Punjab-Haryana High Court
Harmail Singh Tohra vs Lal Singh on 22 December, 2010
Author: Surya Kant
Bench: Surya Kant
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Misc.No.21-E of 2009 and
Civil Misc.No.16-E of 2010 in
Election Petition No.4 of 2007.
Date of Decision : December 22, 2010.
Harmail Singh Tohra .....Petitioner
versus
Lal Singh .....Respondent
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
Present : Mr.Sukhbir Singh, Advocate, for the petitioner.
Mr.Harbhagwan Singh, Senior Advocate, with
Mr.Tarunveer Vashisht, Advocate,
for the applicant-respondent.
-.-
1. Whether Reporters of Local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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Surya Kant, J.
This order shall dispose of two Civil Misc. Applications moved by the respondent/Returned Candidate. While in the first application, he prays that Clauses (A) to (H), (L), (M), (N) and (P) of para No.7 as well as para No.9 of the Election Petition may be ordered to be deleted from the pleadings in view of the order dated September 5, 2009 passed by this Court, the second application contains a general prayer for the formal deletion of all those paras which are to be struck off from the C.M.Nos.21-E of 2009 and 16-E of 2010 in E.P.No.4 of 2007 2 pleadings in terms of the order dated September 5, 2009.
The petitioner, the applicant-respondent and nine other candidates contested the election from the 73-Dakala Assembly Constituency held on 13.2.2007. The applicant-respondent was a candidate of Indian National Congress and was declared elected. The petitioner has assailed the election of the Returned Candidate on the grounds of alleged `corrupt practice' committed by the respondent within the meaning of Section 123 (2) (3) of the Representation of the People Act, 1951 (for short `the Act'). The petitioner alleges that the respondent exerted "undue influence" on the voters through the Head of a religious cult known as Dera Sacha Sauda and they were induced to vote for the respondent, failing which the voters could be the object of divine displeasure of Huzur Pita and could be subjected to social ostracism. The petitioner also averred that the respondent appealed the voters to vote for him on the ground of religion for which he obtained support of the Dera Sacha Saudha.
Since the respondent-Returned Candidate in his written statement took preliminary objections and prayed for striking of the pleadings under Order 6 Rule 16 read with Order 7 Rule 11 CPC, the preliminary issues No.4 to 9 were framed and those issues were partly upheld vide order dated September 5, 2009 to the extent that even as per the stand taken on behalf of the petitioner, the pleadings were lacking in material facts and particulars so far as the ground of `corrupt practice within the meaning of Section 123 (3) of the Act was concerned. The C.M.Nos.21-E of 2009 and 16-E of 2010 in E.P.No.4 of 2007 3 pleadings to that extent were, therefore, ordered to be struck off. The pleadings qua the ground of `corrupt practice' within the meaning of Section 123 (2) of the Act were, however, sustained.
It is, in a way, for implementation of the above mentioned order dated September 5, 2009 that the respondent-Returned Candidate has moved the two applications though it has also been conversed at length on his behalf that the pleadings qua `corrupt practice' within the meaning of Section 123 (2) of the Act are also lacking materially and do not disclose any cause of action.
Having heard learned counsel for the parties and on perusal of the pleadings and in continuation of the order dated September 5, 2009, I am of the considered view that since the petitioner has concededly failed to plead the material facts and material particulars of `corrupt practice' within the meaning of Section 123 (3) of the Act, it is directed that none of the averments made in para No.7 (A) to (Q) shall be read for the purpose of, nor the petitioner shall lead any evidence to prove the `corrupt practice' within the meaning of Section 123 (3) of the Act. Similarly, the averments made in para No.9 of the Election Petition to the effect that the respondent and other persons with his consent had sought the votes "in the name of religion...." and that the said corrupt practices fall within the definition of "undue influence and appeal in the name of religion", as envisaged under Sections 123 (2) and "123 (3)" of the Act, to the extent they pertain to Section 123 (3) of the Act are ordered to be deleted and the same shall not C.M.Nos.21-E of 2009 and 16-E of 2010 in E.P.No.4 of 2007 4 be read as part of the pleadings.
However, the prayer made by the respondent-applicant and his effort to enlarge the scope of the subject applications for striking off the averments made in para No.7 (A) to (H), (L), (M), (N) and (P) or the remaining averments in para No.9 of the Election Petition, cannot be accepted for the reasons that:-
(i) these averments have not been found lacking in material facts and material particulars with reference to the allegations of `corrupt practice' within the meaning of Section 123 (2) of the Act vide order dated September 5, 2009;
(ii) the narration of alleged events/incidence by the petitioner in these sub-paragraphs are so inter-mixed and over-
lapping in alleging `corrupt practices' within the meaning of Sections 123 (2) and 123 (3) of the Act that it is not possible to segregate the averments for the purposes of two types of corrupt practices. In stead therefore picking up words or phrases microscopically, the order dated September 5, 2009 effectively declares that these averments cannot and shall not be read in the contest of Section 123 (3) of the Act. In other words, the averments made in the paragraphs referred to above, shall be read only for the purpose of making out a case under Section C.M.Nos.21-E of 2009 and 16-E of 2010 in E.P.No.4 of 2007 5 123 (2) of the Act.
To be fair to learned counsel for the respondent-applicant, he has again cited the following decisions to urge that the allegations of `corrupt practice' pleaded by the petitioner in reference to Section 123 (2) of the Act also fall short of the material `facts' and `particulars':-
i) Manubhai Nandlal Amersey versus Popatlal Manilal Joshi and others (AIR 1969 SC 734);
ii) Janak Sinha versus Mahant Ram Kishore Das, (AIR 1972 SC 359);
iii) Rahim Khan versus Khurshid Ahmed and others (AIR 1975 SC 290);
iv) Ziyauddin Burhanuddin Bukkari versus Brijmohan Ramdass Mehra and others (AIR 1975 SC 1788);
v) Ram Sharan Yadav versus Thakur Muneshwar Nath Singh and others (AIR 1985 SC 24);
vi) S.Harcharan Singh versus S.Sajjan Singh and others (AIR 1985 SC 236);
vii) H.D.Revanna versus G.Puttaswamy Gowda and others (AIR 1999 SC 768)'
viii) D.Ramachandra versus R.V.Janakiraman and others (AIR 1999 SC 1128);
ix) Sathi Vijay Kumar versus Tota Singh and others (2007 (1) RCR (Civil) 732.
The aforesaid issue need not be gone into time and again as the said preliminary objection taken by the applicant-respondent has already been turned down vide order dated September 5, 2009. C.M.Nos.21-E of 2009 and 16-E of 2010 in E.P.No.4 of 2007 6 With these observations, clarification and directions, both the applications stand disposed of.
Dasti.
December 22, 2010 (SURYA KANT) Mohinder JUDGE