Punjab-Haryana High Court
Iqbal Singh vs Avtar Singh And Others on 3 June, 1993
Equivalent citations: AIR1993P&H314, (1993)104PLR255, AIR 1993 PUNJAB AND HARYANA 314, (1994) 1 CIVLJ 575 (1993) 2 PUN LR 255, (1993) 2 PUN LR 255
ORDER
1. Iqbal Singh, election petitioner, was an indepeadent candidate for election to 104-Faridkot Assembly Constituency, which was held on February 19,1992. He was defeated at the poll. He has challenged the election of the returned candidate Shri Avtar Singh on the ground that the latter conspired with S. Beant Singh, who was at the relevant time President, Punjab Pradesh Congress Committee and bargained with Shri Harmail Singh Dhillon, respondent No. 2, to withdraw from the contest. He was appointed as a General Secretary of Punjab Pradesh Congress Committee as quid pro quo for withdrawing from the contest. It will be relevant to reproduce the allegations of alleged corrupt practice of bribery made by the agent of the returned candidate in the election petition :--
"9. That in order to remove respondent No. 2 from the contest for 104-Faridkot Assembly Seat, respondent No. 1 and re-' spondent No. 3 conspired and bargained with respondent No. 2 by offering him to get appointed as General Secretary of Punjab Pradesh Congress Committee as quid pro quo for withdrawing from the contest."
"19. That on perusal of paras 16, 17 and 18 as above it becomes crystal clear that the appointment of respondent No. 2 as General Secretary of Punjab Pradesh Congress Committee as quid pro quo for withdrawing from the electoral process amounts to gratification and is, thus, a corrupt practice."
"20. That the fact that respondent No. 2 was appointed General Secretary of Punjab Pradesh Congress Committee by respondent No. 3 at the behest of respondent No. 1 (as discussed in paras 5 and 12) in doing so far the purpose of inducing respondent No. 2 to withdraw from the electoral contest amounts to corrupt practice as defined in Sec. 123(1) of the Representation of the People Act and so held in a number of judgments given by our own High Court and Apex Court and thus, respondents Nos. 1 and 3 have committed corrupt practice and as such respondent No. 1's election to 104-Faridkot Assembly Constituency is liable to be set aside."
"21. That the fact that respondent No. 3 acted as agent of respondent No. 1 to appoint respondent No. 2 as General Secretary of Punjab Pradesh Congress Committee and getting him to withdraw from the electoral contest for the said election amounts to corrupt practice which has materially affected the outcome of the election result. As respondent No. 2 is a man of great influence in this Constituency and would have tilted the, balance against respondent No. 1 as both belong to the same party but opposite groups. It is pertinent to add here that respondent No. 2 is related to late S. Darbara Singh and S. Jagmeet Singh Brar, who at present is leading the dissident group in the Congress Party in Punjab. Hence, under Sec. 100(d)(ii) of the Representation of the People Act it is prayed that this election be set aside."
2. The allegations of corrupt practice were denied by the Returned Candidate. Preliminary objections were taken that the allegations of corrupt practice made in paras Nos. 3, 4, 5, 8, 9, 10, 11, 12, 13, 16, 19, 20, 21 and 22 of the Election Petition are vague, nebulous, irrelevant, unnecessary general in nature and amount to an abuse of the process of the Court and are liable to be struck out under Order 6, Rule 16 of the Code of Civil Procedure, for short, 'the Code'. It was further pleaded that the returned candidate has not been served with a true copy of the election petition. True copy of the election petition includes the affidavit sworn in by the petitioner under Rule 96-A of the Conduct of Election Rules, 1961, for short 'the Rules'. The copy of the affidavit furnished to the returned candidate does not bear the name and designation of the Notary as it also does not carry the stamped endorsement made under the signatures of the Notary/Oath Commissioner, which finds place in the original affidavit. The absence of the en-doresement of the Notary/Oath Commissioner on the copy of the affidavit accompanying the election petition renders the copy as not conforming the requirements of Section 81(3) of the Representation of People Act. The omission is of vital nature, which is likely to prejudice the returned candidate. The election petition is liable to be dismissed under Order 7, Rule 11 and Order 6, Rule 16 of the Code read with Sections 83 and 86 of the Representation of the People Act. The allegations of corrupt practise made in paras Nos. 3 and 20 of the electionpetition have not been confirmed on affidavit. On merits, it was pleaded that 31,282 valid votes were polled, the answering respondent secured 15,823 votes whereas, the petitioner secured only 1748 votes. The election petitioner has not disclosed as to how the commission of alleged corrupt practice, the result of the election so far as the returned candidate is concerned has been materially affected. It was further pleaded that returned candidate claimed that he had been President of the Faridkot District Congress Committee since 1973. Giani Zail -Singh was the Chief Minister of Punjab at that time. Late Shri Darbara Singh was the Chief Minister of Punjab from 1980 to 1983. Shri Beant Singh was the Minister of Public Works Department in his Cabinet. Shri Harmail Singh Dhillon had been the Vice-Chairman of the Punjab State Cooperative Marketing Federation Limited (MARKFED) and the Chairman of Market Committee, Faridkot during the period Sar-dar Beant Singh was the Minister of Public Works Department, Punjab. The allegation that Shri Harmail Singh Dhillon belonged to the dissident group was denied. It was asserted that there was no dissident group in the Punjab Pradesh Congress Committee. The returned candidate was allotted the Congress ticket for contesting election from Faridkot Assembly Constituency by the Congress High Command purely on the basis of his seniority, merit and dedication to the party. Shri Harmail Singh Dhillon was also an aspirant for the ticket of the Congress Party for election to the Faridkot Assembly Constituency. He and the returned candidate both have been trying for the ticket of the Congress party for the election. Harmail Singh Dhillon filed his nomination papers from 104-Faridkot Assembly Constituency on February 1, 1992, the date on which the nomination papers were to be filed, with the hope that he might be granted the ticket of the Congress Party. He withdrew his candidature on the last date of withdrawal as a disciplined member of the Congress Party since he was not allotted the ticket by the Congress High Command. The aspirants of ticket of the political party present their nomination papers in anticipation that they may be allotted the tickets and when they are not allotted the tickets by the particular political party, they withdrew their candidature on the date of withdrawal and thereafter, the Returning Officer prepared the list of valid nominated candidates at the election. It was denied that respondent No. 2 withdrew from the contest as respondent No. 3 has appointed him as General Secretary of the Punjab Pradesh Congress Party as quid pro quo for withdrawing from the contest.
3. The election petitoner filed a rejoinder to the written statement and reiterated the facts pleaded in the election petition. He disputed that the allegations made in the election petition are vague and that the affidavit filed in support of the allegations of corrupt practice suffers from any infirmity.
4. From the pleadings of the parties, the following issues were framed:--
1. Whether the Election Petition does not disclose any cause of action? If so, its effect? OPR
2. Whether the true copy of the Election Petition has not been supplied to respondent No. 1 (Returned Candidate). If so, its effect? OPR
3. Whether the allegations relating to corrupt practice as contained in paragraphs 3 and 20 of the Election Petition have not been supported by an affidavit? If so, what is its effect? OPR
4. Whether respondent No. 1 has committed the corrupt practice of 'bribery' as alleged in the election petition? If so, what is its effect? OPP
5. Relief.
5. Issues Nos. 1 to 3 were treated as preliminary issues. On September 11, 1992, learned Counsel for the election petitioner made a statement that he did not want to lead any evidence on the preliminay issues. On the same day, learned Counsel for the returned candidate tendered in evidence the copy Of the election petition served upon his client by the election petitioner through Court. After the statement of the learned Counsel for the returned candidate was recorded, the learned Counsel for the election petitioner made the following statement:--
"I have seen the copy tendered in evidence by Mr. Nasib Singh Gill, Advocate. The same was served through Court on respondent No. 1. The same is Exhibit K-l."
6. Shri Beant Singh was arrayed as respondent No. 3 in the election petition. At the time of scrutiny of the election petition, office reported that Shri Beant Singh could not be joined as a party respondent to the election petition in view of the provisions of Section 82 of the Representation of the People Act. In view of the defect pointed out by the office, the Additional Registrar (Judicial) directed that the petition be laid before the Designated Judge as provided for under Rule 15(a), Ch. 4-GG High Court Rules and Orders Volume-V on May 8, 1992. The objection raised by the Additional Registrar (Judicial) was dealt with by me in my order, dated May 19, 1992. I held that Shri Beant Singh has been improperly impleaded as a party respondent to the election petition. I order striking off his name from the array of parties. The order reads thus:--
"The petitioner has challenged the election of Avtar Singh son of S. Niranjan Singh, resident of village Ghania Wala, District Faridkot from 104-Faridkot Assembly Constituency in this election petition. It is averred in the petition that Mr. Beant Singh, now Chief Minister, Punjab, was the Congress President. Harmail Singh Dhillon was an aspirant for the Congress ticket from 104-Faridkot Assembly Constituency. He conspired with the returned candidate by offering Harnail Singh Dhillon the post of General Secretary of Punjab Pradesh Congress Committee on his withdrawal from the contest. Harnail Singh Dhillon and Mr. Beant Singh, now Chief Minister, Punjab, have been added as party respondents to the election petition.
The Additional Registrar has raised an objection under Section 82 of the Repre-sentation of the People Act, only the candi-date(s) can be joined as respondents) to the election petition. Mr. Beant Singh, Chief Minister, Punjab, being not acandidate could not be joined as a party respondent to the petition.
Learned Counsel for the petitioner could not justify the impleading of Mr. Beant Singh, Chief Minister, Punjab, as a party respondent to the election petition. At the time of hearing he only stated that Mr. Beant Singh had committed corrupt practice by persuading Mr. Harmail Singh Dhillon, respondent No. 2, to withdraw from the contest.
Section 82 of the Act is headed "parties to the petition" and clause (a) provides that the petitioner shall join as respondent to the petition the returned candidate if the relief claimed is confined to declaration that the election of the returned candidate is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Clause (b) of the section requires the petitioner to join as respondent any other candidate against whom the allegations of corrupt practice are made in the petition. A reading of the section makes it clear that the contest in the election petition is designed to be confined to the candidates at the election. All others are excluded. Concept of "proper parties" is and must remain alien to the election dispute under the Act. However, if a person is found guilty of corrupt practice after evidence has been recorded, it is open to the Court to issue a notice to the person not a party to the proceeding to show cause why he should not be named. A combined reading of this provision is unmistakable terms suggest that only a candidate is to be made a party respondent to the election petition. Mr. Beant Singh was not a candidate at the election. He has been improperly impleaded as a party, respondent. Consequently, his name is order-ed to be struck off from the array of parties.
Notice to issue to the respondents for July 17, 1992."
7. Now the stage is set to deal with the preliminary issues. My findings on these issues are as under:
ISSUE NO. 2:--
8. Learned Counsel for the returned candidate submits that the copy of the election petition which was supplied to the returned candidate is not in conformity with the provisions of Section 81(3) of the Representation of the People Act, 1951, 'the Act' for brevity, inasmuch as the copy of the affidavit accompanying the petition does not carry (i) the endorsement "affirmed and Signed before me"; (ii) the designation and name of the Notary; and (iii) the stamped endorsement regarding affirmation by the Notary. Learned Counsel for the election petitioner does not dispute that the true copy of the affidavit supplied to the returned candidate does not bear the above endorsements. The copy of the affidavit in Form-25 accompanying the election petition which was served upon the election petitioner is appended as Appendix 'A' to the judgment for ready reference and to appreciate the submission made by the learned Counsel for the election petitioner. Section 81(3) of the Act says that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Section 83 of the Act deals with "Contents of the election petition". The election petition has to be signed by the election petitioner and has to be verified in the manner laid down in the Code of Civil Procedure for the verification of pleadings. First proviso to this Section says that where the election 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. Rule 94-A of the Rules, 1961 says that the affidavit referred to in the proviso to subsection (1) of Section 83 shall be sworn before a Magistrate of the First Class or a Notary or a Commissioner of Oath and shall be in Form 25. Form 25 is in the following terms:
(FORM 25) AFFIDAVIT (Ste rule 94 A) I, ..... the petitioner in the accompanying election petition calling in question the election of Shri/Shrimati.....
(respondent No. ..... in the said petition) make solemn affirmation/oath and say -
(a) that the statements made in paragraphs .... of the accompanying election petition about the commission of corrupt practice of ...... and the particulars of such corrupt practice mentioned in paragraphs .... of the Schedule annexed thereto are true to my knowledge;
(b) that the statements made in paragraphs ...... of the said petition about the commission of corrupt practice of ......
and the particulars of such corrupt practice given in paragraphs ..... of the said petition and in paragraphs ..... of the Schedule annexed thereto are true to my information;
(c)
(d) etc. Signature of deponent.
' Solemnly affirmed /sworn by Shri/Shri-mati ..... at ..... this ..... day of .... 196 .
Before me, Magistrate of the First Class/Notary/ Commissioner of Oaths.
(Here specify the name of the corrupt practice.)"
9. In view of the submission of the learned Counsel for the returned candidate, question that falls for consideration is, whether the copy of the petition supplied to the returned candidate can be said to be a true copy within the meaning of sub-section (3) of S. 81 of the Act is the absence of the endorsement on the affidavit, which is accompanying the election petition as provided for under first proviso to Section 83 read with Rule 94-A of the Rules. In Mithilesh Kumar Pandey v. Baidyanath Yadav, AIR 1984 SC 305, the Apex Court examined the result of disobedience of the mandate contained in Sec. 81(3) of the Act. After examining the provisions of Sees. 81(3), 85 and 123 of the Act, the Apex Court laid down the following principles : --
"On acareful consideration and scrutiny of the law on the subject, the following principles are well established :
(1) that where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petition cannot be dismissed straightway under Section 86 of the Act, (2) A true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the Court may not take notice thereof, (3) where the copy contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate it cannot be said that there has been a substantial compliance of the provisions of Section 81(3) of the Act, (4) Prima facie, the statute uses the words "true copy" and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81(3) of the Act, and (5) As Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said Section."
10. In the light of these principles laid down by the Apex Court, it is difficult to hold that the absence of endorsement by the Notary on the copy of the petition supplied to the returned candidate was only a clerical or typographical mistake. On the contrary, the defect appears to be substantial and it could cause prejudice to the returned candidate, who is not expected to wade for the original record. In almost identical circumstances M.M. Qazi, J. of the Bombay High Court in Purushottam v. Returning Officer, Amravati, AIR 1992 Bom 227 held thus (at page 233):
"Having regard to the above facts, the absence of endorsement of the Notary "Affirmed and signed before me", his designation and the stamped endorsement regarding the affrimation, cannot be regarded as inconsequential. It is an omission of a vital nature which is likely to prejudice the returned candidate. It is, therefore, not possible to hold that there has been substantial compliance of the provisions Of Section 81(3) of the Act, as contended by the petitioner. The preliminary objection, therefore, deserves to be upheld and the petition deserves to be dismissed on that ground alone."
11. Similar view was taken in an un-reported judgment in Election Petition No. 2 of 1990, dated 10/11th October, 1990, decided by Bombay High Court. The judgment was referred to in detail in Purushottam's case (supra). The preliminary objection raised by the returned candidate is upheld and the petition deserved to be dismissed on this short ground atone. This issue is answered in favour of the returned candidate and against the petitioner.
ISSUE NO. 1:--
12. The election of the returned candidate has been challenged on the ground of corrupt practice mentioned in Section 123(1)(A) of the Act. The statement of fact in the context of charge of corrupt practice has been slated in the earlier part of this judgment. All the facts which are essential to clothe the petition within complete cause of action must be pleaded and failure to plead even a single material fact would amounts to disobedience of the mandate of Sec. 83(1)(a). The omission of 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 election petition, therefore, can be dismissed if it suffers from any such vice. Even in an ordinary civil litigation, the Court readily exercises its powers to reject the plaint if it does not disclose any cause of action. The pleadings regarding the charge of corrupt practice are regulated by Section 83 and it makes it obligatory on the election petitioner to give requisite facts, details and particulars of each corrupt practice with exactitude. The allegations of corrupt practice are in the nature of criminal charge, it is necessary that there should be no vagueness in the allegations so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice arc not stated in the pleadings, the trial of election petition cannot proceed for want of cause of action. The law forbids a fishing and roving inquiry. The allegation of corrupt practice, which according to the election petitioner, falls within the ambit of Section 123(1)(B) does not conform to the requirements of pleading material fact as has been settled by the Apex Court in Udhav Singh v. M. R- Schindia, AIR 1976 SC 744. Section 123(1)(A) of the Act says that it will constitute a corrupt practice of bribery if the promise by a candidate, or his agent or by any other person with the consent of a candidate or his election agent to withdraw or not to withdraw from being a candidate at election. The petitioner says that Shri Harmail Singh Dhillon, respondent No. 2, was a candidate to the election and he withdrew from the contest as Shri Beant Singh, who was at that relevant time the President of the Punjab Pradesh Congress Committee made him the General Secretary of the Punjab Pradesh Congress Committee. There is no plea that Shri Beant Singh acted as an agent of the returned candidate. Similarly, there is no plea as to when an agreement was arrived at between the returned candidate, Shri Harrnail Singh Dhillon and Shri Beant Singh that if Shri Harmail Singh Dhillon would withdraw from the contest, he will be made the General Secretary of the Punjab Pradesh Congress Committee. The time, place and dale when the inducement was offered to respondent No. 2 has not been disclosed. There is no allegation that Shri Beant Singh was an agent of the returned canddiate. At this stage, it will be useful to reproduce the statement of the learned Counsel for the petitioner when the objection was raised by the Registry that Shri Beant Singh could not be added as party respondent to the election petition was dealt with by me. The same reads thus:--
"Learned Counsel for the petitioner could not justify the impleading of Mr. Beant Singh, Chief Minister, Punjab, as a party respondent to the election petition. At the time of hearing, he only stated that Mr. Beaut Singh had committed corrupt practice by persuading Mr. Harmail Singh Dhillon, respondent No. 2, to withdraw from the contest."
13. The allegations made in the petition read along with statement of the counsel do not disclose that Shri Beant Singh was art agent of the returned candidate when the! inducement was offered to Shri Harmail Singh Dhillon to withdraw from the contest. In Dhartipakar Madan Lal Aggarwal v. Shri Rajiv Gandhi, AIR 1987 SC 1577, parft No. 14 of the judgment, it was observed; thus:--
"The Representation of the People Act is a complete and self-contained Code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of the Civil Procedure Code are applicable to the extent as permissible by Section 87 of the Act. The scheme of the Act as noticed earlier would show that an election can be questioned under the statute as provided by Section 80 on the grounds as contained in Sec. 100 of the Act. Section 83 lays down a mandatory provision in providing that an election petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings arc regulated by Section 83 and it makes it obligatory on the election petitioner to give the requisite facts, details and particulars of each corrupt practice with exacti-tude. If the election petition fails to make out a ground under Section 100 of the Act it must fail at the threshold. Allegations of corrupt-practice are in the nature of criminal charges, it is necessary that there should be no vagueness in the allegations so that the. returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action. The emphasis of law is to avoid a fishing and roving inquiry. It is, therefore, necessary for the Court to scruti-nise the pleadings relating to corrupt practice in a strict manner."
14. In the light of this, there is no escape from the conclusion that if the allegations contained in the election petition do not set out the ground of challenge as contemplated in Sec. 100 of the Act and the allegations do not conform with the Sections 81 and 83 of the Act, the pleadings are liable to be struck off and the election petition are liable to be rejected under Order 7, Rule 11. It will be useful to refer to the following observations made by the Apex Court in Dhartipakar Madan Lal Agarwal's case (supra) in para No. 8 of the judgment:--
"Section 86 confers power on the High Court to dismiss an election petition which does not comply with the provisions of Sections 81 and 82 or Section 117. Section 87 deals with the procedure to be followed in the trial of the election petition and it lays down that subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the High Court as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure, 1908. Since provisions of Civil Procedure Code apply to the trial of an election petition, Order VI, Rule 16 and Order VI, Rule 17 are applicable to the proceedings relating to the trial of an election petition subject to the provisions of the Act. On a combined reading of Ss. 81, 83, 86 and 87 of the Act, it is apparent that those paras of a petition which do not disclose any cause of action are liable to be struck off under Order VI. Rule 16, as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious or which may tend to prejudice, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court to examine the plaint and it need not wait till the defendant filed written statement and points out the defects. If the Court on examination of the plaint or the election petition finds that it does not disclose any cause of action it would be justified in striking out the pleadings. Order VI, Rule 16 itself empowers the Court to strike out pleadings at any stage of the proceedings which may even be before the filing of the written statement by the respondent or commencement of the trial. If the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the Court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and stiike out the pleadings. If after striking out the pleadings the Court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VI, Rule 11."
15. Even assuming the allegations made in the election petition to be correct, these do not make out any case of corrupt practice or any ground under Sec. 100 of the Act. If the pleading is vague and general in nature, the same can be struck out. If after striking out the pleadings, the Court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VI, Rule 11.
16. For the reasons stated above, the preliminary objection raised by the returned candidate is sustained. Issue No. 1 is decided in favour of the returned candidate and against the petitioner. ISSUE NO. 3:-
17. The averment made in para No. 3 of the election petition is in the nature of an introduction. The averment made in para No. 20 of the election petition is the conclusion drawn by the election petitioner from the averments made in paras Nos. 5 and 12 of the election petition. These contained the facts relating to the publication of certain news items in the newspaper and these do not constitute the charge of corrupt practice. The charge of corrupt practice has been separately set out which has been dealt with under issue No. 1. Since these facts do not constitute the charge of corrupt practice, there was no requirement in law that an affidavit in support thereof should have been sworn inby the election petitioner. Issue No. 3 is accord-ingly decided against the returned candidate.
18. For the reasons stated above and in view of thedecision under issuesNos: 1 and 2, the election petition is dismissed with costs quantified at Rs. 5000/-.
19. Petition dismissed.