Punjab-Haryana High Court
Master Ramesh Khatri Lambardar vs Dr.Krishan Lal Middha on 2 September, 2022
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM-14-E-2019 in/and EP-1-2019
Reserved on : 06.08.2022
Pronounced on : 02.09.2022
Master Ramesh Khatri
... Non-applicant/Petitioner
Versus
Dr. Krishan Lal Middha
... Applicant/Respondent
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
Present: Mr. Dheeraj Jain, Advocate,
Mr. V.K. Chaudhary, Advocate,
Mr. Sahil Garg, Advocate and
Ms. Shivani Khareedi, Advocate
for the applicant/respondent.
Mr. Dikshit Khatri, Advocate
for the non-applicant/petitioner.
G.S. Sandhawalia, J.
The present order shall dispose of the application filed by the applicant/respondent under Order VI Rule 16 read with Order VII Rule 11 alongwith Section 151 CPC, wherein a prayer has been made for striking off paragraph Nos.3 to 10 of the election petition (paragraph Nos.3 to 11 of the new set/paperbook filed subsequently) and dismissal of the election petition while invoking the provisions of Section 81, 83, 86 & 87 of the Representation of People Act, 1951 (hereinafter referred to as '1951 Act').
2. Challenge in the main election petition is to the election of the applicant/respondent from 36-Jind Bye Election Assembly Constituency as a Member of the Haryana Vidhan Sabha. The election was held on 28.01.2019 and the result was declared on 31.01.2019. The election petition dated 16.03.2019 was filed on the said date and presented 1 of 57 ::: Downloaded on - 07-09-2022 23:36:44 ::: CM-14-E-2019 in/and EP-1-2019 2 personally by the petitioner before the Registrar (Grouping), who had made endorsement on the same that the same be put up on 09.04.2019. As many as 18 objections were then raised by the concerned officer who ordered that the case be put up before the concerned Court to be designated by Hon'ble the Chief Justice for hearing/trial of the election petition.
3. CM-2-E-2019 dated 23.04.2019 had been filed for releasing of the Electronic Voting Machines (EVMs) by the Joint Chief Electroal Officer, Haryana used during 36-Jind Bye Election and permission to be taken out of the strong room for General Parliamentary Election 2019 was sought. It was requested the said EVMs were required on urgent basis, since the filing of the nomination forms had been completed and the elections were to be held on 12.05.2019. Reliance had been placed upon Clause 1 of the instructions dated 15.07.2016 that if the EVMs had been kept in custody due to the election petition they have to be kept untouched till confirmation of the election petition position from the concerned High Court. The information had been received from the Registrar General of this Court that Election Petition No.1 of 2019 pertaining to the Bye- Election of 36-Jind Assembly had been filed on 16.03.2019, which was at the stage of scrutiny. Therefore, keeping in view the letter issued by the Registrar General, an application was moved on the judicial side keeping in mind urgency and the nature of request regarding the requirement of the EVMs. The permission was sought to take out the EVMs which were blocked and deposited in various double lock/strong rooms for utilization of the same in the Parliamentary Election-2019. Since the case was fixed 2 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 3 for 29.04.2019 notice was issued in the said miscellaneous application on 26.04.2019 by way of dasti and information by a telephonic message also, on which date the petitioner appeared in person before this Court.
4. It was noticed on 29.04.2019 that the petition was incomplete on account of the non-compliance of the rules as per Rule 15, Vol.5 Chapter 4, Part GG of the High Court Rules and Orders. Accordingly, the petitioner was directed to remove the objections and complete the paper- book and he had submitted three sets of paper-books stating to have removed objections and handed over to Registrar (Grouping) who was then present in the Court. He was also asked to file reply to the CM-2-E- 2019 filed by the Election Department for the usage of EVMs. On 01.05.2019 it was noticed that out of the 18 objections, 4 have been removed by the petitioner by filing another set of paperbook and that as per Rule 15 (b) of the Vol.5 Chapter 4 of the High Court Rules and Orders he had to comply with the provisions of the sections in time not exceeding one week and he had undertaken that he would remove the objections within the prescribed period. The petitioner had objected to release of the EVMs.
5. Resultantly, while noting the relevant provisions and the fact that the petitioner had only secured 95 votes in comparison to the elected candidate, who had secured 50578 votes and the fact that challenge had been raised to the corrupt practice etc. which were not concerning the usage of the machines as they were regarding the money power employed by the elected candidate and number of vehicles etc., rallies organized and the offices used in violation of the instructions, the application was 3 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 4 allowed. The applicant was permitted to utilize and take out the EVMs/VVPATs units which were blocked in the strong room for the purpose of utilization of the same in the Parliamentary Elections, 2019. The main case was then adjourned to 08.05.2019. On the said date it was noticed that out of 14 objections left, the petitioner had complied with all except 4 and, thus, the following order was passed, while issuing notice to the respondent for 15.07.2019:-
"Out of 14 objections which were left to be removed on the last date of hearing, the petitioner has complied with all except 4. The petitioner submits that he will comply with the issue of translation of copies of Annexures in English and also regarding pagination which is the objection raised at Sr.No.6&7. Similarly, the cloth-lined strong envelope or similar envelope of the prescribed size will also be furnished.
Regarding objection No.13 i.e. the legibility of certain pages in the original petition, it is submitted that the said documents which are part of Annexure P7 were supplied by the District Election Officer in the same condition and, therefore, their better copies cannot be made available in spare copies of the petition. Accordingly, sufficient compliance as such has been made as per Rule 15(d) contained in Part GG of Chapter 4, Vol.5 of the High Court Rules and Orders.
Let notice be issued to the respondent for 15.07.2019."
6. Initially the respondent was proceeded ex parte on account of the fact that his Personal Assistant had refused to take envelope and, thereafter, on an application being filed under Order 9 Rule 7 CPC and on depositing of Rs.5,000/- costs, the order dated 15.07.2019 was recalled, whereby he had been proceeded against ex parte. Copy of the election petition was supplied to counsel for the respondent on 09.09.2019, who 4 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 5 had taken time to file reply. On 14.10.2019 when the case was taken up, it was pointed out that an application under Order 7 Rule 11 CPC was filed and resultantly pleadings were completed qua filing of the reply. Part arguments were heard on 04.02.2020 on the said application regarding the rejection of the election petition and thereafter, on account of Covid-19 pandemic, the matter could not be taken up from 27.02.2020 till 11.03.2022 when an application for preponement was filed.
7. In the present application for rejection of the plaint, the ground pleaded is that limitation period was 45 days for filing of the election petition, which was to be filed with the accompanying documents required by law and since the needful had not been done and accordingly, the office had raised objections on 09.04.2019 as the requisite number of copies had not been filed, which were two, alongwith the petition and only one copy had been filed.
8. Similarly plea taken was that as per Section 81 (3) of the 1951 Act, the copy had to be attested to be a true copy of the original petition and therefore, the Registry had objected that it was non-compliance of the said Section by raising objection No.2. Apart from that the copy of the election petition filed alongwith the original petition was not a true copy of the election petition, as it was substantially different from the original petition as number of pages were missing or not legible and were not exact copy of the ones attached with the original petition. The copy of the petition did not contain the copy of the identity proof and deposit receipt for security for costs and, therefore, on account of non-compliance of the mandatory provisions dismissal was sought under Section 86 (1) of the 5 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 6 1951 Act. Reliance was placed upon objection Nos.3, 9, 12, 13 & 18 raised by the officer. Similarly, it was pleaded that the petition served upon the applicant/respondent is even more different than the copy of the petition filed by the petitioner alongwith the original petition. The petitioner is stated to have submitted three sets of the paper-book in Court claiming to have removed the objections and under the pretext of objections, he illegally carried out substantial additions and amendments in the election petition beyond the period of limitation, which was illegal and impermissible. The details of the amendments carried out beyond the period of limitation was highlighted as under:-
Para no. & contents of the Original Corresponding Para Nos. & contents Election Petition filed by the petitioner. of the set/paperbook of election petition with amendments filed by the petitioner in Court much beyond the period of limitation.
Case ELECTION PETITION U/S-77, Case ELECTION PETITION U/S-77, Title 77(1), 80- A & Title 77(1), 80- A &100 (B) & (D-III & IV), 123, 125 (A), 128, 127A 100 (B) & (D-III & IV), (2) OF THE REPRESENTATION OF 123, 125 (A), 128, 127A (2) OF PEOPLE ACT, 1951, RW U/S THE REPRESENTATION OF 49C, 86, 89 OF THE CONDUCT OF ELECTION PEOPLE ACT, 1951, RW U/S RULE 1961, AND ALSO 49C, 86, 89 OF THE CONDUCT UNDER CONSTITUTION OF OF ELECTION RULE 1961, INDIA ARTICLE-324, AND ALSO UNDER CONSTITUTION OF INDIA FOR DECLARING THE ARTICLE-324, ELECTION OF DR. DR.
KRISHAN LAL MIDDHA FOR DECLARING THE ELECTION OF DR. DR. RESPONDENT, NULL KRISHAN LAL MIDDHA AND VOID, WHO IS RESPONDENT, NULL RETURNED CANDIDATE AND VOID, WHO IS FROM 36, JIND-AC HARYANA BYELECTION, IN RETURNED CANDIDATE THE BYELECTION, HELD FROM 36, JIND-AC ON 28.01.2019 AND SETTING HARYANA BYELECTION, IN ASIDE THE ELECTION THE DECLARED ON 31.01.2019, NULL AND VOID IN THE 6 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 7 BYELECTION, HELD ON INTEREST OF JUSTICE, 28.01.2019 AND SETTING WITH A PRAYER TO DEBAR ASIDE THE THE RESPONDENT FROM ELECTION,________ CONTESTING THE ELECTION FOR 06 (SIX) NULL AND VOID IN THE YEARS AS PROVIDED IN SECTION -08A OF INTEREST OF JUSTICE, WITH A PRAYER TO DEBAR THE REPRESENTATION OF RESPONDENT FROM CONTESTING THE PEOPLE ACT, 1954 IN THE ASSEMBLY ELECTION FOR INTEREST OF JUSTICE.
06 (SIX) YEARS AS
PROVIDED IN SECTION -08A AND/OR...
OF
REPRESENTATION OF
PEOPLE ACT, 1954 IN THE
INTEREST OF JUSTICE.
AND/OR...
1. That a notification, dated 1. That a notification, dated
03.01.2019 was issued by the 03.01.2019 was issued by the
Election commission of India, for Election commission of India,
holding the by-election 36-Jind for holding the by-election 36-
bye election Assembly Jind bye election Assembly
Constituency, in the State of Constituency, in the State of
Haryana, whereby the scheduled Haryana, whereby the scheduled
for the holding of the election for the holding of the election
was made by the Election was made by the Election
Commission and were various Commission. The following was
dates fixed for the process of The the schedule fixed by the
elections. following was The the Election Commission:- ....
schedule fixed by the Election
Commission:- ....
2. That the petitioner is a 2. resident 2. That the petitioner is a 2.
and voter in 031-Jind Assembly resident and voter in 031- Constituency at serial No./Voter Sonipat Assembly Constituency No. 293 in para No. 132 of at serial No./Voter No. 293 in Electoral Roll for 31 Jind para No. 132 of Electoral Roll Assembly Constituency. The for 31 Sonipat Assembly petitioner contested the by- Constituency. The petitioner election 36 Jind-AC as an contested the by-election 36 candidate, election independent Jind-AC as an candidate, having symbol as cauliflower. election independent having After the process of scrutiny, symbol as cauliflower. After the total 21 candidates were left in process of scrutiny, total 21 fray for the said constituency candidates were left in fray for including the petitioner. The the said constituency including respondent Dr. Krishan Middha the petitioner. The respondent contested the election on the Dr. Krishan Middha contested ticket of Bhartiya Janta Party the election on the ticket of (BJP). The poll was held in Bhartiya Janta Party (BJP) 7 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 8 accordance with the schedule being ruling party in Haryana. mentioned above. As per result The poll was held in accordance sheet, the following were the with the schedule mentioned votes secured by the candidates above. As per result sheet, the different candidates:-.... following were the votes secured by the candidates different candidates:-....
3 (a) That after the filing of 3(a) the 3 (a) That after the filing of 3(a) the nomination all the candidates in nomination all the candidates in the election are bound by the the election are bound by the Code of Conduct and liable to Code of Conduct and liable to comply with rules and conditions comply with rules and as determined by the Returning conditions as determined by the Officer. That at the time of filing Returning Officer. That at the of the nomination paper the time of filing of the nomination candidate also needs to file an paper the candidate also needs Affidavit stating the entire list of to file an Affidavit stating the assets, which are owned and entire list of assets, which are possessed by her/his along with owned and possessed by him the details of the assets of the along with the details of the family member. That as assets of the family member. prescribed by the each candidate That as prescribed by the each needs to maintain a register of candidate needs to maintain a day today accurate expenditure register of day today accurate election register under RP Act, expenditure election register 1951, election expenses which under RP Act, 1951, election needs to be verified/scrutinized expenses which needs to be by the Account Officer of verified/scrutinized by the Election Duty on regular basis. Account Officer of Election That apart from the above, each Duty on regular basis. That apart candidate is bound by various from the above, each candidate terms which need be to complied is bound by various terms which with utmost respect and any need be to complied with utmost breach of these duties shall respect and any breach of these amount to wrongful election duties shall amount to wrongful practice, amounting to being election practice, amounting to corrupt practice within the being corrupt practice within the definition prescribed Section-77 definition prescribed Section-77 of as under the Representation of of as under the Representation People Act, 1951. The True copy of People Act, 1951. The True of the Election Expenditure copy of the Election Register attached with For-BB Expenditure Register attached for kind perusal of this Hon'ble with For-BB for kind perusal of Court. "Date wise election this Hon'ble Court. "Date wise expenditure from notification of election expenditure from General election on 03.01.2019 in notification of General election connection with the agent on 03.01.2019 in connection between the date of the with the date of the publication publication of the notification of the notification calling the calling the election and the date election and the date of of declaration of result thereof, declaration of result on issued by Hon'ble Supreme Court 31.01.2019 thereof", issued by of India on 03.10.1974 in case Hon'ble Supreme Court of India titled as KanwarLal Gupta versus on 03.10.1974 in case titled as Amar Nath Chawla and others KanwarLal Gupta versus Amar Nath Chawla and others.
3 (b) That the present election petition 3(b) That the present election petition has been filed by the petitioner has been filed by the petitioner 8 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 9 being harassed and aggrieved by being harassed and aggrieved by the corrupt election practice by the corrupt election practice by which it was ensured that on which it was ensured that the candidate gets elected by all the Returned Candidate gets means by using the entire elected by all the means by machinery and had adopted all using the entire machinery and illegal and unlawful mans to win had adopted all illegal and the Election including cast of unlawful mans to win the bogus votes out of 36-Jind bye Election including casting of election Assembly Constituency bogus votes out of 36-Jind bye by election on dated: 28.01.2019 election Assembly Constituency connected with the Election Staff by election on dated: 28.01.2019 by impersonation with exclusion connected with the Election of all other candidates. Staff by impersonation with as the Respondent is belong to the candidate of ruling party.
3(c) That the respondent under the 3(c) That the respondent under the Statutory Rules was obliged to Statutory Rules was obliged to file an affidavit stating the entire file an affidavit stating the entire assets of the candidate along with assets of the candidate along her family members. That the with his family members. That respondent filed a detailed the respondent filed a detailed affidavit, stating his age as 47 affidavit, stating his age as 47 years, however he did not years, however he did. not disclose that apart from the assets disclose that apart from the stated in the affidavit which is assets stated in the affidavit mandatory as per rules. which is mandatory as per rules. 3(d) That the power of media in the 3(d) That the power of media in the today's world goes without saying today's world goes without and using the media as an saying and using the media as an electoral tool needs to deployed electoral tool needs to deployed as it gives unfair and illegal as it gives unfair and illegal advantage to those with money advantage to those with money power to be able to gain public power to be able to gain public opinion in their favour and be opinion in their favour and be constantly in light to be seen by constantly in light to be seen by all. It is stated that the newspaper all. It is stated that the and media has the ability to form newspaper and media has the public opinion as this has an ability to form public opinion as image of being neutral and this has an image of being whatever being published as the neutral and whatever being true and correct picture of the published as the true and correct society. But when media started picture of the society. But when abusing is dominative situation media started abusing is and with the help of money dominative situation and with power supports one candidate and the help of money power builds image of one candidate supports one candidate and then it swings voters in their builds image of one candidate favour and all other candidate then it swings voters in their look dwarf. That in the present favour and all other candidate Assembly Byelection, 2019 it look dwarf. That in the present was a glaring example of how Assembly Byelection, 2019 it media was managed by the was a glaring example of how winning candidate. respondent, a media was managed by the nominee of a National Party. winning candidate. respondent, Bhartiya Janta Party (BJP) on a nominee of a National Party. dated: 09.01.2019. It is stated all Bhartiya Janta Party (BJP) the newspaper being circulated in ruling party on dated:
9 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 10 the 36-Jind bye election 09.01.2019. It is stated all the Assembly Constituency where all newspaper being circulated in but having all praises for the the 36-Jind bye election District Electoral Officer, Jind all Assembly Constituency where the front never paper after being all but having all praises for the used to put forth the case of the to District Electoral Officer, Jind swing vote share in his favour. It all the front never paper after is stated that no other being used to put forth the case independent candidate including of the to swing vote share in his the petitioner was given any favour. It is stated that no other share/space in media. independent candidate including the petitioner was given any share/space in media.
3(e) That on 9.01.2019, respondent, 3(e) That on 9.01.2019, respondent, BJP was nominated a candidate BJP was nominated a candidate for election of 36-Jind bye for election of 36-Jind Bye election Byelection. election Ruling Party BJP. 3(f) That on 10.01.2019, respondent 3(f) That on 10.01.2019, respondent had filed his nomination form had filed his nomination form being Candidate of BJP in 36 being Candidate of BJP in 36 Jind bye election Byelection. At Jind Bye election by ruling the time of filing of nomination party. At the time of filing of form, large number of vehicles nomination form, large number around 200 and near about 5000 of vehicles around 200 and near persons were came present in about 15000 persons were the office of Returning Officer came from Rupiya Chowk to Jind, Mini Secretariat, Jind. Arjun Stadium take a Rally in The mentioned above persons the office of Returning were doing road show while Officer, Jind, Mini coming from the office of BJP to Secretariat, Jind. The the office of Returning Officer. mentioned above persons were However, the respondent did not doing road show while coming show accurate expenditure from the office of BJP to the incurred on the 09.01.2019 office of Returning Officer.
10.01.2019 in and Expenditure However, the respondent did not
Register. show accurate expenditure
incurred on the 09.01.2019
10.01.2019 in and Expenditure
Register. It is pertinent to
mention here that the election
of the Respondent as
returning candidate may be
declare void being a corrupt
practice under Section 77, 123
of representation of People
Act, 1951.
3(g) That it is pertinent to mention 3(g) That it is pertinent to mention
here that the Respondent has here that the Respondent has
organized a rally on 10.01.2019 organized a rally on 10.01.2019
in Arjun Stadium Jind and also in Arjun Stadium Jind and also
organized a road show which organized a road show which
starts from Arjun Stadium and starts from Arjun Stadium and
came to ends at Mini Secretariat came to ends at Mini Secretariat
Jind. But Respondent knowingly Jind. But Respondent knowingly
and intentionally failed to show and intentionally failed to show
the total expenditure in the the total expenditure in the
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expenses register. Further expenditure register. Further
approximately 5000 persons approximately 15000 persons
were gathered and they are also were gathered and they are also
having the flags, Poster, banner, having the flags, Poster, banner,
Loud speaker and other vehicles, Loud speaker and other
but all these expenses were not vehicles, but all these expenses
shown in the expenses registered were not shown in the expenses
which is not sustainable in the registered which is not
eyes of law. sustainable in the eyes of law,
due to which the election
result of 36 Jind Bye election
has been materially effected
and the Respondent Dr.
Krishan Lal Middha has been
wrongly declared as returning
candidate, liable to be
declared void.
3(h) That thereafter, on the same day, 3(h) That thereafter, on the same day,
some senior leader of the party some senior leader of the party
reached and the Respondent reached and the Respondent
again organized a rally with the again organized a rally with the
senior leader of the BJP, but this senior leader of the BJP, but this
expenses were also not shown in expenses were also not shown in
any of the expenses register, any of the expenses register,
which is also not sustainable in which is also not sustainable in
the eyes of law. the eyes of law and the
Respondent Dr. Krishan Lal
Middha has been wrongly
declared as returning
candidate, liable to be
declared void.
3(i) That on 11.01.2019 Respondent 3(i) That on 11.01.2019
has also organized the Nukkar Respondent, office bearer of
Sabha and also opened the offices BJP and workers of the BJP
at Jind-36. Moreover, the entire party have organized the
Restaurant/ Dharamshala, Hotel, Nukkar Sabha and also opened
and other residential area which the offices at Jind-36. There are was totally booked for the about 34 villages and 174 peoples who came in support of polling booth in 36-Jind the Respondent/BJP Party But constituencies. Moreover, the this expenses was also not shown entire Restaurant/ Dharamshala, to any of the expenses register, Hotel, and other residential area which is a corrupt practice and which was totally booked for the also violation of the Rules framed peoples who came in support of by the Election Commission of the Respondent/BJP ruling India. Party But this expenses was also not shown to any of the expenditure register, which is a corrupt practice and also violation of the Rules framed by the Election Commission of India. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of 11 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 12 People Act, 1951.
3(j) That the Respondent has totally 3(j) That the Respondent has totally failed to submit the details of failed to submit the details of expenses mentioned in the expenses mentioned in the foregoing paras and also failed to foregoing paras and also failed given the detail as required by the to given the detail as required by Returning Officer 36 Jind, as how the Returning Officer 36 Jind, as many offices have been opened how many offices have been and how many places were taken opened and how many places on rent, and also mentioned the were taken on rent, and also strength of the total worker and mentioned the strength of the what amount is to be paid per total worker and what amount is day, the Respondent is totally to be paid per day, the failed to submit the said detail Respondent is totally failed to upto12.01.2019 to 14.01.2019. submit the said detail upto10.01.2019 to 31.01.2019.
It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of People Act, 1951.
3(k) That the Respondent also failed 3(k) That the Respondent also failed to submit the complete expenses to submit the complete expenses detail of regarding Loud detail of regarding hiring Loud speaker, car, e-rickshaw, Hand speaker, cars, e-rickshaws, puller Rickshaw, Tata chota Hand puller Rickshaws, Tata Hathi, rally, Nukkar Sabha and chota Hathis, rally, Nukkar public meeting, Sopha Set, Sabha and public meeting, chairs, Tents used for public Sopha Set, chairs, Tents used for meeting which were organized on public meeting which were 15.01.2019. organized from 10.01.2019 to 31.10.2019.
3(l) That as per the Appendix-A 3(l) That as per the Appendix-A issued by the District Election issued by the District Election Officer, Jind, in which the Officer, Jind, in which the complete detail has mentioned complete detail has been regarding the printing stationary mentioned regarding the of Phamphlate, Sticker, poster printing stationary of etc, but without getting prior Phamphlate, Sticker, poster etc, approval from the competent but without getting prior authority, they have printed the approval from the competent stationary in much excess authority, they have printed the approximately 15 lacs which is stationary in much excess totally violation of the Rules and approximately 25 lacs which is the format issued by the District totally violation of the Rules and Election Office, Jind. the format issued by the District Election Office, Jind. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of People Act, 1951.
12 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 13 3(m) That the Respondent 3 has also 3(m) That the Respondent 3 has also failed to show the expenses for failed to show the expenses for the refreshment of the guests and the refreshment of the guests other local leader, who are and other local leader, who are organizing the public meeting in organizing the public meeting in the different parts of the local the different parts of the local area on 17.01.2019 area on 10.01.2019 to 31.01.2019. BJP Party have organized the Nukkar Sabha and also opened the offices at Jind-36. There are about 34 villages and 174 polling booth in 36-Jind constituencies. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of People Act, 1951.
3(n) That the Respondent has also 3(n) That the Respondent has also failed to show the expenses for failed to show the expenses for the attending the public meeting the attending the public meeting by the Ministers and the local by the Ministers and the local leader of the locality 36 Jind bye leader of the locality 36 Jind bye election, they openly used the election, they openly used the Govt. Vehicles also misuse the Govt. Vehicles also misuse the Government accommodation Government accommodation Guest House like and Community Guest House like and centers on 19.01.2019. Community centers on 10.01.2019 to 31.01.2019.
3(o) That the Respondent has also 3(o) That the Respondent has also failed to show the expenses for failed to show the expenses for the refreshment of the Minister, the refreshment of the Minister, guests and other local leader, who guests and other local leader, are organizing the public meeting who are organizing the public in the different parts of the local meeting in the different parts of areas on 20.01.2019. the local areas on 10.01.2019 to 26.01.2019.
3(q) That the District Election Office, 3(q) That the District Election Jind has issued that letter dated Office, Jind has issued the letter 04.01.2019 in which he has dated 04.01.2019 in which he specifically mentioned the place has specifically mentioned the where the installation of Hording. place where the installation of Banner, Poster etc and a specific Hording. Banner, Poster etc and area was given to the parties. But a specific area was given to the inspite of that, all the parties parties. But inspite of that, he is have violated the letter dated violating the rules and 04.01.2019 and also affixed the regulations of the election as Hording. Benner, Poster etc in he belongs to the BJP ruling the different pleases which is not party have violated the letter sustainable in the eyes of law. dated 04.01.2019 and also Moreover, Returning officer has affixed the Hording. Benner, also issued specific direction, Poster etc in the different places who has violated the letter dated which is not sustainable in the 04.01.2019, may be register an eyes of law. Moreover, FIR against the violator and also Returning officer has also issued 13 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 14 include the expenses in the specific direction, who has expenses register. violated the letter dated 04.01.2019, may be register an FIR against the violator and also include the expenses in the expenditure register. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of People Act, 1951. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of People Act, 1951.
3(r) That inspte of issuance of 3(r) That inspte of issuance of specific direction by the specific direction by the Returning officer vide his letter Returning officer vide his letter dated 04.01.2019, so many dated 04.01.2019, so many posters etc were pasted in which posters etc were pasted in which different places were not different places were not mentioned in the letter dated mentioned in the letter dated 04.01.2019. By doing the action 04.01.2019. By doing the action against the violators, total 184 against the violators, total 184 Hording, 476 Banner, 590 Poster Hording, 476 Banner, 590 and 832 Flags were get down, Poster and 832 Flags were get which were pasted in illegal down, which were pasted in places. In this regard 5 teams illegal places. In this regard 5 were constituted for removing the teams were constituted for illegal The respondent is liable to removing the illegal Hoardind, punished in accordance with the Banner, Poster etc. The Haryana Prevention of respondent is liable to punished Defacement of Property Act, in accordance with the Haryana 1989. The copies of the letter Prevention of Defacement of dated 04.01.2019 and notice Property Act, 1989. The copies dated 22.01.2019 are attached of the letter dated 04.01.2019 herewith as Annexure P/1 and and notice dated 22.01.2019 are P/2. attached herewith as Annexure P/1 and P/2. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of People Act, 1951. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of People Act, 1951.
14 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 15 3(s) That Respondent has totally 3(s) That Respondent has totally failed to deposit the amount and failed to deposit the amount and also failed to show the total also failed to show the total expenses in the expenses register expenses in the expenditure day to day for rally. Nukar Sabha register day to day for rally.
and opening the Head office in Nukar Sabha and opening the
the different areas of the locality election office as well as new
for the election purpose 36-Jind party offices in the different
bye election. areas of the locality for the
election purpose 36-Jind Bye
Election.
3(t) That the BJP party has distribute 3(t) That the BJP party has distribute
the "VIKAS PATTAR" in 174 the "VIKAS PATTAR" in 174
booths and this news was booths and this news was
punished in the news papers i.e. published in the news papers
Dainik Jagran and Punjab Keshri i.e. Dainik Jagran and Punjab
with same snap. so this a paid Keshri with same snap. so this a
news, but the Respondent has not paid news, but the Respondent
shown this expenses in his has not shown this expenses in
expenses register. his expenditure register. It is
pertinent to mention here that
the election of the Respondent
as returning candidate may be
declare as void being a
corrupt practice under Section
77, 123 of representation of
People Act, 1951. It is
pertinent to mention here that
the election of the Respondent
as returning candidate may be
declare as void being a
corrupt practice under Section
77, 123 of representation of
People Act, 1951.
3(u) That the Hon'ble Chief Minister 3(u) That the Hon'ble Chief 3(u)
Haryana has organized a rally on Minister Haryana has organized
25.01.2019 at New Sabzi Mandi a rally on 25.01.2019 at New
Jind, kin which all the BJP Sabzi Mandi Jind, kin which all
Ministers and other ministerial the BJP Ministers and other
staff were present and a large ministerial staff were present
crowed approximately 70/80 and a large crowed
thousands persons were gathered approximately 70/80 thousands
and to this effect, light, tent with persons were gathered and to
tax, tables, chairs, Sofa Generator this effect, light, tent with tax,
Set, Sets, and transportation etc tables, chairs, Sofa Generator
they have not even mentioned the Set, Sets, and transportation etc
total expenses for that rally which they have not even mentioned
is clear cut violation of the Rules. the total expenses for that rally
The copy of the letter dated which is clear cut violation of
20.01.2019 is attached herewith the Rules. The copy of the letter
as Annexure P/3. dated 20.01.2019 is attached herewith as Annexure P/3. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of 15 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 16 People Act, 1951. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of People Act, 1951.
3(v) That some of the Minister of 3(v) That some of the Minister of ministry of Haryana Government ministry of Haryana are continuously residing at Jind- Government are continuously 36 i.e. Sh. Krishan Panwar residing at Jind-36 AC i.e. Sh. Minister, Sh. Ram Bilas Sharma, Krishan Panwar Minister, Sh. Smt. Kavita Jain, Rao. Narbir Ram Bilas Sharma, Smt. Kavita Singh. Capt Abhimanyu, Jain, Rao. Narbir Singh. Capt Vishwash Sarang, Mr. Sanjay Abhimanyu, Vishwash Sarang, Bhatia and Sh. Virender Singh, Mr. Sanjay Bhatia and Sh. Sh. Ramesh Kaushik M.P.. Sh. Virender Singh, Sh. Ramesh Rajiv Jain, Mr. KalrajMishar and Kaushik M.P.. Sh. Rajiv Jain, other MLR's, but expenses of the Mr. KalrajMishar and other above mentioned persons were MLR's, but expenses of the also now shown in the expenses above mentioned persons were register, as they are continuously also now shown in the expenses residing there from 10.01.2019 to register, as they are 31.01.2019. It is also submitted continuously residing there from that the Respondent has now 10.01.2019 to 31.01.2019. It is shown the day to day expenses also submitted that the from 27.01.2019, 29.01.2019 and Respondent has now shown the 30.01.2019 and also not shown day to day expenses from the expenses on the day of 27.01.2019, 29.01.2019 and election i.e. 28.01.2019, the chair, 30.01.2019 and also not shown refreshment, tables etc But the the expenses on the day of Govt. Officials are not taking any election i.e. 28.01.2019, the action against the violation of the chair, refreshment, tables etc Rules due to the reason best But the Govt. Officials are not known to them. It is further taking any action against the pertinent to mention here that violation of the Rules due to the District Election Office, Jind has reason best known to them as also issued the Rate list vide his BJP Party is in power. It is office letter dated 10.03.2014, but further pertinent to mention here the same was also not followed that District Election Office, by the Respondent, which is also Jind has also issued the Rate list clear cut violation of the rules vide his office letter dated also. 10.03.2014, but the same was also not followed by the Respondent, which is also clear cut violation of the rules also. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice under Section 77, 123 of representation of People Act, 1951. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare as void being a corrupt practice 16 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 17 under Section 77, 123 of representation of People Act, 1951.
6. That the Petitioner has moved an 6. That the Petitioner has moved application for issuance of an application for issuance of certified copies documents of the certified copies documents of to the District election Officer, the to the District election Jind. The cop[y of the application Officer, Jind. But the office of dated 14.02.2019 is attached the District Election Office- herewith as Annexure P/6. cum Deputy Commissioner Jind Respondent has totally failed to supply the competent documents, as the applicant received only haws two information only i.e. expenditure register, vouture and affidavit. The copy application 14.02.2019 of the dated is attached herewith as Annexure P/6. It is further submitted that the record of the same may kindly be summoned. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare void being practice a corrupt under Section 77, 123 of representation of People Act 1951. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare void being practice a corrupt under Section 77, 123 of representation People Act, 1951.
7. That the abstract statement of - -
election expenses Respondent dated 28.02.2019 from page No.1 to 486 is attached herewith as Annexure P/7.
6. That the respondent has failed to 7. That the respondent has failed to show the detail of loan, gift, and show the detail of loan, gift, and donation received from the donation received from the concerned persons with his concerned persons with his correct address, name and place correct address, name and place in correct manner. in correct manner. It is further submitted that the record of the same may kindly be summoned. It is pertinent to mention here that the election of the Respondent as returning candidate may be declare void being practice a corrupt under Section 77, 123 of representation of People Act 1951. It is pertinent to 17 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 18 mention here that the election of the Respondent as returning candidate may be declare void being practice a corrupt under Section 77, 123 of representation People Act, 1951.
7. ... 8. ...
8. ... 9. ...
9. That the institutionalized efforts 10. That the institutionalized efforts of helping District Election of helping District Election Officer, Jind, District Jin (for Officer, Jind, District Jin (for short D.E.O.) started while the short D.E.O.) started while the electors of the constituency were electors of the constituency were manipulated to give upper hand manipulated to give upper hand respondent, Jind respondent, Jind, due to BJP ruling party had got the polling staff of his connivance posted in the polling booth who were out to help Respondent in winning the election by all manse. The returning candidate to adopt the illegal and unlawful meanse to win the election.
10. ... 11. ...
11. That all documents filed by the 12. That all documents filed by the petitioner are typed and true petitioner are photo copies of copy of original copies. the original copies.
12. That the address of the petitioner 13. That the address of the petitioner for all correspondence for all correspondence given given Ramesh as Master Khatri Ramesh as Master Khatri Lambardar, son of Sh. Jai Ram Lambardar, son of Sh. Jai Ram Khatri, resident of H. No.153A, Khatri, resident of H. No.153A, Ward No.30, GarhiBrahamanan, Ward No.30, GarhiBrahamanan, Sonipat-131001, Haryana.
Jind-131001, Haryana.
13. That the present 14 Election 14. That the present 14 Election pertains to 31-Jind Assembly petition to 31-Jind Assembly Constituency which falls within Constituency which falls within jurisdiction of the this Hon'ble jurisdiction of the this Hon'ble High Court and therefore this High Court and therefore this Hon'ble court has jurisdiction to Hon'ble court has jurisdiction to try and decide the present try and decide the present petition. petition.
14. ... 15 ...
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15. That the requisite number of 16. That the requisite number of copies of the election petition copies of the election petition duly attested as true copies by the duly attested as true copies by petitioner will submit along with the petitioner will submit along the amended election petition. with the original election petition.
16. That the petitioner has no other 16. That the petitioner has no other speedy or efficacious remedy speedy or efficacious remedy except to approach this Hon'ble except to approach this Hon'ble Court by filing the present Court by filing the present amended election petition. election petition.
17. ... 18. ...
Prayer To declare the results Pr of the Prayer To declare the results Pr of the
ii) petition Schedule Election, as ii) petition Schedule Election, as null and void, held in the 36-Jind null and void, held in the 36- bye election by election Jind bye election by election Assembly Constituency, on Assembly Constituency, on 28.01.2019. 31.01.2019.
Prayer The petitioner may kindly be Prayer The petitioner may kindly be
vi) exempted vi from filing the vi) exempted vi from filing the
certified/typed copies of certified/typed copies of
Annexures P-1 to P-- in the Annexures P-1 to P-7 in the
interest of justice. interest of justice.
9. Accordingly, it was pleaded that copy of the petition filed therein which was actually served upon the applicant and on the pretext of removing the objections had been filed beyond the period of limitation and even otherwise the copy served upon the respondent was not a true copy of the election petition. The copy even served had not been attested by the petitioner under his signatures to be true copy of the election petition, which is in violation of law as stated above.
10. The new allegations of corrupt practices which were not in the original election petition and various figures pertaining to alleged gathering of persons and cost of expenses had been increased in the new petition than what was mentioned in the original petition. It was, thus, stated that in the new set of paperbooks allegations of new corrupt 19 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 20 practices have been used which were not alleged in the original petition and, accordingly, reliance was placed upon Section 86 (5) of the 1951 Act that amendment of any petition would have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
11. Resultantly, it was averred that election petition was to contain all material facts regarding the corrupt practice and in the absence of the same it was liable to be dismissed at the threshold, as the allegations levelled were vague in the election petition as to which corrupt practice as laid down under Section 123 of the 1951 Act had been committed and by whom. The allegations regarding alleged abuse of media, non-disclosure of assets, vote share and alleged non-disclosure of expenses were there, but the petition did not contain material facts as well as particulars and the fact that who committed these alleged corrupt practices and who incurred the expenditure. The allegations were missing regarding who incurred the alleged expenditure and whether the alleged expenses were incurred by the candidate or election agent or by somebody else with the consent of either of them. In the absence of any figures when such expenditure was made and in what manner and how it was added having not been averred and in the absence of media establishments which were managed and influenced, the hollowness of the allegations and claims were stated to be highlighted from the fact that the same were alleged to have been verified by the petitioner to his personal knowledge.
12. It was pleaded that contentions raised in paragraph Nos.3, 3
(a) to (v) were without any basis and totally misconceived and did not make any cause of action to merit trial and, therefore, were liable to be 20 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 21 struck off from the election petition as frivolous and vexatious. Similarly, regarding paragraph No.4 of the election petition averments were made that the complaint regarding EVMs do not show that how materially it affected the election of the answering respondent nor any ground was made out for setting aside the election and the pleadings were frivolous and vexatious and to delay the fair trial of the election petition. The allegations were made in paragraph No.5 regarding the use of electronic media and violation of instructions issued by the Apex court were also vague and there was no mention of the alleged ad/electronic media instance and basic facts were missing and amounted to abuse of the process of the Court. The averments were made in paragraph No.6 regarding non-receipt of some information from District Election Officer- cum-Deputy Commissioner, Jind, but it had not averred as to how it had affected the election of the answering respondent and nor any ground was made out for setting aside the election.
13. In paragraph No.7 of the new paperbook allegations of non- disclosure of details of alleged loan, gift, donation etc. were made, but there was no averment as to how it affected the election of the answering respondent. Similarly, the averment that new offices had been opened and there was non-disclosure of the expenses and in the absence of any proof as to how many offices were opened and by whom and whether it was by the candidate, election agent or by someone else with the consent of either of them and due to lack of material facts striking off was prayed for. The averments made in paragraph Nos.9, 10 and 11 regarding the conducting of the elections in a free and fair manner and the manipulation to give 21 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 22 upper hand to the candidate belonging to the BJP ruling party, getting convenient staff posted to help the respondent to win the election by all means were also highlighted to show that the same were vague and lacked material facts and amounted to abuse the process of the Court. The averments made in paragraph No.11 was that entire system was used to serve one candidate and ensure the victory and thus, corrupt practices had been resorted to and the election was illegal and institutionalized efforts were made to eliminate other candidate were also stated to be vague averments and did not fall within the definition of corrupt practice under Section 100 and 123 of the 1951 Act.
14. Resultantly, it has been pleaded that in the absence of clear and specific pleadings, no case is made out and the petition is liable to be dismissed at the threshold as no case was made out to put it to a trial. It amounted to abuse the process of Court and election petition had not been verified by the petitioner as per Section 83 (1) (c) read with Section 83 (2) of the 1951 Act, which required schedule or annexure of election petition was to be signed and verified in the same manner as the petition and also the furnishing of the affidavit as per Order 6 Rule 15 CPC. The annexures have not been properly verified at the foot and there was no verification in the eyes of law. Therefore, the election petition was not liable to put to a trial. It was, accordingly, pointed out that in spite of availing the said opportunity, the defects in verification have still not been fully rectified. Form No.25 filed by the petitioner alongwith the election petition and filed with the subsequent one was not filed in the prescribed format. The averments of corrupt practices mentioned in the form were not as defined 22 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 23 as under Section 123 of the 1951 Act. The alleged Form B and Form BB were also stated to be not in the prescribed format and resultantly, it has been pleaded that it is the duty of the Court to examine the election petition itself irrespective of any written statement and the same is liable to be dismissed as it did not disclose the cause of action.
15. The election petitioner in his reply to the application took various objections that being a citizen of India he had a right to appear in person and bring all the irregularities/illegalities committed by the respondent before this Court. The election petition was filed by complying with all the rules and provisions and it was denied it was vague and lacking in material facts and it was wrong to say that the election petition was liable to be dismissed at the threshold.
16. The factual aspect regarding the date of election and the filing of election petition as such were admitted and the raising of objections by the Registry and the passing of orders of this Court. It was pleaded that election petition was filed with the prescribed period of limitation and not thereafter. It had not been filed in violation of Rule 12 (f) of the Vol.5 Chapter 4, Part GG of the High Court Rules and Orders and the office does not accept any petition in violation of High Court Rules and Orders. The petitioner had already supplied copy of the petition as per rules and had removed the objections put forth by the Registry and did not made any amendment. It was also denied that copy of the identity proof and deposit receipt for security for costs were not appended and, therefore, due compliance had been done under the provisions of Section 86 (1) and the fact that the petition is not liable to be dismissed under Section 86 (1). The 23 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 24 amendments carried out were permissible under the 1951 Act and the comparison shown by the respondent did not change the nature of the case.
17. However, it was admitted that the major additions and amendments had been made under the pretext of removing objections which were well within the period of limitation, legal and permissible under law. The petitioner had already supplied the true copy in election branch to be served upon the respondent. The duly attested copy of the petition under his signatures had been submitted and there was no violation of any rules and provisions. There was nothing new regarding the new allegations of corrupt practice which was not in the original petition. The cost of expenses incurred have been mentioned as per the knowledge and information gathered by the petitioner from reliable sources. The number of instances where the allegation in original petition was pertaining to 1 or 2 days only, whereas in the new petition the same have been changed to 15-20 days or also new allegation of new alleged corrupt practices regarding these dates had also been added in the new set. It was denied that additions and amendments have been made under any pretext beyond the period of limitation and additions made were well within the right of the petitioner and within the period of limitation. Thus, the petitioner disclosed every cause of action to merit trial and it was denied that the essential ingredients of corrupt practice were missing.
18. The factum of the pleadings being prejudicial and causing embarrassment were denied and the factum they were liable to be struck off from the election petition. It was pleaded that EVMs were not kept parallel and form 7A list of contesting candidate was not displayed in front 24 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 25 of the polling booth in Jind Assembly. The detailed facts and particulars were mentioned for use of electronic media and the District Election Officer-cum-Deputy Commissioner, Jind had supplied some documents later, but the complete information had not been supplied to the petitioner. It is specifically pleaded that the respondent did not disclose the loan, gift, donation etc. with complete details of lender, donors and neither disclosed the address, measurement of premises, rent, expenses incurred and number of offices for the purpose of election campaign in the Jind Assembly. The detailed particulars of corrupt practices and where and how they have been committed had been submitted. Therefore, sufficient ground for setting aside election of returned candidate was made out in view of the provisions of Section 100 of 1951 Act. Even it was pleaded that the case is fit for to be put to trial and reading of paragraph Nos.3 to 11 made out a case of corrupt practices which contained material facts and details with regard corrupt practice and disclosed detailed cause of action to warrant trial of the election. The petitioner duly verified the election petition in the manner laid down in the CPC. Form No.25 had been filled in the prescribed format and similarly Form B and Form BB had also been filled up. The application was liable to be dismissed with heavy costs as sufficient grounds were made out and there was no reason to reject the election petition or strike off any of the pleadings. Resultantly, it was prayed that the application be dismissed with heavy costs.
19. Mr. Jain has accordingly argued that substantial allegations were absent regarding the particulars which provided that the election had been materially affected and the corrupt practices had been carried out and 25 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 26 that any gift was given and there was any undue influence and the petition was liable to be rejected. It was further argued that the limitation was 17.03.2019 and the case was filed on 16.03.2019. The objections had been raised on 09.04.2019 and the same had been removed only after the order had been passed on 29.04.2019 and 08.05.2019 by this Court, which was beyond the period of limitation and accordingly was fatal. It was submitted that the bald averments were made in the absence of any specific averment regarding the consent of the candidate and in the absence of pleadings and full particulars of corrupt practice and full names of persons, who is stated to have committed such corrupt practice, the petition was liable to be rejected. It is submitted that merely this Court had given an opportunity to remove objections in accordance with law and passed the order dated 29.04.2019 and 08.05.2019, it would not condone the statutory provisions of limitation. The election expenses incurred by the respondent/applicant were already available on 28.02.2019 (Annexure P-7) and, therefore, in the absence of the necessary particulars at the time of filing, the same could not have been pleaded by filing subsequent amended petition.
20. Reliance was, accordingly, placed upon the judgment of the Apex Court passed in 'Dhartipakar Madan Lal Agarwal Vs. Shri Rajiv Gandhi', AIR 1987 SC 1577 and 'Hari Shanker Jain Vs. Sonia Gandhi', (2001) 8 SCC 233 to submit that where vague and completely bald allegations have been made would necessarily mean that the provisions of Order 7 Rule 11 CPC could be invoked. It was, accordingly, contended that it is the duty of the Court to examine all the facts and it need not wait till the filing of the written statement and point out the 26 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 27 defects. Reliance was also placed upon the judgment passed in 'E.S. Venkataramiah Vs. M.P. Thakkar', AIR 1986 SC 1253 that the election petition was liable to be dismissed at the threshold as it was thoroughly misconceived and untenable and there was no cause of action arisen.
21. While placing reliance upon the judgment in 'Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar', (2009) 9 SCC 310, argument raised was that the petition is liable to be dismissed on the ground that it abused the process of the Court as the petitioner had got only 95 votes, whereas the elected candidate had secured 50578 votes and the second person had got 37648 votes and the margin is too huge that there was some alleged corrupt practices which had benefitted the returned candidate at the cost of the petitioner and the result had been duly affected.
22. While placing reliance upon judgment in 'L.R. Shivaramagowda and others Vs. T.M Chandrashekar (dead) by L.Rs. and others', (1999) 1 SCC 666, it is pointed out that limit of the expenditure and as to how the result of election was materially affected, have to be specifically averred. There was difference between material facts and material particulars and the amendment of pleading could not be allowed to introduce new material facts after the time limit prescribed for filing the election petition, whereas the material particulars can be cured at a later stage by an appropriate amendment. It is, accordingly, contended that Court was only to see whether the plaint as such was covered under the provisions of Order 7 Rule 11 CPC, Clause (a to f) and the election petition was liable to be dismissed at the threshold. It is submitted that the same could be done at any point of time while placing reliance upon 27 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 28 judgment passed in 'R.K. Roja Vs. U.S Rayudu and another', (2016) 14 SCC 275.
23. Mr. Khatri appearing for the petitioner placed reliance upon the judgment of the Apex Court passed in 'G.M. Siddeshwar Vs. Prasanna Kumar', AIR 2013 SC (Civil) 1091 that defective affidavits and verifications are not fatal to the election petition and the petitioner can be given time to cure the defect and substantial compliance has to be done. By virtue of orders the same had been done and no question of striking off the pleadings and neither the rejection of election petition would arise. Reliance was placed upon judgment passed in 'Makhu Lal Vs. Bachcha Pathak', 1992 AIR (Allahabad) 358 that it was only an irregularity and not illegality. It was, accordingly, contended that the amount of election expenses had not furnished and could be furnished at the time of evidence. Rule 86 provided that election expenses have to be kept by the election candidate as contained under Section 77. It is submitted that 18 points have been asked from the Deputy Commissioner, Jind on 14.02.2019 (Annexure P-6), details of which were not readily available within the prescribed period of limitation and, therefore, the election petition is not liable to be dismissed.
24. It is not disputed the following defects as such were pointed out to the applicant at the initial stage on 09.04.2019 by the concerned officer:-
"Present:- Master Ramesh Khatri Lamberdar, petitioner in person.
28 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 29 The petition and its accompanying documents have been scrutinized under rule 14(a) of Ch.4-GG, High Court Rules and Orders, Volume-V and the following defects have been found:-
1. The requisite number of copies of the petition have not been filed as required under Rule 12(f) of Ch.4-GG, High Court Rules and Orders, Volume-V.
2. The spare copy of the petition and its Annexures (Except Annexure P-7) have not been attested to be true copy by the petitioner as is required under Section 81(3) of the R.P. Act, 1951 as well as Rule 12(f) of CH.4-GG, High Court Rules and Orders, Volume V.
3. In Annexure P-7 attached with the copy of the petition, the petitioner has not put his signatures on the true copy stamp at page Nos.40, 308 & 323.
4. The contents of the affidavit submitted in support of the petition (at Page-22) are not in conformity with the verification of pleadings made at page-21 of the petition.
5. The heading part of the affidavit in support of corrupt practices pleaded at Page-23 of the petition is not in accordance with the prescribed proforma.
6. Annexures P-1 to P-6 accompanying the petition have been signed but not verified by the petitioner, whereas Annexure P-7 has neither been signed nor verified, as is required under Rule 12 (b) of Ch.
44-GG, High 00Court Rules and Orders Volume-V.
7. Translated copies in English of Annexures in vernacular i.e. Annexures P-1 to P-3 have not been filed.
8. Annexure P-7 has neither been placed in accordance with the Index of the petition nor has been consecutively page-marked after Annexure P-6.
9. (a) The contents at Serial Nos. 6 to 9 of the Index (Form B. Form BB, Address of Petitioner and Address of Respondent) have not been page-numbered in the Index.
(b) Court Fee Page added with the petition has neither been page- marked nor shown in the index. Further, Court Fee column has been left blank in the index.
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6. Court fee in respect of Annexures amounting to Rs.0.65 per page (Rs. 321.75/-) has not been affixed with the petition and further court fee stamps attached with the petition have not been affixed in the name of the petitioner.
7. Form -B is not in accordance with the prescribed proforma, as in the heading, it has been mentioned as "List of Documents relied upon by the petitioner" instead of "list of Documents Produced by the petitioner". Further, the words "list of documents produced with the petition (or at the first hearing) on behalf of petitioner have been omitted after the parties names. Further, the 4th Column in the Form-B has been wrongly inserted as the same is not in accordance with the prescribed one. Moreover, the date of filing has also been left blank.
8. In Form-BB, fourth column has not been numbered in the heading and further, words "Signature of party or advocate producing the list" have not been mention therein Moreover, the date of filing has also been left blank.
9. Indentify proof of the petitioner attached with the petition has neither been page-marked nor has been mentioned in the Index. Further, the said page has not been attached with the copy of the petition.
10. A cloth-lined strong envelope of the size of not less than 14" x 15" for keeping documents has not been filed.
11. Pre-paid registered acknowledgement due postal cover with the address of respondent being in-scribed has also not been submitted with the petition.
12. Page Nos. 15, 20, 100, 102, 123, 324 & 340 of Annexure P-7 attached with the petition are not legible and further Page Nos. 15, 20, 100, 102, 123, 125, 147, 158, 257, 259, 277, 289, 324, 340, 348, 353, 456 & 476 of Annexure P-7 attached with the copy of the petition are not legible.
13. Page Nos. 10, 23, 24, 43, 47, 63, 71, 77, 90, 94, 454, 481 & 485 of Annexure P-7 attached with the copy of petition are not exact copies of the ones attached with the original copy of t petition. Further, page subsequent to page No. 179 in Annexure P-7 attached with the copy of the petition is missing as compared to Annexure P-7 of the original petition.
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14. In para 11 of the petition, the petitioner has claimed to have filed typed and true copies of original documents, whereas no typed copy of any annexure is forthcoming.
15. The address given by the petitioner for all correspondence in para 12 of the petition does not match with the one given in the 'Statement of Address of the petitioner' enclosed with the petition at Page-44.
16. In Para 16 of the petition, the election petition has been wrongly referred to as 'amended election petition'.
17. In the prayer clause of the petition at Point(vi), the prayer for exemption from filing the certified/typed copies of the annexures has been left incomplete as 'Annexures P-1 to P__.'
18. Copy of Deposit Receipt for security of costs of election petition has not been enclosed in the spare copy as per its Index.
Since the objection mentioned at Sr. No.2, out of the above- mentioned objections, is not in conformity with the provisions of Section 81 of the Representation of People Act, 1951, the case be put up before Hon'ble Judge, to be designated by Hon'ble the Chief Justice, on 29.04.2019 for removal of objections."
25. The law regarding rejection of plaint is that power can be exercised at any stage and the Court has to satisfy that the plaint discloses a cause of action and does not appear to be barred by any law. The Court has to scrutinize the averment made in the plaint to find out any cause of action and the defence taken in the written statement is irrelevant. Reference can be made to the law laid down by the Apex Court in Church of Christ Charitable Trust & Educational Charitable Society Vs. Ponniamman Educational Trust, (2012) 8 SCC 706, Soumitra Kumar Sen v. Shyamal Kumar Sen, (2018) 5 SCC 644, DahibenVs. Arvindbhai Kalyanji Bhanusali (2020) 7 SCC 366 and Srihari Hanumandas Totala Vs. Hemant Vithal Kamat, (2021 (9) SCC 99. The relevant provisions which govern the said issue are Order VI Rule 16 31 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 32 CPC which provides that the Court also may at any stage of the proceedings strike out or amend any matter in the pleadings, which is otherwise an abuse of the process of the Court. Similarly, the rejection of the plaint can be made under Order VII Rule 11 under sub-Clause (a), where it does not disclose a cause of action or where it is barred by any law under the sub-Clause (d), apart from the fact that if requisite stamp paper is insufficient. The provisions of Order VI Rule 16 and Order VII Rule 11 CPC read as under:-
"Order VI Rule 6 Striking out pleadings.--The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-- (a) which may be unnecessary, scandalous, frivolous or vexatious, of
(b) which may tend to prejudice, embarrass or delay the fair trail of the suit, or
(c) which is otherwise an abuse of the process of the Court.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxx Order VII Rule 11 Rejection of plaint.-- The plaint shall be rejected in the following cases:--
(a)where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
32 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 33 Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
26. After applying the said principles strictly, an election petition can be summarily dismissed if it does not furnish any cause of action. It is pertinent to notice that law is settled regarding importance of pleadings in an election petition alleging corrupt practices and in the absence of material facts which have to be pleaded within the period of limitation, a party cannot be allowed to proceed, since the object and purpose is to enable the opposite party to know the case he has to meet with. Failure to state even a single material fact would entail dismissal of the election petition and it should contain a concise statement of material facts on which the petitioner relies and on vague and bald allegations which would not disclose any triable issue, the petition is liable to be rejected under Order VII Rule 11 CPC. The Apex Court in Hari Shanker Jain (supra) had held to that effect while upholding the order of the designated election Judge, who had held that there was no cause of action or triable issue and the petition was held not maintainable under Section 86 of the 1951 Act.
27. Article 329 of the Constitution of India governs the challenge of election to the House of the Legislature, which can only be called in question by filing the election petition presented to the authority and in the manner as provided by the law or under any law made by the appropriate 33 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 34 Legislature and there is bar to interference by the Court in the electoral matter.
28. Section 80 of the 1951 Act provides that the election petition is to be presented in accordance with the provisions of Chapter II and the election can only be called in question, which has to be presented accordingly, whereas Section 80A provides that the High Court has to try the election petition.
29. Section 81 talks about the presentation of one or more grounds specified in sub-Section (1) of Section 100 within the time frame of 45 days from the date of the election of the returned candidate, which in the present case was 31.01.2019. Sub-Clause (3) of Section 81 provides that the election petition shall be accompanied by as many as copies as there are respondents and every copy is to be attested by the petitioner under his signature to be a true copy of the petition. Section 81 of the 1951 Act reads as under:-
"81. Presentation of petitions.--(1) An election petition calling in question any election may be presented on one or more of the grounds specified in [sub-section (1) of section 100 and section 101 to the [High Court] by any candidate at such election or any elector [within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates].
Explanation.--In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not.
Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition 34 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 35 and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition."
30. Section 86 talks about the dismissal of an election petition, which does not comply with the provisions of Sections 81, 82 and 117. Sub-Clause (5) of the said section further provides that the power to allow the particulars of any corrupt practice to be amended or amplified within its opinion to be necessary for ensuring a fair and effective trial of the petition or upon such terms as to costs and otherwise as it may deem fit. Said clause further provides that the amendment will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. Clause 1 to 5 of Section 86 reads as under:-
"86. Trial of election petitions.--(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.
Explanation.--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub-section (2) of section 80A.
(3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation.--For the purposes of this sub-section and of section 97, the trial of a petition shall be deemed to commence on the 35 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 36 date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition.
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition."
31. On the other hand Section 83 provides that the election petition is to contain a concise statement of material facts and has to set forth full particulars of any corrupt practice including a full 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. The requirement being stringent further provided that signatures of the petitioner has to be verified in the manner laid down in the Code of Civil Procedure and the proviso where the allegations of corrupt practice, the petition be accompanied by an affidavit in the prescribed form and the particulars thereof. The schedule of annexures also be signed by the petitioner and verified in the manner as the petition. Section 83 reads 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:
36 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 37 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.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."
32. The grounds of declaring the election to be void is contained in Section 100 and sub-Clause (1) (b) specifies the ground of corrupt practice and sub-Clause (1) (d) talks about the result of the election petition, in so far as it concerns a returned candidate, has been materially affected. Whereas sub-Clause (1) (d) (ii) further talks about corrupt practice committed in the interests of the returned candidate by an agent other than his election agent. Relevant provisions reads as under:-
"100. Grounds for declaring election to be void.--(1) Subject to the provisions of sub-section (2) if the High Court is of opinion--
xxxxxxxxxxxxxxxxxxxxxxxx
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; xxxxxxxxxxxxxxxxxxxxxxxxxx
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-- (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent."
33. Section 117 provides the deposit of security as costs of a sum of Rs.2,000/-, whereas Section 123 defines corrupt practice, which includes bribery, gift or offer by a candidate or his agent or by any other person with the consent of the candidate or any gratification directly or indirectly inducing the person to vote or refrain from voting at an election 37 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 38 or as a reward to, whereas sub-Clause (2) provides undue influence or an attempt to interfere on the part of the candidate or his agent with the consent of the candidate or his election agent. Sub-Section (6) provides that incurring or authorizing of expenditure in contravention of Section 77, which further provides account of election expenses have to be kept by the candidate or his election agent with regard to expenditure in connection with the election, which was incurred from the date of nomination and the date of declaration of the result.
34. It is a matter of record that though the present petition had been filed within limitation on 16.03.2019 as many as 18 objections were raised, which have been reproduced in paragraph No.24 above. Said objections were never sought to be rectified and the office had to take orders from Hon'ble the Chief Justice for nomination of the Judge for preliminary hearing as defects had been enumerated including non- fulfillment of Section 81 (3) of the 1951 Act as well as Rule 12 (f) of Chapter-IV, Part-GG, Vol.5 of the Punjab and Haryana High Court Rules and Orders. The requisite number of copies of petitions had not been filed on the initial date itself, apart from the fact that spare copy of the petition and its annexures had not been attested to be true copy as required under Section 81 (3) of the 1951 Act and as per Rule 12 (f) of the High Court Rules and Orders.
35. Rule 12 (d) and (f) of the High Court Rules and Orders read as under:-
"12. Papers accompanying the petition.- Every petition shall be accompanied by:-
xxxxxxxxxxxxxxxxxxxxxx
(d) The original receipt for the deposit of security for costs.
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(f) twice as many copies of the election petition as there are respondents mentioned in the petition. Every such copy shall be attested by the petitioner under his own signature to be true copy of the petition."
36. Similarly, the signatures had not been put on the true copy stamp at page No.40 (Annexure P-7). As per objection No.4, the affidavit in support of the petition was not in conformity with the verification of pleadings made at page No.21 of the petition. The heading part of the affidavit in support of corrupt practice pleaded at page No.23 was not in accordance of the prescribed proforma. Annexures P-1 to P-6 had been signed, but not verified by the petitioner, which was the requirement under Rule 12 (b) of the High Court Rules and Orders. Translated copies of Annexure P-1 to P-3 had also not been filed and there was discrepancy regarding Court fee as the same was neither page marked nor shown in the index. The Court fee of Rs.321.75/- was stated to be not affixed with the petition and the Court fee stamps attached with the petition had not been affixed in the name of the petitioner. Similarly it was noticed that the copy of deposit of receipt for security of costs of election petition had not been enclosed in the spare copy as per the index.
37. It was only on account of the fact that an application came to be filed on 23.04.2019 by the Joint Chief Electoral Officer, Haryana, the matter was taken up by this Court on 26.04.2019 and resultantly the following order was passed:-
"The present application has been filed by the Election Department for allowing the usage of Electronic Voting Machines (EVMs) which were used during the Jind Bye Election which was conducted on 28.01.2019 and result of which was declared on 31.01.2019.
39 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 40 The ground for said prayer is that on account of forth coming Lok Sabha Elections on 12.05.2019 in the State of Haryana, the EVMs are required. Reliance is placed upon Clause 3
(ii) of the instructions dated 15.07.2016 (Annexure R-1) in this context to point out that EVMs have to be kept in custody due to the pendency of the election petition.
In the main election petition notice is yet to be issued and case is fixed for 29.04.2019. Resultantly, notice be issued to the election petitioner of the application by way of dasti and he be informed by telephonic message also.
Office shall also supply copy of the election petition to the State of Haryana on deposit of the requisite expenses.
To be heard alongwith main petition on 29.04.2019."
38. A perusal of the record would go on to show that the petitioner was telephonically informed regarding the pendency of the said application.
39. Thus, the petitioner was put to notice regarding the application and then it was noticed that there were 18 objections, which were to be removed and thereafter the following order was passed on 29.04.2019:-
"The petitioner is appearing in person. It is a matter of record that there are as many as 18 objections in the Election Petition and in view of Rule 15, Vol.5 Chapter 4, Part GG of the High Court Rules and Orders, the petition has been put up before this Court on account of being incomplete and on account of non-compliance of the Rules. The petitioner has accordingly submitted 3 sets of the paper-books stating to have removed the objections which have been handed over to Sh. S.C. Malik, Registrar (Grouping) who is present in Court. The petitioner undertakes to remove further objections, if any, and complete the paper-books. He further confirms the fact that he has received notice of CM-2E-2019 filed by the Election Department for the usage of Electronic Voting Machines (EVMs).
Let reply be filed to the application.
40 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 41 Office to put up the petition on 01.05.2019.
Meanwhile, let the applicant/Election Department be also provided copy of the fresh paper-books which have been filed."
40. Apparently only then three sets of paper books were submitted and handed over to the Registrar (Grouping) and the petitioner undertook to remove objections, if any and complete the paper-books. He submitted an application on the said date that he wanted to remove the defects, but the concerned branch had refused to accept the same and, thus, sought permission to file the amended election petition, which was at the stage of scrutiny. The application was accompanied with the One Rupee Stamp, the date on which has even now not been filled out. Thus, no effort was made by the petitioner to approach the office, if he was interested in the prosecution of the case. There is nothing on record to show that between the date of filing on 16.03.2019 and when the defects were noticed on 09.04.2019 when he was present and asked to comply with the same, he had taken any steps. The amendments thus were incorporated by him in the petition then filed, which have been highlighted in paragraph No.8 above.
41. Vide order dated 01.05.2019 while allowing the application of the Chief Electoral Officer, it was noticed that the petitioner was to comply with the provisions of Rule 15 (b) within a period of one week and the petitioner had undertaken that he would remove the objections within the prescribed period. On 07.05.2019, the office noted that the petitioner had removed all the objections except objection No.6, 7, 11 and 13, which was also noticed by this Court on 08.05.2019. On the said date, it was also noticed that 4 objections remained as recorded by the office and, 41 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 42 accordingly, it was held that sufficient compliance as such had been made as per Rule 15 (d) of the Vol.5 Chapter 4, Part GG of the High Court Rules and Orders.
42. It is, however, apparent from the record that the objections were only removed on 27.05.2019 except point No.13 regarding the legibility of the certain pages. Admittedly the petitioner proceeded in leisurely manner and never complied with the objections, which were mandatory in nature as per the provisions which have been reproduced above, both pertaining to the 1951 Act and High Court Rules and Orders.
43. As per Rule 14 Vol.5, Chapter 4, Part GG of the High Court Rules and Orders, scrutiny of papers is to be done by the Registrar and the endorsement is to be made on the back of the last page of the index and under sub-Clause (b) of the said Rule, a specific endorsement is to be made to the effect that whether the petitioner has complied with the requirements of Section 81, 82 and 117 of the 1951 Act. Similarly, under sub-Clause (c) it is provided that if the defect detected in the petition has not been complied with, the petition be returned with the endorsement specified to the petitioner or the Advocate incharge, on the date specified in the receipt under Rule 11 (ii). It is not disputed that as per the endorsement made when the petition was presented to the Registrar on 16.03.2019, it was directed that it be put up on 09.04.2019, which is the requirement under Rule 11 (ii). The petitioner was present on 09.04.2019 and he had to appear for removal of formal defects, if any, but he chose not to do so.
44. Rule 19 provides that it is the duty of the petitioner or the Advocate incharge to appear before the Court on the date of scrutiny and 42 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 43 to comply with the order or directions that may be given by the designated Judge at the time of the scrutiny. Rule 19 reads as under:-
"19. Scrutiny.- It shall be the duty of the petitioner or the Advocate incharge to appear before the Court on the date of scrutiny and to comply with the order or directions that may be given by the designated Judge at the time of the scrutiny."
45. Rule 14 (c) further provides that the defects have to be removed and the time shall not exceed seven days in any case and the rectified petition shall be refilled by the petitioner or the Advocate incharge within the time so specified. Said rule reads as under:-
"If some other defect is detected in the petition or it is found that it does not comply with any other rule, the petition will be returned with such endorsement as hereinbefore specified to the petitioner or the Advocate incharge, on the date specified in the receipt under rule 11 (ii). The said endorsement shall specify the time within which the defect or defects mentioned therein shall be removed and the said time shall not exceed seven days in any case. The rectified petition shall be refilled by the petitioner or the Advocate incharge within the time so specified."
46. A preliminary hearing of defective petitions is required to be fixed under Rule 15 and reading of the same would go on to show that when there is non-compliance of the provisions and there are incomplete petitions, the same will be put up before the designated Judge on the date which has been noticed by the petitioner or the Advocate incharge or which has been specified, as provided under Rule 15 (a). Rule 15 (b) further provides that this Court may allow the petitioner or the Advocate incharge to do the needful on such terms as it may deem fit to impose. Sub-Clause (d) further provides that if there has been substantial compliance with the rules and it is not necessary to have any other 43 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 44 rectification or amendment made, notice may be issued to the respondents, as the case may be. Rule 15 reads as under:-
15. Preliminary hearing of defective petitions.-
(a) All such petitions, (i) which have been prima facie found by the Registry as not complying with the provisions of section 81 or section 82 or section 117 of the Act or (ii) which have been filed incomplete or in any other way not complying with these rules and which the petitioners or the advocates incharge may not have taken back or (iii) which may have been re-filed without necessary compliance or (iv) which may have been re filed after the expiry of the period allowed by the Registry, shall be brought up before any of the designated Judges on a date which has either been noted by the petitioners or the Advocates incharges or which has been specified in the list prepared, notified, and sent to the High Court Bar Association before 3.30 p.m. on the preceding date, or which has been notified to an un-represented petitioner by registered post.
(b) If the petition does comply with the provisions of the aforesaid the sections of the Act, but does not comply with any of the other rules or requirements contained in this Chapter, the High Court may allow the petitioner or the Advocate incharge such further time not exceeding one week to do the needful on such terms as it may deem fit to impose.
(c) All such cases reported by the Registry shall be included at the top of the Daily Cause list of the designated Judge.
(d) If the High Court finds that sections 81, 82 and 117 of the Act have been duly complied with and that there has been substantial compliance with the other rules and it is not necessary to have any other rectification or amendment made in the petition or other papers, the High Court shall order notice of the petition to issue to the respondent or respondents, as the case may be."
47. Thus, it would be apparent that the needful was never done within the prescribed period as per the objections raised initially on 09.04.2019 and thereafter also various orders had been passed and only on 44 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 45 account of application filed by the Election Department the matter was taken up on 26.04.2019, 29.04.2019 and 01.05.2019. Rather on 01.05.2019, it was noticed that the provisions have to be complied with within the time not exceeding one week to do the needful. Only 14 objections were removed, as per the noting recorded on 07.05.2019. It was only on 27.05.2019 all objections except point No.13 were stated to be removed by the petitioner.
48. The Apex Court in 'G.V. Sreerama Reddy and another Vs. Returning Officer and others', AIR 2010 SC 133 has held that the object of presenting an election petition by a candidate or elector is to ensure genuineness and to curtail vexatious litigation and there is limitation of 45 days and it cannot be condoned by applying the Limitation Act, as the 1951 Act is a complete and self-contained code which does not admit of the introduction of the principles or the provisions of law contained in the Indian Limitation Act. Thus, it dismissed the petition, whereby the Registry of the Karnataka High Court held that there was no proper presentation of the election petition in terms of Section 81 (1) of the 1951 Act by holding that an election petition is a serious matter with a variety of consequences and the procedure prescribed must be read strictly. Relevant part of the said judgment reads as under:-
"15) While interpreting a special statute, which is a self-
contained code, the Court must consider the intention of the Legislature. The reason for this fidelity towards the Legislative intent is that the statute has been enacted with a specific purpose which must be measured from the wording of the statute strictly construed. The preamble of the Representation of the People Act makes it clear that for the conduct of elections of the Houses of Parliament or the Legislature of each State, the qualification and 45 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 46 dis-qualification for membership of those Houses, the corrupt practice and other offences in connection with such allegations the Act was enacted by the Parliament. In spite of existence of adequate provisions in the Code of Civil Procedure relating to institution of a suit, the present Act contains elaborate provisions as to disputes regarding elections. It not only prescribes how election petitions are to be presented but it also mandates what are the materials to be accompanied with the election petition, details regarding parties, contents of the same, relief that may be claimed in the petition. How trial of election petitions are to be conducted has been specifically provided in Chapter III of Part VI. In such circumstances, we are of the view that the provisions have to be interpreted as mentioned by the Legislature.
16) One can discern the reason why the petition is required to be presented by the petitioner personally. An election petition is a serious matter with a variety of consequences. Since such a petition may lead to the vitiation of a democratic process, any procedure provided by an election statute must be read strictly. Therefore, the Legislature has provided that the petition must be presented "by" the petitioner himself, so that at the time of presentation, the High Court may make preliminary verification which ensure that the petition is neither frivolous nor vexatious. Xxxxxxxxxxxxxxxxxxxxxxxx
19) We have already pointed out that in spite of provisions in CPC and Evidence Act relating to institution of suit and recording of evidence etc. this Act provides all the details starting from the presentation of the election petition ending with the decision of the High Court. In such circumstances, it is but proper to interpret the language used by the Legislature and implement the same accordingly. The challenge to an election is a serious matter. The object of presenting an election petition by a candidate or elector is to ensure genuineness and to curtail vexatious litigations. If we consider sub-section (1) along with the other provisions in Chapter II and III, the object and intent of the Legislature is that this provision i.e. Section 81(1) is to be strictly adhered to and complied with.
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49. In the considered opinion of this Court in the manner in which the petition was presented and prosecuted beyond the period of limitation prescribed has made it liable to allow the application under Order VII Rule 11 being barred under the statute under Rule 7 (d). Reliance can be placed upon the judgment of this Court passed in 'Boota Singh Vs. Sher Singh and others', AIR 1994 (P&H) 32, wherein it was held that once the High Court Rules and Orders have not been duly complied with and copy of the petition had not been attested and the petition was not properly verified and, therefore, it was liable to be dismissed on account of the non-compliance of provisions of Section 81 of the 1951 Act.
50. In such circumstances, the argument raised that as the mandatory provisions of Section 83 have not been complied with, the petition was liable to be rejected, seems to have substance. The allegations of corrupt practice which have been reproduced above, were amended by filing a amended petition only after prodding by this Court and it was on account of the fact that the application having been filed by the Chief Electoral Officer was listed. By virtue of the amendments which has now been reproduced in paragraph No.8 above and highlighted would go on to show that further details have been mentioned regarding the averments of corrupt practices, which were not mentioned at the initial stage when the petition filed on 16.03.2019. The said amendments as such were made without filing an appropriate application seeking leave of the Court, which is provided under Section 86 (5) of the 1951 Act. The material additions as such which have been made regarding the averments 47 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 48 made in Section 3 (f) with regard to the undue influence by adding a number of persons from 5000 to 15000 to be presented at the time of filing of nomination papers, which is stated to be doing the road show on account of the fact that the elected candidate was belonging to the ruling party. Resultantly, the expenditure incurred by the said person was another amendment made under para 3 (g). Averments regarding office being opened which was vague were elaborated by showing that the 34 villages and 174 polling booths had been added by virtue of the amendment. The printing material detail of which had been mentioned which was of 15 lacs was increased to 25 lacs by virtue of the amendment. Similarly, allegations were made that various ministers of the Government had resided at Jind and on account of being the ruling party, the Officers had not taken any action against them.
51. A perusal of the amendments would go on to show that in the amended petition also bald averments as such were made regarding the allegations of corrupt practices and casting of bogus votes without giving any details as such as to which of the votes were bogus. The respondent is stated to have filed a affidavit stating his age as 47 years and he is stated to have not disclosed apart from the assets stated in the affidavit which is mandatory as per rules. The date of affidavit is not mentioned by the petitioner. Similarly the media power as such and how it was managed by the winning candidate had not been elaborated and how it was used to put forth to swing vote share in his favour by publishing and printing in which newspaper and by which publishing house at which particular individual instance. It has already been noticed on an earlier occasion that the petitioner had only secured 95 votes in comparison to the elected 48 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 49 candidates who had secured 50578 votes and how the percentage of swing of votes had benefitted the elected candidate. This Court is thus left grappling in the dark in the absence of any specific averment. The averment that some senior leader of the party had reached and the respondent had organized a rally with the senior leader of the BJP is also vague in the sense neither the names of the persons are mentioned and neither there is any averment what were their designations. The allegations regarding expenses incurred for attending the public meeting by the Ministers and the local leader is also vague and name of the ministers and leaders is again missing. The list is far and wide regarding the vague allegations which have been made and keeping in view the settled principle that the averments had to be specific with full particulars as set down under Section 83 (1) of the 1951 Act, the argument raised that it is a matter of evidence as such cannot be accepted.
52. A three Judge Bench of the Apex Court in 'Hardwari Lal Vs. Kanwal Singh', (1972) 1 SCC 214 set aside the order of this Court, whereby the election of returned candidate had been set aside on the ground of corrupt practice resorted to. The averments were regarding the assistance of six Government servants and the High Court had relied on the oral evidence of one of the Government servant to whom the letter had been written for help and for procuring his assistance for the furtherance of prospects of election. The Apex Court set aside the judgment on the ground that the allegations made do not amount to any statement of material evidence of corrupt practice, as it was not stated as to which kind or form of assistance was obtained or procured or attempted to be procured or obtained had not been specified. The gravamen of the charge of corrupt 49 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 50 practices was lacking and, therefore, once the suit did not furnish the cause of action, it could be dismissed. Relevant paragraphs of the said judgment read as under:-
"21. The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to which kind or form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen 'of the charge of corrupt practice within the meaning of section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action.
22.Counsel on behalf of the respondent submitted that an election petition could not be dismissed by reason of want of material facts because section 86 of the Act conferred power on the High Court to dismiss the election petition which did not comply with the provisions of section 81, or section 82 or section 117 of the Act. It was emphasized that section 83 did not find place in section 86. Under section 87 of the Act every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable under the Code of Civil procedure, 1908 to the trial of suits. A suit which does not furnish cause of action can be dismissed.
53. The said view has been reiterated by a three Judge Bench again in 'Subhash Desai Vs. Sharad J. Rao and others', 1994 (3) SCR 271, wherein it was held that if an election petition does not contain material facts and full particulars of corrupt practices, it would give the power to the Court to reject the same under the provisions of CPC and
50 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 51 Section 81 (3) of the 1951 Act by saying that it does not disclose the cause of action.
54. Reliance can be placed upon the judgment passed in 'Azhar Hussain Vs. Rajiv Gandhi', AIR 1986 SC 1253, wherein it has been held that the power to reject an election petition summarily is provided to ensure that sword of Damocles cannot be kept hanging over on the head of the elected person and this Court has power to reject the petition at the threshold. Relevant part of the said judgment, whereby the objection to the contrary was repelled, reads as under:-
"12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of confernment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocle need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The Courts in exercise of the powers 51 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 52 under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the Court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matters pertaining to ordinary Civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. So long as the sword of Damocles of the election petition remains hanging an elected member of the Legislature would not feel sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in a campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people, he will be engaged in a struggle to establish that he is indeed such a representative, notwithstanding the fact that he has in fact won the verdict and the confidence of the electorate at the 52 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 53 polls. He will have not only to wind the vote of the people but also to win the vote of the Court in a long drawn out litigation before he can whole-heartedly engaged himself in discharging the trust reposed in him by the electorate. The pendency of the election petition would also act as a hindrance if he be entrusted with some public office in his elected capacity. He may even have occasions to deal with the representatives of foreign powers who may wonder whether he will eventually succeed and hesitate to deal with him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom. Even if he is made of stern metal, the constraint introduced by the pendency of an election petition may have some impact on his sub-conscious mind without his ever being or becoming aware of it. Under the circumstances, there is greater reason why in a democratic set-up, in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the Nation, the controversy is set at rest at the earliest, if the facts of the case and the law so warrant. Since the Court has the power to act at the threshold the power must be exercised at the threshold itself in case the Court is satisfied that it is a fit case for the exercise of such power and that exercise of such powers is warranted under the relevant provisions of law. To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers, at the threshold, is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The Court cannot accede to such a proposition. The submission urged by the learned counsel for the petitioner in this behalf must therefore be firmly repelled."
55. In 'Ram Sukh Vs. Dinesh Aggarwal', (2009) 10 SCC 541, it was held that the object of the provisions under Order VI Rule 16 and under Order VII Rule 11 CPC is to ensure that meaningless litigation 53 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 54 should not be permitted to occupy the judicial time of the Courts, which would otherwise bound to prove abortive. It was also held that once there is a vague pleading and it did not spell out as to how result of the election was materially affected and in the absence of the specific pleading, the election petition was liable to be rejected at the threshold on that ground, which was done by the High Court of Uttaranchal. Herein also in the absence of specific averments as to how the result of the election was materially affected on the grounds which are taken by making vague averments would not give a cause of action. In such circumstances, it can be safely said that the present petition is nothing but an abuse of the process of the Court, as it do not furnish any cause of action, apart from the fact that it was also barred in law on account of the limitation, as the objections were never removed within the prescribed period.
56. Another important aspect which has already been noticed is regarding the fact that the petitioner has only secured 95 votes in comparison to the elected candidate who had secured 50,578 votes. The candidates who had put some contest as such belonged to the INC and had secured 22742 votes, whereas the candidate from INLD had put a better performance and had secured 37648 votes. Both the said candidates had gracefully accepted the verdict of the electorate on the ground of margin of defeat. Whereas present petitioner who had not even polled 100 votes has chosen to abuse the process of the Court by filing the present petition by raising various grounds which are vague in nature, which in the considered opinion of this Court is sufficient to reject the petition.
57. Reliance had rightly been placed upon the judgment passed in Anil Vasudev Salgaonkar (supra) regarding this aspect. In the said case 54 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 55 the election petitioner had polled 275 votes, where the returned candidate had secured 10705 votes out of the 19657 votes polled. The election petition had been filed seeking setting aside the election as null and void on the ground of corrupt practices, which included of providing Ambulances for luring voters. The High Court had dismissed the election application, whereby the claim was sought that the petition should be dismissed in limine under Section 86 of the 1951 Act. It was noticed that material facts regarding the estimates involved in the drilling the bore holes were missing and totally general and vague allegations were made. Similarly, the allegation as such that Ambulances had been deployed were also vague and it did not fall within the ambit of corrupt practices, apart from the fact that it was held that the election petition can be summarily dismissed if it did not furnish any cause of action. It was held that as an election petition was a serious matter and material facts mean the entire bundle of facts, which would constitute a complete cause of action. Resultantly, the appeal was allowed and the order of the High Court was set aside while dismissing the election petition as a whole, as it did not disclose any cause of action. The said facts would also be applicable herein.
58. Reliance upon judgment passed in Makhu Lal (supra) by the respondent, which was a case where the rejection order under Order VI Rule 16 and under Ordre VII Rule 11 was sought on the ground that the schedules attached with the election petition had not been verified. Resultantly, it was held that it was a curable defect and was not fatal and, accordingly, the election petitioner was given time to verify the schedules.
59. In the present case as noticed the defects were not removed 55 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 56 within the period prescribed under the High Court Rules and Orders and, thus, there is statutory bar as such. Merely because on hearing the application filed by the Chief Electoral Officer, an opportunity had been given to remove the defects, which was beyond the period of one week and which was done in leisurely manner would not entitle the counsel for the petitioner to submit that the defects had been cured. At that point of time the respondent was not present and could not object and, therefore, orders passed before issuance of notice cannot bind the respondents not to take up the pleas, which he has taken in accordance with the provisions of law.
60. Reliance upon G.M. Siddeshwar (supra) by counsel for the petitioner, which also arises out of an issue of a defective affidavit. Some of the paragraphs of the election petition were struck off, whereas remaining paragraphs were retained. The elected representative had, thus, then approached the Apex Court saying that there should have been summary dismissal of the election petition. The power of summary dismissal was accepted in the said judgment constituting of a three Judges Bench, while referring to the earlier decision passed in Hardwari Lal (supra). Resultantly, it was held that if it was a curable defect there should be substantial compliance of removal, but if there is a total and complete non-compliance, then the petition cannot be described as an election petition and may be dismissed at the threshold. It was in such circumstances, it was held that it was a matter of trial and there is no reason to take a different view than what was taken by the High Court. It was also held that the defect which had been removed was in a substantial 56 of 57 ::: Downloaded on - 07-09-2022 23:36:45 ::: CM-14-E-2019 in/and EP-1-2019 57 compliance required under the law and it was a curable defect and, therefore, opportunity was rightly granted.
61. In the present case it has also been noticed even the averments regarding corrupt practices are missing by giving the full particulars and, therefore, in the absence of the same whereby no specific averment as to what was the undue influence effected for the said corrupt practices and by whom and whether it was by the election agent or any other person with the consent of the candidate, the petition is liable to be rejected and the said judgment is not applicable in the facts and circumstances of the present case.
62. Keeping in view the above, this Court is of the opinion that the present election petition is an abuse of the process of the Court and only an attempt to harass the elected person and in such circumstances while exercising the power under Order VI Rule 16 (c) and Order VII Rule 11 (a & d), CM-14-E-2019 is allowed and the main petition is rejected.
(G.S. SANDHAWALIA)
September 02, 2022 JUDGE
Naveen
Whether speaking/reasoned: Yes/No
Whether Reportable: Yes/No
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