Punjab-Haryana High Court
Kashmir Singh vs Sukhbir Singh Badal on 10 December, 2024
Neutral Citation No:=2024:PHHC:164022
CM-4-E-2020 and CM-13-E-2020 in/and 1
Election Petition No.3 of 2019 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM-4-E-2020
2020 and CM-13-E-2020 in/and
Election Petition No.3 of 2019 (O&M)
Pronounced on: 10.12.2024
Kashmir Singh .... Petitioner
Versus
Sukhbir Singh Badal ... Respondent
CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA
Present: Mr. Viren Jain, Advocate,
Ms. Komaljit Kaur, Advocate and
Mr. Tarranum Madan, Advocate for the petitioner.
Mr. Karambir Singh Nalwa, Advocate,
Mr. Lalit Sharma, Advocate and
Ms. Ashima Attri, Advocate for the respondent.
Mr. Prateek Gupta, Advocate for Election Commission of India.
***
TRIBHUVAN DAHIYA, J.
This issue being adjudicated is, whether the election petition
deserves to be rejected at the threshold for not disclosing the cause of action.
2. The petition has been filed under Section 80/80-A read with
Sections 81, 100 and 101 of the Representation of the People Act, 1951
(hereinafter referred to as ‘the RPA’) for setting aside and declaring election
of the respondent, who is the returned
ned candidate from 10-Firozepur
Firozepur
Parliamentary Constituency in General Elections of Lok Sabha-2019,
2019, as
void.
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Facts
3. Twenty-two candidates including the petitioner and the
respondent
ndent contested the election from the aforementioned constituency. The
result was declared on 23.05.2019, wherein the respondent, who was an
official candidate of the political party-Shiromani
Shiromani Akali Dal, was declared
successful having polled 6,33,427 votes, as against the petitioner’s 2,387.
The instant petition challenging the respondent’s election was filed on
08.07.2019. After entering appearance in the case, the respondent filed a
miscellaneous application, CM-4-E-2020,
2020, under Order VI Rule 16 and Order
VII Rule 11(a) read with Section 151 of the Code of Civil Procedure (for
short, ‘the Code’), and Section 83 of the RPA. It seeks rejection of the
petition at the threshold for lacking in material facts; not disclosing the cause
of action envisaged under Section 83 of the RPA; alleging corrupt practices
without giving material facts as well as material particulars. The non-
non
applicant/
applicant/petitioner filed reply to the application, and learned counsel for the
parties were heard at length.
3.1. To place the grounds of rejection in correct perspective, it is
apposite to refer to relevant averments of the petition, which are as under:
7. That the respondent alongwith nomination papers had
filed an affidavit, however, complete particulars have not been
supplied as required under the rules and guidelines issued by the
election Commission of India. Copy of the affidavit submitted
by the respondent with nomination application (FORM 26), as
downloaded from the official website of the ECI, is annexed as
Annexure P-3.
8. That the Respondent had not given the detail of his
dependent Daughters in the FORM 26 i.e. the Affidavit filed by
the Respondent with the nomination paper. The same is a2 of 31
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Election Petition No.3 of 2019 (O&M)mandatory requirement for every candidate who is contesting
the general election of Lok Sabha 2019. It is mandatory that all
the columns of FORM 26 which is prescribed by the Hon’ble
Election of India, is to be filled. If any column is not applicable
to the candidate, then such column should be filled with ‘Not
Applicable’ or ‘No’ or ‘Nil’ in the vacant column. It is a
mandatory condition of the Hon’ble Election of India to fill
every column of the FORM 26. The said deliberate omission on
part of the respondent constituted a serious matter of the
concealment of mandatory facts. This important omission was
also ignored by District Election Officer, 10-Ferozepur Lok
Sabha Parliamentary Constituency.
9. That the respondent has concealed the information
regarding the expenditure incurred by him in the Election. It is
pertinent to mention here that the ex-Chief Minister of Punjab-
Punjab
Sh. Prakash Singh Badal had also done rallies in the
constituency in support of the respondent. The same has been
conveniently excluded from the expenditure list submitted by
the respondent. Moreover, with respect to the expenditure list
which has been submitted by the respondent, the Returning
Officer has already raised a specific objection in form of ‘NO’
so as to express dissatisfactio
dissatisfaction upon the expenditure list
submitted by the respondent. However, the same has not been
acted upon thereon. It is relevant to mention here that Satinder
Singh Manta, who was the political aide of the respondent, has
also accompanied the respondent during election campaigns and
it was categorically informed to the authorities that the said aide
was illegally distributing liquor and cash on a very large scale to
the electorate and others for winning the elections illegally and
unethically; through Jatinder Singh @ Kala Kukkar c/o Brar
Filling Station Fazilka Road, Jalallabad. The same constitutes
‘corrupt practice’. Several representations have already been
submitted in this regard to the Election Commission of India.
However, the same have not been acted upon. Moreover,
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Charanjeet Singh Brar, who was also a political aide of the
respondent campaigned in Ferozepur District.
10. That the respondent had concealed the facts about his
complete details of his social media account(s) and the
expenditure done in respect thereof.
11. That the petitioner as well as other candidates have
submitted detailed representations/objections to the RO at
several stages, however the same has not been decided. The
petitioner has also filed a representation with the Election
Commission of India. Copies of said representations are
annexed as Annexure P-4 (colly).
12. That the respondent had also held a roadshow on the date
of filing the nomination paper in violation of the Rules.
13. That as matter of fact, the booths for distribution of voter
slips were setup by the respondent at each and every polling
centre, in violation of the Rules.
14. That the Respondent had also not published
advertisement of criminal cases in Newspapers and media as
per the requirements of the Rules etc., which is also mandatory
for the contesting candidate if the candidate have or had been
involved in any criminal cases, then it is mandatory as per the
guidelines of the Hon’ble Election Commission of India, that the
contesting candidate must have to publish three advertisements
in reputed and circulating newspapers and also in electronic
media before the day of the polling. The same is a serious
violation of the mandatory rules.
15. That there was no conciliation report issued by the
District Election Officer 10-Ferozepur
Ferozepur Lok Sabha Parliamentary
Constituency regarding the VVPAT slips with EVMs. As per the
direction of the Hon’ble Supreme Court of India, it is mandatory
to conciliate/match 5 EVMs with VVPAT Slips in every
Assembly segment. There was no conciliation report had been
given to the Petitioner instead of his various oral requests,
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which renders the process of counting of the 10-Ferozepur Lok
Sabha Parliamentary Constituency to be suspicious.
16. That the Petitioner has demanded/applied through RTI,
the certified copy of the videography of election meetings,
rallies and other campaign/canvassing process of the
Respondent, but the District Election Officer, 10-Ferozepur Lok
Sabha Parliamentary Constituency has not yet given any
response on the above RTI’s till date. The above said
videography shall be the cogent proof of the various violations
committed by the respondent in the election
campaign/canvassing.
17. That the District Election Officer and the Expenditure
Observer of 10-Ferozepur parliamentary Constituency has
dissented with the final expenditure sheet submitted by the
Respondent as Remarks “NO
“NO” in his report. This dissent of the
District Election Officer and the Expenditure Observer of 10-
Ferozepur parliamentary Constituency proves itself the corrupt
corru
practices of the Respondent to win the above said election.
18. That the District Returning Officer, the General observer,
the Expenditure Observer, Assistant Returning officer and
MCMC department of 10-Ferozepur parliamentary
Constituency issued various notices to the respondent regarding
the Violation of Model code of conduct during the election
process. The same is a cogent proof of the illegal practices of
the respondent to win the aforesaid election. The Petitioner has
applied under the RTI to proc
procure the said information.
19. that the petitioner has applied under the RTI of the
certified copy of the Expense register with
bills/invoice/expenditure vouchers and detail of source of fund
generation of the respondent, bank details, Detail of party
expenses and its bifurcation with respondent etc. but the District
Election Officer, 10-Ferozepur
Ferozepur Lok Sabha Parliamentary
Constituency has not given any response on the above RTI’s till
date.
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20. That during the election process Police Party of Police
Station, Sadar had confiscated huge quantity of liquor. It was
general opinion that the above liquor was belongs to the
respondent and it would be distributed in electors of the area.
The copy of the same information will be presented soon in the
Hon’ble Court as soon as the same is made available to the
petitioner.
3.2. In the reply filed by the non-applicant/petitioner
applicant/petitioner to the aforesaid
application it has been stated that the plaint/petition contains material facts
and it has to be read as a whole along with the documents attached
therewith.. The relevant paragraphs of the reply are as under:
7. In the present case, it has been clearly averred in the
plaint/petition that the respondent has violated the law with
regard to expenditure regulations in elections. Though the plaint
and documents attached thereto always have to be read as a
whole, however, only for the purpose of specific reference-para
para
9, 10, 11, 16, 17, 18, 19 and 20 contain the material facts in this
regard. The said averments have to be read in context of the law
in this regard.
8. xxx
9. The reading of the plaint and the documents attached
thereto as a whole, clearly discloses the cause of action on the
ground of violation of the law in regard to election expenses,
rendering the respondent to be ‘disqualified’ and also
constituting ‘corrupt practice’, as defined under law.
Submissions by learned counsel for the parties
4. In the aforementioned factual background, Mr. K.S. Nalwa,
learned counsel for the applicant/respondent has contended that as per the
settled law election result of the winning candidate should not be lightly
interfered with, as the process is considered sacrosanct. The charge of
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corrupt practices is of quasi criminal nature, which is required to be
specifically pleaded and proved before the Election Tribunal/this Court. The
mandatory requirements under the RPA must be complied with while
presenting the petition, which the petitioner has miserably failed to do. The
petition does not disclose any material fact constituting the alleged corrupt
rupt
practices; the allegations levelled in paragraphs 7, 8, 9, 10, 12 and 14 of the
petition do not fulfill the mandatory requirements of Section 83 of the RPA.
So far as the allegations with regard to concealment of information regarding
expenditure or holding of rallies by the former Chief Minister in
expenditure,
respondent’s favour are concerned, the same are also vague and lack
material particulars. It is not even pleaded that the respondent has incurred
expenditure beyond the limit prescribed under Section 77(3) of the RPA. No
date/time of any rally has been mentioned, nor have the names of any of the
participants in the said rallies been given
given. In the similar vein are allegations
of distribution of liquor and cash on a large scale by one Satinder Singh
Manta. It is not even pleaded as to when, where and to whom the alleged
cash or liquor was distributed, or that the said person acted to the knowledge
of the respondent or his agent. No details or material facts have been
provided as to the date, day, time, location
on and mode of his transfer. Nor has
it been alleged that the said person ever accompanied the respondent during
the election campaign. Therefore, the petition, as such, is bereft of material
facts required for alleging corrupt practices which calls for its rejection at
the outset on account of non-disclosure of cause of action. And as per the
settled law,
law the petitioner cannot be allowed to amend the petition in order to
incorporate material facts. Secondly, Mr. Nalwa has contended that it is
mandatory for the election petitioner to plead that the result of election, so
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far as it concerns the returned candidate, has been materially affected by the
alleged non-compliance
non of provisions of the RPA. But there is no such
pleading in the entire petition. Thirdly, as per the provisions of Section 83(1)
and Rule 94-A of the Conduct of Elections Rules, 1961 (for short, ‘the
Rules’), the petitioner was required to file an affidavit strictly as per Form
25, appended to the RPA. This has also not been done.
4.1. In support of the contentions, Mr. Nalwa has relied upon the
law laid down by the Supreme Court in Shri Udhav Singh v. Madhav Rao
Scindia, (1977) 1 SCC 511; L.R. Shivaramagowda and others v. T.M.
Chandrashekar (Dead) by LRs and others
others, (1999) 1 SCC 666; R.P. Moidutty
v. P.T. Kunju Mohammad and another
another, (2000) 1 SCC 481; and
V. Narayanaswamy v. C.P. Thirunavukkarasu
Thirunavukkarasu, (2000) 2 SCC 294.
5. Mr. Viren Jain, learned counsel for the non-applicant/petitioner,
applicant/petitioner,
on the contrary, contends that all material particulars have been disclosed in
the petition. Allegations like dependency of the respondent’s daughter(s) are
a matter of trial; the relevant facts in this regard, as also concerning other
allegations regarding concealment of informati
information and corrupt practices by
him, will be established by leading evidence. Besides, the petition is to be
read along with additional documents attached with miscellaneous
applications, CM-9-E-2020 and CM-10-E
E-2020, which support the material
materia
facts. The said documents are: show cause notices issued to the respondent
obtained under the Right to Information Act, 2005, with regard to uploading
advertisement on social media (Facebook) account without permission of the
concerned authorities; a notice regarding sus
suspected paid news on print media
without permission; notices regarding understatement of election
expenditure
ure under Section 77 of the RPA; publication details as supplied by
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the respondent on expenditure memo; and various dated as well as undated
newspaper publications. Further, Section 86(5) of the RPA provides that the
Court may allow particulars of any corrupt practices alleged in the petition
to be amended/amplified. Accordingly, in case the petition lacks any of the
material particulars, the Court should permit the petitioner to amend the
petition. And for that purpose he has already filed an application, CM-9
9-E-
2020, seeking amendment of the petition under Order VI Rule 17 of the
Code. He has also referred to Section 87 of the RPA to contend that the
procedure
ocedure laid down in the Code will be applicable to the trial of election
petition as well. Therefore, the petition is to be read along with the
documents sought to be placed on record by way of a separate application.
application
5.1. Still further, Mr. Jain has sub
submitted that non-compliance of the
provisions of Section 83 is not fatal to the petition. It is a curable defect, and
in case the Court comes to the conclusion that the petition lacks material
particulars, an opportunity should be provided to the petitioner to cure the
defect. Rejection of the plaint without trial is an exception, and it should not
be resorted to in case of curable defects. Hyper-technicalities should not
come in the way of maintaining the petition, as the Court is duty bound to
see no person
perso gets elected by resorting to corrupt practices.
5.2. In support of the contentions, Mr. Jain has referred to the
judgments rendered by the Supreme Court in K. Babu v. M. Swaraj and
others, 2024 INSC 103, Umesh Challiyil v. K.P. Rajendran, 2008 AIR (SC)
1577, Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others, (2012) 7
SCC 788.
6. Submissions advanced by learned counsel for the parties have
been considered.
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Statutory provisions
7. In order to adjudicate the matter, it is pertinent to mention
relevant Sections of the RPA, and the Rule 94A of the Rules framed
thereunder, which are as follows:
77. Account of election expenses and maximum thereof.–
thereof
(1) Every candidate at an election shall, either by himself or by
his election agent, keep a separat
separate and correct account of all
expenditure in connection with the election incurred or
authorised by him or by his election agent between the date on
which he has been nominated and the date of declaration of the
result thereof, both dates inclusive.
78. to 80. xxx
petitions.–(1)An election petition calling
81. Presentation of petitions.
in question any election may be presented on one or more of the
grounds specified in sub-section
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 dates of their election
are different, the later of those two dates.
Explanation.–In this sub-section,
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.
(3) 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.
82. xxx
(1) An election petition–
83. Contents of petition.–(1)
(a) shall contain a concise statement of the material facts on
which the petitioner relies;
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(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:
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.
84. and 85. xxx
86. petitions.–(1) The High Court shall
Trial of election petitions
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
sub-section shall be deemed to be an
order made under clause (a) of section 98.
(2) to (4) xxxx xxxx
(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.
(6) and (7) xxxx xxxx
87. Procedure before the High Court.–(1) Subject to the
provisions of this Act and of any rules made thereunder, every
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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 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse,
for reasons to be recorded in writing, to examine any witness or
witnesses if it is of the opinion that the evidence of such witness
or witnesses is not material for the decision of the petition or
that the party tendering such witness or witnesses is doing so on
frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of
1872), shall subject to the provisions of this Act, be deemed to
apply in all respects to the trial of an election petition.
88. to 99. xxx
100.Grounds for declaring election to be void.–(1) Subject
to the provisions of sub-section
section (2) if the High Court is of
opinion-
(a) that on the date of his election a returned candidate was
not qualified, or was disqualified, to be chosen to fill the
seat under the Constitution or this Act or the Government
of Union Territories Act, 1963 (20 of 1963); or
(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
(c) that any nomination has been improperly rejected; or
(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
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(iv) by any non-compliance
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.
(2) xxx
101. to 122. xxx
The following shall be deemed to be
123.Corrupt practices.–The
corrupt practices for the purposes of this Act:–
(1) “Bribery”, that is to say,–
—
(A) any gift, offer or promise by a candidate or his agent or by
any other person with the consent of a candidate or his
election agent of any gratification, to any person
whomsoever, with the object, directly or indirectly of
inducing-
(a) a person to stand or not to stand as, or to withdraw or not
to withdraw from being a candidate at an election, or
(b) an elector to vote or refrain from voting at an election, or
as a reward to-
(i) a person for having so stood or not stood, or for having
withdrawn or not having withdrawn his candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreemen
agreement to receive, any gratification,
whether as a motive or a reward
reward-
(a) by a person for standing or not standing as, or for
withdrawing or not withdrawing from being, a candidate; or
(b) by any person whomsoever for himself or any other
person for voting or refraining from voting, or inducing or
attempting to induce any elector to vote or refrain from
voting, or any candidate to withdraw or not to withdraw his
candidature.
Explanation.–For the purposes of this clause the term
“gratification” is not restricted to pecuniary gratifications or
gratifications estimable in money and it includes all forms of
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entertainment and all forms of employment for reward but it
does not include the payment of any expenses bona fide
incurred at, or for the purpose of, any election and duly entered
in the account of election expe
expenses referred to in section 78.
(2) to (5) xxx
(6) The incurring or authorizing of expenditure in
contravention of section 77.
(7) and (8) xxx
7.1. A perusal of the aforementioned provisions shows, Section 81
of the RPA enables a person to challenge an election on one or more of the
grounds specified in sub-section (1) of Section 100. Sub-Section (1) of
Section 83 mandates that every election petition must contain a concise
statement of ‘material facts’ on which the petitioner relies. And the petition
must set forth full particulars of any corrupt practice alleged by the
petitioner, including as full a statement as possible of the names of the
parties alleged to have committed the corrupt practice, with date and place of
commission of each such practice. It also requires that wherever the corrupt
practices are alleged, the petition shall be accompanied by an affidavit in the
prescribed form supporting the allegations of corrupt practices as well as
particulars thereof. Therefore, there is mandatory requirement to disclose the
detailed facts with full particulars of corrupt practices in an election petition,
that has to be supported by an affidavit in Form 25.
7.2. Further, Section 86 mandates that the High Court shall dismiss
an election petition which does not comply with the provisions of Sections
81, 82 or 117 (requiring the petitioner to deposit a sum of `2000 as security
for cost of the petition, at the time of presenting the election petition).
Section 87 prescribes the procedure for trial of an election petition; as nearly
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as may be, it has to be in accordance with the procedure applicable under the
Code.
7.3. The grounds for declaring the election petition void have been
stipulated under Section 100, and the requirement, as per clause (d) to
sub-section
section (1) is, if the High Court is of the opinion that the result of
election has been materially affected insofar as it concerns the returned
turned
candidate, due to any of the grounds mentioned in sub-clause (i) to (iv)
therein, the election of such candidate shall be declared void. Hence, there is
necessity to specifically aver that on account of a corrupt practice or non-
non
compliance of any of the provisions of the Constitution or the Act or by any
other ground mentioned in clause (d), the result of election, so far it concerns
the returned candidate, has been materially affected.
7.4. As per sub-section (1) of Section 123, any gift, offer or promise
by a candidate or his agent, or by any other person with their consent, to any
other person with the object of inducing an elector to vote at an election is
“bribery”. As per sub-section (6), incurring expenditure in contravention to
Section 77 is also a corrupt practice.
Judicial precedents
8. Law on maintainability of the election petition stands settled by
a number of judgments by the Supreme Court interpreting the
aforementioned provisions of the RPA. A reference is being made to a few of
those hereunder.
hereunder
(i) One of the earlier cases on the issue is Jagan Nath v. Jaswant
Singh and others, (1954) 1 SCC 57, that delineated on the nature of an
election petition under the RPA, laying down that an election petition is not
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an action in common law or a suit in equity, it is purely a statutory remedy
which can be availed strictly in accordance with the statutory
provisions/RPA. The rights and liabilities of the parties have to be
determined as per the provisions contained therein, and success of the
candidate who has won the election is not to be lightly interfered with. At the
same time, it is to be seen that people do not get elected by breaching the
law or by corrupt practices. The relevant paragraph of the judgment reads as
under:
7. The general rule is well settled that the statutory
requirements of election law must be strictly observed and that
an election contest is not an action at law or a suit in equity but
is a purely statutory proceeding unknown to the common law
and that the court possesses no common law power. It is also
well settled that it is a sound principle of natural justice 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 conf
conform to the requirements of the
law. None of these propositions however have any application if
the special law itself confers authority on a tribunal to proceed
with a petition in accordance with certain procedure and when it
does not state the consequence
consequences of non-compliance with certain
procedural requirements laid down by it. It is always to be
borne in mind that though the election of a successful candidate
is not to be lightly interfered with, one of the essentials of that
law is also to safeguard the purity of the election process and
also to see that people do not get elected by flagrant breaches of
that law or by corrupt practices. In cases where the election law
does not prescribe the consequence, or does not lay down
penalty for non-compliance
compliance with certain procedural
requirements of that law, the jurisdiction of the Tribunal
ribunal
entrusted with the trial of the case is not affected.
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(ii) Udhav Singh case (supra) lays down that failure to plead even a
single material fact leads to an incomplete cause of action, and incomplete
allegations of such a charge are liable to be struck off under Order VI, Rule
16 of the Code. If the petition is based on allegations which lack “material
facts”, it is liable to be summarily rejected for want of cause of action. The
judgment further lays down that primary facts which must be proved at the
trial by a party to establish the existence of cause of action or his defence,
are “material
material facts”. Accordingly, all the facts constituting the ingredients of
a corrupt practice, will be “material facts”. Whereas, “material particulars”
are the details of the case set up by a party and, therefore, mean the details
necessary to amplify and embellish the “material facts” already pleaded in
the petition. Further, the Court can permit a party to amend the petition to
plead “material particulars” after the limitation to file the election petition is
over, but not the “material facts”. The relevant paragraphs of the judgment
are the following:
41. Like the Code of Civil Procedure, this section also
envisages a distinction between “material facts” and “material
material
particulars”. Clause (a) of sub
sub-section (1) corresponds to Order
6, Rule 2, while clause (b) is analogous to Order 6, Rules 4 and
6 of the Code. The distinction between “material facts” and
“material particulars” is important because different
consequences may flow from a deficiency of such facts or
particulars in the pleading. Failure to plead even a single
material fact leads to an incomplete cause of action and
incomplete allegations of such a charge are liable to be struck
off under Order 6, Rule 16, Code of Civil Procedure. If the
petition is based solely on those allegations which suffer from
lack of material facts, the petition is liable to be summarily
rejected for want of a cause of action. In the case of a petition
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suffering from a deficiency of material particulars, the court
has a discretion to allow the petitioner to supply the required
particulars even after the expiry of limitation.
42. All the primary facts which must be proved at the trial by
a party to establish the existence of a cause of action or his
defence, are “material facts
facts”. In the context of a charge of
corrupt practice, “material facts” would mean all the basic facts
constituting the ingredients of the particular corrupt practice
alleged, which the petitioner is bound to substantiate before he
can succeed on that charge. Whether in an election-petition,
petition, a
particular fact is material or not, and as such required to be
pleaded is a question which depends on the nature of the charge
levelled, the ground relied upon and the special circumstances
of the case. In short, all those facts which are essential to clothe
the petitioner with a complete cause of action, are “material
material
facts” which must be pleaded, and failure to plead even a single
material fact amounts to disobedience of the mandate of Section
83(1) (a).
43. “Particulars”, on the other hand, are “the details of the
case set up by the party”. “Material particulars” within the
contemplation of clause (b) of Section 83(1) would therefore
mean all the details which are necessary to amplify, refine and
embellish the material facts already pleaded in the petition in
compliance with the requirements of clause (a). ‘Particulars’
serve the purpose of finishing touches to the basic contours of a
picture already drawn, to make it full, more detailed and more
informative.
iii) Further, it has been laid down in Virender Nath Gautam v.
Satpal Singh and others, (2007) 3 SCC 617, that pleading must contain
“material facts”, though “material particulars” need not be set out therein
because they are not the facts in issue, but relevant facts required to be
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proved during trial to establish the fact in issue/material fact. It lays down
the following:
50. There is distinction between facta probanda (the facts
required to be proved i.e. material facts) and facta probantia
(the facts by means of which they are proved i.e. particulars or
evidence). It is settled law that pleadings must contain only
facta probanda and not facta probantia. The material facts on
which the party relies for his claim are called facta probanda
and they must be stated in the pleadings. But the facts or facts
by means of which facta probanda (material facts) are proved
and which are in the nature of facta probantia (particulars or
evidence) need not be set out in the pleadings. They are not
facts in issue, but only relevant facts required to be proved at
the trial in order to establish the fact in issue.
(iv) Although Section 86 of the RPA mandates the High Court to
dismiss an election petition which fails to comply with Sections 81, 82 or
117, by specifically excluding Section 83, it has been held in Azhar Hussain
v. Rajiv Gandhi,
Gandhi 1986 (Supp.) SCC 315, that exclusion of Section 83 does
not mean powers under the Code cannot be exercised by the High Court.
Accordingly, in case mandatory requirement enjoined by Section 83 of the
RPA to incorporate the “material facts” in the election petition is not
complied with, the petition can be summarily dismissed on account of non-
non
disclosure of cause of action, by exercising power under the Code. As per
the law laid down, all the facts which are necessary to clothe the petition
with complete cause of action must be pleaded, and failure to plead even a
single material fact would amount to disobeying the mandate of Section
83(1)(a), requiring the Court to dismiss the petition for want of cause of
action. The relevant paragraphs of the judgment read as under:
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9. The fact that Section 83 does not find a place in Section
86 of the Act does not mean that powers under the CPC cannot
be exercised.
10. There is thus no substance in this point which is already
concluded against the appellant in Hardwari Lal v. Kanwal
Singh wherein this Court has in terms negatived this very plea
in the context of the situation that material facts and particulars
relating to the corrupt practice alleged by the election petitioner
were not incorporated in the election petition as will be evident
evide
from the following passage extracted from the judgment of A.N.
Ray, J. who spoke for the three-judge Bench: (SCC p. 221,
paras 22 and 23)
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 what 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.
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
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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 the suits. A suit
which does not furnish cause of action can be dismissed.
11. In view of this pronouncement there is no escape from
the conclusion that an election petition can be summarily
dismissed if it does not furnish cause of action in exercise of the
powers under the Code of Civil Procedure. So also it emerges
from the aforesaid decision that appropriate orders in exercise
of powers under the Code of Civil Procedure can be passed if
the mandatory requirements enjoined by Section 83 of the Act
to incorporate the material facts in the election petition are not
complied with. This Court in Samant case has expressed itself
in no unclear terms 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. So also in Udhav Singh case the
law has been enunciated that all the primary facts which must
be proved by a party to establish a cause of action or his
defence are material facts. In the context of a charge of corrupt
practice it would mean that the basic facts which constitute the
ingredients of the particular corrupt practice alleged by the
petitioner must be specified in order to succeed on the charge.
Whether in an election petition a particular fact is material or
not and as such required to be pleaded is dependent on the
nature of the charge levelled and the circumstances of the case.
All the facts which are essential to clothe the petition with
complete cause of action must be pleaded and failure to plead
even a single material fact would amount to disobedience of the
mandate of Section 83(1) (a). An election petition therefore can
be and must be dismissed if it suffers from any such vice. The
first ground of challenge must therefore fail.
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(v) Another mandatory requirement in terms of the law laid down
in L.R. Shivaramagowda case (supra) is that in order to declare an election
lection
void under Section 100 (1)(d)(iv), it is absolutely necessary for the election
petitioner to plead that the result of election, insofar as it concerns the
returned candidate, has been materially affected by the alleged non-
non
compliance with the provisions of the Act or of the Rules. In the absence of
such an averment, it was not open for the petitioner to adduce evidence to
that effect. Therefore, failure to plead material facts is fatal to the election
petition, and no amendment of the pleadings can be allowed regarding such
material facts after the time limit for filing the petition is over. Only absence
of “material particulars” can be cured at a later stage by introducing an
amendment, but not the absence of “material facts”. The judgment reads as
under:
10. That apart, it is rightly pointed out by the appellant’s
counsel that in order to declare an election to be void under
Section 100(1)(d)(iv), it is absolutely necessary for the election
petitioner to plead that the result of the election insofar as it
concerned the returned candidate had been materially affected
by the alleged non-compliance
compliance with the provisions of the Act or
of the Rules. We have already extracted para 39 of the election
petition which is the only relevant paragraph. One will search
rch in
vain for an averment in that paragraph that the appellant had
spent for the election an amount exceeding the prescribed limit
or that the result of the election was materially affected by the
failure of the appellant to give true and correct accountss of
expenditure. In the absence of either averment, it was not open
to the appellant to adduce evidence to that effect. It cannot be
denied that the two matters referred to above are material facts
which ought to find a place in an election petition if the election
is sought to be set aside on the basis of such facts.
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Analysis
9. The corrupt practices have been mentioned in paragraphs 7 to
20 of the petition, as reproduced in para 3.1
3.1. above. The first one pertainss to
concealment of facts by the respondent in the affidavit filed by him in Form
26, wherein he allegedly did not furnish complete particulars as required
under the guidelines issued by the Election Commission of India; he
deliberately did not give details of his dependent daughter(s) in Form 26.
This allegation is without details of particular
particulars said to have not been
concealed by the respondent which he was mandatorily required to disclose;
the only particular mentioned is failure to give details of dependent
daughter(s). Even in that regard the petitioner has failed to mention name,
age, occupation or any other material particular of the respondent’s
daughter(s) to indicate their dependance. Merely because the respondent has
daughters, would in itself not make them dependent too. It is not a case that
a daughter cannot but be dependent on father. Therefore, in the absence of
material facts regarding non-furnishing of complete particulars in Form 26,
the charge is unsustainable.
9.1. The second charge in the petition pertains to the corrupt
practice of concealment of huge expenditure incurred by the respondent in
the election. As per averments, ex-Chief
Chief Minister of Punjab, Mr. Parkash
Singh Badal
adal, had also done rallies in the constituency in respondent’s
support, but the expenditure incurred thereupon has been excluded from the
expenditure list submitted by the respondent. Besides, one Satinder Singh
Manta, a political aide of the respondent, also accompanied the latter in the
election campaign and was allegedly distributing liquor and cash on a very
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large scale to the electorate through Jatinder Singh c/o Brar Filling Station,
Fazilka Road, Jalallabad, for illegally and unethically winning the election,
which constitutes
constitute corrupt practice. Another political aide of the respondent,
Charanjit Singh Brar, campaigned in Firozepur district. Apparently, this
t
charge also does not give statement of material facts about the corrupt
practice. As per Section 123 (vi) of the RPA, incurring or authorising of
expenditure in contravention of Section 77 is a corrupt practice. There is no
such allegation so far as incurring of expenditure by the respondent is
concerned it is nowhere mentioned that he incurred or authorised incurring
concerned;
of expenditure beyond the limits prescribed under Section 77 of the RPA. So
far as holding of rallies by the ex-Chief
Chief Minister of Punjab in the
constituency is concerned, all the material particulars are conspicuously
missing here also; not even a single detail with regard to time, day, venue,
presence of the electorate, etc., has been mentioned. It is not the petitioner’s
case either that the said rallies were held on the asking of the respondent
ent or
his election agent. Similarly, so far as the allegation regarding corrupt
practice of distributing liquor and cash by Satinder Singh Manta is
concerned, it is also bereft of material facts. There is no fact pleaded as to at
what time, where and to whom Manta was distributing liquor; nor is it the
allegation that it was being done with the consent of the respondent or his
election agent. Therefore, all vital fact
facts regarding the alleged corrupt
practice are missing.
9.2. The allegation regarding conc
concealment of facts by the respondent
about complete details of his social media accounts also lacks material
particulars; as neither the type of account, user name, URL (Uniform
Resource Locator) or its platform have been mentioned. The next allegation
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relates to holding of roadshow by the respondent on the date of filing of
nomination papers in violation of Rules. Particulars of the rules said to have
been violated and the nature of violation, which are material, have again not
been mentioned. Holding a roadshow in itself is not a violation. It has further
been alleged that booths for distribution of voter slips were set up by the
respondent in each of the polling centre in violation of the Rules. Here again,
again
neither the number of polling centres where the booths were set up in
violation of the rules, nor have the particulars of rules statedly violated,
violated
been mentioned.
9.3. It has next been alleged that the respondent has not published
the list of criminal cases in newspapers and media as per the requirements
of the Rules, etc. This allegation also lacks material particulars, as none of
the criminal cases the respondent is alleged to have been involved in, nor
have the particulars of the rules said to have been violated by him in this
regard been
en given. Further, the averment that dissent of Election Officer and
the Expenditure Observer to the final expenditure sheet submitted by the
respondent itself proves the commission of corrupt practice by him in the
election in question, is also without any material particular as it has not been
stated under which provision dissent of an Election Officer and/or
Expenditure Observer to final expenditure sheet can be termed a corrupt
practice under the RPA, nor has the date of expenditure sheet, the name of
the dissenting Officer or Observer, or the date of dissent been mentioned.
Similarly, the issuance of notices to the respondent regarding violation of
Model Code of Conduct during the election process has been termed a
cogent proof of illegal practice without indicating under which provision of
law it has been defined as a corrupt practice, nor has it been mentioned
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which regulation/instruction of the Model Code of Conduct was violated by
the respondent, and in what manner. Particulars of any such notice have also
not been given, nor of the decision taken thereupon.
9.4. Lastly, it has been averred in the petition that police party of
Police Station Sadar had confiscated huge quantity of liquor, and it was
general opinion that it belonged to the respondent and would be distributed
to electors of the area. This again is a vague statement bereft of any material
fact; neither quantity of liquor, nor the place, date, time of confiscation, or
the basis of its attribution to the respondent or his election agent has been
alleged. Further, the allegation is that as per ‘general opinion’ the liquor
belonged to the respondent; that being so, the fact could not have been
verified by the petitioner by filing the affidavit in Form 25. Still further, the
allegation is not that the liquor was actually distributed, but was meant to be
distributed. An election petition cannot be entertained on such vague
averments lacking in almost all the material particulars.
9.5. In view of the analysis hereinabove it can be safely concluded
cluded
that the election petition does not disclose complete cause of action by the
petitioner, and cannot be entertained as such for want of complying with the
mandatory requirements under Section 83 of the RPA. It needs to be
mentioned that the petition lacks in another mandatory requirement also, as
it has not been pleaded anywhere by the petitioner that the result of
respondent’s election has been materially affected by the alleged non-
non
compliance of provisions of the RPA or the Rules. In the absence of
averments giving material particulars regarding commission of the alleged
corrupt practices,
practices it is not open to the petitioner to adduce evidence
establishing the same, which renders the petition not maintainable.
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10. Since the election petition is not an action in common law, and
is purely a statutory remedy which is meant to be availed strictly in
accordance with the provisions of the RPA, there is no merit in the argument
advanced by learned counsel for the non-applicant/
applicant/petitioner that in the light
of provisions of the Code, the allegations of corrupt practices in the petition
are to be read along with additional documents sought to be filed by the
petitioner by way of miscellaneous applications. In terms of the mandatory
requirements of Section 83 of the RPA, an election petition must spell out
the cause of action by clearly stating all the material particulars constituting
corrupt practices. Failure to plead even a single material fact leads to an
incomplete cause of action, which makes the petition liable to be dismissed
at the threshold on that account. The lacunae in the election petition
regarding material facts cannot be removed by referring to additional
documents or amending the petition after the period of limitation to file it is
over. Accordingly, the petitioner can neither be allowed to rely upon any
additional document, nor can he be permitted to amend the petition at this
stage to plead material particulars of the alleged corrupt practices. Similarly,
there is no substance in the argument by learned counsel that relevant facts
with regard to corrupt practices are a matter of trial, and will be established
later by adducing evidence. It is well settled that no party can be allowed to
lead evidence with respect to a fact not ppleaded in the petition; more so, in
the case of an election petition which can only be entertained on disclosure
of complete cause of action after pleading all the material facts in
compliance with the provisions of Section 83 of the RPA.
10.1. The next contention of learned counsel for the non-
non
applicant/
applicant/petitioner that non-compliance of Section 83 is not fatal to the
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petition as it is a curable defect, is also without substance. Explicit language
of Section 83 requires an election petitioner to set forth full particulars of
any alleged corrupt practice, including as full a statement as possible of the
names of the parties who have committed the same, with the date and place
of commission of such practice. Hence, non
non-compliance of the requirement
cannot be anything but fatal; nor can it be termed a hyper-technicality either,
either
as it is a mandatory requirement to maintain an election petition.
Judgments relied upon by learned counsel for the petitioner
11. Also, the judgments relied upon by Mr. Jain, learned counsel for
the non-applicant,
applicant, do not advance the petitioner’s case in any manner, as the
same are clearly distinguishable on facts, apart from being in line with the
law laid down in the judgments mentioned in para 8 above.
11.1. In the first judgment K. Babu case (supra) the issue decided by
the Court was, whether the election petition was liable to be rejected at the
threshold for non-compliance with the provisions of Section 81(3) of the
RPA, requiring that every election petition shall be accompanied by as many
copies thereof as there were respondents in the petition, and every such copy
shall be attested by the petitioner under his own signature to be a true copy.
The High Court had dismissed the applicati
application to reject the petition filed by
the returned candidate/appellant before the Supreme Court under Order VII
Rule 11 of the Code by holding that triable issues under Section 123(3) of
the RPA were made out. The Supreme Court also found that no specific
allegation
egation was ever made by the returned candidate that the copy of petition
furnished to him was not attested by the first respondent under his own
signature to be a true copy of the petition. It was also held that, it was not the
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appellant’s case that the election petition was not accompanied by as many
copies as there were respondents in the petition
petition, as the complaint specifically
was that sufficient number of authenticated copies were not furnished as
required under Rule 212 of the Rules of 1971. The Court further held that in
the light of specific requirements under Section 81(3) of the RPA, it was not
permissible in law to read something more into that provision. Rule 212
introduces only the additional requirements prescribed by the High Court,
which could
coul not be read into and be made part of Section 81(3). In these
circumstances it was held that the High Court was right in dismissing the
application to reject the petition at the threshold. The facts of the instant case
are distinct, as the dismissal of the petition at the threshold has been sought
for violation of mandatory requirements to maintain the petition, viz., non-
non
disclosure of complete cause of action by pleading all the material facts as
mandated by Section 83 of the RPA; and as discussed hereinabove, the
petitioner has failed to do so as well which renders the petition liable to be
dismissed Violation of Section 81(3) of the RPA or Rule 212 of the Rules of
dismissed.
1971 or any related provision is not the issue raised herein.
11.2. The second judgment relied upon by Mr. Jain, Umesh Challiyil
case (supra
supra), is also besides the point. In that case, after noting down the law
laid down in Azhar Hussain case (supra)) that the failure to furnish material
facts and particulars in a petition in violation of Section 83 of the Act will
call for dismissal of the petition at the outset under provisions of Order VI
Rule 16 and Order VII Rule 11 of the Code, it was held that the defects
pointed out in the petition were purely cosmetic and do not go to the root of
the matter. In case the Court finds them to be serious in nature, at least an
opportunity is required to be given to rectify such defects. Whereas, the
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defects in the instant case go to the root of the matter, as the petition lacks
“material facts”, as already discussed, which are incurable and cannot be
termed cosmetic by any standards. Hence, the petitioner cannot be allowed
to rectify the same.
11.3. In Ponnala Lakshmaiah case (supra), the third judgment relied
upon by Mr. Jain, the Court was examining whether rejection of the
application by the High Court under Order VII Rule 11 of the Code seeking
dismissal of the election petition at the threshold for non-disclosure of cause
of action was valid. The Court recorded that, ‘Applying the above principles
to the case at hand, we do not see any error in the order passed by the High
Court refusing to dismiss the petition in limine on the ground that the same
discloses no cause of action. The averments made in the election petition if
taken to be factually correct, as they ought to for purposes of determining
whether a case for exercise of powers under Order 7 Rule 11 has been made
out, do in our opinion, disclose a cause of action. The High Court did not,
therefore, commit any error much less an error resulting in miscarriage of
justice, to warrant interference by this Court in exercise of its extra-ordinary
ordinary
powers under Article 136 of the Constitution
Constitution’. In this background, it was
observed that the Courts need to be cautious in dealing with the requests for
dismissal of the petitions at the threshold, and exercise their powers of
dismissal only in cases where even on a plain reading of the petition no
cause of action is disclosed. Having said that, the Court also delved into the
requirement to file an affidavit and consequences of it being defective in the
given circumstances; the observations are as under:
31. Suffice it to say, that in the absence of any provision
making breach of the proviso to Section 83(1), a valid ground of30 of 31
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Election Petition No.3 of 2019 (O&M)dismissal of an election petition at the threshold, we see no
reason why the requirement of filing an affidavit in a given
format should be exalted by a judicial interpretation to the status
of a statutory mandate. A petition that raises triable issues need
nee
not, therefore, be dismissed simply because the affidavit filed
by the petitioner is not in a given format no matter the
deficiency in the format has not caused any prejudice to the
successful candidate and can be cured by the election petitioner
by filing a proper affidavit.
The facts of the instant case are completely different. As discussed
hereinbefore, the petition as such does not disclose any cause of action, nor
does it contain mandatory ingredients of corrupt practices/material facts
which is fatal to the case. Resultantly, the defects cannot be cured by the
supporting affidavit even if it is filed in terms of the requirement of Form 25,
and this Court need not examine the issue of validity of petitioner’s affidavit.
affidavit
12. In the light of reasons recorded, the application filed by the
respondent under Order VII Rule 11 stands allowed, and the election petition
is dismissed at the threshold.
13. Pending miscellaneous application(s), if any, stand(s) disposed
of as having been rendered infructuous.
(TRIBHUVAN DAHIYA)
JUDGE
10.12.2024
Maninder
Whether speaking/reasoned : Yes
Whether reportable : Yes
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