Punjab-Haryana High Court
Mani Ram vs Surinder Kumar And Others on 13 May, 1992
Equivalent citations: AIR1993P&H152, AIR 1993 PUNJAB AND HARYANA 152
ORDER
1. Fatal to a petition seeking to set aside an election on the ground of corrupt practice, is the lack of material facts and particulars pertaining to such corrupt practice, and such is precisely the case here, where the challenge is to the election of Surinder Kumar respondent-I to the Vidhan sabha Haryana from the Kaithal Assembly Constituency, in the Elections held in May, 1991.
2. The successful candidates Surinder Kumar obtained 17190 votes while his nearest rival Charan Dass got 16753. Surinder Kumar was consequently declared elected with a margin of 437 votes.
3. According to the petitioner Mani Ram, a voter in the said constituency, the successful candidates Surinder Kumar had committed the corrupt practice of bribery as defined in Section 123 of the Representation of the People Act, 1951 (hereinafter referred as 'the Act") by distributing money for the purpose of inducing voters to vote for him. It was averred in this behalf that Surinder Kumar had given Rs. 25,000/- to Sat Pal son of Shri Chand and Sat Pal son of Tek Chand for distribution in a Harijan Colony for getting votes for himself. This money was given at 132/ 5, Siwan Gate, Kaithal at about 10 p.m. on May 19, 1991. This amount was given in the presence of Subhash Malhotra. Both the Sat Pals had been asked by Surinder Kumar to distribute this money amongst persons who promised to vote for him. The two Sat Pals thereupon went to Arjun Nagar Locality and contacted Balwan Singh and Ram Saran. They went around the locality and called the male members to assemble near the house of Balwan Singh. About 15/20 minutes later, a crowd of over 250 persons gathered there. Sat Pal alias Pala addressed them saying that he had come there at the behest of Surinder Kumar, who had sent them to help his Harijan brothers. He then said that those who promise to vote for Surinder Kumar would be paid Rs. 100/- each. He thereupon asked those who wanted money and promised to vote for Surinder Kumar to raise their hands. Many people did so. They were then called one by one and given Rs. 100/- each after they had promised to vote for Surinder Kumar. According to the petitioner, he learnt of this from Sat Pal son of Shri Chand at his residence at about 5 p.m. on June 17, 1991.
4. The other allegation of the corrupt practice of bribery consists of the plea that Surinder Kumar had given Rs. 50,000/- to Surjan respondent 3 to prevent him from withdrawing from the contest. It is said that it was on April 27, 1991 that Surinder Kumar gave this sum of Rs.50,000/- to Surjan respondent 3 at the residence of Chander Gupt shorewala. One Subhash was also present there at that time. It is averred that this Chander Gupt Shorewala told respondent Surjan that being a Congressman, he should support Surinder Kumar by remaining in the contest as an Independent Candidate, as Brahmin votes would be cast in his favour and this would help congressmen. A sum of Rs. 50,000/ - was the handed over to Surjan to enable him to remain in the contest. It is said that Surjan remaining in the contest materially affected the result of election as he secured 581 votes. Surinder Kumar, it was pointed out, had won the election by only 437 votes.
5. Next in the petition to corroborate the giving of this Rs. 50,000/ - by Surinder Kumar to Surjan was the averment that Chander Gupta, who was a strong supporter of the Congress (I), was also an election agent of Surjan and this Chander Gupt had made an appeal, published in a local newspaper, that people should vote for the Congress (I) Candidate for the Kaithal Constituency. A similar appeal is also said to have been got published in another newspaper on May 14, 1991.
6. According to the petitioner, this incident" Rs. 50,000/- being paid to Surjan, by Surinder Kumar was told to him by Naranjan Das, on May 5, 1991.
7. The allegations of corrupt practice were denied by the returned candidate in the return filed by him. A preliminary objection was taken therein that the election petition lacked material facts and did not disclose a cause of action and was thus liable to be dismissed.
8. A further plea was raised that the affidavit in support of the allegations of corrupt practice was not in accordance with the rules and the petition was therefore, liable to be dismissed on this ground too.
9. Two preliminary issues were consequently framed. These being:--
1) Whether the petitioner discloses no cause of action and the averments made in paragraphs 4 and 5 of the petition do not disclose material facts and particulars, as required by law. If so, to what effect?
2) Whether the affidavit in support of the allegations of corrupt practaices, as contained in petition is not in accordance with law, If so, to what effect?
10. According to the prescribed procedure under the Act, for the presentation of election petitions, it has been rendered imperative that the election petition must contain a concise statement of material facts on which petitioner relies and further that he must also set-forth full particulars of any corrupt practice which he 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 such practice. In other words, Section 83 thereof is mandatory and requires first a concise statement of material facts and then the fullest possible particulars. As was discussed in Samant N. Balakrishna etc. v. George Fernandez etc., AIR 1969 SC 1201; "The word 'material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material facts leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner, In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus 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....."
11. Further in Azhar Hussain v. Rajiv Gandhi AIR 1986 SC 1253 : (1986 All LJ 625), it was said, at page 1258 "In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of S. 83(1)(a)....."
12. The legal requirement was again enunciated in a similar vein in Dhartipakar Madan Lal Agarwal v. Shri Rajiv Gandhi, AIR 1987 SC 1577, where, it was observed, at page 1587;--
"Allegations of corrupt practice are in the nature of criminal charges, it is necessary that there should be no vagueness in the allegations so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action. The emphasis of law is to avoid a fishing and roving inquiry. It is, therefore, necessary for the Court to scrutinise the pleadings relating to corrupt practice in a strict manner."
13. Finally, there is the observation in Lalit Kishore Chaturvedi v. Jagdish Prasad Thada, AIR 1990 SC 1731 (at page 1733). "Elections the mechanical guarantee of democracy and means to the end of the Government by public opinion responsive and responsible to the electorate is basically fought out on fair criticism. Resorting to corrupt practice in it is subversive of democratice process. Impact of it is deep and wide spread, therefore, statutory compulsion visualised by S. 83(1)(b) of the Act to set-forth full particulars of such practice including names of persons, time and place, has been construed strictly and in absence of precise and specific pleading it has been held to render an election petition infirm."
14. Turning now to evaluate and assess the averments made by the petitioner with regard to the corrupt practice of bribery alleged to have been committed by the petitioner in the context of the law, as settled, a plain reading of the petition would reveal that the essential materials and particulars are conspicious by their absence. With regard to the allegation that the petitioner paid Rs. 25,000/- to two Sat Pals to purchase votes from the Harijan Colony, the omission of material significance is provided by the absence of any averment to the effect that the offer of bribery was made to persons who were voters or that the persons who actually received money, were voters. What stands out, in this behalf, is the further fact that not one of the recipients of any such alleged bribe has been named in the petition. In this situation, there can be no escape from the conclusion that this allegation constitutes no cause of action for the respondent to answer.
15. Next, there is the allegation pertaining to Rs. 50,000/- being paid by the petitioner respondent 3 Surjan not to withdraw from the contest. Here again, it will be seen that it has not even been averred that Surjan had, any time, prior to the receipt by him of this alleged bribe, expressed any intention or given any indication that he was likely to withdraw from the contest. Not without significance here is the further fact that as against 17190 and 16753 votes Secured by the two leading contestants, 581 votes only were polled in favour in the said Surjan. This allegation too provides no cause for the respondent's petition to be up set.
16. Finally, the setting aside of the election of the returned candidate was sought on the ground of the improper acceptance of the nomination papers of respondent-2 Mohinder Singh. It is said that on the relevant date, he was holding an office of profit in the office of the Bhakra Canal Circle, Kaithal. It is pertinent to note here that this averment is not backed by the further plea that the alleged improper acceptance of the nomination papers of the said Mohinder Singh had materially affected the result of the election of the returned candidate. This omission renders wholly unsustainable any challenge to the election of the returned candidate on this ground.
17. There can thus be no manner of doubt that the petition discloses no cause of action and it must, on this account, be dismissed.
18. As regards issue No. 2, the affidavit in support of the allegations of the corrupt practice too, is clearly defective and contrary to law. The verification of the paragraphs pertaining to the allegations of corrupt practice reads as under:--
"Paragraph 4(i) is true and correct partly on personal knowledge and partly on information received from Sat Pal son of Shri Chand. Paragraph 4(ii) is true and correct partly as per personal knowledge and partly from information given by Naranjan Das Bansal."
It was clearly incumbent upon the petitioner to have indicated what parts of paragraphs 4(i) and 4(ii) were correct according to his own information and what on the basis of information supplied by Sat Pal and Naranjan Das Bansal, respectively. The effect of this omission, is, however, rendered academic by the petition being liable to be dismissed on the earlier issue as disclosing no cause of action.
19. In the result, this petition is hereby dismissed with Rs. 2,000/- as costs.
20. Petition dismissed.