Madhya Pradesh High Court
Sajjansingh Verma vs Surendra Verma And Ors. on 12 July, 1996
Equivalent citations: AIR1997MP49, AIR 1997 MADHYA PRADESH 49
ORDER A.R. Tiwari, J.
1. By a plurality of less than 123 votes, (123 votes to be exact as reduced from initial margin of 146 votes) on recount of votes in terms of Rule 63 of the Conduct of Election Rules, 1961 (for short 'the Rules'), respondent No. 1 (Surendra Verma), a candidate sponsored by Bhartiya Janta Party was declared elected on 1st December, 1993 from Sonkatcha Constituency No. 277 of the Madhya Pradesh Legislative Assembly in the general election held on 27th November, 1993 defeating his main rival, the petitioner, a candidate put up by Indian National Congress. Respondents Nos. 2 to 6, ex parte here, were also in the field and polled poorly. The petitioner has filed this Election Petition under Section 81 of the Representation of the People Act, 1951 (for short 'the Act') calling in question the election of the respondent No. 1 on the grounds specified in Sections 100 and 101 of the Act to obtain triple reliefs as noted below :--
(a) To declare the election of respondent No. 1 to be void.
(b) To declare consequently the petitioner to have been duly elected.
(c) To record a finding about commission of corrupt practice Ex voto.
2. The allegation of 'corrupt practice' mainly rests on the linchpin, of alleged objectionable speeches by Parmanadji and Ritumbhara Devi with the consent of respondent No. 1 in a general meeting at Tehsil Maidan, Tonk Khurd, District Dewas, part of the aforesaid Constituency, on 24-11-1993 ostensibly organised by Hindu Chetna Manch and Bajrangdal, prone to promote feelings of hatred and enmity among different classes of citizens, particularly Hindus and Mohammedans on the ground of religion as recorded in the audio cassettes, purchased from blue Maruti Car (number not particularised) parked near the venue of this meeting and reproduced (doer not named) in type script, (anusuchi 'A') with cover (Schedule 'A'), attached with the petition. The other allegation centres round the grievance of non compliance with the provisions of the Act and the Rules.
3. Respondent No. 1 has filed the written-statement of the defence controverting all allegations and raising preliminary objections against tenability of this petition on the fulcrum of (i) absence of requisite particulars and thus non-disclosure of cause of action; (ii) improper verification; (iii) non-production and non-supply of audio cassette; and (iv) non-compliance with the provisions of the Act.
4. On the basis of the pleadings, I framed the under noted two preliminary issues on 24-11-1995 when the learned counsel for both the sides indicated agreement as recorded in the proceeding, that the pleadings did give rise to these issues of law, triable as preliminary issues in terms of the provision contained in Order XIV, Rule 2(2) of the Code of Civil Procedure (for short 'the Code) requiring no evidence:--
(i) Whether the allegations made in paras 3, 4, 5, 6 and 10 of the Election Petition lack in material facts and particulars and thus, do not disclose cause of action. If so, to what effect?
(ii) Whether there is non-compliance of Section 81 of the Representation of People Act, 1951. If, to what effect ?
5. I have heard Shri. S.L. Bagdi, learned counsel for the petitioner and Shri C.L. Yadav, learned counsel for the contesting respondent No. 1 on the aforesaid issues.
6. Shri Yadav invited my attention to the pleadings contained in paras 3 to 6 and 10 and contended that the averments lacked in material facts and particulars and thus did not disclose cause of action to put the case on trial. He also submitted that the petition merits summary dismissal due to non-compliance of Section 81 of the Act. In further pursuit, he argued that (i) The alleged cassette, though a vital piece and an integral part of the election petition, is not produced with the petition; (ii) Production of cover (Schedule 'A') and type-script (Anusuchi 'A') do not satisfy the requirement of the Act; and (iii) These are not properly verified. According to him, the audio-cassette ought to have been produced and its true copy should have been served on respondent No. 1 along with the copy of the election petition. He has placed reliance on AIR 1986 SC 1253 (Azhar Hussain v. Rajiv Gandhi), AIR 1993 SC 367 (Shri Satyanarain Dudhani v. Uday Kumar Singh) AIR 1990 SC 1731 (Lalit Kishore Chaturvedi v. Jagdish Prasad Thada), AIR 1986 SC 3 (Ram Singh v. Col. Ram Singh), AIR 1990 SC 924 (U.S. Sasidharan v. K. Karunakaran) and AIR 1983 SC 558 (M. Karunanidhi v. H.V. Handa).
7. Shri Bagdi, on the other hand, has dubbed the aforesaid contentions as non-meritorious, Inviting attention to Order VI, Rule 2 of the Code, he contended that every pleading should contain only a statement in a concise form of the material facts and not the evidence by which such facts are to be proved. According to him, material facts, i.e. facts probanda, the properly pleaded and criticism on the fulcrum of obscurity is without merit. He further submitted that audio cassette is not an integral part and hence its non-production or non-supply of its copy is inconsequential. He contended that cover and typescript of audio cassette are produced like any other document in terms of Order VII, Rule 14(2) of the Code and copies are furnished. He also urged that pleadings in paras 3 to 6 and 10 are not vague and respondent No. 1 understood the case laid against him and that paras 3 to 6 and 10 disclosed proper cause of action. He attempted to explain that verification is also proper as Schedule 'A' Photo copy of the Audio Cassette Cover contains the 'statement' as "verified true copy" and bears the signature of the petitioner and Anusuchi 'A' -- type script of audio cassette -- contains similar statement and signature on all the eighteen pages and, further verification, as copy of the speeches -- as reproduced from recorded audio cassette, and signature on last page No. 18. He has placed reliance on AIR 1968 SC 1079 (Smt. Sahodrabai Rai v. Ram Singh Aharwar) AIR 1964 SC 1545 (Murarka Radheshyam Ram Kumar v. Roop Singh Rathore) AIR 1975 SC 968 (Prabhu Narayan v. A. K. Shrivastava) AIR 1978 SC 840 (M. Kamalam v. Dr. V.A. Syed Mohammed AIR 1983 SC 558 (M. Krarunanidhi v. H.V. Handa) and AIR 1984 SC 871 (A. Madan Mohan v. Kalavakunta Chahdrasekhara).
8. Shir Bagdi, in the alternative and as an abundant caution, later filed an application, I. A. No. 1/96, under Section 151 of the Code for leave to verify and cure the alleged defect in case this Court concluded that separate verification of the document was essential as, in his view, defect or deficiency was not liable to be catgegorised as incurable or fatal. The application is opposed by the counsel for respondent No. 1.
9. Before examining the worth of rival contentions, it is" apt to incorporate here that the petitioner had at very early stage of the case filed I.A. No. 20/94 under Section 151 and Order XXXIX, Rule 7 of the Code for an interim relief of full recount of all the ballots polled under the supervision of a Court Official at infant stage of the petition. This application, on placing reliance on AIR 1993 SC 367 (Shri Satyanaran Dudhani v. Uday Kumar Singh) was, however, rejected on 15-9-1995 as premature because no evidence was led till then and objection against tenability of the petition itself was required to be considered and decided before considering the prayer.
10. In a democratic polity, election is the means to mirror the wishes and will and should thus not be seen to become illation to pollute the system. The result of the election is exposed to judicial scrutiny in a properly presented petition under the Act to ensure purity of elections and to dislodge political manager when found to have become occupant of the seat via corrupt practice or non-compliance with provisions of the Act. Section 83 of the Act deals with the contents of petition. Section 86 speaks of the powers of the High Court to dismiss the petition on the ground of non-compliance with provisions contained in Section 81 or 82 or 117 of the Act. Section 86 does not specifically contain Section 83 as such but it is ruled in AIR 1986 SC 1253 (supra) that this omission did not mean that powers under the Code were not exercisable. Order VII, Rule 11 (a) of the Code permits rejection if cause of action is not disclosed and Order VII, Rule 11 (d) permits rejection on bad by law;
11. A few prefatory observations are necessary: Elections must be free and fair to ensure that the democratic system does not founder. Long ago, one Hon'ble the Cheif Justice to the Apex Court delivering the Lajpatrai Memorial Lecture, observed :--
"Untruth before elections, during elections and after elections seem to be too prevalent for a healthy political society,"
It was tartly remarked in that lecture that "There is always a danger of the failure of democracy". John Adams cautioned "Remember, democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy that did not commit suicide."
12. The citizens of this great nation should work to prove John Adams wrong. The Court is the conscience-keeper of the Constituency, as it were, to the maintenance of the purity of elections to the extent they are litigated in Court. In AIR 1968 SC 1500 (Harcharan Singh v. S. Mohinder Singh), it is observed that (Para 8) :--
"The primary purpose of the diverse provisions of the election law which may appear to be technical is to safeguard the purity of the election process and the Courts will not ordinarily minimise their operation."
13. Purity depends on sustaining the will of the people if expression suffers from no vitiation and on dislodging the undeserving occupant when so established. But election once held cannot be treated in a light-hearted manner.
14. It is settled law that material facts constituting cause of action must be averred. In AIR 1979 SC 134 (H. D. Vashistha v. Glaxo Laboratories (I.) (P.) Ltd.) it is held (at pp. 134-35):--
"Assuming arguendo that such a suit is maintainable -- we make it again clear that we do not decide in favour of the appellant on this point but leave it open for the time being -- the lack of a material fact in the averments in the plaint is sufficient to dismiss the suit as not disclosing a cause of action. This is precisely what the High Court had done. We agree. Therefore, we dismiss the appeal."
15. I shall scrutinise whether material facts are pleaded in sufficient partculars to disclose cause of action for trial, but before this, position of law may be noticed. Section 83(1) of the Act mandates as under:--
"83. Contents of petition .-- (1) An election petition -
(a) shall contain a concise statement of the material facts on which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that 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; and
(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof."
It is thus obligatory to set forth full particulars of alleged corrupt practice, names of the parties alleged to have committed it and date and place of commission. Once this is complied with, further requirement is of accompanying affidavit in the prescribed form. Other allegations should also be clear. These material facts, in my view, will then constitute and disclose cause of action.
16. Now I come to pleadings. Para 3 avers that erroneous description in the name of respondent No. 4 has materially affected the result. It is not stated as to how the alleged error, if true, occasioned material impact. Para 4 does not detail the number of tender votes. Para 5 does not spell out the names to whom and time and place, when and where, the audio cassettes were distributed by respondent No. 1. It also does not say as to who recorded the speech in the cassette and who prepared the type script and cover. It is also not clear as to who can authenticate it to be true. There are no proper pleadings in terms of Section 83(1)(b) and Section 123 (3) and (3A) of the Act. Para 6 does not particularise the error, defect or violation in recount by the Returning' Officer. Para 10 does not disclose names of agents. Other particulars are also conspicuously absent. Rule 94A of the Rules mandates that:--
"94A. Form of affidavit to be filed with election petition. - - The affidavit referred to in the proviso to Sub-section (1) of Section 83 shall be sworn before a magistrate of the first class or a notary or a Commissioner of Oaths and shall be in Form 25."
17. Form 25 in terms of Rule 94A demands affidavit, about commission of the corrupt practice (of as alleged) and particulars (as mentioned in paragraphs), to be verified as true to his own knowledge or true to his information. The affidavit dated 10-1-1994, sworn before the Oath Commissioner does not, in my view, satisfy the legal requirement. It says nothing about para 10 of the petitioner as well and is confined to para 5 only.
18. Section 81(3) requires that petition shall be accompanied by true copies. The objectionable' speech constituting corrupt practice is said to be recorded in audio cassette which is not produced and provided to respondent No. 1. Schedule 'A' is only alleged cover and Anusuchi 'A' is alleged type script from such a cassette. This is not the primary piece.
19. Perusal of paras 5 and 10 clearly reveals that audio cassette is an integral part of the petition. In AIR 1990 SC 924 (U.S. Sasidharan v. K. Karunakaran), it is held (Para 21): --
"We are unable to accept the contention. It is true that there is no allegation in paragraph 5(xi) that the video cassette was used by the first respondent- for the purpose of any assistance for the furtherance of the prospects of his election. But, in our opinion, it is apparent that such an allegation is implied in the paragraph. After alleging that the video cassette was used in the constituency at the instigation of the first respondent, it is alleged that the same constituted a corrupt practice which points to the only fact that the video cassette containing the speeches of the Government servants was used for the purpose of some assistance for the furtherance of the prospects of the election of the first respondent. It is implied that the video cassette is referred to in paragraph 5(xi) in regard to the alleged assistance for the furtherance of the prospects of the election of the first respondent and, accordingly, the contents of the cassette are incorporated in that paragraph by reference. In other words, the cassette forms an integral part of paragraph 5(xi)."
"It has been already noticed that the High Court dismissed the election petition as the appellant has not furnished to the first respondent copies of the notice, photograph and the viedo cassette referred to above along with a copy of the election petition."
This view is reaffirmed in AIR 1991 SC 1557 (F.A. Sapa v. Singora). Learned Election Judge took the same view in Election Petition , No. 3 of 1991 (Narayan Singh v. Digvijay Singh) as under:--
"Shri Maheshwari learned counsel referred to paras 16 and 17 of Sashidharan's case (AIR 1990 SC 924) (supra) and urged that it was not even necessary to supply the copy thereof. Reading the judgment as a whole, it would be seen that the Supreme Court even considering the implications of allegations made in the petition has held that video cassette referred to in the pleadings in regard to the alleged assistance for the furtherance of prospects of the allegation of the first respondent held the video cassette as an integral part of the petition. (See paras 21 and 22 of the judgment in Sashidharan's case)."
20. Verification of Schedule 'A' and Anusuchi 'A' is also defective and fatal. Section 83(3) of the Act provides as under:--
"83 (2). Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."
Anusuchi 'A', on last Page 18 contains verification and endorsement, not before Magistrate, Notary or Oath Commissioner, as under:--
"Verified true copy Sd/-
Verified to be true type script copy of the speeches of St. Parmanand & Ritambhara Devi delivered on 24-11-93 at Tahsil Maidan Tonk Khurd (Dt. Dewas) As reproduced from recorded Audio-cassette.
Sd/-"
Manifestly and admittedly there is no verification in conformity with Rule 94A read with Form 25. As noted above annexures are required to be verified in the same manner as the petition.
21. On such non-compliance, an Election Petition was dismissed by the Rajasthan High Court on 30-8-1994. The order of dismissal is upheld by the Supreme Court in case of Dr. (Smt.) Shipra v. Shantilal Khoiwal, (1996) 4 J.T. (SC)67: (1996 AIR SCW 1772, Para 12). It is ruled that:--
"Sections 81, 83(1)(c) and 86 read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When so read, if the Court finds on an objection, being raised by the returned candidate, as to the maintainability of the election petition, the Gourt is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objection, the election petition would result in dismissal at the threshold, as the Court is left with no option except to dismiss the same."
22. Defect being obvious, I. A. No. 1/96 cannot and does not improve the fate of this petition and deserves rejection. In view of factual matrix and legal position, submissions of tie Court for the petitioner seem to lack luster.
23. On my scrutiny, I find that the under-noted features clearly emerge:--
(a) Material facts and particulars are absent in paras 3 to 6 and 10 of the election petition and this deficiency results in nondisclosure of cause of action warranting summary dismissal of the petition.
(b) On pleadings audio cassette turns out to be an integral part of the petition and should have been produced with the petition with duly attested true copy to respondent No. 1 but it is neither produced nor its attested true copy is furnished to respondent No. 1, thereby violating Section 81(3) of the Act.
(c) Petition, Schedule 'A' and Anusuchi 'A' are not verified in conformity with Sections 83(1)(c) and 83(2) read with Rule 94-A read with Form 25, thereby contravening statutory requirement.
(d) Prayer contained in I. A. No. 1/96 is rejectable in view of the principles of law laid down in Dr. (Smt.) Shipra's case (1996 AIR SCW 1772) (supra) -- para 10.
24. Allegations in the election petition are (i) alleged error in print of the name of Respondent No. 4; (ii) treatment of some votes (Number not pleaded) as tender, instead of regular, votes at Booth No. 14; (iii) corrupt practice via alleged speeches, on consent of respondent No. 1, recorded in audio cassettes and repeated through Loud-speakers and tape recorders to promote election prospects; and (iv) error in counting of votes and non-compliance with the provisions of the Act. As noticed and noted above, pleadings are obscure and do not contain material facts and particulars as is manifested by bare perusal of relevant paras and flout the mandate of law. And to cap it all, there are further infirmities, beyond repair, propelled by defective verification/attestation and non production and non supply of audio cassette which, on pleading and point, is essentially found to be an integral part of the petition.
25. As to the ground of recount, it is apt to notice the legal position despite infecundity indicated by infirmities. In Jitendra Bahadur Singh v. Krishna Behari, (1970) 1 SCR 852 : (AIR 1970 SC 276), it is observed that in view of the importance of maintaining secrecy of the ballot papers, scrutiny can only be ordered if the election petition contained an adequate statement of the material facts. Material facts must afford an adequate basis for prima facie satisfasction to order inspection. The contention, based on Bhimsen v. Gopalji, (1961) 22 Ele LR 288 (SC), that inspection can be ordered without existence of a prima facie case, becomes meritless in view of the decision in Ram Sewak Yadav v. Hussain Kamil Kidwai, (1964) 6 SCR 238 : (AIR 1964 SC 1249), taking the view, after consideration of the aforesaid decision in case of Bhimsen (supra), that an election Tribunal would not be justified in ordering inspection unless election petition contained an adequate statement of material facts. The instant case is bereft of adequate statement of material facts and manifests no ground for inspection or scrutiny. A recount is not to be ordered as a matter or right as is held in case of Smt. Sumitra Devi v. Shri Sheo Shankar Prasad Yadav, AIR 1973 SC 215.
26. Justice is a matter which engages serious attention. This justifies the relevant reference to one book, Michael W. Jackson, a Senior Lecturer in the Department of Government at the University of Sydney, is the author of the book "Matters of Justice". In it he made a reference to the book "A Theory of Justice", published by John Rawls from Harvard University Press, Cambridge, 1971 and penned in introduction as under :--
"In reflecting upon justice, I will argue that the implicit agenda for justice set out in "A Theory of Justice", distorts, diminishes and even destroys certain moral relations that are no less fundamental or important than justice itself. I will argue that this distortion results from the exclusion of desert and supererogation which mark respectively the near and far boundaries of matters of justice. Without a proper consideration of desert and supererogation as limiting cases, justice becomes every thing and nothing."
To the parties litigating a case and cause, justice is everything. I have thus industriously scrutinised the pleadings and points of law so as to prevent justice from becoming nothing to the parties locked in legal battle.
27. Mortality of the petition on technical flaw and fault apart, it needs emphasis that spirit of secular democracy can be preserved as rich heritage through 'virtue' as Montesr quieu chose to characterise and 'self-discipline' as Nehruji deemed it fit to exhort. Speaking on morality. Ernest Hemingway spoke in "Death in the Afternoon" thus -
"What is moral is what you feel good after and what is immoral is what you feel bad after."
No one should, therefore, commit any such thing on which he may have to "feel bad after". This principle should be followed by all seeking or securing the seat of Assembly or Parliament through election which is required to be fair and not foul.
28. Notwithstanding the number of grounds, as indicated, the main base of the petition seems to be 'corrupt practice'. It is, however, for the petitioner, as I hold it untriable due to deficiency, to appreciate as to what extent this allegation, if held properly pleaded and triable, could have been construed to fall within the prohibition indicated under Sub-section (3) and/ or (3 A) of Section 123 of the Act in the light of meaning ascribed to the terms 'Hindu', 'Hindutva' and 'Hinduism', as synonym of 'Indianisation' in decision Dr. R.Y. Prabhoo v. P.K. Kunte, AIR 1996 SC 1113.
29. It is not a case of "a friendly, non-adversary proceeding" as was unsuccessfully contended in (1935) 297 U.S. 288 (346) Ashwander v. Tennessee Valley Authority, but a case projecting genuine controversy, though not in the manner required by the Act and Rules. I have, therefore, considered the rival pleas, as noted above, and answer the controversy as covered by the issues. In my view, decisions relied upon by the petitioner do not quell the objections and thus do not improve the fate of the petition.
30. On bestowal of my anxious consideration to rival contentions, I conclude that I am left with no option but to answer both these issues in the affirmative i.e. in favour of the returned candidate (Respondent No. 1) and against the election-petitioner who lost by a small margin. As the defect and deficiency are incurable, I reject I. A. No. 1/96.
31. It needs tp be observed still that the election law is the means and purity in election is the end. All concerned must strive to stick to "truth" and not to "untruth" as was spoken to in the lecture noted above. Without truth, very little will remain of the promise contained in the preamble to the Constitution of our country. Hence yawning gap between law in the law books and unlaw in action should engage the attention of men who matter sooner than later.
32. Now is the time to say omega in this petition. In view of my findings on the aforesaid preliminary issues, i.e., in the affirmative, I dismiss the petition as not maintainable, with costs. Counsel fee is fixed at Rs. 3,000/- if certified. Security cost of Rs. 2,000/- is made adjustable to the costs awarded by me.