Madhya Pradesh High Court
Sushil Kumar Khatri vs Sartaj Singh on 11 August, 2009
Reported in 2010 ILR M.P. 204
HIGH COURT OF MADHYA PRADESH : JABALPUR
Election Petition No. 13/2009
Shushil Kumar Khatri, aged about 47 years,
son of Ravindra Kumar Khatri,
Resident of Ward No.6, Nehru Ward,
Seoni Malwa, Tahsil - Seoni Malwa
Distt. Hoshangabad .........Petitioner
vs.
Sartaj Singh, son of Avtar Singh Chhatwal,
Resident of Ward No.28, Soorajganj, Itarsi,
Distt. Hoshangabad
(Returned candidate from Legislative Assembly
Constituency No.136, Seoni Malwa,
Distt. Hoshangabad) .........Respondent
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Shri A.K. Tiwari, Advocate for the petitioner.
Shri Arpan J. Pawar with Shri A.P. Singh, Advocates for the
respondent.
ORDER
(11/08/09) This order shall govern disposal of I.A. No.49/2009 that is an application, under Section 86 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act') read with Order VII Rule 11 of the Code of Civil Procedure (for brevity 'the Code'), for rejection of the election petition inter alia on the ground of non-disclosure of cause of action or a triable issue.
2. In this petition, election of the respondent to M.P. Legislative Assembly Constituency No.136 Seoni-Malwa has been challenged solely on the ground of corrupt practices. In the election, the petitioner was in the fray as an independent candidate whereas the respondent was the official candidate of Bhatriya Janta Party, the then ruling political party in the State.
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Election Petition No.13/2009
3. The prayer for rejection of the petition even without entering into a full-dress trial has been made on the following grounds -
(i) The petitioner has failed to comply with the mandatory requirement of Section 81(3) of the Act.
(ii) The annexures, incorporated in and thus forming integral part of the election petition, have not been verified in accordance with Section 83(2) of the Act and further, there is absolutely no verification of annexures/ documents at page nos.22-A and 24-A of the election petition.
(iii) The affidavit filed by the petitioner in support of the corrupt practices alleged in the election petition, is not in Form 25 (as prescribed under Rule 94-A appended to the Conduct of the Election Rules, 1961). The affidavit is vague, ambiguous and self-contradictory.
(iv) There is a total non-compliance of the mandatory provisions contained in Section 83(1)(a) and (b) of the Act as the petitioner has not pleaded the material facts in the election petition and has also failed to give full particulars of the alleged corrupt practices.
4. In a very short reply, the petitioner has termed the preliminary objections as misconceived. According to him, he has clearly and specifically pleaded the material facts regarding the corrupt practices allegedly committed by the respondent and has also duly complied with the provisions of the Act and rules made thereunder regulating procedure for (a) calling an election in question on the ground of corrupt practices (b) furnishing of true copies of the petition and schedules/annexures thereto and verification thereof.
5. In order to appraise the merits of rival contentions in a right perspective, it would be desirable to deal the grounds as raised in the :: 3 ::
Election Petition No.13/2009 I.A., ad seriatim -
Ground No. (i)
6. According to the respondent, since the copy of election petition served upon him is not attested as "true copy of the petition", the signature of the petitioner thereon, even though duly attested by notary, would not be sufficient to cure the defect.
7. It is true that sub-section (3) of Section 81 of the Act mandates that every copy of the election petition shall be attested by the petitioner under his own signature to be a true copy of the petition but the report of the Registry raises a presumption, though rebuttable, that the copy of the petition as filed by the petitioner was a true copy (Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar (2005) 2 SCC 188 referred to). In that case, the following observations made by the Constitution Bench in T.M. Jacob v. C. Poulose (1999) 4 SCC 274 were quoted -
"(a) the expression 'copy' in Section 81(3) of the Act means a copy which is substantially the same as the original, variation if any from the original should not be vital in nature or should not be such that can possibly mislead a reasonable person in meeting the allegation; (b) if the copy differs in material particulars from the original the same cannot be cured after the period of limitation."
8. Accordingly, any defect of whatever nature in the true copy supplied to the respondent would not entail outright rejection of an election petition. The main consideration, which would weigh, is that the returned candidate must get a correct idea of the allegations of corrupt practices so that it may be possible to understand and meet the charges levelled against him.
9. Since the defect, as pointed out by the respondent, can be dealt with under the doctrine of curability, it can not render the petition liable to be dismissed under Section 86 of the Act.
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Election Petition No.13/2009 Ground No. (ii)
10. The relevant provisions of law existing in the form of Section 83(2) of the Act, may be reproduced as under -
83. Contents of petition.
(1) .........
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same matter as the petition.
11. A bare perusal of the record would reveal that all the six annexures referred to in the petition have been duly verified and the documents at page nos.22-A and 24-A of the election petition are, in fact, typed copies of annexures P-4 and P-5 respectively. This apart, none of the annexures forms an integral part of the election petition as contents thereof have already been pleaded in the election petition. They have been merely appended or referred to as a possible means of proving the corresponding averments. In this view of the matter, the objection as to non-compliance with S.83(2) read with 81(3) of the Act is also devoid of substance (Sahodrabai v. Ram Singh Aharwar AIR 1968 SC 1079 relied on).
Ground Nos.(iii) and (iv)
12. To substantiate the contention that the petition neither contains a complete statement of material facts raising a cause of action nor comprises full particulars of the alleged corrupt practices, learned counsel for the respondent has made extensive reference to averments made in paragraphs 6 to 21 of the petition. He has further pointed out that express consent of the respondent or his election agent to such practices has not been pleaded at all. This apart, validity of the corresponding affidavit has also been questioned on the ground that a definite source in respect of each one of the corrupt practices has not been disclosed. To buttress the contentions, reliance :: 5 ::
Election Petition No.13/2009 has been placed on the following precedents -
(i) F.A. Sapa v. Singora (1991) 3 SCC 375. (ii) R.P. Moidutty v. P. T. Kunju Mohd. (2001) 1 SCC 481. (iii) V. Narayanaswamy v. C. P. Thirunavukkarasu AIR 2000 SC 694. (iv) Ravinder Singh v. Janmeja Singh (2000) 8 SCC 191. (v) Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi 1987 (Supp.) SCC 93. (vi) Kankar Munjare v. Gaurishankar 2008 (1) MPLJ 418.
13. In response, learned counsel for the petitioner has submitted that the pleadings are complete in all respects and the affidavit also substantially fulfills the requirements of proviso to sub-section (1) of S.83 and Form 25. Moreover, he is of the view that even if it is assumed that the pleadings or the contents of the affidavit suffer from any deficiency, the election petition cannot be dismissed in limine. In support of the contention, he has placed reliance on the decision of the Apex Court in Bidesh Singh v. Madhu Singh (2003) 7 Supreme 453.
14. Before proceeding further, it would be necessary to advert to the following averments made in paragraphs 13 to 21 of the petition under caption 'Corrupt Practices adopted by the respondent' -
(A) That, since the respondent was the candidate of ruling party of the State (Bhartiya Janta Party) the government machineries has given the entire illegal support and illegal influence on the voters by creating all sorts of obstruction in the election of the petitioner. The complaints have been made but no action has been taken by the competent authority, they are State Election Commission and Chief Election Officer concern and therefore the petitioner has been defeated and the respondent has been declared the successful candidate from :: 6 ::
Election Petition No.13/2009 constituency No.136, Seoni Malwa, District Hoshangabad, M.P. (B) That, the respondent being a candidate of ruling party the complaints made by the petitioner regarding corrupt practices of the respondent during election have been ignored like a cry in the forest. It is further respectfully submitted that unfortunately all the officers were working under the control and instructions of the government machineries to create obstacle and to create fear among the voters an any how to support the respondent who was the then member of parliament and was contesting the election for member of legislative assembly and that was only the reason as to why the petitioner could not secured the maximum votes and the respondents under the facility and influence of the government machinery has been declared successful. (C) That, it is very respectfully submitted that the petitioner has been victimized, contrary to the provisions of law which is clear from the visit of Hon'ble the Chief Minister of the State (Head of the ruling party) and the other ministers who visited Seoni Malwa constituency No.136, District Hoshangabad, M.P. and taking meeting undue influence has been left on the voters declaring and giving assurance to do all the better and best for the public, the ruling party will not left any thing but vote for respondent Shri Sartaj Singh and this has also badly effected the election and due to the corrupt practices of the ruling party the petitioner has been defeated which has also made the entire election of constituency No.136, Seoni Malwa, District Hoshangabad, M.P. liable to be set aside. (D) That, under the shed of ceremony either birth ceremony or the others the peoples have been gathered and unduly influenced by the respondent and so also by the government machineries which has also adversely effected the election of the petitioner.
(E) That, it is further respectfully submitted that the voter list was prepared according to the pleasure of the respondent and thereby actual voters have been removed from the list and false voters and dead voters have been shown in the voter list which has also created the obstacle and there being no proper voting the election has been effected.
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Election Petition No.13/2009 (F) That, since the model code of conduct was application during the election, when only rally and election meeting could have been arranged but big functions have been arranged for the different caste of peoples and in order to please the voters belonging to different caste the distribution of material according to their choice, distribution of wine through government machinery and creating undue influence has been left to caste their votes in favour of the respondent therefore also the election has become illegal and due to undue influence it has become liable to be declared null and void and is liable to be set aside.
(G) That, since the government vehicles were used to bring the peoples from various places on those vehicles and transportation was sponsored by Bhartiya Janta Party which is clearly violative of model code of conduct and made the entire election liable to be set aside.
(H) It is clear that the respondent was involved in all such corrupt practices and such action was only for the pleasure of the respondent which is apparently violative of the provisions of Representation of People Act and by such act the election of the petitioner was badly effected. (I) That, it is clear that at the polling booth such a situation was created and therefore free and fare election was not held and the voters have been influenced by the over power due to workers engaged by the respondent and due to this illegal activities the election of the petitioner has been effected and the petitioner has lost the election and the respondent secured the maximum vote by adopting the corrupt practices. If these corrupt practices would not have been adopted by the respondents the petitioner would have secured the maximum vote and would have been declared successful by the majority votes.
15. At this juncture, let it be made clear that the Model Code only lays down how the political parties, contesting candidates and party in power should conduct themselves during the process of elections. It contains guidelines for their general conduct, electioneering, holding meetings and processions, poll day activities and functioning of the :: 8 ::
Election Petition No.13/2009 party in power etc. However, as rightly pointed out by learned counsel for the respondent, any violation of the Model Code could only give rise to an election offence. In other words, violation of the Model Code can not be treated as ground for declaration of an election as void (See. Bashiruddin Halhipparga v. Rajashekhar Basavaraj Patil AIR 2004 Karnataka 471).
16. A plain reading of the relevant provisions, as contained in clauses (a) and (b) of sub-section (1) of Section 83 of the Act, would clearly suggest that pleadings in an election petition, particularly one alleging corrupt practices are undoubtedly of paramount importance as they play large part in adjudication thereof. As explained in F.A. Sapa's case (supra) -
"Section 83(1)(a) stipulates that every election petition shall contain a concise statement of the 'material facts' on which the petitioner relies. That means the entire bundle of facts which would constitute a complete cause of action must be concisely stated in an election petition. Section 83(1)(b) next requires an election petitioner to set forth full particulars of any corrupt practice alleged against a returned candidate. These 'particulars' are obviously different from the 'material facts' on which the petition is founded and are intended to afford to the returned candidate an adequate opportunity to effectively meet with such an allegation. The underlying idea in requiring the election petitioner to set out in a concise manner all the 'material facts' as well as the 'full particulars', where commission of corrupt practice is complained of, is to delineate, the scope, ambit and limits of the inquiry at the trial of the election petition."
17. The expression 'material facts' has neither been defined in the Act nor in the Code. According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic', 'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or 'primary' (Harkirat Singh v. Amarinder Singh AIR 2006 SC 713 referred :: 9 ::
Election Petition No.13/2009 to). Accordingly, material facts are facts which if established would give the petitioner the relief asked for even if the respondent had not appeared.
18. In a catena of earlier cases also, the Supreme Court had occasion to explain true nature of the requirements of pleadings as contemplated under S.83 and consequences of non-compliance therewith. Hence, it is not essential to burden this judgment with various authorities on the point. Suffice, however, to refer to the following guiding principles formulated in Samant N. Balakrishna v. George Fernandez AIR 1969 SC 1201 -
"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 persons 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 stated and the fact must be correlated to one of the heads of corrupt practice, and, 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.
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Election Petition No.13/2009
19. However, a reasonable cause of action is said to mean a cause of action with some chance of success when only the allegations in the pleading are considered. As explained further in Mohan Rawale v. Damodar Tatyaba 1994 AIR SCW 2028, the distinctions among the ideas of the "grounds" in S.81(1) of "material facts" in Section 83(1)(a) and of "full particulars" in S.83(1)(b) are obvious. The provisions of S.83(1)(a) and (b) are in the familiar pattern of Order VI, Rules 2 and 4 and Order 7, Rule 1(e) of the Code. Further, the distinction between 'Material facts' and 'particulars' which together constitute the facts to be proved or the 'facta probanda' on the one hand and the evidence by which those facts are to be proved facta probantia on the other must be kept clearly distinguished. Thus, disclosure of cause of action is distinct from absence of material particulars. However, in a petition like one under consideration, the statement of material facts as well as full particulars must be so complete as to raise a cause of action or a triable issue.
20. The decision in Bidesh Singh's case (supra) is of no avail to the petitioner because firstly in that case the election petition was based on improper rejection of ballot papers and secondly it was not a case where the respondent had contended that the allegations made in the election petition were vague or causing prejudice to him. In a petition on the allegation of corrupt practices cause of action cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based on the allegations of corrupt practices. A petition challenging election on the ground of corrupt practices is a serious matter in view of the fact that in case, any such practice is proved, returned candidate would not only suffer ignominy but also disqualification under S.8A of the Act.
21. As observed by the Apex Court in R.P. Moidutty's case (above), the legislature has taken extra care to make special provision for pleadings in an election petition alleging corrupt practice. Under :: 11 ::
Election Petition No.13/2009 Section 83 of the Act ordinarily it would suffice if the election petition contains a concise statement of the material facts relied on by the petitioner, but in the case of corrupt practice the election petition must set forth full particulars thereof including as full a statement as possible of (i) the names of the parties alleged to have committed such corrupt practice, (ii) the date, and (iii) place of the commission of each such practice. An election petition is required to be signed and verified in the same manner as is laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. However, if the petition alleges any corrupt practice then the petition has additionally to be accompanied by an affidavit in Form No. 25 prescribed by Rule 94A of the Conduct of Elections Rules, 1961 in support of the allegations of such corrupt practice and the particulars thereof. Thus, an election petition alleging commission of corrupt practice has to satisfy some additional requirements, mandatory in nature, in the matter of raising of the pleadings and verifying the averments at the stage of filing of the election petition and then in the matter of discharging the onus of proof at the stage of the trial.
22. However, a bare reading of the pleadings would suggest that the petitioner has utterly failed to fulfill the statutorily mandatory additional requirements while pleading as well as verifying the averments relating to the corrupt practices. Strangely enough, even the material facts as to the consent of the returned candidate or his election agent to the commission of any one of the alleged corrupt practices have not been pleaded at all. Apparently, the petitioner has not been able to point out as to who were involved in the corrupt practices, at what point of time and to what extent. Further, what was the actual mode and measure of the alleged misuse of the Government machinery, who had brought the undue influence upon the voter, who had distributed the liquor, are some of the pertinent questions that had remained unanswered. Moreover, in the light of :: 12 ::
Election Petition No.13/2009 decision in Dhartipakar's case (above), allegations as to statement of promise by the Chief Minister that if the respondent was elected, constituency would be developed did not constitute corrupt practice of bribery or undue influence and in absence of pleadings regarding all the three ingredients, corrupt practice of procuring or hiring of vehicles was not made out. This apart, the affidavit also does not contain particulars as prescribed by the Rules, and the verification of the pleadings has not been done strictly in accordance with Order VI Rule 15(2) of the Code. For this, reference may be made to para 3 of the verification clause reads as under -
VERIFICATION
3. The contents of paras 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 are based on personal knowledge, documentary evidence received, believed to be true and produced with the petition as also the information from reliable sources, election agents of the petition and legal advise given by the counsel of the petitioner."
23. There can not be any conflict with the well-settled proposition as re-affirmed in F.A. Sapa's case (supra) that the defects in the verification and the affidavit are curable subject to limitation that any material fact, not pleaded earlier can not be brought on record, after expiry of the prescribed period of limitation. For a ready reference, the relevant observations may be reproduced thus -
"From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges (i) a defect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and (iv) the defect in the affidavit in the prescribed Form 25 can :: 13 ::
Election Petition No.13/2009 be cured unless the affidavit forms an integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, under Section 81(3) as indicated earlier.
24. But, fact of the matter is that even after being apprised of the apparent defects, the petitioner has justified his casual approach by asserting that both the verification and the affidavit substantially fulfill the legal requirements. However, as observed in R.P. Moidutty's case, there is gulf of difference between a curable defect and a defect continuing in the verification clause or affidavit without any effort being made to cure the defect. It is necessary for an election petitioner to make a charge of corrupt practice with full responsibility and to prevent any fishing and roving enquiry. In the absence of proper affidavit, disclosing the source of information in respect of the commission of the corrupt practices, the allegations pertaining thereto, could not be put to trial - the defect being of a fatal nature [See Ravindra Singh's case (above)].
25. In this view of the matter, the contention that a petition not fulfilling the requirements of Section 83(1) can not be rejected at the threshold is apparently misconceived as by virtue of S.87 of the Act, it is to be tried in accordance with the procedure applicable under the Code, to the trial of suits. The well-settled principles of law on the point as re-affirmed by a three Judge Bench of the Supreme Court in V. Narayanaswamy's case (supra) may be extracted as under -
• For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such.
• Sections 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme.
• "Material facts" mean the entire bundle of facts, :: 14 ::
Election Petition No.13/2009 which would constitute a complete cause of action and these must be concisely stated in the election petition, i.e., clause (a) of sub-section (1) of Section 83. Then under clause (b) of sub- section (1) of Section 83 the election petition must contain full particulars of any corrupt practice.
• A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true.
• To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the Court to draw inference by adopting an involved process of reasoning.
• Charge of corrupt practice being quasi-criminal in nature the Court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition.
• Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of the Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure.
26. Accordingly, in the case on hand, where neither the verification in the petition nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried at all. Taking note of these principles only, a co- ordinate Bench of this Court in Kankar Munjare's case (supra) had :: 15 ::
Election Petition No.13/2009 proceeded to reject an election petition suffering from similar defects.
27. In a democracy the mandate has sacrosanctity. It is to be respected and not lightly interfered with. When it is contended that the purity of electoral process has been polluted, weighty reasons must be shown and established. The onus on the election petitioner is heavy as he has to substantiate his case by making out a clear case for interference both in the pleadings and in the trial. Any casual, negligent or cavalier approach in such serious and sensitive matter involving great public importance cannot be countenanced or glossed over too liberally as for fun (Regu Mahesh Rao v. Rajendra Pratap Bhanj Dev AIR 2004 SC 38 referred to).
28. To sum up, the petition deserves to be rejected on the ground nos.(iii) and (iv) [above] as no issue can be raised for trial in absence of complete, precise and specific pleadings in respect of the alleged corrupt practices as well as that of the requisite affidavit in support of the allegations.
29. In the result, the petition stands rejected, under Order VII Rule 11(a) of the Code, for want of any cause of action. The parties shall bear their own costs.
30. A copy of this order be forwarded to the Election Commission as well as to the Speaker of the State Legislative Assembly.
Petition rejected.
(R.C. Mishra) JUDGE 11.08.2009