand Sharma (supra), in order to constitute corrupt practices, the following necessary particulars, statement of facts and essential ingredients must be contained in the pleadings:
(i) Direct and detailed nature of corrupt practice as defined in the Act;
(ii) Details of every important particular must be stated giving the time, place, names of persons, use of words and expression etc.;
(iii) It must clearly appear from the allegations that the corrupt practices alleged were indulged in by (a) the candidate himself (b) his authorized election agent or any other person with this express or implied consent.
72. Admittedly, as per the ratio decided by the Hon'ble Supreme Court, the petitioner is not able to make out a case of corrupt practice in his pleadings and the necessary particulars, statement of facts and essential ingredients are missing and simple allegations of corrupt practices is not sustainable in the eye of law.
73. Section 100 of the Representation of the People Act, 1951 speaks about grounds for declaring election to be void and the election of returned candidate can only be declared void if (a) on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act; or (b) any corrupt practice has been committed by a returned candidate, or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) any nomination has been improperly rejected; or (d) the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate (by an agent other than his election agent), or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or order made under this Act.
74. As discussed herein above, while dealing with the corrupt practices, the petitioner is not able to make out his case of corrupt practice as pleaded in the election petition and the ingredients of corrupt practice is missing in the election petition for want of details of corrupt practices giving time, place, names of persons, use of words and expression etc. Thus, the ground which is available to the petitioner under Section 100 of the Act of 1951, is not available as held by the Hon'ble Supreme Court in the case of F.A. Sapa v. Singora (supra), as the Hon'ble Supreme Court in this case has held that while there is sufficient justification for the law to be harsh with those who indulge in such practices, there is also the need to ensure that such allegations are made with a sense of responsibility and concern and not merely to vex the returned candidate. It is with this in view that the law envisages that the particulars of such allegations shall be set out fully disclosing the name of the party responsible for the same and the date and place, of its commission. A simple verification was considered insufficient and, therefore, the need for an affidavit in the prescribed form.
75. In the instant case, the averments made in the election petition are not supported by an affidavit in the prescribed form as per the requirements of Section 83 of the Act of 1951, which provides that 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 for the verification of the 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 as prescribed under Rule 94-A of the Conduct of Election Rules, 1961 in the format provided for in Form 25 of the forms appended to the Rules of 1961.
76. Admittedly, in the instant case such affidavit has not been submitted by the petitioner in support of the averments made in the election petition in the prescribed form as prescribed under Rule 94-A of the Conduct of Election Rules, 1961 in the format provided for in Form 25.
77. Further as per Section 86 (Trial of election petitions) of the Representation of the People Act, 1951, in case the election petition does not comply with the provisions of Section 81 or Section 82 or Section 117, the High Court shall dismiss the same without proceeding with the trial of the election petition.
78. The Hon'ble Supreme Court in the case of Azhar Hussain v. Rajiv Gandhi (supra), has held that 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.
79. It has been further observed that 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 particulars.
80. In the instant election petition, no time, date and place of the speeches delivered by the respondent have been mentioned. No exact extracts from the speeches are quoted. Nor have the material facts showing that such statement imputed to the respondent were indeed made been stated. No allegation is made to the effect that it was in order to prejudice the election of any candidate. Or in order to further the prospects of the election of the respondent. The essential ingredients of the alleged corrupt practice have thus not been spelled out in view of the ratio decided by the Hon'ble Supreme Court in the case of Azhar Hussain v. Rajiv Gandhi (supra).
81. Similar view has been taken by the Hon'ble Supreme Court in the case of Hardwari Lal v. Kanwal Singh (supra), wherein the Hon'ble Supreme Court considered the decision rendered in Samant N. Balakrishna etc. v. George Fernandes and Ors. etc., wherein reference was made to Sections 81, 83 and 86 of the Act as the procedure provisions of election petition. Section 81 deals with presentation of petitions. Section 83 deals with contents of petitions. Section 86 deals with trial of petitions. Hidayatulla, C.J., speaking for the court laid down these propositions. First Section 83 of the Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. Second omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet. Fourth, material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of person with the date, time and place. Fifth, material facts will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. Sixth, in stating the material facts it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice must be correlated to one of the heads of corrupt practice. Seventh, an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless the exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further the prospects of the election are alleged as statements of facts.
82. In the considered view of this Court and in view of the ratio decided by the Hon'ble Supreme Court, as set out in the application under Order 7 Rule 11 CPC filed on behalf of the returned candidate respondent No. 1 Dushyant Singh, material facts and particulars have not been pleaded in the election petition and thus, no cause of action is made out. Even otherwise, the election petition is liable to be rejected for an ex-facie noncompliance with the proviso to Sub-section (1) of Section 83 of the Act of 1951 inasmuch as the petition has not been accompanied by an affidavit prescribed under Rule 94-A of the Conduct of Election Rules, 1961 (for short 'the Rules of 1961') in the format provided for in form 25 of the forms appended to the Rules of 1961. An affidavit in Form 25 under Rule 94-A of the Election Rules relating to the proviso to 83(1) of the Act of 1951 is an integral part of the election petition and non compliance with the mandatory requirement of an affidavit in Form 25 where corrupt practice is alleged tantamount to filing of an incomplete petition which entails complete absence of cause of action.
83. Hon'ble the Supreme Court in the case of Ravinder Singh v. Janmeja Singh (supra), has observed that Section 83 of the Act is mandatory in character and requires not only a concise statement of material facts and full particulars of the alleged corrupt practice, so as to present a full and complete picture of the action to be detailed in the election petition but under the proviso to Section 83(1) of the Act, the election petition leveling a charge of corrupt practice is required by law, to be supported by an affidavit in which the election petitioner is obliged to disclose his source of information in respect of the commission of that corrupt practice. The reasons for this insistence is obvious. It is necessary for an election petitioner to make such a charge with full responsibility and to prevent any fishing and roving inquiry and see the returned candidate from being taken by surprise. In the absence of proper affidavit, in the prescribed form, filed in support of the corrupt practices of the bribery, the allegation pertaining thereto could not be put to trial the defect being fatal in nature.
84. Since the present election petition has not been supported by an affidavit in prescribed form, the same suffers from fatal defect in view of the ratio decided by the Hon'ble Supreme Court in the case of Ravinder Singh v. Janmeja Singh (supra).
85. Further the Hon'ble Supreme Court in the case of Moreshwar Save v. Dwarkadas Yashwantrao Pathrikar (supra), has held that there is no clear pleading or finding of the appellant's consent which is a constituent part of the corrupt practice resulting from an act of any person other than the candidate or his agent. This alone would indicate the absence of one of the constituent parts of the alleged corrupt practice.
87. Similar view has been taken by the Hon'ble Supreme Court in the case of Ramakant Mayekar v. Celine D'Silva (supra), wherein it has been observed that there is thus no foundation even for a tentative finding of any corrupt practice on the basis of speeches alleged to have been made by Bal Thakeray and some other leaders in this case against the present appellant, inasmuch as a necessary ingredient of the corrupt practice, i.e., consent of the appellant has been found to be not proved.
88. In view of the ratio decided by the Hon'ble Supreme Court in the various judgments referred herein above, the pleadings are so vague and are wanting in essential particulars that no evidence should have been permitted. In other words, no amount of evidence could cure the basis defect in the pleading and the pleading as it stood must be construed as one disclosing no cause of action.
89. A bare perusal of the election petition would reveal that in para 3 inclusive of sub-paragraphs (1), (2), (3), (4), (5) and para 4, 5, 6 and 8 of the election petition corrupt practice is alleged such as misuse of government machinery, threat to voters and government employees, booth capturing, undue influence and threating and bearing of Election Officers, but the election petitioner has utterly failed to substantiate the allegations that in what manner the government machinery was misused nor it has been alleged that such misuse of government machinery was attributable to the respondent, his election agent or was consequent to his consent.
90. It is also not averred as to which voter or government employees were threatened and by whom such threat was given out. Similarly with regard to the allegation of booth capturing, it has not been averred as to who were the persons allegedly capturing the booths and if at all true, at whose instance the booths were captured and merely because the mother of the returned candidate happens to be the Chief Minister of the State of Rajasthan, it is alleged that she must have undue influenced the voters and used government machinery.
91. It has also not been pleaded in the election petition that because of the alleged corrupt practices, the result of the election has been materially affected to the advantage of the applicant/respondent. Therefore, in absence of such requisite pleadings, the election petition does not make out any triable issue and is liable to be dismissed in view of the ratio decided by the Hon'ble Supreme Court in the case of T.H. Musthaffa v. M.P. Varghese (supra).
92. Further as alleged in the election petition regarding improper reception of votes to the advantage of the applicant/respondent, it has not been averred that the alleged improper reception of votes materially affected the result of the election by which the petitioner was defeated by there turned candidate applicant/respondent No. 1. The essential material facts for laying a challenge on improper reception of votes as alleged and its effect on the outcome of the election is missing and consequently, no cause of action is made out for entertaining the present election petition.
94. For the purpose of deciding the applications filed under Order 6 Rule 16 and under Order 7 Rule 11 CPC on behalf of the returned candidate respondent No. 1 and the preliminary objections as pointed by the learned Counsel appearing for the applicant/respondent, the content of petition requires consideration whether the contents of the petition are in accordance with Section 83 of the Representation of the People Act, 1951 or not. As evident by the perusal of Section 83, the election petition shall contain a concise statement of the material facts on which the petitioner relies.
95. As discussed herein above, the election petition does not contain a concise statement of the material facts and as per the ratio decided by the Hon'ble Supreme Court, in absence of essential material facts laying a challenge on various counts, the cause of action is not made out by the petitioner.
96. In the considered view of this Court, the application under Order 6 Rule 16 CPC to which the petitioner opted not to file reply and only advanced legal submissions and has not referred any judgment in support of his submissions, as discussed herein above, the petitioner has utterly failed to substantiate the averments made in the offending portion in paragraphs 2, 3, 3(1), 3(2), 3(3), 3(4), 3(5), 4, 6, 7 and 8 of the election petition and, therefore, the offending portion in the aforesaid paragraphs stands struck out.
97. Since the election petitioner has not alternatively prayed for amendment in the election petition, in such circumstances, no direction with regard to amendment in the election petition is required to be issued and, therefore, the application under Order 6 Rule 16 CPC stands allowed accordingly.
98. This Court has also thoroughly considered the averments made in the application under Order 7 Rule 11 CPC filed on behalf of the returned candidate respondent No. 1 Shri Dushyant Singh. As discussed herein above, since the petitioner has utterly failed to disclose prima-facie triable issue and is not able to make out any cause of action by way of pleadings from the pleadings made in the election petition and in absence of material facts no cause of action is made out which is essentially required as per the mandatory provisions of Sections 100 and 83(1)(b) and other provisions of the of the Representation of the People Act, 1951 as well as the provisions of the Code of Civil Procedure, the application under Order 7 Rule 11 CPC also deserves to be allowed and the same is hereby allowed.
99. Since both the application are application under Order 6 Rule 16 CPC and the application order Order 7 Rule 11 CPC filed on behalf of the returned candidate are allowed by this Court and the election petitioner is not able to make out his case as no cause of action is made available to the petitioner and having not complied with the mandatory provisions of the Representation of the People Act, 1951 and as the petitioner utterly failed to formulate the grounds as per the requirement of the Representation of the People Act, 1951, the election petition deserves to be dismissed being devoid of merit.
100. In the result, the present election petition filed by petitioner Sanjay Gurjar is dismissed.