Gauhati High Court
Dr. (Mrs.) Malaya Barman vs Pabindra Deka on 30 April, 2002
Equivalent citations: (2003)2GLR295, 2002 A I H C 2255, (2003) 2 GAU LR 295
Author: D. Biswas
Bench: D. Biswas
JUDGMENT D. Biswas, J.
1. Miscellaneous Application No. 45/2001 has been filed by the election petition in Election Petition No. 10/2001 for striking out certain averments incorporated in the petition. Miscellaneous Application No. 5/2001 is the objection filed by the respondent.
2. I have heard Mr. K. Agarwal, leaned counsel for the applicant (election petitioner) and Mr. B. K. Das, leaned counsel for the respondent-opposite party.
3. This Court by order dated 27.2.2002 passed in Misc Case No. 46/ 2001 disposed of the application filed under Order 7, Rules 11 read with Section 151 of the Code of Civil Procedure and Sections 83, 86 and 87 of the Representation of People Act, 1951 challenging the maintainability of the election petition. The said petition was dismissed holding inter alia that it would be premature to conclude that the election petition does not disclose cause of action for want of material facts in view of Schedule-I and the statement made in paragraphs 6 and 7. Therefore, striking off the paragraph Nos. 6 and 7 does not arise. The statement in paragraphs 2 and 5 narrate the credentials of the election petitioner and the statements made therein cannot be said to be contrary to any provision of the Act of 1951.
4. In para 8, the description about the manner in which the booth in Polling Station No. 12 was captured has been given with names of the witnesses. It also speaks of a complaint in writing given by the election petitioner to the Officer-in-Charge of Tihu Police Station.
5. In para 9, it is described that the Presiding Officer informed the matter to the Returning Officer in writing by letter dated 10.5.2001 and that the election petitioner also filed a complaint to the Returning Officer on the same day demanding repoll in Polling Station Nos. 8 to 13. Paragraphs 8 and 9 have been duly verified as the information received from the persons named therein and also as matters of record. Para 9 is relatable to para 8, which is incorporated as Item No. 3 in Schedule I, which read together shows the manner of booth capturing by intimidation at gun point. Therefore, it cannot be said that the statement made in paragraphs 8 and 9 are not properly verified and described in the Schedule. Para 20 is a general statement with regard to polling of abnormally high votes in Polling Station Nos. 8 to 14 by the returned candidate because of alleged booth capturing and rigging. This statement is in asense vague because it cannot be treated as description of particulars of corrupt practices. The statement made therein though verified as true to the knowledge of the election petitioner have not been sworn in. In my opinion, statement in para 10 being vexatious and wild has to be struck off. Para 11 describes the conduct of the Assistant Returning Officer in tearing off and detaching the counterfoils of many ballot papers in Hall No. 1 thereby indicating his nexus with the returned candidate. This statement has been duly verified, but neither sworn in nor incorporated in. the Schedule. Therefore, para 11 cannot form part of the election petition. Para 12 is a statement of certain irregularities and has a nexus with the alleged corrupt practice on the part of the returned candidate. It has also been verified as a matter of record. I do not find any fault with para 12. Similar is the position with regard to para 13. Para 14 speaks of forcible casting of votes under threat by a single person. The statement also speaks of irregularity. This has also been duly verified and incorporated in Schedule I. I do not find any illegality in the above statement.
6. Paragraphs 15, 16 and 17 are matters based on wild information having no relevance to the election petition and, hence, require deletion.
7. I have taken due care of the different decisions referred to by the parties during the course of argument. It is considered redundant to repeat the ratio available in the said judgments in details. The ratio available in V.S. Achuthanandan v. P.J. Francis and Anr., (1999) 3 SCC 737; H.D. Revanna v. G. Puttaswamy Gowda and Ors., (1999) 2 SCC 217; Mahendra Pal v. Ram Dass Malanger and Ors., (2000) 1 SCC 261 and (2000) 8 SCC 191 need not be addressed in details. In my opinion, the paragraphs sought to be retained essentially disclose not only cause of action, but also the material particulars when read alongwith verification and the Schedule I. Reading of the Schedule in isolation of the relevant paragraph would be contrary to the spirit of election law. In Mahendra Pal (supra), it has been held that in a case where the election petition suffers from deficiency in material particulars, the Court has the discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. This shows that where material fact is described, particulars thereof even if not supplied along with the election petition could he supplied at a later stage. In the instant case, the particulars of corrupt practices as mentioned hereinbefore have been duly verified and references thereof have been made in Schedule I. That being the petition, the paragraphs other than paragraphs 10, 11, 14, 15, 16 and 17 have to be retained. Consequently, paragraphs 10, 11, 14, 15, 16, and 17 are ordered to be struck off.
8. The Misc. Case Nos. 45 of 2001 and 5 of 2002 are accordingly disposed of.