Punjab-Haryana High Court
Sukhwant Singh vs Adesh Partap Singh Kairon on 11 January, 2013
Author: Mahesh Grover
Bench: Mahesh Grover
C.M.No.16-E of 2012 in/and -1-
Election Petition No.2 of 2012
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
C.M.A. No.16-E of 2012 in/and
Election Petition No.2 of 2012
DATE OF DECISION : 11.1.2013
Sukhwant Singh PETITIONER
VERSUS
Adesh Partap Singh Kairon RESPONDENT
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present:- Mrs.G.K.Mann, Advocate for the petitioner.
Shri M.L.Saggar, Senior Advocate with
Shri Sunny Saggar, Advocate for the respondent.
MAHESH GROVER, J.
By this order I propose to dispose of an application moved by the respondent in an election petition preferred by the petitioner questioning the election of one Shri Adesh Partap Singh Kairon from 023-Patti Assembly Constituency of the Punjab Vidhan Sabha in the elections held on 30.1.2012 the result of which was declared on 6.3.2012, on the ground of corrupt practices having been committed by the elected candidate (Shri Adesh Partap Singh Kairon) as defined in Section 123(4) of the Representation of C.M.No.16-E of 2012 in/and -2- Election Petition No.2 of 2012 People Act, 1951 (hereinafter referred to as the Act).
The present application has been moved under the provisions of Order 6 Rule 16 read with Order 7 Rule 11 of the C.P.C. for dismissal of the election petition at the threshold on the ground that it does not disclose justifiable cause of action to the petitioner and the petition does not contain material particulars.
In support of his plea as raised in the application, learned counsel for the applicant has placed reliance on the following judgments :-
(1) Samant N.Balkrishna and another v. George Fernandez and others 1969(3) S.C.C. 238.
(2) Pratap Singh v. Hardwari Lal A.I.R. 1970 S.C. 1500. (3) Azhar Hussain v. Rajiv Gandhi A.I.R. 1986 S.C. 1253(1). (4) Mani Ram v. Surinder Kumar and others A.I.R. Pb. & Hy. 152. (5) Kalyan Singh Chauhan v. C.P.Joshi A.I.R. 2011 S.C. 1127.
Learned counsel for the petitioner (non-applicant) has placed reliance on judgments of the Hon'ble Supreme Court in Prabhu Narayan v. A.K.Srivastava A.I.R. 1975 S.C. 968 and K.K.Ramachandran Master v. M.V.Sreyamskumar and others 2010(7) S.C.C. 428 to contend that an election petition cannot be negated at the threshold on the ground of it not containing material facts of corrupt practices and such a deficiency is curable on an opportunity being given by the Court to rectify the same and it is subsequent to such an opportunity having been given and in the further event of non-compliance by the petitioner to supply material particulars that the election petition can be dismissed on this ground.
This in short, is the controversy which has been set before this Court for determination.
C.M.No.16-E of 2012 in/and -3-Election Petition No.2 of 2012 The petitioner has filed the petition alleging corrupt practices within the meaning of Section 123(4) of the Act, the particulars of which have been given in para-4 of the petition which need to be extracted here below :-
"4. That the election of the respondent is liable to be declared void for his having committed corrupt practices as defined u/s 123(4) of the Representation of People Act, 1951, the facts and particulars of the said corrupt practice as under :-
(A) That the respondent in conspiracy with the Kaleka who is a press correspondent decided to make a false statement to his knowledge and publish it by word of mouth and through publication in the newspaper stating that the petitioner has withdrawn from the contest in favour of the respondent. This fact was known to be false to the respondent and Mr.Kaleka and they never believed it to be true rather it was a creation of that conspiracy to use it to prejudice the prospectus of the petitioner's election from this constituency. (B) That on 29.1.2012 both the respondent and Mr.Kaleka in conspiracy with each other sent a news item to the office of Daily Ajit newspaper at Jallandhar and that news item was published on page 7 meant for distribution in Tarn Taran district of which Patti Constituency is a part in the Ajit newspaper dated 30.1.2012. Copy of the relevant part of the paper is annexed with the petition as Annexure P-1, which when translated reads as under :-
"Independent candidate Sukhwant Singh C.M.No.16-E of 2012 in/and -4- Election Petition No.2 of 2012 Chuslewarh has given his support to Kairon :
Patti : 29.1.2012 (Kaleka) : In the Assembly Constituency of Patti Shiromani Akali Dal and BJP's joint candidate received great support when one independent candidate withdrew the candidature in his favour. Independent candidate from Patti Constituency Sukhwant Singh s/o Sumand Singh r/o Chuslewarh whose election symbol is 'Almirah' has appealed one day before the election to his voters and supporters to vote for Shiromani Akali Dal candidate S.Adesh Partap Singh Kairon whose election symbol is 'Scales'. On this occasion Khushwinder Singh Bhatia member SGPC Gurpartap Singh Guddu Kairon, Gursandeep Singh Sunny, Gurmukh Singh Gulla Political Secretary, Chairman Gurdeep Singh Dhaliwal, Chairman Parminder Singh Kirtowal, Jagjit Singh Mand Sr.Vice President Akali Jatha Patti, Dr.Rasal Singh Khaira etc. were present."
(C) That on 30.1.2012 at about 7.30 a.m. respondent came to the village Chuslewarh, he was carrying a bundle of copies of the newspaper Daily Ajit Tarn Taran Edition and met Gurdeep Singh son of Charan Singh, Ajit Singh son of Bhan Singh along with some other persons of Village Chuslewarh and handed over few copies of the newspaper and told them to tell the C.M.No.16-E of 2012 in/and -5- Election Petition No.2 of 2012 persons who came for voting that the petitioner has withdrawn from the contest in his favour and their urge all the voters of the village to vote for the respondent.
This information was given to the petitioner by Balwinder Singh son of Mokham Singh, Paramjit Singh son of Gulzar Singh residents of Village Chuslewarh. After about spending 10 minutes they moved from the village to some other village.
(D) That the respondent also arranged the publication of this false news item on the Fastway Digi Cable Television Network. The whole day on T.V. this news was played on 29.1.2012, 30.1.2012 upto the time of election.
(E) That petitioner made all efforts to contradict this advertisement by telling Gurvinder Singh Lally T.V. Reporter, but it was never stopped till the end of polling."
To answer whether they satisfy the requirement of law of pleading and providing material particulars to establish the committing of corrupt practices by an elected candidate, the Court would have to travel to various observations made by the Hon'ble Supreme Court while dilating upon such issues. The fountainhead judgment in this direction is Samant N.Balkrishna and another v. George Fernandez and others (supra) wherein the Hon'ble Supreme Court observed as follows :-
"24. The heads of substantive rights in Section 100(1) are laid down in two separate parts : the first dealing C.M.No.16-E of 2012 in/and -6- Election Petition No.2 of 2012 with situations in which the election must be declared void on proof of certain facts, and the second in which the election can only be declared void if the result of the election in so far as it concerns the returned candidate, can be held to be materially effected on proof of some other facts. Without attempting critically to sort out the two classes we may now see what the conditions are. In the first part they are that the candidate lacked the necessary qualification or had incurred disqualification, that a corrupt practice was committed by the returned candidate, his election agent or any other person with the consent of a returned candidate or his election agent or that any nomination paper was improperly rejected. These are grounds on proof of which by evidence, the election can be set aside without any further evidence. The second part is conditioned that the result of the election, in so far as it concerns a returned candidate, was materially affected by the improper acceptance of a nomination or by a corrupt practice committed in his interest by an agent other than an election agent or by the improper reception, refusal or rejection of votes or by any non-compliance with the provisions of the Constitution or of the Representation of Peoples Act or rules or orders made under it. This condition has to be established by some evidence direct or circumstantial. It C.M.No.16-E of 2012 in/and -7- Election Petition No.2 of 2012 is, therefore, clear that the substantive rights to make an election petition are defined in these sections and the exercise of the right to petition is limited to the grounds specifically mentioned.
25. Pausing here, we may view a little more closely the provisions bearing upon corrupt practices in Section
100. There are many kinds of corrupt practices. They are defined in Section 123 of the Act and we shall come to them later. But the corrupt practices are viewed separately according as to who commits them. The first class consists of corrupt practices committed by the candidate or his election agent or any other person with the consent of the candidate or his election agent. These, if established, avoid the election without any further condition being fulfilled. Then there is the corrupt practice committed by an agent other than an election agent. Here an additional fact has to be proved that the result of the election was materially affected. We may attempt to put the same matter in easily understandable language. The petitioner may prove a corrupt practice by the candidate himself or his election agent or someone with the consent of the candidate or his election agent, in which case he need not establish that the result of the election would have been without the corrupt practice. The expression "Any other person" in this part will C.M.No.16-E of 2012 in/and -8- Election Petition No.2 of 2012 include an agent other than an election agent. This is clear from a special provision later in the section about an agent other than an election agent. The law then is this : If the petitioner does not prove a corrupt practice by the candidate or his election agent or another person with the consent of the returned candidate or his election agent but relies on a corrupt agent, he must additionally prove how the corrupt practice affected the result of the poll. Unless he proves the consent to the commission of the corrupt practice on the part of the candidate or his election agent he must face this additional burden. The definition of agent in this context is to be taken from Section 123 (Explanation) where it is provided that an agent "includes an election agent, a polling agent and any person who is held to have acted, as an agent in connection with the election with the consent of the candidate." In this explanation the mention of "an election agent" would appear to be unnecessary because an election agent is the alter ego of the candidate in the scheme of the Act and his acts are the acts of the candidate, consent or no consent on the part of the candidate.
26. Having now worked out the substantive rights to the making of the petition, we may now proceed to see what the corrupt practices are. Since we are concerned C.M.No.16-E of 2012 in/and -9- Election Petition No.2 of 2012 only with one such corrupt practice, we need not refer to all of them. For the purpose of these appeals it is sufficient if we refer to the fourth sub-section of Section
123. It reads :
"123. The following shall be deemed to be corrupt practice for the purposes of the Act :
xx xx xx
(4) The publication by a candidate or his agent
or by any other person, with the consent of a
candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.
xx xx xx
This corrupt practice may be committed by :
(a) the candidate
(b) his agent that is to say -
(i) an election agent
(ii) a polling agent
(iii) any person who is held to have acted
as an agent in connection with the
C.M.No.16-E of 2012 in/and -10-
Election Petition No.2 of 2012
election with the consent of the
candidate.
(c) by any other person with the consent of the
candidate or his election agent.
We are concerned in this appeal with (a) and (b)(iii) mentioned in our analysis. In the original petition the allegations were made on the basis of corrupt practices committed by a person alleged to have acted as an agent with Fernadez's consent. In the amendment application the allegation is that the candidate himself committed the corrupt practice under this sub-section.
27. As we pointed out earlier the difference between the original petition and the amendments will lie in the degree of proof necessary to avoid the election. If the corrupt practice is charged against an agent other than the election agent, a further burden must be discharged, namely, that the result of the election was materially affected. If however, the corrupt practice is charged against the candidate personally (there is no election agent involved here), this further proof is not required. Another difference arises in this way. In Section 100(1)
(b) the word 'agent' is not to be found. Therefore, an agent other than an election agent will fail to be governed by the expression 'any other person'. To get the benefit of not having to prove the affect of the C.M.No.16-E of 2012 in/and -11- Election Petition No.2 of 2012 corrupt practice upon the election the consent of the candidate or his election agent to the alleged practice will have to be established.
Again for the establishment of the corrupt practice under Section 123(4), from whatever quarter it may proceed, the election petitioner must establish :
(a) publication of a statement of fact, and
(b) the statement is false or the person having it
believes it to be false or does not believe it to be true, and
(c) that the statement refers to the personal character and conduct of the candidate, and
(d) it reasonably calculated to prejudice the candidate's prospects.
28. It appears, therefore, that it is a question of different burdens of proof as to whether the offending statement was made by the candidate himself or by an agent other than an election agent.
29. Having dealt with the substantive law on the subject of election petitions we may now turn to the procedural provisions in the Representation of Peoples Act. Here we have to consider Sections 81,83 and 84 of the Act. The first provides the procedure for the presentation of election petitions. The proviso to sub- section alone is material here. It provides that an C.M.No.16-E of 2012 in/and -12- Election Petition No.2 of 2012 election petition may be presented on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101. That as we have shown above creates the substantive right. Section 83 then provides that the election petition must contain a concise statement of the material facts on which the petitioner relies and further that he must also 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. The section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars.
What is the difference between material facts and particulars ? The word 'material shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus material facts will C.M.No.16-E of 2012 in/and -13- Election Petition No.2 of 2012 mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material fact it will not do merely to quote the words of the section because then the efficiency of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be co-related to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly C.M.No.16-E of 2012 in/and -14- Election Petition No.2 of 2012 the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a scheduled. It is inconceivable that a petition could be filed without the material facts and the scheduled by merely citing the corrupt practice from the statute. Indeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture. This distinction is brought out by the provisions of Section 86 although the penalty of dismissal is taken away. Sub- section (5) of that section provides :
"(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."C.M.No.16-E of 2012 in/and -15-
Election Petition No.2 of 2012 Out of the emerging situations envisaged the first one is contingent on conditions in which a candidate's election can be held to be void on account of his not having the necessary qualifications or having acquired a disqualification on account of corrupt practices having been committed by him or his election agent or any other person with the consent of the returned candidate or his election agent, or that any nomination paper was improperly rejected.
The second part envisages the setting aside of an election concerning a returned candidate upon it being shown that the result of the election had been materially affected by improper acceptance of a nomination or by indulging any corrupt practice committed in his interest by an agent other than the election agent or by improper reception, refusal or rejection of votes or by other any non-compliance of the provisions of the Constitution or of the Representation of People Act, or the rules or orders made under it.
The Hon'ble Supreme Court has observed that while in the case of the first category, the election can be set aside on the proof of evidence which is a direct proof of such a corrupt practice, while in the second case, additional facts have to be pleaded and proved that the election was materially affected on account of corrupt practice having been committed by an agent for the benefit of the candidate and with his authority.
When the facts of the instant election petition are seen in the backdrop of the observations extracted above, then it becomes evident that the petitioner alludes to a corrupt practice having been committed by an agent "other than the election agent and by any other person" which is a C.M.No.16-E of 2012 in/and -16- Election Petition No.2 of 2012 condition envisaged in Section 123 and falls in the second category of cases alluded to above.The relevant portion of Section 123 is extracted here below:
"123. The following shall be deemed to be corrupt practice for the purposes of the Act :
xx xx xx
(4) The publication by a candidate or his agent
or by any other person, with the consent of a
candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate's election.
At the same time, Section 100 of the Act would be necessary to refer to as it contains the grounds for declaring an election to be void, the relevant for the purposes of the instant controversy would be Sections 100
(b) and 100(d) which are extracted here below :-
"100 Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2), the High Court is of opinion -
xxx xxx xxx C.M.No.16-E of 2012 in/and -17- Election Petition No.2 of 2012
(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 ; or xx xx xx
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -
(i) by the improper acceptance or any
nomination, or
(ii) by any corrupt practice committed in the
interests of the returned candidate (by an
agent other than his election agent), or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void."
Section 83 of the Act states that an election petition shall contain concise statement of material facts upon which the petitioner relies and it shall set forth particulars of any corrupt practice that the petitioner C.M.No.16-E of 2012 in/and -18- Election Petition No.2 of 2012 alleges including the statement as full as possible and the name of the parties alleged to have committed a corrupt practice, date and place of the commission of each such practice, which petition shall be signed by the petitioner and verified in the manner envisaged in the C.P.C.
Section 86 of the Act empowers the High Court to dismiss an election petition which does not comply with the provisions of Sections 81 or 82 or Section 117 of the Act, while Section 86(5) of the Act empowers the High Court to allow amendment or amplification of the petition to incorporate the particulars of any corrupt practice alleged in the petition as may in the opinion of the Court, be necessary to ensure a fair and effective trial of the petition, but shall not allow amendment of the petition which shall have the effect of introducing a particular corrupt practice not previously alleged in the petition.
The allegations as set out in the petition refer to the following corrupt practices allegedly committed by the returned candidate :-
(1) The alleged conspiracy with one Kaleka, a Press Correspondent, who made a false statement and published it by word and mouth and through publication in the newspaper stating that the petitioner had withdrawn from the contest in favour of the respondent/returned candidate. (2) This statement was known to them to be a false and was a result of a conspiracy.
(3) The news item was sent to the office of the Daily Ajit, a newspaper published from Jalandhar where it was published on C.M.No.16-E of 2012 in/and -19- Election Petition No.2 of 2012
30.1.2012 at page-7 intended for distribution in Tarn Taran a district of which Patti Assembly, Constituency is a part. (4) On 30.1.2012 at about 7.30 a.m. the respondent came to Village Chuslewarh carrying a bundle of copies of the newspaper Daily Ajit Tarn Taran Edition and met Gurdeep Singh son of Charan Singh, Ajit Singh son of Bhan Singh along with some other persons of Village Chuslewarh and handed over few copies of the newspaper and told them to tell the persons who came for voting that the petitioner has withdrawn from the contest in favour of the returned candidate. This information is said to have been given to the petitioner by Balwinder Singh son of Mokham Singh, Paramjit Singh son of Gulzar Singh, residents of Village Chuslewarh.
(5) This publication was also arranged by the respondent to be aired on Fastway Digi Cable Television Network where it was played the whole day on 29.1.2012 and 30.1.2012 till the time of election.
(6) The petitioner made efforts to tell Gurvinder Singh Lally, a T.V. Reporter to stop this publication, but to no avail. The first question which needs to be probed and answered is as to whether the allegations as set out in para-4 of the election petition and as extracted above would satisfy the expectations of the statute regarding the material particulars of a corrupt practice having been pleaded. The requirement of Section 83 of the Act is unambiguous and it warrants a C.M.No.16-E of 2012 in/and -20- Election Petition No.2 of 2012 concise statement to be set out in the petition and further fortified by material particulars of a corrupt practice.
In Samant N.Balkrishna and another v. George Fernadez and others (supra), the Hon'ble Supreme Court has critically set out the difference between a material fact and a material particular. At the cost of repetition, this Court intends to extract a portion of the observations here below :-
"What is the difference between material facts and particulars ? The word 'material shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus material facts will mention that a statement of fact (which must be set out) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name C.M.No.16-E of 2012 in/and -21- Election Petition No.2 of 2012 of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material fact it will not do merely to quote the words of the section because then the efficiency of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be co-related to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to be included in the petition and the particulars in a scheduled. It is inconceivable that a petition could be filed without the material facts and the scheduled by merely citing the corrupt practice from the statute." C.M.No.16-E of 2012 in/and -22-
Election Petition No.2 of 2012 To the mind of this Court, the petitioner has not set out material facts as even though he alleges that an erroneous information was published in conspiracy with the petitioner, yet the full statement regarding the names of the parties alleged to have committed such a corrupt practice and its fall- out on the election prospects of the petitioner have not been concisely set out. At best, the allegations made by the petitioner can be termed to be vague as they do not disclose either the names of the supporters, nor do they disclose the material particulars and fall out of such a conspiratorial exercise on the election prospects of the petitioner and how it was materially affected and the calculated prejudice caused to the petitioner on such a count.
Evidently the case does not fall in the first category envisaged in the afore referred case (Samant N.Balkrishna and another v. George Fernandez and others (supra) where direct evidence of a corrupt practice would be available. The case in hand only refers to indirect evidence based on hearsay and is in the second category in which the petitioner was obliged to give details of corrupt practices, the persons who committed it, where and how and more importantly the manner in which it altered the course of election to the prejudice of the petitioner.
That apart, if the allegations as set out by the petitioner on their face value are taken, they only refer to a newspaper report and the subsequent distribution of such a newspaper by the returned candidate which information was given to the petitioner by a third person and both of these facts even if established by way of evidence, would be a second-rate evidence being merely hearsay and not a quality evidence of imposing C.M.No.16-E of 2012 in/and -23- Election Petition No.2 of 2012 standards and not worthy of safe reliance to upset the election process.
Therefore, in terms of the observations of the Hon'ble Supreme Court which have been reiterated in the subsequent pronouncements, the case of the petitioner as stated in the election petition, falls much short of the prescription of the statute and the mandate of the law.
The petitioner (the non-applicant) has placed reliance on a judgment of the Hon'ble Supreme Court in K.K.Ramachandran Master v. M.V.Sreyamskumar and others 2010(7)S.C.C. 428 in particular para-21 of the judgment, which is extracted here below :-
"21. We do not consider it necessary to refer in further details to the specific averments made by the appellant in support of the charge that respondent No.1 had committed corrupt practices within the meaning of Section 123(4) of the Representation of People Act. All that we need to say is that the averments made in the election petition sufficiently disclose a cause of action. The averments set out the material facts and give sufficient particulars that would justify the grant of an opportunity to the appellant to prove his allegations. In as much as the High Court found otherwise, it in our opinion, committed a misstate. At any rate if there was any deficiency in the particulars required to be furnished in terms of Section 83(b) of the Act the High Court could and indeed ought to have directed the petitioner to disclose and provide the same with a view of preventing C.M.No.16-E of 2012 in/and -24- Election Petition No.2 of 2012 any miscarriage of justice on account of non-disclosure of the same. So long the material facts had been stated, which were stated in the present case, the absence of particulars, if any, could not justify dismissal of the petition by the High Court."
These observations of the Hon'ble Supreme Court proceeded from the evaluation of facts as stated in the election petition which was under consideration and which in the opinion of the Hon'ble Supreme Court, were sufficient material facts which only needed to be amplified and therefore, in their view, an opportunity ought to have been given to the petitioner to amend his petition and to provide more pith and substance to the already existing statement of facts regarding the corrupt practices.
The same however, is not the case here and as noticed above, the petition is woefully short of material particulars specifically the material prejudice to the cause of the petitioner. The allegations are evasive and eloquent in silence and therefore, cannot be permitted to be amended or amplified as such a defect is an incurable one and clearly hit by the provisions of Section 83(1)(a)(b) and invites the exercise of power under Section 86(5) of the Act which empowers the High Court not to allow any amendment of the petition which has the effect of introducing particulars of corrupt practice and material prejudice to the election not previously alleged in the petition. It is a settled principle of law that if a fact has not been pleaded, no amendment can be allowed to cure such a defect in the election petition and the same can be thrown out at the threshold as it would not disclose a triable or a justiciable issue.
C.M.No.16-E of 2012 in/and -25-Election Petition No.2 of 2012 In Azhar Hussain v. Rajiv Gandhi A.I.R. 1986 S.C. 1253(1), the Hon'ble Supreme Court observed as follows :-
"An election petition can be and must be dismissed under the provisions of Civil P.C. if the mandatory requirements enjoined by Section 83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not complied with. The Code of Civil Procedure applies to the trial of an election petition by virtue of Section 87 of the Act. Since CPC is applicable, the Court trying the election petition can act in exercise of the powers of the Code including Order 6 Rule 16 and Order 7 Rule 11(a). Therefore that Section 83 does not find a place in Section 86 of the Act which authorizes dismissal of election petition in certain contingencies does not mean that powers under the CPC cannot be exercised. An election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Civil P.C. and it is settled law that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all.
The contention that even if the election petition is liable to be dismissed ultimately it should be so dismissed only after recording evidence and not at the C.M.No.16-E of 2012 in/and -26- Election Petition No.2 of 2012 threshold is thoroughly misconceived and untenable.
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 vexations parts of the pleadings. Such being the position in regard to matters pertaining to ordinary civil litigation, 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 to 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."
Section 86(5) of the Act however, is more than explicit in nature, empowering the High Court to dismiss an election petition at the threshold and not permit its amendment of the material particulars of a corrupt practice which have not been incorporated in the petition in the first instance.
Consequently, the Court is of the opinion that the application deserves to be accepted and as a consequential direct corollary the election petition has to be dismissed on its not containing material particulars.
Ordered accordingly.
(MAHESH GROVER)
January 11, 2013 JUDGE
GD
WHETHER TO BE REFERRED TO REPORTER? YES/NO
C.M.No.16-E of 2012 in/and -27-
Election Petition No.2 of 2012