Punjab-Haryana High Court
Darshan Singh Kot Fatta vs Makhan Singh on 5 November, 2008
Election Petition No.11 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Election Petition No.11 of 2007
Date of decision 5.11.2008.
Darshan Singh Kot Fatta
...... Petitioner
versus
Makhan Singh
...... Respondent.
Present : Mr. J.S.Puri, Advocate for the petitioner.
Mr. S.K.Garg Narwana, Advocate for the respondent.
L.N.MITTAL,J. (Oral).
This election petition under the Representation of the People Act, 1951(in short - the Act) has been instituted by the defeated candidate- Darshan Singh Kot Fatta challenging the election of respondent-Makhan Singh to Legislative Assembly of Punjab from 110-Pakka Kalan (SC) Constituency in the election held on 13.2.2007.
It has been alleged in the election petition that the respondent committed corrupt practices within the meaning of sub sections (2),(3),(3A) and (7) of Section 123 of the Act. Dera Sacha Sauda (for convenience - the Dera) said to be a religious sect/community with headquarters in District Sirsa of Haryana has following of over 20,00,000 people in Punjab and has Election Petition No.11 of 2007 2 predominance in the Malwa region of Punjab including the constituency in question which has over 23,000 followers called `Premis'. Sant Gurmit Ram Rahim Singh, head of the Dera, is spiritual and religious head of the `Premis'. The Dera with a view to help the Indian National Congress (in short - the Congress) party in general election of Legislative Assembly of Punjab in February 2007 directed all its followers to cast their votes in favour of the Congress party. A seven member political wing was constituted for the purpose. Active workers of the Dera asked the Premis to vote for respondent, who was candidate of Congress party. All this propaganda was carried with active consent of respondent and his agents. The respondent also repeatedly and actively asked the Premis to vote for him in pursuance of decision taken by the Dera, on the ground of religion of the Dera. The respondent asked the Premis that they were under obligation to abide by the decision of the Dera and its political wing. Details of various rallies and other activities and advertisements and meetings have been pleaded in the election petition in this context. On the basis of these averments, respondent is alleged to have committed corrupt practices as defined in sub sections (2), (3) and (3A) of Section 123 of the Act. In addition to it, the respondent obtained and procured active assistance of Natha Singh, Patwari (revenue official) i.e. Government servant, for furtherance of election prospects. Particulars of taking assistance of Natha Singh have been pleaded in the petition.
The respondent in his written statement broadly denied the allegations of the election petitioner and raised certain preliminary objections.
Election Petition No.11 of 2007 3
The petitioner filed replication wherein pleas taken by the respondent were controverted and averments made in the election petition were reiterated.
On the pleadings of the parties, the following issues were formulated for adjudication :-
1) Whether the respondent committed corrupt practices within the meaning of Sub-sections (2), (3) and (3-A) of Section 123 of the Representation of the People Act, 1951 by using religion or undue influence to influence the voters as averred in paragraphs 5, 6 and 7 of the Election Petition ? If so, to what effect ? OPP.
2) Whether the respondent obtained and procured active assistance of Natha Singh Patwari - a public servant- for furtherance of prospects of his election as averred in paragraph 8 of the Election Petition and thereby committed corrupt practice within the meaning of Section 123 (7) of the Representation of the People Act, 1951 ? If so, to what effect ? OPP.
3) Whether the Election Petition lacks material facts and material particulars as alleged ? If so, to what effect ? OPR.
4) Whether the Election Petition does not disclose any cause of action ? If so, to what effect ? OPR.
5) Whether paragraphs 3, 4, 5, 6 along with its sub-
paragraphs (i) to (vii), 7 and 8 of the Election Petition Election Petition No.11 of 2007 4 are liable to be struck off from the Election Petition under Order 6 Rule 16 CPC, as alleged in preliminary objections No.3 to 8 of the Written Statement ? OPR.
6) Whether the Election Petition is liable to be dismissed for not satisfying the requirements of Section 81(3) of the Representation of the People Act, 1951 as mentioned in paragraph 9 of the preliminary objections of the Written Statement ? OPR.
7) Whether verification of the Election Petition is defective ? If so, to what effect ? OPR.
8) Relief.
Issues no.3 to 7 have been treated as preliminary issues. I have heard learned counsel for the parties at considerable length on the aforesaid preliminary issues and perused the records.
Learned counsel for the respondent vehemently contended that affidavit attached by the petitioner with the election petition does not contain all the averments pleaded in the election petition nor its verification is proper and, therefore, the affidavit is defective and the election petition is liable to summary dismissal on this score alone. The contention appears to be forceful on first blush but on proper examination, the contention is found to be meritless. In the first instance, no such plea has been taken in the written statement nor any issue thereon has been framed. That apart, learned counsel for the respondent vehemently contended that any defect in the affidavit or in verification of affidavit or election petition is a curable Election Petition No.11 of 2007 5 defect and the election petition cannot be dismissed at the threshold on the ground of any such defect. In support of this contention, learned counsel for the respondent has cited Sardar Harcharan Singh Brar vs. Sukh Darshan Singh 2004(9) JT (SC) 269, Vijay Laxmi Sadho v. Jagdish AIR 2001 SC 600, G.Mallikarjunappa and another v. Shamanur Shivashankarappa and others AIR 2001 SC 1829 and Umesh Challyil v. K.P.Rajendran AIR 2008 SC 1577. The ratio of all these judgments of Hon'ble Apex Court is that any defect in the affidavit or in verification of election petition or affidavit is a curable defect and the election petition cannot be rejected or dismissed at the threshold on the ground of any such alleged defect. No decision to the contrary has been cited on behalf of the petitioner. Consequently, it is held that the election petition is not liable to summary rejection on the ground of alleged defect in the affidavit or in verification of the affidavit or the election petition.
Learned counsel for the petitioner at the out-set contended that in view of Section 86 of the Act, election petition can be dismissed at the threshold only if the election petition does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, whereas in the instant case, non-compliance of any of these provisions has not even been pleaded by the respondent and, therefore, the election petition cannot be dismissed at the threshold. The contention, although apparently attractive, is in fact devoid of merit. Section 86 makes a specific provision that an election petition shall be dismissed if there is non-compliance with the provisions of Section 81 or Section 82 or section 117 of the Act. However, Section 86 of the Act does not lay down that an election petition cannot be Election Petition No.11 of 2007 6 dismissed at the threshold for any other reason. On the contrary, Section 87 of the Act provides that every election petition shall be tried as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (in short - CPC) to the trial of suits. Thus, provisions of CPC have been expressly made applicable to the trial of election petition. Under CPC, plaint can be rejected if it does not disclose any cause of action. On the same analogy, an election petition can be dismissed or rejected at the preliminary stage if averments made therein do not constitute a corrupt practice or do not disclose a cause of action. In other words, if assuming the averments made in the election petition to be true, no corrupt practice or cause of action is made out, then the election petition has to be rejected at the preliminary stage because trial thereof would be an exercise in futility. Even in the case of Umesh Challyil (supra) cited by learned counsel for the respondent on the other aspect, it was held that though a defective election petition cannot be dismissed under Section 86 of the Act, but it can be rejected when the election petition is not properly constituted as required under the provisions of the CPC. Similarly, in the case of Sardar Harcharan Singh Brar (supra), it was held that if allegations made in an election petition regarding corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and those allegations cannot even be amended after the period of limitation for filing an election petition. Thus, the allegations which do not constitute corrupt practice cannot even be allowed to be proved by adducing evidence at the trial. In other words, if the allegations in the election petition do not disclose the commission of a corrupt practice or do Election Petition No.11 of 2007 7 not disclose cause of action, such an election petition can be dismissed at the preliminary stage without putting the parties to trial by leading evidence because trial of such election petition would be an exercise in futility. In this context, learned counsel for the respondent placed reliance on Azhar Hussain v. Rajiv Gandhi AIR 1986 SC 1253 and Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi AIR 1987 SC 1577. It has been laid down in these judgments by the Hon'ble Apex Court that if the election petition does not disclose cause of action, it may be dismissed summarily by treating the relevant issues as preliminary issues. It, thus, emerges as a settled proposition of law that in addition to the grounds specified in Section 86 of the Act, an election petition can be dismissed summarily, if it does not disclose any corrupt practice or cause of action.
Learned counsel for the respondent vehemently contended that in view of section 100(1)(b) of the Act, corrupt practice should have been committed by the returned candidate himself or his election agent or any other person with the consent of the returned candidate or his election agent. It was argued that mere presence of the respondent in the public gathering addressed by the then Chief Minister, as pleaded in paragraph-7 of the election petition, does not amount to consent of the respondent for the act of the then Chief Minister and, therefore, this averment does not constitute any corrupt practice. In support of this contention, learned counsel for the respondent placed reliance on a judgment of the Hon'ble Apex Court in case Daulat Ram Chauhan v. Anand Sharma AIR 1984 SC 621. The contention cannot be accepted at this stage because there are various other allegations in the election petition mentioning that various acts were committed with Election Petition No.11 of 2007 8 the consent of the respondent and his agents or by the respondent himself. Consequently, the election petition cannot be thrown out at the preliminary stage on the basis of the aforesaid contention.
Learned counsel for the respondent next contended that Section 83(1)(a) of the Act provides that election petition shall contain a concise statement of the material facts on which the petitioner relies, whereas Section 83(1)(b) of the Act lays down that election petition shall set forth full particulars of any corrupt practice that the petitioner alleges including the date and place of commission of each such practice. It was contention of learned counsel for the respondent that while material particulars can be amended or supplied later on, material facts have to be pleaded in the election petition and cannot be added at subsequent stage. Reliance in support of this contention has been placed on two judgments of the Hon'ble Supreme Court in case of Shri Udhav Singh v. Madhaqav Rao Scindia (1977) 1 S.C.C.511 and Hari Shanker Jain v. Sonia Gandhi (2001) 8 SCC
233. In these judgments, distinction between material facts and material particulars was pointed out and the said distinction was held to be important because different consequences may flow from a deficiency of material facts and material particulars in the pleading. Failure to plead even a single material fact leads to an incomplete cause of action and incomplete allegations of such a charge are liable to be struck off. If the petition is based solely on the allegations which suffer from lack of material facts, the petition is liable to be summarily rejected for want of cause of action. However, in the case of the petition suffering from deficiency of material particulars, the Court has a discretion to allow the petitioner to supply the Election Petition No.11 of 2007 9 required particulars even after the expiry of limitation. All primary facts to establish the existence of cause of a action are material facts. The basic facts constituting the ingredients of a particular corrupt practice are material facts. However, the particulars are the details of the case set up by the party. Even in the case of Sardar Harcharan Singh Brar (supra) it was held, as already noticed hereinabove, that material facts cannot be amended and if the material facts are not sufficient to constitute a corrupt practice, the same cannot even be allowed to be proved. The legal position that, therefore, emerges is that basic facts constituting ingredients of corrupt practice have to be pleaded, failing which the election petition is liable to summary rejection. The averments of the election petitioner regarding various corrupt practices have, therefore, be examined in the perspective of this legal position.
Next vehement contention of learned counsel for the respondent was that the averments, as made in the election petition, even if assumed to be correct, do not constitute corrupt practices as defined in sub section (3) and sub section (3A) of Section 123 of the Act. The said sub sections are reproduced hereunder for proper appreciation :-
(3) The appeal by a candidate or his agent or by any other person with the consent of a candidates or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate Election Petition No.11 of 2007 10 or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
It was contended that appeal to vote for any person should be on the ground of religion, race, caste, community or language of the candidate concerned, whereas in the instant case, there is not even an averment in the election petition that the respondent belongs to the alleged religious sect/community called Sacha Sauda. It was contended that the alleged appeal by the Dera to vote for respondent as candidate of Congress party is not alleged to have been made on the ground of religious sect or community of the respondent and, therefore, it cannot be said to be corrupt practice within the meaning of sub section (3) of Section 123 of the Act. It was further contended that there is not even a whisper in the election petition that the alleged appeal on behalf of the Dera was for promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on the ground of religion, race, caste, community or language and, therefore, corrupt practice within the meaning Election Petition No.11 of 2007 11 of sub section (3A) of Section 123 of the Act is not made out from the averments made in the election petition.
On careful consideration, I find force in the aforesaid contentions of learned counsel for the respondent. Even if all allegations made in the election petition are presumed to be correct, no corrupt practice within the meaning of sub-section (3A) of Section 123 of the Act is made out as there is not even a single allegation falling within the mischief of the said sub-section and merely mentioning of the said sub section in the election petition would not make out a corrupt practice within the meaning thereof. Similarly, the averments in the election petition are to the effect that appeal was made by the Dera (said to be a religious sect/community) to vote for respondent but there is no averment in the election petition that the appeal was made to vote for the respondent on the ground of religion of the respondent. The word `his' in sub section (3) of Section 123 of the Act is very significant and it signifies that the appeal on the ground of religion etc. should be on the ground of religion etc of the candidate concerned and not of the person making the appeal or of the voter concerned. In the instant case, however, there is no averment that the respondent is a follower of the Dera nor there is averment that appeal was made to vote for the respondent on the ground that the respondent is a follower of the Dera or on the ground that the respondent belongs to religious sect or community of the Dera. Learned counsel for the respondent in support of his contention placed reliance on two judgments of the Hon'ble Apex Court in the case of Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and others with Bal Thackeray v. Prabhakar Kashinath Kunte and others, Election Petition No.11 of 2007 12 AIR 1996 Supreme Court 1113, and in the case of Harmohinder Siungh Pradhan v. Ranjeet Singh Talwandi and others, (2005) 5 Supreme Court Cases 46. Paragraph no.11 of the judgment in the case of Dr. Ramesh Yeshwant Prabhoo (supra) is reproduced hereunder :-
"11. There can be no doubt that the word `his' used in sub- section (3) must have significance and it cannot be ignored or equated with the word `any' to bring within the net of sub- section (3) any appeal in which there is any reference to religion. The religion forming the basis of the appeal to vote or refrain from voting for any person must be of that candidate for whom the appeal to vote or refrain from voting is made. This is clear from the plain language of sub-section (3) and this is the only manner in which the word `his' used therein can be construed. The expression `the appeal...... to vote or refrain from voting for any person on the ground of his religion......... for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate" lead clearly to this conclusion. When the appeal is to vote on the ground of `his' religion for the furtherance of the prospectus of the election of that candidate, that appeal is made on the basis of the religion of the candidate for whom votes are solicited. On the other hand when the appeal is to refrain from voting for any person on the ground of `his' religion for prejudically affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is Election Petition No.11 of 2007 13 sought to be prejudically affected. It is thus clear that for soliciting voters for a candidate, the appeal prohibited is that which is made on the ground of religion of the candidate for whom the votes are sought; and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on the ground of the religion of that other candidate. The first is the positive appeal and the second a negative appeal,. There is no ambiguity in sub-section (3) and it clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited under sub- section (3).
The said observations have been relied on in the case of Harmohinder Singh Pradhan (supra). It is manifest from these observations that appeal in the name of `any' religion does not constitute a corrupt practice and only an appeal in the name of religion of the candidate concerned constitutes a corrupt practice within the meaning of sub Section (3) of Section 123 of the Act. The religion forming the basis of the appeal to vote or refrain from voting for any candidate must be the religion of that candidate. In the instant case, however, there is no averment that the appeal to vote for the respondent was made on the ground of religion of the respondent himself. Consequently, the alleged appeal in the name of the religion of the Dera to vote for the respondent does not constitute a corrupt practice within the meaning of sub-section (3) of Section 123 of the Act, because the said appeal is not said to have made in the name of the religion of the respondent himself. It thus becomes manifest that the averments Election Petition No.11 of 2007 14 made in the election petition do not contain the ingredients of the corrupt practices defined in sub section (3) and sub section (3A) of Section 123 of the Act and, therefore, the parties cannot be put to trial for the same. The election petition is liable to be rejected to the extent of the said corrupt practices because material facts constituting the said corrupt practices have not been pleaded in the election petition and the averments in the election petition do not disclose any cause of action for the said two corrupt practices.
Learned counsel for the respondent next contended that corrupt practice within the purview of sub-section (2) of Section 123 of the Act is also not constituted by the averments made in the election petition. The said sub-section is reproduced hereunder for facilitating better appreciation :-
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person 5[with the consent of the candidate or his election agent], with the free exercise of any electoral right:
Provided that--
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who--
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and ex-communication or expulsion from any caste or community; or Election Petition No.11 of 2007 15
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of publication, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.
Learned counsel for the respondent vehemently contended that there was no threat of social ostracism or ex-communication or expulsion from any caste or community nor there was inducement for belief that any person will be rendered an object of divine displeasure or spiritual censure as mentioned in proviso (a) to sub section (2) ibid and, therefore, the averments in the election petition do not come within the mischief of `undue influence' as defined in sub-section (2) of Section 123 of the Act. The contention cannot be accepted. There are detailed averments with material facts as well as material particulars in the election petition that undue influence was exercised by the respondent and his agents and members of political wing of the Dera with the consent of respondent resulting in interference and attempt to interfere with free exercise of electoral right. It can be seen only after trial as to whether the said corrupt practice under sub-section (2) of Section 123 of the Act is proved or not. At the present Election Petition No.11 of 2007 16 preliminary stage, it cannot be held that the said averments do not amount to undue influence within the meaning of the aforesaid provision. The contention of learned counsel for the respondent is based on proviso (a) to sub-section (2), but the said proviso commences with the expression `without prejudice to the generality of the provisions of this clause'. This expression means that threat or inducement mentioned in the aforesaid proviso are not the only instances which would constitute undue influence. On the other hand, any undue influence having any direct or indirect interference or attempt to interfere on the part of the candidate or his agents or of any other person with the consent of the candidate or his election agent with the free exercise of any electoral right would constitute a corrupt practice under this sub-section. Thus, even if there is no threat of social ostracism or ex-communication or expulsion from any caste or community or there is no inducement leading to the belief that any person will be rendered an object of divine displeasure or spiritual censure, still there may be corrupt practice of undue influence if there has been in any other manner any direct or indirect interference or attempt to interfere with the free exercise of electoral right. In the instant case, the election-petitioner has made detailed averments in the election petition in support of the plea of corrupt practice within the mischief of sub-section (2) of Section 123 of the Act and, therefore, the election petition based thereon cannot be summarily dismissed.
Learned counsel for the respondent in support of his contention cited judgment of Hon'ble Supreme Court in Ram Dial vs. Sant Lal and others AIR 1959 Supreme Court 855 , a judgment of Kerala High Court in Election Petition No.11 of 2007 17 the case of P.R.Francis v. Raghavan Pozhakadavil and others AIR 1981 Kerala 64 and also a judgment of Hon'ble Supreme Court in the case of Bachan Singh and another v. Prithvi Singh and others AIR 1975 Supreme Court 926. It was contended on the basis of these judgments that mere appeal to vote for the respondent cannot constitute undue influence. The contention cannot be upheld. There are various averments in the election petition regarding undue influence and it cannot be said without recording of evidence that the same do not constitute the corrupt practice of undue influence. It has inter alia been averred in the election petition that the respondent appealed to certain followers of the Dera (named in the election petition) that they were under obligation to abide by the decision taken by the Dera and the political wing to vote for the respondent. It has also been alleged that advertisements were published in various newspapers and a meeting was held in a marriage place in Rama Mandi where Chairman of the political wing of the Dera addressed gathering of Premis in the presence of respondent and appealed for vote in favour of the respondent by exercising undue influence over the Premis. It has also been averred in the election petition that there has been direct interference and attempt to interfere on the part of the respondent and his agents and members of political wing of the Dera with the consent of the respondent with free exercise of electoral right. In the face of these averments and other averments in the election petition, it cannot be said that at the preliminary stage that no corrupt practice of undue influence within the mischief of sub section (2) of Section 123 of the Act is made out so as to invite rejection of the election petition at the threshold.
Election Petition No.11 of 2007 18
Similarly, there is sufficient averment in the election petition in support of the corrupt practice defined in sub section (7) of Section 123 of the Act, regarding obtaining or procuring assistance from public servant Natha Singh, Patwari. Even learned counsel for the respondent could not advance any meaningful argument on this aspect except submitting that affidavit in support of the election petition does not contain sufficient averments in support of this corrupt practice. However, as already discussed hereinabove, alleged defect in the affidavit is curable and the election petition cannot be thrown away at the threshold on this ground when there are sufficient averments in support of this corrupt practice in the election petition.
Learned counsel for the respondent also vehemently contended that there is reference to certain advertisements/news items published in some newspapers, in the election petition, but neither contents thereof have been reproduced in the election petition nor copies of the said advertisements/news items were annexed with the election petition or supplied to the respondent and, therefore, averments in the election petition are defective and the election petition is liable to dismissal. Reliance in support of this contention has been placed on judgment of Hon'ble Apex Court in the case of Manohar Joshi v. Nitin Bhaurao Patil and another AIR 1996 Supreme Court 796, to contend that the documents form part of the election petition and, therefore, should have been attached with the election petition and supplied to the respondent or contents thereof should have been reproduced in the election petition. Judgment in the case of U.S.Sasidharan v. K.Karunakaran and another AIR 1990 Supreme Court 924 has also been Election Petition No.11 of 2007 19 cited by learned counsel for the respondent.
The aforesaid contention of learned counsel for the respondent is devoid of any substance. Copies of relevant parts of the newspapers concerned were filed in separate envelope with the election petition and, therefore, the aforesaid contention of learned counsel for the respondent is factually incorrect. In addition to it, copies of relevant parts of the said newspapers have also been annexed with the replication and supplied to the respondent. Consequently, it cannot be said that there has been any omission, muchless fatal omission, on the part of the petitioner. There has been full compliance with the relevant provisions of the Act, including Section 81(3) of the Act, in this regard. Learned counsel for the petitioner cited judgments of Hon'ble Supreme Court in cases of Smt. Sahodrabai Rai v. Ram Singh Aharwar and others AIR 1968 SC 1079, A.Madan Mohan v. Kalavakunta Chandrasekhara AIR 1984 SC 871 and Anil R.Deshmukh v. Onkar N.Wagh & Ors. JT 1999 (1) Supreme Court 135. In view of all these judgments also, it cannot be said that the election petition suffers from any such fatal defect, as contended by learned counsel for the respondent.
Learned counsel for the respondent relying on Mani Ram v. Surinder Kumar and others AIR 1993 Punjab and Haryana 152 contended that verification of the affidavit is defective as the parts verified to be true on information and verified to be true on personal knowledge have not been specifically differentiated. The contention cannot be accepted because the said parts have been differentiated in the affidavit. Moreover, effect of alleged omission was not considered in the aforesaid judgment, being academic in that case. That apart, alleged defect in the affidavit or its Election Petition No.11 of 2007 20 verification is curable defect, as already discussed in detail.
Learned counsel for the respondent relying on Shrikrushna Sadashiv Dhamankar v. The Nasik Merchants Co-operative Bank Ltd and others AIR 1990 Bombay 90 contended that affidavit in support of the election petition is mandatory. However, in the instant case, this mandatory condition has been complied with as requisite affidavit has been furnished in support of the election petition.
Learned counsel for the petitioner cited unreported judgment dated 15.9.2008 of this Court in C.M.No.26E of 2008 in Election Petition No.18 of 2007 titled Gura Singh and Ajaib Singh Bhatti. However, in that case, the Court rejected the request of the respondent to treat certain issues as preliminary issues. In the instant case, however, issues no.3 to 7 have already been treated as preliminary issues. Consequently, the aforesaid judgment has no bearing on the instant case.
Learned counsel for the petitioner also relied on unreported judgment dated 17.9.2008 of this Court in Election Petition No.13 of 2007 titled Balwinder Singh Bhunder v. Ajit Inder Singh Moffer. However, in that case, it was held that the question whether the facts pleaded in the election petition amounted to undue influence or corrupt practice so as to bring the same within the ambit of section 123(2), (3) and (3A) of the Act could be answered only after facts were established by way of evidence and the influence or undue influence and the extent thereof could be determined only thereafter. In the instant case also, I have held that the question of corrupt practice of undue influence within the ambit of sub section (2) of Section 123 of the Act can be determined or adjudicated upon only after Election Petition No.11 of 2007 21 evidence is adduced. However, the averments in the election petition even if assumed to be correct do not make out the ingredients of corrupt practices within the ambit of sub sections (3) and (3A) of Section 123 of the Act and, therefore, it would be futile to put the parties to trial for the same.
To conclude, it is held that averments in the election petition do not constitute corrupt practices within the ambit of sub section (3) and sub section (3A) of Section 123 of the Act, and therefore, do not disclose any cause of action for the said corrupt practices. The parties are not required to be put to trial for the same. Consequently, the election petition based on the said corrupt practices is rejected and sub sections (3) and (3A) of Section 123 of the Act shall be deemed to have been omitted from issue no.1.
It is also held that the election petition is not liable to summary rejection relating to corrupt practices within the ambit of sub section (2) and sub Section(7) of Section 123 of the Act. It is also held that the election petition is not liable to be dismissed for non-compliance with Section 81(3) of the Act or for defective verification of the election petition. However, pleadings relating to corrupt practices within the meaning of sub-section (3) and sub section (3A) of Section 123 of the Act are not being ordered to be struck off from the election petition because the same pleadings also relate to the corrupt practice of undue influence within the ambit of sub section (2) of Section 123 of the Act.
Election Petition No.11 of 2007 22
The preliminary issues no.3 to 7 stand disposed of accordingly.
( L.N. MITTAL ) JUDGE November 5, 2008 sv Election Petition No.11 of 2007 23