Ram Sukh Vs. Dinesh Aggarwal
Email[From the Judgement and Order dated 15.01.2008 of the High Court of Uttarakhand at Nainital in Election Petition No. 3 of 2007]
[From the Judgement and Order dated 15.01.2008 of the High Court of Uttarakhand at Nainital in Election Petition No. 3 of 2007]
Mr. Chandra Shekhar, Mr. Sanjay Tyagi, Mr. Saurabh Upadhyay and Mr. S.K. Verma, Advocate for the Appellant(s).
Civil Procedure Code, 1908
Order 6 Rule 16, Order 7 Rule 11 – Representation of the People Act, 1951, Sections 100(1)(b) and (d), 83, 86 – Pleadings – Material particulars – Summary rejection of plaint – Election petition – Grounds of corrupt practices – Requirement of ‘full particulars’ and affidavit – ‘Material facts’ – What are. Held that it is the entire bundle of facts, which would constitute a complete cause of action. Mahadev Rao Sukaji Shivankar’s case referred.
Order 6 Rule 16, Order 7 Rule 11 – Representation of the People Act, 1951, Sections 100(1)(b) and (d), 83, 86 – Pleadings – Material facts – Election petition – Lack of material facts – Effects. Held that if the petition is lacking material facts, then the same is liable to be dismissed on that ground alone. (Para 11)
Order 6 Rule 16, Order 7 Rule 11 – Representation of the People Act, 1951, Sections 100(1)(b) and (d), 83, 86 – Pleading – Material facts and particulars – Election petition – Both phrases used in Act of 1951 – Distinction stated. Virender Nath Gautam’s case referred.
It would be appropriate to notice distinction between the phrases ‘material facts’ as appearing in clause (a) and ‘particulars’ as appearing in clause (b) of sub-section (1) of Section 83. As stated above, ‘material facts’ are primary or basic facts which have to be pleaded by the petitioner to prove his cause of action and by the defendant to prove his defence. ‘Particulars’, on the other hand, are details in support of the material facts, pleaded by the parties. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Unlike ‘material facts’ which provide the basic foundation on which the entire edifice of the election petition is built, ‘particulars’ are to be stated to ensure that opposite party is not taken by surprise. (Para 14)
Order 6 Rule 16, Order 7 Rule 11 – Representation of the People Act, 1951, Sections 100(1)(b) and (d), 83, 86 – Pleading – Summary rejection of petition – Election petition – Alleged lack of material particulars – If High Court could not have dismissed the petition summarily and without opposite party having opportunity to lead evidence. Held that contention is misconceived. By virtue of Section 87, Code of Civil Procedure applied and Court can exercise the powers under the Code. Hardwari Lal’s case followed. Azhar Hussain’s and Madhav Rao Scindia’s case referred. (Paras 16-18)
Order 6 Rule 16, Order 7 Rule 11 – Representation of the People Act, 1951, Sections 100(1)(b) and (d), 83, 86 – Pleadings – Election petition – Summary rejection – No disclosure of material facts – Petition based on facts that Returning Officer failed to circulate attested signatures of his election agent, Para 12 of Chapter VII of handbook of Returning Officer not complied with – Whether said pleas disclose ‘material facts’ so as to constitute a complete cause of action and whether the omission on part of Returning Officer, has ‘materially effected’ the election results. Held that the petition lacked material particulars as no pleadings are there as to how the election was materially affected. Hence Court was justified in rejecting the petition.
What is stated in the paragraphs, is that by the time specimen signature of the polling agent were circulated 80% of the polling was over and because of the absence of the polling agent the voters got confused and voted in favour of the first respondent. In our opinion, to say the least, the pleading is vague and does not spell out as to how the election results were materially affected because of these two factors. These facts fall short of being ‘material facts’ as contemplated in Section 83(1)(a) of the Act to constitute a complete cause of action in relation to allegation under Section 100(1)(d)(iv) of the Act. It is not the case of the election petitioner that in the absence of his election agent there was some malpractice at the polling stations during the polling. It needs little reiteration that for purpose of Section 100(1)(d)(iv), it was necessary for the election petitioner to aver specifically in what manner the result of the election insofar as it concerned the first respondent, was materially affected due to the said omission on the part of the Returning Officer. (Para 21)
2. Mahadeorao Sukaji Shivankar v. Ramaratan Bapu & Ors. [JT 2004 (6) SC 393] (Para 12)
3. Ravinder Singh v. Janmeja Singh & Ors. [JT 2000 (10) SC 583] (Para 4)
4. Azhar Hussain v. Rajiv Gandhi [1986 (Suppl.) SCC 315] (Para 18)
5. Udhav Singh v. Madhav Rao Scindia [1977 (1) SCC 511] (Para 18)
6. Hardwari Lal v. Kanwal Singh [1972 (1) SCC 214] (Para 17)
7. Samant N. Balkrishna & Anr. v. George Fernandez & Ors. [1969 (3) SCC 238] (Para 13)
8. Jagan Nath v. Jaswant Singh and Ors. [1954] S.C.R. 892] (Para 7)
1. This appeal under Section 116A of the Representation of the People Act, 1951 (for short the `Act’) is directed against the judgment and order dated 15th January, 2008, rendered by the High Court of Uttaranchal at Nainital in Writ Petition No.03 of 2007 (M/S). By the impugned order, the High Court, upholding the preliminary objection raised by the first respondent, has dismissed the election petition mainly on the ground that it did not comply with the mandatory requirement of furnishing material facts so as to disclose cause of action and was not supported by an affidavit in the prescribed form.
2. Election to the State Legislative Assembly of Uttaranchal (now Uttarakhand) was held on 21st February, 2007. The results were declared on 27th February, 2007. The first respondent, who had contested the election as an Indian National Congress candidate, was declared elected. The appellant (hereinafter referred to as the `election petitioner’) having lost the election, as a candidate of the Nationalist Congress Party, challenged the election of the first respondent by filing an election petition under Section 80 read with Section 100(1)(b) and (d) of the Act. The election of the returned candidate was challenged mainly on the grounds:
(i) that the election petitioner having submitted 2 sets of the requisite Form-8 (Praroop-8) in respect of his election agent Manbir Singh Dagur before the Returning Officer, who having obtained the signatures of the election petitioner as also of the polling/election agent in proforma (Anulagnak-22), deliberately did not send the signed Anulagnak-22 of the election petitioner to different polling stations, with the result that his polling agent was not permitted by the polling officer to act as such on the date of polls;
(ii) that the Returning Officer deliberately delayed the distribution of Anulagnak-22 at various polling stations and on account of inaction on his part, election petitioner’s supporters got confused and either did not vote or voted in favour of the first respondent, an Indian National Congress candidate;
(iii) that the first respondent put pressure on the election petitioner to withdraw from the contest and on his refusal to do so, a rumour was spread by the first respondent that the election petitioner had withdrawn from the election fray and thus the first respondent used corrupt practice;
(iv) that the first respondent got a fabricated ‘Fatva’ from Devband circulated among the Muslim voters asking them to cast votes in his favour and thus the Muslim voters were unduly influenced by the issuance of the aforesaid religious Fatva – a corrupt practice;
(v) that the Polling Officers at various polling stations did not seal Electronic Voting Machines in presence of the election agent of the election petitioner and other candidates and further before the commencement of counting the Returning Officer did not get the seal of strong room certified from any of the polling agents; and
(vi) that the Electronic Voting Machines of various polling stations were either changed or were used after the polling time was over, showing misuse of the official machinery in support of the first respondent and, thus, putting a question mark on the fairness of the election.
3. The first respondent on being served with notice, instead of filing a written statement, filed an application under Order VI Rules 16 and 17 and Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short `the Code’) read with Section 86 of the Act raising a preliminary objection to the maintainability of the petition, inter-alia, on the ground that the petition was lacking in material facts and particulars and was also defective for want of requisite affidavit in support of allegations of corrupt practice and that since it did not disclose any cause of action, it deserved to be dismissed at the threshold. It was pleaded that on account of failure on the part of the election petitioner to file an affidavit in support of his allegations, the entire election petition was liable to be dismissed and allegations of corrupt practices made in paragraphs 14, 17, 19, 20 and 21 as well as grounds D and E of the election petition were liable to be struck off.
4. On consideration of the rival stands, the High Court came to the conclusion that the allegations of corrupt practices are entirely superfluous in nature; the concise statement of material facts is completely lacking and mandatory requirement of an affidavit in support of the allegations of corrupt practices was also not complied with. Relying on the decision of this Court in Ravinder Singh v. Janmeja Singh & Ors. [JT 2000 (10) SC 583 : 2000 (8) SCC 191], the High Court came to the conclusion that non-filing of affidavit in support of the allegation of corrupt practices, is an incurable and fatal defect and, therefore, the election petition was liable to be
rejected on that ground as well. Aggrieved, the election petitioner is before us in this appeal.
5. In spite of service, the first respondent – the elected candidate has not entered appearance. Therefore, we heard learned counsel appearing on behalf of the election petitioner.
6. It was submitted by learned counsel for the election petitioner that the High Court has committed an error of law as well as of procedure in entertaining first respondent’s application and dismissing the election petition at the threshold. It was contended that the question whether ‘material facts’, as contemplated in Section 83 of the Act, had been stated or not, cannot be decided without providing an opportunity to the election petitioner to prove his case upon trial. Learned counsel argued that if an election petition is rejected at the threshold on account of non-compliance with Section 83 of the Act, it would amount to reading into Section 86 an additional ground for dismissal of the election petition which cannot be permitted in law. Relying on the Handbook for Returning Officers issued by the Election Commission of India for the guidance of the Returning Officers in the conduct of elections, learned counsel submitted that the instructions so issued are binding on the Returning Officers and, therefore, having obtained the specimen signatures of the appellant and his election agent, it was obligatory on the part of the Returning Officer to circulate these specimen signatures to all the Presiding Officers in the prescribed performa in terms of Para 12 of Chapter VII of the said Handbook. It was contended that this omission on the part of the Returning Officer had materially affected the election result. However, the learned counsel fairly conceded that since the election petitioner did not file the affidavit as required under proviso to sub-section (1) of Section 83 of the Act, he was not pressing the ground pertaining to corrupt practice. Therefore, the issue surviving for consideration is only in relation to alleged violation of Section 100(1)(d)(iv) of the Act.
7. Before examining the merits of the issues raised on behalf of the election petitioner with reference to the relevant statutory provisions, it would be appropriate to bear in mind the observations of this Court in Jagan Nath v. Jaswant Singh and Ors. [1954] S.C.R. 892]. Speaking for the Constitution Bench, Mehr Chand Mahajan, C.J., had said that the statutory requirement of election law must be strictly observed and that the election contest is not an action at law or a suit in equity, but is purely statutory proceeding unknown to the common law and that Court possesses no common law power. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. Nevertheless, it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and, therefore, the courts must zealously ensure that people do not get elected by flagrant breaches of that law or by indulging in corrupt practices, as enumerated in the Act.
8. In this backdrop, we may now turn to the procedural provisions in the Act insofar as they are relevant for our purpose:
’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.
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