Bombay High Court
Shishupal Natthuji Patle vs Hazi Yaqoob & Others on 29 April, 2010
Author: A.H. Joshi
Bench: A.H. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Civil Application No. 837 of 2009
IN
Election Petition No. 3 of 2009
Shishupal Natthuji Patle
of Tumsar, Distt.
Bhandara. ig Versus
.... Petitioner.
Praful Manoharbhai Patel
of Gondia. .... Respondent.
*****
Mr. Ashutosh C. Dharmadhikari, Adv. with Advs. Mr.
Nitin Rode and Ms. Tripti Jhavar for Applicant-
respondent.
Mr. A.V. Bhide and Mrs. A.A. Bhide, Advs., for
Petitioner.
*****
CORAM : A.H. JOSHI, J.
Reserved on : 23rd April, 2010.
Pronounced on : 29th April, 2010.
JUDGMENT BELOW EXHS. 10,22 & 24 :
::: Downloaded on - 09/06/2013 15:54:22 ::: 21. In this Election Petition, the respondent has filed Written Statement and has raised objection to its maintainability on various grounds as narrated in Application [Exh.10]. Additional objections and grounds have been raised by filing another application [Exh.22].
These applications have been replied by filing a detailed reply.
The petitioner has filed application [Exh.24] for leave to cure certain defects in the Election Petition.
All these applications were heard together at length.
2. After perusal of pleadings and after hearing the learned Advocates, this Court had framed Issues at Exh.14, which are as follows:-
"(i) Whether the petition presented by the petitioner is liable to be dismissed under section 86 of the Representation of People Act, 1951 for non-compliance of the mandatory provisions of Section 81 (1) and 81 (3) of the said Act?
(ii) Whether the petition presented by the petitioner is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure as it does not comply with the mandatory provisions of Section 83 (1) (a) and (b) and 83 (2) of the Representation of People Act, 1951 and does not disclose any cause of action?
(ii-A) Whether pleadings contained in Paras 13 to 31 are liable to be struck off on the ground of non-disclosure of cause of action?
(iii) Whether the petitioner proves that the respondent has violated the provisions of Section 33A (1) (i) of the Representation of People Act, 1951?
::: Downloaded on - 09/06/2013 15:54:22 ::: 3(iv) If the answer to the issue No.3 is in affirmative what is the effect thereof and whether it has materially affected the result of the election?
(v) Whether the petitioner proves that the election of the respondent is liable to be declared as void by virtue of the provisions of Section 100 (1) (d) (i) and (iv) of the Representation of People Act, 1951?
(vi) Whether the petitioner proves that the respondent has substantially exceeded the limit of expenses set by Section 77 of the Representation of People Act, 1951?
(vii) Whether the petitioner proves that the Respondent has committed the corrupt practices as alleged in the petition?
(viii) Whether the petitioner proves that the result of the election has been materially affected due to the alleged corrupt practices?
(ix) Whether the petitioner proves that the election of the respondent is liable to be declared as void in terms of the provisions of Section 100 (1) (d) (ii) of the Representation of People Act, 1951?
(x) Whether the petitioner proves that there is a scope for manipulating and tampering with the Electronic Voting Machines?
(xi) Does the petitioner prove that the Returning Officer has breached the Statutory Rules and guidelines issued by the Election Commission regarding safety of the Electronic Voting Machines?
(xii) Does the petitioner prove that the alleged breach of the Rules and Regulations by the Returning Officer has materially affected the results of the election of the Respondent?
(xiii) Whether the petitioner proves that due to alleged violation of Statutory Rules and guidelines by the Returning Officer the election of Respondent is vitiated and whether the result of the election has been materially affected?
[Quoted from Exh.14 in the paper-book of Election Petition ::: Downloaded on - 09/06/2013 15:54:23 ::: 4 No. 3 of 2009].
3. After hearing the parties, Issue Nos. (i) and (ii) were re-casted at Exh.20. It was then directed that the Issue No. (ii) be tried as a Preliminary Issue. Even Issue No. (ii-A) framed in the midst of hearing on Preliminary Point is liable to be treated as a Preliminary Issue.
Parties are on agreement on the point that these Issues can be heard as Preliminary Issues.
4.
The hearing on Preliminary and in the midst of hearing, the returned candidate had Issue had commenced, filed application for raising additional submissions on Preliminary Point which too are replied and have been taken into consideration.
5. At the outset, it is necessary to mention that ground contained in para 9 of the petition pertaining to non-disclosure is not pressed.
6. The objections, which have been raised in the pleadings, applications and oral submissions of learned Adv. Mr. Dharmadhikari on which the respondent is seeking the dismissal of Election Petition on the threshold, can be condensed and summarized as follows:-
[a] The Election Petition does not contain material facts and particulars as regards the ground of corrupt practice on which ::: Downloaded on - 09/06/2013 15:54:23 ::: 5 the election is sought to be set aside.
[b] The corrupt practice in relation to exceeding the limit of election expenses is not described in accordance with law, namely material facts and particulars have not been pleaded.
[c] As the challenge to the result of election is based on allegation of corrupt practice, and for this ground, an Affidavit giving material particulars of corrupt practice is a mandatory requirement, accordingly.
which is not filed [d] The petitioner has not pleaded by giving material facts and has failed to plead as to how these corrupt practices have materially affected the result of election as regards the returned candidate.
[e] The Annexures to the Election Petition have not been verified in accordance with law.
[f] The copy of petition and each annexure thereof served on the returned candidate are not attested to be a 'true copy' as prescribed by Section 81 of the Representation of the People Act, 1951.
[g] The video cassette relied upon in the Election Petition is not made a part of ::: Downloaded on - 09/06/2013 15:54:23 ::: 6 Election Petition, and is not produced.
[h] That, the Election Petition does not conform to the requirement under Sections 81, 83 and 86 of the Representation of the People Act, 1951.
[i] The pleadings contained in paras 13 to 31 do not disclose any narration as to any ground for setting aside the election. It is not pleaded that due to these facts, the result of the election was materially affected, as it concerns the returned candidate. Therefore, pleadings are required to be struck off.
these
7. It would be necessary to deal with the averments contained in paragraph nos.11 and 12 of the Election Petition.
As to corrupt practice under Section 123 (6) of the Representation of People Act, 1951.
8. Para 11 of the petition pertains to pleadings in relation to corrupt practice on account of exceeding the limit of election expenses which was prescribed.
It would be appropriate to quote / extract text of para 11, instead of describing the pleadings, as below:-
"11. Details of the expenditure incurred by the respondent himself as well as by his election agent and other persons with his/their consent are as under:-
(a) The respondent made extensive use of ::: Downloaded on - 09/06/2013 15:54:23 ::: 7 helicopters while campaigning in the constituency. The respondent got several helipads constructed at different places in the constituency for landing and take off of these helicopters. It is submitted that these helicopters were hired, inter alia, from GVK Aviation Private Limited, Secunderabad and OSS Air Management Private Limited, New Delhi. It is submitted that though the helicopters were hired by the respondent and used extensively by him during the course of campaigning, he did not include the expenses thereof in his returns submitted to the Returning Officer.
On the contrary, the respondent falsely claimed that the helicopters ig were hired by Nationalist Congress Party and it was further claimed that the expenses were not includable in the respondent's election expenses. Furthermore, the respondent falsely claimed that the helicopters were used only for limited during, whereas, it was common knowledge that the respondent made extensive use of the helicopters. In fact, it will not be out of place to state that the Returning Officer had issued a notice dated 8th April, 2009 to the respondent asking him to furnish the details about the helicopter hired by him. It would be seen from the replies given by the respondent that the same were evasive and ultimately, the respondent manipulated the records as per his convenience while coming up with a defence that the helicopter was hired by Nationalist Congress Party. The Petitioner states that the respondent himself used most of the flying time of the helicopters for the purpose of campaigning and hence the expenses are includable as a part of his election expenses.
(b) The respondent extensively advertised in the local newspapers. His total advertisement expenses were to the tune of Rs.4,04,498/-.
::: Downloaded on - 09/06/2013 15:54:23 ::: 8However, the respondent did not submit the account of campaign through media which led to the Returning Officer issuing a communication dated 14th May, 2009 to the respondent in this regard. The respondent submitted his reply on May 29,2009 thereby once again falsely contending that the expenditure of Rs.4,04,498/- was not includable in his election expenses.
The details of the various advertisements are mentioned in the list annexed to the above mentioned notice dated 14th May, 2009. It is submitted that the respondent had resorted to a concerted media campaign in order to further his prospects at the election and in ig order to evade the law respondent is falsely alleging that the expenses were borne by the the Nationalist Congress Party. It is submitted that many of the payments have been made in cash by the respondent/his election agent/other agents with their concurrence and hence the stand now taken by the respondent cannot be countenanced.
(c) Furthermore, during the campaign rally addressed for the benefit of the respondent by Smt. Sonia Gandhi and Shri Sharad Pawar, at least five helicopters were put to use to ferry the leaders. The respondent also used helicopter extensively.
Furthermore, 356 buses were hired from Maharashtra State Road Transport Corporation, Bhandara. These buses were booked in the names of 106 persons and an amount of Rs.40,90,000/- was deposited with MSRTC. It is submitted that this campaign meeting was held at Senderwafa, Tah. Sakoli on 10th April, 2009. It is submitted that the Returning Officer had issued a communication dated 5th May, 2009 to the respondent seeking explanation within 24 hours as to why the expenditure should not be included in the election expenses. The respondent answered the said notice ::: Downloaded on - 09/06/2013 15:54:23 ::: 9 after 3 days on 8th May, 2009 and falsely disowned the booking of the said 356 buses and payment of Rs.40,90,000/- to the MSRTC. It is submitted that the Returning Officer thereafter wrote to the various Asstt. Returning Officers on 14th May, 209 asking them to investigate into the matter. It is submitted that out of the said 106 individuals in whose name the buses were booked, Omprakash Rahangadale, Tejram Chaudhari, Bhuneshwar Patle, Laxman Patle and Harshu Sharnagat etc., have informed the petitioner that the booking was done in their name, inter alia, by Shri Jain, the election agent of the respondent and his associates/party colleagues Shri ig Dilip Bansod etc. They further informed the petitioner that the booking expenses were actually paid by the respondent and his agents.
It is submitted that in the said 356 buses, several members of the electorate were ferried to the campaign rally at Sendurwafa addressed by Smt. Sonia Gandhi and Shri Sharad Pawar. It is submitted that the said rally was viewed as a show of strength by the respondent. Various reports were prominently carried by print and electronic media regarding the said rally. It is submitted large section of the electorate was swayed towards the respondent because of this rally.
It is submitted that the respondent was helped by this meeting in attracting a large number of undecided voters. Thus, the expenditure done by the respondent/his election agent and/or with their consent by other agents on the said meeting including in hiring buses from MSRTC materially affected the result of the election. It is submitted that the situation is thus covered by Section 100 (1)
(d) (ii) of the Representation of the People Act, 1951 and, therefore, the respondent having exceeded the expenditure limits prescribed under Section 77 of the Act, his election ::: Downloaded on - 09/06/2013 15:54:23 ::: 10 is liable to be declared as void on the above ground."
{Quoted from page nos. 9 to 14 of the paper-book of Election Petition].
9. On segregation of statement of fact contained in para 11, what can be inferred, can be summarized as follows:-
(A) Expenditure on account of use of helicopters, construction of helipads etc. [a] The returned candidate has used in the process of campaign helicopters extensively.
[b] Several helipads were constructed.
[c] Helicopters were hired from GVK Aviation Pvt. Ltd., Secunderabad and OSS Air Management Pvt. Ltd., New Delhi.
[d] Expenses incurred towards hiring of these helicopters were not included by the returned candidate in his election expenses.
[e] Claim of the returned candidate that these helicopters were hired by Nationalist Congress Party is a false claim.
(B) Expenditure on account of Advertisements.
::: Downloaded on - 09/06/2013 15:54:23 ::: 11[1] Advertisement expenses incurred by the returned candidate were to the extent of Rs.4,04,498/-, however, returned candidate did not submit the account of campaign through media, which has led the Returning Officer to issue communication dated 14th May, 2009.
[2] The claim of the returned candidate that the expenses of media campaign were borne by the Nationalist Congress Party is false.
[3]
The
were
payments
made in
towards
cash by
the
the
media campaign
respondent/his
election agent/other agents with their
concurrence.
(C) Expenditure incurred towards
hiring 106 buses for ferrying voters for a public meeting at Sendurwafa.
[i] 356 buses were hired from the State Transport Corporation and expenditure of Rs.40,90,000/- was incurred in the name of 106 persons.
[ii] Though buses were booked in different names, expenditure was actually incurred by Shri Jain, Election Agent of the respondent and his associates/party colleague Shri Dilip Bansod.
[iii] These buses were used for ferrying members of public for attending the campaign rally ::: Downloaded on - 09/06/2013 15:54:23 ::: 12 at Sendurwafa, which was addressed by Smt. Sonia Gandhi and Mr. Sharad Pawar.
[iv] Expenditure incurred on this meeting was made by agents and other persons with the consent of agents.
As to corrupt practice under Section 123 (2) of the Representation of People Act, 1951.
10. Another corrupt practice alleged is in relation to meeting addressed by Shri Rameshchandra Bang, a Minister in the Govt. of Maharashtra. The speech by Mr. Rameshchandra Bang is said to be a corrupt practice for which the petitioner is responsible. This averment is contained in para 12 of the petition.
It would be appropriate to quote the averments ad verbatim, instead of describing the same. Para 12 of the Election Petition reads as follows:-
"12. The petitioner submits that one Shri Ramesh Chandra Bang, who is a member of the respondent's Nationalist Congress Party and a Minister of Food & Civil Supplies Department in the Government of Maharashtra had addressed a meeting of ration shop owners and kerosene license holders comprising of about 800 such individuals. This meeting was held on 7 th April, 2009 between 12 noon and 3 pm at Sharda Lawns near main hospital, Bhandara. This meeting was held without seeking prior permission from Tahsildar Bhandara. It is submitted that such permission was required at the relevant time on account of model code of conduct, which was in force in between 2.3.2009 to 27.5.2009. The meeting was addressed, inter alia, by the said Shri Ramesh Chandra Bang. During this meeting, one Shri Shekhar Laxmanrao Magar, age about 35 years, r/o C/o Shri Katre, Zilla Parishad ::: Downloaded on - 09/06/2013 15:54:23 ::: 13 Colony, Ganeshpur, Bhandara, who is a journalist working for E.TV, Marathi, was present and he videographed the entire meeting. Similarly, Shri Govind Hatwar of Saam Marathi news channel and Shri Gopu Pimpalapure of the Times of India were also present. During his address to the audience, the said Shri Ramesh Chandra Bang directly threatened those present to vote for the respondent or else suffer the consequences. The petitioner submits that he has seen the said video footage recorded by the said Shri Shekhar Laxmanrao Magar which clearly shows Shri Ramesh Bang making the said utterance. It is evident that the aim of issuing such threat was to ensure electoral benefit to the respondent. The petitioner states that in fact the aid meeting, though camouflaged as a meeting of Ration Shop owners and Kerosene Retailers, it was in fact an election meeting which is evident from presence of large number of Congress-NCP leaders and workers. It is submitted that subsequently, an offence was registered on 07.04.2009 against Shri Ramesh Bang and others at Police Station, Bhandara, and the issue was prominently flashed in the local media. It is submitted that the respondent who was beneficiary of the impugned threats issued by Shri Ramesh Bang did not dissociate himself from the said speech and the threat. It follows that Shri Ramesh Bang had delivered the threat as a part of common strategy evolved by the respondent and his supporters to ensure victory by hook or by crook. It is apparent that all this clearly amounts to corrupt practice in terms of Section 123 of the Representation of the People Act, 1951. In the above backdrop, it is submitted that the voters who were apparently frightened by such threats were forced to vote for the respondent and therefore the result of the election having been materially affected due to the said corrupt practice, the election of the respondent is liable to be declared as void in terms of Section 100(d)(ii) of the Representation of the People Act, 1951."
{Quoted from page nos.14 to 16 of the paper-book of Election Petition].
11. In so far as the corrupt practice on account of meeting addressed by Shri Rameshchandra Bang is concerned, it is alleged that in the said meeting of Kerosene License ::: Downloaded on - 09/06/2013 15:54:23 ::: 14 Holders, Mr. Ramesh Bang has uttered threats, however, the returned candidate did not disassociate himself, though he was a beneficiary of the said threats.
AS TO ISSUE (ii-A) - AS TO ELECTRONIC VOTING MACHINES AND POINT (f) IN PARAGRAPH NO. 7.
12. In order to deal with the point as to Issue No. (ii-A), it is necessary to have a look at the pleadings which are spread over between paragraphs 13 to 31.
By these pleadings, the election is sought to be set aside due to defectiveness and un-trustworthiness of the Electronic Voting Machines [EVMs]. The averments in this regard are narrated in extenso in para nos.13 to 31.
13. Learned Adv. Mr. A.C. Dharmadhikari has argued in relation to the averments contained in Paras 13 to 31 as follows:-
(a) The averments contained in Paras 13 to 31 do not describe or allege any corrupt practice by the returned candidate or by any other person on his behalf.
(b) It is also not alleged therein that any acts of failure to observe the rules, in order to favour the returned candidate are done.
(c) In Paras 13 to 31 or elsewhere in the ::: Downloaded on - 09/06/2013 15:54:23 ::: 15 Election Petition, the petitioner has not pleaded that due to these deficiencies and defects in the EVMs, the result of the election is materially affected as far as returned candidate is concerned.
14. To substantiate his contentions, learned Adv.
Mr. A.C. Dharmadhikari for respondent-applicant has placed reliance on following Judgments:-
[1]Laxmi Kant Bajpai Vs. Hazi Yaqoob & others [2010 (1) ALL MR 469].
[2] Ram Sukh Vs. Dinesh Aggarwal [(2009) 10 SCC 541].
[3] Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar[(2009) 9 SCC 310].
[4] Sudarsha Avasthi Vs. Shiv Pal Singh [(2008) 7 SCC 604].
[5] Mohd. Nissar son of Mohd. Ibrahim Pawar Vs. Shivaji Bhanudas Kardile [2007 (6) ALL MR 176].
[6] Kuldeep Pednekar Vs. Ajit Pandurang Gogate & others[2006 (3) ALL MR 606]. [7] Mahendra Pal Vs. Ram Dass Malanger & others [AIR 2000 SC 16].
[8] V. Narayanaswamy Vs. C.P. Thirunavukkarasu [AIR 2000 SC 694].
[9] Subhash Desai Vs. Sharad J. Rao & others [AIR 1994 SC 2277].
[10] Mohan Rawale Vs. Damodar Tatyaba alias ::: Downloaded on - 09/06/2013 15:54:23 ::: 16 Dadasehab & others [(1994) 2 SCC 392].
[11] Azhar Hussain Vs. Rajiv Gandhi [1986 (Supp) SCC 315].
[12] Shri Udhav Singh Vs. Madhav Rao Scindia[(1977) 1 SCC 511].
[13] Samant N. Balakrishna etc., Vs. George Fernandez & others etc.[AIR 1969 SC 1201 (V 56 C 221)].
[14] M. Karunanidhi Vs. H.V. Handa & others [AIR 1983 SC 558].
[15] Mulayam Singh Yadav Vs. Dharmpal Yadav &
[16] U. S.
others [AIR 2001 SC 2565].
Sasidharan Vs. K. Karunakaran &
another[AIR 1990 SC 924].
[17] Mithilesh Kumar Pandey Vs. Baidyanath
Yadav & others [AIR 1984 SC 305]. [18] Sajjansingh Verma Vs. Surendra Verma & others [AIR 1997 MP 49].
[19] Kamalnath Vs. Sudesh Verma [AIR 2002 SC 599].
15. Learned Adv. Mr. A.V. Bhide has replied various objections as follows:-
[a] Averments contained in Paragraph Nos.
11 and 12 of the Election Petition adequately give / describe material facts on the basis of which election is sought to be quashed.
[b] What is required to be given is material facts and nothing more.
::: Downloaded on - 09/06/2013 15:54:23 ::: 17[c] The test as to whether the material facts pleaded by the petitioner are adequate to guage and decide, as to whether, if those averments are proved, can the petition succeed?. If the answer is in affirmative, pleadings as those stand do answer this test affirmatively. In present case, said test gets satisfied.
[d] The corrupt practice on account of
election expenses narrated in the
Election Petition with such
that the description
details
constitutes
narration of facts constituting
corrupt practice.
[e] It is adequate if corrupt practice is proved and it is not necessary to prove that result of the election was materially affected in favour of the returned candidate.
[f] Failure to produce the video cassettes does not go to the root of the case, since what is alleged in the Election Petition is that the programmes have received wide video-audio coverage. This is a pleading of fact. Video cassette is a matter of proof. It can be produced in the course of evidence, as it does not form part of the petition.
::: Downloaded on - 09/06/2013 15:54:23 ::: 18[g] Since material facts and particulars both are adequately narrated in relation to corrupt practice, it is not necessary that a separate affidavit is required. Moreover, the Election Petition itself is sworn and filed. Therefore, failure to file a separate affidavit in the facts and circumstances of the case is not fatal.
[h] While it is a fact that the copy
tendered in Court
candidate was the same deposited for by the returned serving upon him by the petitioner, it is not the respondent's grievance that it really does not conform to the original.
[i] So long there is no grievance that the copy delivered is not a true copy, the objection as to attestation thereof as 'True Copy', and hence it is not not in accordance with law, is an objection of a superficial nature.
[j] The copy - set of Election Petition paper-book delivered to respondent and deposited by him in this Court consists of signature of the petitioner on each page. Absence of the words "true copy" cannot be a ground for dismissal of petition.
::: Downloaded on - 09/06/2013 15:54:23 ::: 19[k] Lack of verification in each annexure in the original as well as in the copy is also an objection of a superficial nature.
[l] Omnibus and comprehensive verification which is contained at the foot of Election Petition constitutes due and adequate compliance, since it refers to each and every annexure. Failure to verify every annexure, therefore, does not violate any of the provisions of the Representation of the People Act, 1951, and on this ground, the Election Petition is not liable to be dismissed.
[m] Lack of attestation does not go to the root of the case. This objection is such that it can be cured, application for leave to cure the defects is already filed and it is necessary in the interest of justice that it be allowed. Therefore, this objection has no merit.
16. In support of his contention, learned Adv. Mr. A.V. Bhide has placed reliance on following Judgments.
The purpose and ratio of each judgment relied upon is quoted after each of the relevant judgments :-
::: Downloaded on - 09/06/2013 15:54:23 ::: 20[1] Umesh Challiyill Vs. K.P. Rajendra[ (2008) 11 SCC 740].
[2] Ashwani Kumar Sharma Vs. Yaduvansh Singh & others [ (1998) 1 SCC 416].
[3] M. Kamalam Vs. Dr. V.A. Syed Mohammed [ AIR 1978 SC 840].
[4] Badri Narain Prasad Choudhary & others Vs. Nil Ratan Sarkar [ AIR 1978 SC 845]. [5] Murarka Radhey Shyam Ram Kumar, (in both appeals) Appellant Vs. 1. Roop Singh Rathore and others (in C.A. No. 30 of 1963) 2. Ropp Singh Rathore and another (in C.A. No. 31 of 1963 Respondents. Dr. Z.A. Ahmad, Intervener[ AIR 1964 SC 1545 (V 51 C 207)].
[6] Jugal Kishore Patnaik Vs. Ratnakar Mohanty [ AIR 1976 SC 2130].
[7] H.D. Revanna Vs. G. Puttaswamy Gowda & others [ (1999) 2 SCC 217].
17. It would be convenient to deal with the last objection as to Electronic Voting Machines [EVMs] first in sequence. Discreet perusal of paras 13 to 31 discloses following things:-
[1] It is assertively and repetitively urged that EVMs are untrustworthy.
[2] It is nowhere pleaded in specific terms that:-
(a) As the returned candidate or his agents have, in any ::: Downloaded on - 09/06/2013 15:54:23 ::: 21 manner, done acts of rigging or manipulations with the EVMs, the result of election is materially affected as far as the returned candidate is concerned.
(b) Due to any fault or interference in the EVMs, the result of election has been materially affected as far as the returned candidate is
18. Learned ig concerned.
Adv., for the petitioner is not in a position to point out from the averments contained in pargraph nos. 13 to 31 of the Election Petition, any allegation of an act of malice against any of the employees of the election machinery.
19. Learned Adv., for the petitioner is also unable to isolate and indicate any of the averments contained in the pleadings of para nos. 13 to 31, by which it could be shown that the deficiencies or un-trustworthiness in the functioning of EVMs, and the manner in which the election is conducted has "materially affected the result of election, as it relates to - concerns the returned candidate."
20. The result that has to follow from the discussion contained in the foregoing paras 17 to 19 is that the ::: Downloaded on - 09/06/2013 15:54:23 ::: 22 pleadings contained in Paragraph Nos. 13 to 31 of the Election Petition without any purpose and cause of action, and are liable to be struck off.
21. Now, this Court has to deal with other objections in so far as question of maintainability of the Election Petition is concerned.
22. Considering the nature of objections, this Court has to find out whether the Election Petition has been filed in accordance with law. The mandatory requirements, compliance whereof, it is alleged, has not been done, can be summarized as follows:-
[a] Copy of Petition delivered for service, and actually served on the returned candidate, does not bear the words "True Copy." [Non-compliance of Section 81 (3)].
[b] Petition has not been verified in the manner laid down in the Code of Civil Procedure, 1908. [Section 81 (1) (c)].
[c] The Schedules and Annexures to the petition have not been verified in the same manner as prescribed. [Sub- section (2) of Section 83].
[d] The petition does not contain
"material facts on which the
petitioner relies", on the basis of ::: Downloaded on - 09/06/2013 15:54:23 ::: 23 which the allegations of corrupt practice are made [Section 83 (1)
(a)].
[e] The petition does not contain "full particulars of corrupt practice which 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." [Section 83 (1) (b)].
[f] An affidavit in prescribed form in support of allegations of corrupt practice and the particulars thereof is not furnished [Proviso to Clause
(c) of Sub-section (1) of Section 83].
[g] Election Petition does not contain a statement and particulars as to how the result of election, as it concerns the returned candidate, has been materially affected. [Section 100 (1)
(d) (ii) of the Act].
[h] What shall be the effect of failure of petitioner to produce video cassette regarding speech of Mr. Ramesh Bang and about other media campaign?
DISCUSSION AS REGARDS VARIOUS POINTS ::: Downloaded on - 09/06/2013 15:54:23 ::: 24
23. POINT OF OBJECTION AS NOTED IN PARA 22 [a] Copy of Petition delivered for service, and actually served on the returned candidate, does not bear the words "Attested True Copy." [Non-
compliance of Section 81 (3)].
DISCUSSION
(a)
ig The correctness and
the copy deposited by respondent to be the copy truthfulness of tendered by the petitioner is an accepted fact.
(b) It is clear from perusal, and is visible by bare view - by naked eyes that the copy delivered for service on the respondent was not attested as a "true copy." The copy is barely signed on all pages without subscribing the endorsement "True Copy."
(c) Sub-section (3) of Section 81 which lays down that "every such copy shall be attested by petitioner under his own signature to be a true copy of the petition", which is a mandatory provision, has not been complied.
(d) In this background, this Court has to hold that the copy delivered to the respondent was not attested as a "true copy".
(e) It is not a case whether the petition [copy] and annuxures are attested to be true copy, by and large, however, on some pages ::: Downloaded on - 09/06/2013 15:54:23 ::: 25 there be some omissions. Had there been few omissions, the defect would have been curable.
{f} In the present case, failure to attest is in totality, and, therefore, said defect cannot be purged or rectified.
(g) This defect goes to the root of case and is fatal.
24. POINT OF OBJECTION AS NOTED IN PARA 22 [b] Petition has not been verified in the manner laid down in the Code of Civil Procedure, 1908. [Section 81 (1) (c)].
DISCUSSION
(a) In order to discuss this aspect, Court had to verify the record. It is seen that the 'Verification' Clause of the petition is appearing at page nos. 32 and 33.
(b) The verification as required by law is prescribed in Clause (c) of Sub-Section (1) of Section 83. It lays down that the verification shall be done in the manner as prescribed by Civil Procedure Code.
(c) The manner in which verification should be done is prescribed in Rule 15 of Order 6 of Civil Procedure Code. Sub-rules (2), (3) and (4) are relevant which read as ::: Downloaded on - 09/06/2013 15:54:23 ::: 26 follows:-
"15. Verification of Pleadings.-
(1).....
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed.
(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings."
(d) It is seen that various Paras, i.e., Paras 1 to 8, paras 9, 10 and 11 (a) and 11
(c), 11(b), 12, 13, 14, 15 and 16 to 25, and 30, 19, 26, 28, 29 and 31 to 37 are distinctly verified by giving the source of information thereof.
(e) In the result, in so far as format of verification of pleadings is concerned, it conforms to the act of separation and statement as to the source of knowledge.
(f) The question whether the analysis which is the basis of verification is truthful is not a matter of scrutiny at this stage.
(g) At Pages 34, 35 and 35-A, an affidavit in support of petition is also filed. Thus, Sub-rules (2), (3) and (4) of Rule 15 of Order 6 of Civil Procedure Code have been complied with.
::: Downloaded on - 09/06/2013 15:54:23 ::: 27(h) The verification is supposed to bring prima facie authenticity to the contents of the pleadings by disclosing the source, and this objective is duly achieved.
25. POINT OF OBJECTION AS NOTED IN PARA 22 [c] The Schedules and Annexures to the petition have not been verified in the same manner as prescribed. [Sub-
section (2) of Section 83].
ig DISCUSSION
(a) Bare perusal of the annexures to the
Election Petition as tendered on record, as
well annexures which are forming part of copy of Election Petition deposited by the petitioner for service on respondents, and actually served, discloses that Annexures have not been attested to be "True Copies."
(b) The annexures have also not been verified in the manner as prescribed in Sub- rules (2), (3) and (4) of Rule 15 of Order 6 of Civil Procedure Code.
(c) The effect of non-compliance or failure to attest the annexures will be dealt with after discussion.
26. POINT OF OBJECTION AS NOTED IN PARA 22 [d] The petition does not contain "material facts on which the ::: Downloaded on - 09/06/2013 15:54:23 ::: 28 petitioner relies", on the basis of which the allegations of corrupt practice are made [Section 83 (1)
(a)].
DISCUSSION
(a) The terminology employed in Section 83 (1) (a) of the Representation of the People Act will have to be read in the light of general rules of pleadings as prescribed in Order 6 of Civil Procedure Code.
(b) It shall be useful to refer to Rule 1, sub-rules (1), (2) and (3) of Rule 2 of Order 6 of Civil Procedure Code, which are quoted below for ready reference:-
"1. Pleading.- "Pleading" shall mean plaint or written statement.
2. Pleading to state material facts and not evidence.-
(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words."
(c) The term "material facts" has been ::: Downloaded on - 09/06/2013 15:54:23 ::: 29 discussed on many occasions by Hon'ble Apex Court, and lastly in the recent judgment in case of Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar [(2009) 9 SCC 310] [cited supra] and relied upon by the respondent.
(d) It has been reiterated in Anil Salgaonkar's case [supra], on the basis of law earlier laid down, that the narration contained in the petition must disclose material facts sufficient to disclose cause of action.
(e) To re-word the same in order to simplify, and as this Court understands it, the pleading has to contain the narration by which the cause of action, on the basis of which -
grounds on which the election is liable to be set aside as prescribed in Section 100 of the Representation of the People Act, should be adequately described.
(f) In order to test whether in present case this has been done, it is necessary to have a look at the contents of Election Petition, which are earlier quoted in this judgment.
(g) It is seen that the petitioner has sought relief of setting aside the election on various grounds, which taken together, are coming under the Head of Corrupt Practice under Section 100 (1) (b) (ii) and (iv) read with Section 123 (6) of the Representation of the People Act.
(h) In relation to election expenses, the ::: Downloaded on - 09/06/2013 15:54:23 ::: 30 averments contained in para 11 (a) relate to extensive use of helicopters in the campaigning, Para 11 (b) - advertisement expenses, and Para 11 (c) - expenses towards en mass hiring of the buses.
(i) In so far as the election expenses pertaining to use of helicopters and advertisement campaign are concerned, the information is based on the documents furnished by the petitioner to the Returning Officer.
The challenge therein is to the legality thereof, i.e., whether the returned candidate shall be deemed to have incurred 50% of the amount spent by party.
(j) Particulars contained in the petition relating to expenditure towards use of helicopters, therefore, have to be construed to be factually adequate and sufficiently pleaded.
(k) In so far as particulars contained in Para 11 (c) relating to hiring of buses are concerned, those are also narrated adequately by giving names of the persons who have done those acts.
(l) In relation to the averments relating to corrupt practice under Section 100 (1)(d)
(ii) pertaining to the speech by Rameshchandra Bang, the averments contained in para 12 do sufficiently describe what the petitioner means to attribute.
(m) Present is not a stage of testing truthfulness or correctness of the averments.
::: Downloaded on - 09/06/2013 15:54:23 ::: 31(n) What is required to be seen at this stage is as to whether considering the general rules of pleadings, as seen from the telescope of sub-rule (2) of Rule 15 of Order 6 of Civil Procedure Code, do the pleadings on record constitute description of material facts?. The answer has to be, and is in affirmative.
27. POINT OF OBJECTION AS NOTED IN PARA 22 [e] AND [f] The petition does not contain "full particulars of corrupt practice which 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." [Section 83 (1) (b)].
A N D An affidavit in prescribed form in support of allegations of corrupt practice and the particulars thereof is not furnished [Proviso to Clause
(c) of Sub-section (1) of Section 83].
DISCUSSION
(a) Section 83 (1) (b) of the
Representation of the People Act lays down and ::: Downloaded on - 09/06/2013 15:54:23 ::: 32 prescribes that the petitioner has to furnish "full particulars of any corrupt practice", once the election petitioner chooses to challenge the result of election on the ground of 'corrupt practice'.
(b) In the result, the normal rule of pleadings that 'only facts' and no evidence etc., should be pleaded, as is prescribed in Rule 2 of Order 6, Civil Procedure Code, ceases to have application.
(c) Though this Court has noticed, and has
recorded
ig in foregoing paras
Point [d] of Para 22 that material facts have while discussing been pleaded, Clause (b) of Sub-section (1) of Section 83 carves out an exception to the general rule of pleadings for the election petitioner of giving material facts only.
(d) Once a petitioner pleads corrupt practice, he has to give in the petition "full particulars of any corrupt practice" meaning thereby the petitioner has to cross limits of the general rule of pleadings as found in Sub-
rule (2) of Rule 15 of Order 6 of Civil Procedure Code, and has to give further and detailed narrations of events which, when deposed on oath, become evidence or proof of facts.
(e) The same language is employed in proviso to Sub-section (1) of Section 83 which requires the petitioner who alleges "any corrupt practice, the petition shall also be accompanied by affidavit in the prescribed form ::: Downloaded on - 09/06/2013 15:54:23 ::: 33 in support of allegation of such corrupt practice and particulars thereof."
(f) In order to test whether this compliance is done, this Court has perused the affidavit in Form 25 in support of petition at pages 35-B, 35-C and 35-D. {g} This Court has noticed that what the petitioner has done while placing this affidavit in Form No. 25 on record, is to re-
spell or re-word what was done in the verification at pages 32 and 33 of the petition.
(h) This Court has then cross-matched the contents of affidavit in Form 25 at pages 35-B, 35-C and 35-D with averments contained in the petition. What is seen is that instead of amplifying "facts", averred in the petition, providing those with further details and particulars, the petitioner has condensed and summarized those and the petitioner has travelled in the reverse direction.
(i) Petitioner has filed affidavit, however, it does not conform to the requirement of law, i.e., proviso to Sub-section (1) of Section 83.
(j) Thus, this Court has to hold without any hesitation that the petitioner has:-
[i] Failed to give material
particulars of corrupt
practice;
::: Downloaded on - 09/06/2013 15:54:23 :::
34
[ii] Failed to give affidavit in the prescribed form in support of allegations of corrupt practice; and, [iii] Has failed to comply with mandatory provision contained in Sections 81 and 83 of the Representation of the People Act.
28. POINT OF OBJECTION AS NOTED IN PARA 22 [g] Election Petition does not contain a statement and particulars as to how the result of election, as it concerns the returned candidate, has been materially affected.
DISCUSSION
(a) Discreet scrutiny of the Election petition reveals that the petitioner probably wants to suggest that all that he has pleaded is proved, would prove corrupt practice on the part of the returned candidate, and it would ipso facto mean the result of setting aside election to ensue.
(b) It is seen that may be due to said belief perceived by this Court, the Election Petition does not contain averments as to the grounds or pleadings on the basis of which the ::: Downloaded on - 09/06/2013 15:54:23 ::: 35 petitioner claims that because of the corrupt practice practised by the returned candidate, the result of election was materially affected in so far as it concerns the returned candidate.
29. POINT OF OBJECTION AS NOTED IN PARA 22 [h] What shall be the effect of failure of petitioner to produce video cassette regarding speech of Mr. Ramesh Bang and about other media campaign?
DISCUSSION
(a) Perusal of Election Petition discloses that video shooting of the meeting addressed by Mr. Ramesh Bang has been video recorded.
(b) What Mr. Bang has addressed is averred. Whether he has uttered the words / threats which, according to the petitioner, is the corrupt practice is a matter of proof.
(c) Video cassette of said meeting is, thus, a matter of evidence. Evidence is not to be produced, particularly when such conduct constitutes to be "Particulars of Corrupt Practice."
(d) Failure to produce video cassette is, therefore, not fatal to the progress of the Election Petition.
::: Downloaded on - 09/06/2013 15:54:23 ::: 3630. Though various judgments are cited by both sides, it shall suffice to rely upon the case of Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar [(2009) 9 SCC 310] [supra] as to legal propositions, namely that the Election Petition has to be dismissed, if the petition does not contain the pleadings as regards:-
[a] Material particulars of corrupt practice.
[b] Details as to plea that due to corrupt practice on the part of returned candidate or his agents, the result of election was materially affected as regards the returned candidate.
[c] Detailed pleading based on facts as to how the corrupt practice by returned candidate or anyone on his behalf has materially affected the result of election, as it concerns the returned candidate.
31. In the result, and based on foregoing discussion, this Court records its findings as below:-
[a] Pleadings contained in Paras 13 to 31 are liable to be struck off.
[b] The petition is not liable to be dismissed on account of :-
(i) Failure to furnish material facts in the body of election ::: Downloaded on - 09/06/2013 15:54:23 ::: 37 petition.
(ii) Defective verification of Memo of Election Petition.
(iii) Failure to produce the video
cassette, therefore, is not
fatal.
[c] Copy of Election Petition supplied for service on the respondent was not attested as true copy. Section 81 (3) being mandatory, this defect is fatal to the petition.
[d] Since petitioner's claim for setting aside the result of election is based on corrupt practice by or on the part of returned candidate, the petition suffers from the defects, namely :-
(i) Failure to give material
particulars of corrupt
practice.
(ii) Failure to file affidavit in
prescribed form by giving
particulars of corrupt
practice.
[e] The petition suffers from defect of
petitioner's failure to furnish
verification on each annexure.
[f] Defects noted in foregoing Clauses [c], [d] and [e] are grave and go to ::: Downloaded on - 09/06/2013 15:54:23 ::: 38 the root of the case, and are in the nature of illegality provided for under Section 86 (1) of the Representation of the People Act, 1951, and Election Petition is liable to be dismissed.
32. Hence following order:-
[a] Issue Nos. (i), (ii) and (ii-A) are answered in affirmative.
[b] [c] Pleadings in Para Nos. 13 to 31 be struck off.
In view of findings recorded in Clauses [c], [d] and [e] of para 31, the Election Petition is liable to be dismissed, and is hereby dismissed.
[d] Applications [Exhs.10 and 22] are allowed.
[e] Application [Exh.24] does not survive, and is accordingly disposed of.
[f] Petitioner do pay to the respondent costs which are quantified to Rs.10,000-00 [rupees ten thousand only].
JUDGE
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