Punjab-Haryana High Court
**** vs Navjot Singh Sidhu & Ors on 6 December, 2010
Author: Surya Kant
Bench: Surya Kant
CM No.2E of 2010 in EP No.3 of 2009.doc
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HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
****
CM No.2E of 2010 in EP No.3 of 2009 Date of Decision: 06.12.2010 **** Om Parkash Soni . . . . Petitioner VS.
Navjot Singh Sidhu & Ors. . . . . . Respondents **** CORAM : HON'BLE MR.JUSTICE SURYA KANT ****
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
**** Present: Mr. ML Saggar, Senior Advocate with Mr. GP Vashisht, Advocate for the petitioner Mr. SP Jain, Senior Advocate with Mr. Dheeraj Jain, Advocate for applicant/respondent No.1 ***** SURYA KANT J.
(1). This order shall dispose of an application under Order 6 Rule 16 & Order 7 Rule 11 read with Section 151 CPC and Section 83 of the Representation of the People Act, 1951 (in short, 'the Act') moved by the first respondent - returned candidate for dismissal of the election petition at the threshold for want of 'material facts' and that no 'cause of action' has accrued in favour of the petitioner.
CM No.2E of 2010 in EP No.3 of 2009.doc -2- (2). The elections to the 15th Lok Sabha were announced on 2nd March, 2009 when the Model Code of Conduct also came into force. As per the Notification dated 17.04.2009, the Polling Schedule of the nine out of a total thirteen Parliamentary Constituencies in the State of Punjab, including 02-Amritsar Parliamentary Constituency, was as follows:-
Last date of nominations 24.04.2009
Scrutiny 25.04.2009
Withdrawal by candidates and allotment of symbols 27.04.2009
Polling 13.05.2009
Counting of votes 16.05.2009
(3). The petitioner contested the above-stated election
from Amritsar Parliamentary Constituency as a
candidate of the Indian National Congress (INC) party while the first respondent was a candidate of Bharatiya Janata Party (BJP). The other respondents were also either representing some political party or were Independent candidates. As per the result declared on 16.05.2009, the petitioner polled 3,85,188 votes whereas the returned candidate (respondent No.1) got 3,92,046 votes. The aggrieved petitioner prays to declare the election of respondent No.1 void; seeks a direction for recounting of the votes and declare him the returned candidate from 02-Amritsar Parliamentary Constituency. These reliefs have been CM No.2E of 2010 in EP No.3 of 2009.doc -3- sought, inter alia, on the grounds that the returned candidate adopted 'corrupt practices' (i) as he incurred expenditure much more than what is authorized under Section 77 of the Act [Section 123(6)]; (ii) obtained/procured the assistance of a serving Gazetted Officer of the Government for furtherance of the prospects of his election [Section 123(7)(a)]; and
(iii) the returned candidates failed to observe, rather brazenly violated the Model Code of Conduct. (4). In order to substantiate these allegations, the petitioner has alleged that the first respondent incurred an actual expenditure of `85,67,745/- on his election which included a huge amount spent by him and/or on his behalf, on various advertisements in the print and electronic media, on serving cold drinks, tea, snacks etc. in various rallies/public meetings, and also on the tents, chairs, sitting arrangements etc. However, respondent No.1 has shown the total expenditure amounting to `17,03,665/- only. It is averred that the day the Election Commission of India announced the Parliamentary Elections on 2nd March, 2009, the first respondent who belongs to the political party sharing power in the State of Punjab, got a promotee IAS Officer transferred as the Deputy Commissioner of Amritsar besides managing the CM No.2E of 2010 in EP No.3 of 2009.doc -4- posting of one Jagit Singh Suchu as Additional Superintending Engineer in the Verka Circle of PSEB on 24th February, 2009. These Officers are alleged to have misused their official positions at the instance of the first respondent for furtherance of the prospects of his election. The petitioner also alleges that Jagjit Singh Suchu was transferred out of Amritsar district on 23.04.2009 on a number of complaints made to the Election Commission of India but immediate after joining at the new place of posting on 8th May, 2009, he proceeded on leave and remained at Amritsar only to help respondent No.1 in the election. The promotee IAS Officer Bhagwant Singh, who was allegedly posted as Deputy Commissioner, Amritsar at the instance of respondent No.1, is said to have tampered with the Electronic Voting Machines (EVMs) and manipulated to decrease the total number of votes polled in favour of the petitioner and sided with respondent No.1 to the extent that he did not declare the petitioner elected, who had been statedly leading by a comfortable margin of 8762 votes after the completion of counting of all the 9 Assembly segments by 2.00 p.m. The petitioner further alleges that he along with his workers and supporters was cane-charged by the CM No.2E of 2010 in EP No.3 of 2009.doc -5- police at the instance of the Deputy Commissioner- cum-Returning Officer, who finally and in a hanky- panky manner declared respondent No.1 elected at 8.40 p.m. (5). The first respondent has moved the instant application denying the petitioner's allegations. It is maintained that the petitioner has failed to plead all the 'material facts' as well as the 'material particulars' and has also failed to disclose any 'cause of action'. It is averred that though the petitioner has repeatedly referred to an alleged 'Recounting Application' but neither its copy has been placed on record nor the contents are reproduced. The election petition is statedly silent as to how the alleged violation of Instructions/Rules by the returned candidate, has 'materially affected' the petitioner's election. The allegations regarding tampering with the result or of the margin of 8762 votes claimed by the petitioner appears to be nothing but a figment of imagination and totally false. The petitioner is said to have miserably failed to plead or disclose as to how and from where did he get to know the figures of alleged expenditure incurred by the returned candidate and the 'verification' of the Election Petition on the basis of personal knowledge is alleged to be highly defective. CM No.2E of 2010 in EP No.3 of 2009.doc -6- While denying any role behind the posting of Bhagwant Singh as Deputy Commissioner or Jagjit Singh Suchu as Additional Superintending Engineer, the returned candidate has pleaded that the latter was not a 'Gazetted Officer' in the 'State Services'. Learned counsel for the first respondent in support of his contentions has relied upon a series of decisions including (i) M. Chandra v. M. Thangamuthu & Anr., 2010(4) RCR 696 (Civil); (ii) Anil Vasudev Salgaonkar v. Naresh Kushali Shingaonkar, (2009) 9 SCC 310; (iii) KK Ramachandran Master v. MV Sreyamakumar & Ors. JT 2010 (6) SC 480;
(iv) Azhar Hussain v. Rajiv Gandhi, AIR 1986 SC 1253(1); (v) Dhartipakar Madan Lal Aggarwal v. Shri Rajiv Gandhi, AIR 1987 SC 1577; (vi) PH Punar v. Kanthi Rajashekhar Kidiyappa, AIR 2002 SC 1368; (vii) Jaipal Singh v. Sumitra Mahajan (Smt.) & Anr., (2004) 4 SCC 522; (viii) PKK Shamsudeen v. KAM Mappillai Mohindeen and Ors., AIR 1989 SC 640; (ix) Vadivelu v. Sundaram & Ors., AIR 2000 SC 3230; (x) Akhara Brahm Buta v. State of Punjab & Anr., AIR 1993 SC 366; (xi) Ajay Kumar Poeia v. Shyam & Ors., (2004) 1 SCC 429; (xii) Hari Shanker Jain v. Sonia CM No.2E of 2010 in EP No.3 of 2009.doc -7- Gandhi, (2001) 8 SCC 233; (xiii) Gajanan Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors., (1995) 5 SCC 347; (xiv) Ali Singhani Bhagwandas Madhav Singh v. Sri Rajiv Gandhi, AIR 1991 Allahabad 145.
(6). The petitioner has filed his reply to the application refuting the plea(s) taken by the first respondent and reiterating that the election petition discloses the 'material facts' and 'particulars' as the petitioner need not to have pleaded the evidence as well. Learned counsel for the petitioner has also cited various decisions like (i) S.Raghbir Singh Gill v. S. Gurcharan Singh Tohra & Ors., AIR 1980 SC 1362(1); (ii) Harbans Singh Jala v. Union of India, 1997(3) RCR (Civil) 355; (iii) Gajanan Krishnaji Bapat & Anr. v. Dattaji Raghobaji Meghe & Ors., (1995) 5 SCC 347;(relied upon by first respondent too) (iv) Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, AIR 1978 SC 851(1); (v) Smt. Rekha Rana v. Jaipal Sharma & Ors., JT 2009(9) SC 285; (vi) A.Neelalohithadasan Nadar v. George Mascrene & Ors., 1994 Supp(2) SCC 619; (vii) KK Ramachandran Master v. MV Sreyamakumar & Ors., JT 2010 (6) SC 480 (relied upon by first respondent too); CM No.2E of 2010 in EP No.3 of 2009.doc -8- and (viii) Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; to bring his points home.
(7). I have heard learned counsel for the parties at some length and gone through the contents of the election petition as well as the subject application and reply thereto.
(8). The core issue to be determined is as to whether or not the election petition satisfies the ingredients of Section 83(1) of the Act which mandates that the election petition shall contain a concise statement of 'material facts' relied upon by the petitioner and shall set forth full particulars of any 'corrupt practice' alleged by him including the names of the parties alleged to have committed such practice and the date & place of the commission of each such practice(s)? (9). From the case law cited at the bar it emerges that the following principles are well settled:-
a) an election petition is liable to be dismissed under Order VI Rule 16 and under Order VII Rule 11(a) CPC if it does not contain the concise statement of material 'facts' and 'particulars' and does not set forth full particulars relating to the alleged 'corrupt practices' in the election;
b) the election petition can be summarily dismissed if it does not furnish the 'cause of action';
CM No.2E of 2010 in EP No.3 of 2009.doc -9-
c) there must not be any vagueness in the allegations as the returned candidate must know the case he has to meet and vague and evasive allegations for a fishing or roving enquiry are impermissible;
d) an election petition which does not comply with the provisions of Section 81, 82 or 117 can be dismissed under Section 86 of the Act, the one lacking in material 'facts' and 'particulars' in terms of Section 83 can be dismissed by the High Court under the provisions of CPC;
e) Failure to plead even a single material fact leads to incomplete 'allegations' and 'cause of action', and such charges are liable to be struck off under Order VI Rule 16 CPC;
f) 'Material Facts' would include the complete chain of the material 'events' and the 'basis' in support of the allegations;
g) The material 'Particulars', on the other hand, are the descripted narration of 'events' of the 'material facts' pleaded to "amplify, refine and embellish" the material facts to make them more clear and more informative;
h) The 'material facts' would, thus, mean a composite bundle of facts which are sufficient CM No.2E of 2010 in EP No.3 of 2009.doc
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enough to give rise to 'cause of action' and must be specifically averred as to how the result of an election has been materially affected.
i) The power to strike off the pleadings should be exercised by the High Court sparingly and with extreme caution and circumspection;
j) Where the allegations of 'corrupt practices' along with the facts necessary to formulate a complete 'cause of action' are pleaded and the particulars have also been given, though insufficient, the High Court ought not to dismiss the election petition and should give an opportunity to the party under Section 86(5) of the Act to make good the deficiency;
k) An election petition founded upon the ground of improper rejection of Ballot Papers, even if lacking in material facts, cannot be dismissed at the threshold as the petitioner is entitled to furnish better particulars thereof;
l) While the 'material facts' cannot be introduced after the expiry of the period of limitation, the 'material particulars' can be permitted to be introduced even at a belated stage provided that the material facts in relation thereto have already been pleaded;
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(10). Guided by these principles and adverting to the averments made in the election petition in the context of the grounds taken by the petitioner to annul the election of the returned candidate or for re-count or to declare him as elected, suffice it to observe at this stage that Section 77 of the Act obligates a candidate to keep a separate and correct account of all expenditure incurred or authorized by him from the date of his nomination as a candidate and till the date of declaration of the result subject to the exceptions mentioned in Clause (a) and (b) of Explanation-1 and/or given in sub-Section (iii) regarding the maximum limit of such expenditure.
(11). The petitioner in paragraphs 7 to 16 of the election petition has averred that the maximum permissible expenditure for a Parliamentary Constituency in the State of Punjab was `25 lacs against which the first respondent has shown to have spent `17,03,665/- though the actual expenditure incurred by him was `85,67,745/-. The petitioner has attempted to give specific particulars of the 'expenditure' allegedly incurred by respondent No.1 on the advertisements in the print and electronic media as well as on the rallies/public meetings organized by him. The CM No.2E of 2010 in EP No.3 of 2009.doc
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averments though tend to give an impression of a self- serving hypothetical data, nevertheless their veracity or genuineness cannot be finally opined at this stage as the same need to be proved by the petitioner by leading impeccable and conclusive evidence to establish that the actual expenditure incurred by the first respondent on his election was more than `25 lacs. These allegations, thus, cannot be rejected or struck off at this stage for lack of disclosure of 'material facts' or 'material particulars'. (12). The petitioner has in paragraphs 17 to 21 of the Election Petition averred that the returned candidate who belongs to a political party sharing power in the State of Punjab got the officers of his choice transferred/posted at Amritsar, including the Deputy Commissioner-cum-Returning Officer, nine Assistant Returning Officers and an Additional Superintending Engineer. The combined reading of these paragraphs suggests as if these officers were posted at Amritsar "at the instance" of the returned candidate on the eve of the election or after the Model Code of Conduct of Election had come into force. In my considered opinion, the transfer or posting of an Officer on the eve of election or in violation of the Model Code of Conduct though may invite penal consequences and/or wrath CM No.2E of 2010 in EP No.3 of 2009.doc
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of the Election Commission against the State machinery, yet it has no direct or indirect bearing in reference to Section 100 read with Section 123(7) of the Act.
(13). The constituents of "Corrupt Practice" within the meaning of Section 123(7) of the Act are obtaining, procuring, abeting or making an attempt by the candidate or his agent or any other person with his consent for the furtherance of the prospects of the candidate's election, from any person in the service of the Government belonging to any of the classes like Gazetted Officer, members of the Police Forces, Excise or Revenue Officers etc. The petitioner has made allegations of 'securing assistance' by the returned candidate against Jagjit Singh Suchu only. There is not even a whisper of such allegations against all the nine Assistant Returning Officers whose details are given in paragraph 21 of the election petition. No such allegations are made against the Deputy Commissioner-cum-Returning Officer also though he is alleged to have violated the election Rules/Instructions and shown favour to the returned candidate.
(14). It is accordingly directed that the allegations made in paragraphs 17 to 21 of the election petition so far as CM No.2E of 2010 in EP No.3 of 2009.doc
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they pertain to Section 123(7) of the Act, shall be considered qua Jagjit Singh Suchu only and that too subject to a further rider that the petitioner shall have to prove that the said Jagjit Singh Suchu was a "Gazetted Officer" in the service of the Government. The objection of the returned candidate that the above-named official is not in the service of Government is kept open, to be decided on the basis of the evidence to be led by the parties. (15). This takes us to the allegations contained in paragraphs 22 to 25 of the election petition which precisely pertain to the alleged bias shown by the Returning Officer towards the returned candidate by allegedly not declaring the petitioner elected despite securing 8762 votes more than respondent No.1 or for deliberately violating the Rules/Instructions of the Election Commission of India and also tampering with the Electronic Voting Machines. Another important allegation pertains to the 'Recounting Application' allegedly made by the petitioner but not entertained by the Returning Officer for hours. The allegations have been broadly made with precision and cannot be said to be lacking in material particulars though it shall be for the petitioner to prove the same beyond any doubt.
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(16). The fine distinction between averring the material 'particulars' on the one hand and the supporting 'evidence' on the other has to be drawn by the Court while considering the prayer to strike off the pleadings. The question as to whether the petitioner moved an application for recounting of votes or not is a question of fact and heavy onus lies upon the petitioner to prove that such an application was actually made by him. Similarly, there is no reason to doubt at this stage that the Returning Officer or his assisting staff did not maintain the records of votes polled by different candidates in every round or that the scrutiny of such records, would not be able to reveal as to who was actually leading during different rounds especially after the 9th round of counting. In a given case, the averments made to this effect may tantamount to a 'fishing' and 'roving' enquiry by the defeated candidate which is impermissible in law though it always depends on the facts and circumstances of each case as to whether or not such like averments are liable to be rejected at the threshold.
(17). Having regard to the ratio decidendi of the several binding decisions cited at the bar, it does not appear expedient to reject the allegations made by the CM No.2E of 2010 in EP No.3 of 2009.doc
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petitioner at this stage even if it might be a Herculean task for him to prove these allegations true. (18). For the reasons afore-stated, the instant application is partly allowed to the extent noticed above. The first respondent is granted opportunity to file his written statement overlooking the averments and/or ignoring the allegations pertaining to Section 123(7) of the Act, with an advance copy to the learned counsel for the petitioner.
(19). Dasti.
(SURYA KANT)
JUDGE
06.12.2010
vishal shonkar