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TMI Blog1986 (4) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... n the appellant (who claims to be a worker of the Rashtriya Sanjay Manch), an elector from the Amethi constituency, filed the election petition giving rise to the present appeal. 3. The election of the returned candidate, respondent herein, was challenged on the ground of alleged corrupt practices as defined by the Act. Seventeen grounds set out in para 4(I to XVII) of the election petition were called into aid in support of the challenge. The respondent upon being served, instead of filing a written statement, raised preliminary objections to the maintainability of the petition on a number of grounds inter alia contending that the petition was lacking in material facts and particulars and was defective on that account, and that since it did not disclose any cause of action it deserved to be dismissed. The appellant on his part filed two applications for amendment of the election petition. (None of which was for supplying the material facts and particulars which were missing). All these applications were heard together and were disposed of by the Judgment under appeal upholding the preliminary objection raised on behalf of the Respondent and dismissing the election petition. Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt of the election does not echo the true voice of the people. The Courts would not then be deterred by the aforesaid considerations which in the corruption-scenario lose relevance. Such would be the approach of the Court in an election matter where corrupt practice is established. But what should happen when the material facts and particulars of the alleged corrupt practices are not furnished and the petition does not disclose a cause of action which the returned candidate can under law be called upon to answer? The High Court has given the answer that it must be summarily dismissed. The appellant has challenged the validity of the view taken by the High Court. 5. Learned Counsel for the appellant has urged four submissions in support of this appeal viz: A - Since the Act does not provide for dismissal of an election petition on the ground that material particulars necessary to be supplied in the election petition as enjoined by Section 83 of the Act are not incorporated in the election petition inasmuch as Section 86 of the Act which provides for summary dismissal of the petition does not advert to Section of the Act there is no power in the Court trying election petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. 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 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 an 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. Parties of the petition - A petitioner shall join as respondents to his petition - (a) where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidate is void, claims a further declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) which may be unnecessary, scandalous, frivolous or vexatious, or b) which may tend to prejudice, embarrass or delay the fair trial of the suit; or c) which is otherwise an abuse of the process of the Court. Order 7, Rule 11 : Rejection of Plaint - The plaint shall be rejected in the following cases : a) where it does not disclose a cause of action ; x x x 8. The fact that Section 82 does not find a place in Section 86 of the Act does not mean that powers under the CPC cannot be exercised. 9. There is thus no substance in this point which is already concluded against the appellant in Hardwari Lal v. Kanwal Singh: [1972]2SCR742 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 from the following passage extracted from the judgment of A.N. Ray, J. who spoke for the three-judge Bench : The allegations in paragraph 16 of the election petition do not amount to any statement or material fact of corrupt practice. It is not stated as to which kind or form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge 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. GROUND B : 11. Learned Counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the CPC should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the CPC for dealing appropriately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking the same view in regard to matters pertaining to elections. So long as the sword of Damocles of the election petition remains hanging an elected member of the Legislature would not feel sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in a campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people, he will be engaged in a struggle to establish that he is indeed such a representative, notwithstanding the fact that he has in fact won the verdict and the confidence of the electorate at the polls. He will have not only to wind the vote of the people but also to win the vote of the Court in a lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her than the seven grounds which have been urged in support of this petition. We will accordingly proceed to consider the plea urged to the effect that in regard to the aforesaid alleged corrupt practices, the High Court was not justified in dismissing the election petition. 13. Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as It emerges from the numerous decisions of this Court which have been cited before us in regard to the question as to what exactly is the content of the expression 'material facts and particulars', which the election petitioner shall incorporate in his petition by virtue of Section 83(1) of the Act. (1) What are material facts and particulars ? Material facts are facts which if established would give the petitioner the relief asked for. The test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition. Manubhai Nandlal Amarsey v. Popatlal Manilal Joshi and Ors. [1969]3SCR217 . (2) In reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d candidate and of other workers of his with his consent. In any event, it was committed by the respondent's agents in the interests of the returned candidate and the said corrupt practice has materially affected the result of the election in so far as it concerns the returned candidate. One M.H. Beg who at one time was the Chief Justice of the Supreme Court of India and is a close friend of the Nehru family and is personally known to and friendly with the respondent, appeared on the government controlled news media and made a speech praising the respondent and comparing his entry into politics as the birth of new Arjuna, the insinuation being that the opposition were the kauravas. His appearance on the television was relayed day after day on the government controlled media. Television sets had been installed in practically every election office of the respondent in Amethi constituency and throughout the election campaign thousands and thousands of voters were exposed to the television appearance and speech of the said Mr. Beg. Mr. Beg is a gazetted officer, being the Chairman of the Minorities Commission. His services were procured and obtained by the respondent, his agents an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... politics as the birth of new Arjuna is not what Mr. Beg might have said. In the case of K.M. Mani v. P.J. Antony [1979]1SCR701 , the speech made by a Police Officer exhorting the electors in an election meeting to support a candidate was questioned. It was held that a mere statement of the making of the speech or exhortation was not enough, and that transcript of the alleged speech or contemporaneous record of the points or atleast substance of the speech should have been made available. In these circumstances the proposed pleading in this paragraph does not set out the material facts and, therefore, constitutes an incomplete cause of action under Section 123(7) of the Act. Whether the High Court was right in taking the aforesaid view: 16. The averments contained In paragraph 4 pertaining to Ground No. l do not satisfy the test prescribed in Manubhai Amarsey v. Popatlal Manilal Joshi and Ors., (supra) and Hardwari Lal v. Kanwal Singh, (supra). The most important test which remained unsatisfied is as regards the omission to satisfy in what manner the assistance was obtained and procured by the election-candidate for promoting the prospects of his election. All that has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cured by someone with the consent of the respondent or his election agent are not there, the averments pertaining to the charge do not disclose a cause of action. Unless the nexus between the appearance of Shri Beg on the media and the prior consent of the respondent or his election agent in regard to what he was going to say and the purposes for which he was going to say is set out in the material particulars it cannot be said that it disclosed a cause of action and the test laid down in Manubhai Nandlal's case, as also Hardwari Lal's case is satisfied. The High Court was therefore justified in taking the view that it has taken. We may, in passing, mention a point made by learned Counsel for the respondent. It was submitted that the averment must also mention whether the interview was a live one telecast after the date of filing of the nomination. If it was one recorded prior to the said date it may not be of any consequence. This argument also requires consideration but we do not propose to rest our conclusion on this aspect as it is not necessary to do so. GROUND II(i) : 17. It has been set out in para 4 of the petition in the following terms : Throughout the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is contrary to the concept of material facts. In the case of Nihal Singh v. Rao Birendra Singh and Anr. : (1970)3SCC239 it was held that the allegation that at meetings in different villages, speeches were given on 5th and 12th May 1968 was vague in the absence of a specification of date and place of each meeting and evidence could not be permitted to be led in the matter. The allegation of consent of the respondent to the paintings of the slogans or to their utterances in the speeches of his workers is only inferential. There is a distinction between consent and connivance. The pleading is in the nature of a pleading of connivance and not of consent which is not enough, vide the case of Charan Lal Sahu v. Giani Zail Singh [1984]2SCR6 . In the case of Surendra Singh v. Hardial Singh [1985]1SCR1059 , it has been indicated in para 37 that consent is the life-line to link up the candidate with the action of the other person which may amount to corrupt practice unless it is specifically pleaded and clearly proved and proved beyond reasonable doubt, the candidate cannot be charged for the action of others. Whether the High Court was right in taking the aforesaid view: 18. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... una Kashah. The walls there bore these slogans. The petitioner alongwith other workers stopped the respondent's vehicle and drew his attention to the so vulgar slogans. The respondent saw nothing objectionable in these slogans. He was requested to give instructions to the authorities that these should be removed and he contemptuously had the workers dismissed and dispersed. He declared that their leader (referring to Mrs. Maneka Gandhi) deserves nothing better. The respondent delivered several speeches during the course of his visit. In none of these speeches did he repudiate these slogans. He repeatedly referred to the assassination of his mother and to the Anandpur Resolution saying that the opposition had encouraged secessionist and violent elements and that the opposition conclaves in the past had given rise to the emotion that had eventually taken the prime minister, his mother's life. He insinuated that the assassins were sikhs and then asked the audience to make up their minds whether they still wanted somebody from the same community to succeed in the election. Why the High Court held that material facts and particulars are absent and did not disclose a cause of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of a letter dated the 10th September, 1983, purporting to be addressed by Shri Kalpnath Sonkar, a member of the Rashtriya Sanjay Manch, to Shri Bhindaranwale. The letter is a forgery and that it was forged was publicly stated by alleged author of the alleged letter and a criminal case is pending in the matter thereof. The letter was fabricated expressly for the express purpose of showing : (a) that Mrs. Maneka Gandhi was in secret conspiracy with Bhindaranwale. (b) that Mrs. Maneka Gandhi illegally supplied arms to Bhindaranwale and other secessionists and terrorists. (c) that Maneka Gandhi was in sympathy with the creation of Khalistan and the division of the country and the use of violence to achieve that end. The said allegations are totally false and fabrication. The respondent knew them to be false. He did not and could not believe them to be true. That complaints were made to the District authorities about the obnoxious wall paintings and posters to which the attention of the respondent had been drawn. The said authorities while clearly admitting the R.S.M. election agents and worker as well as to the press correspondents that they were objectionable took n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court has taken the view that the poster was claimed to be an integral part of the election petition and since it was not filed (much less its copy furnished to the respondent) the pleading suffered from infirmity and non-compliance with Section 83(1) read with Section 86(1) of the Act. Non-filing of the poster is fatal to the election petition as in the absence thereof the petition suffers from lack of material facts and therefore the statement of cause of action would be incomplete. Nothing turns on the facts whether or not the words a copy of the said poster would be filed as Exhibit B are allowed to be retained in the election petition or are deleted as prayed for by the appellant. The fact remains that no copy of the poster was produced. It must also be realized that the election petitioner did not seek to produce the copy of the poster, but only wanted a reference to it deleted so that it cannot be said that the accompaniments were not produced along with the election petition. The fact remains that without the production of the poster, the cause of action would not be complete and it would be fatal to the election petition inasmuch as the material facts and particulars ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd constitute a gross,, corrupt practice within the meaning of Section 123(4) of the Representation of the People Act, 1951. The said corrupt practice has been committed by the respondent, the returned candidate. It has also been committed by his election agents and by other persons with the consent of the respondent and/or his election agents. A copy of the booklet entitled Son of India will be filed as Exhibit 'P'. It has also been committed in the interest of the respondent returned candidate and by his agents. The said corrupt practice renders the election of the respondent liable to be set aside and declared void, as a result of Section 100(1)(b) of the said Act. Reproduced here below are some of the false statements contained in the said book Son of India relating to the personal character and conduct of Mrs. Maneka Gandhi one of the candidates in the said election. (a) That Mrs. Maneka Gandhi utilised her marriage to the late Sanjay Gandhi as a means of enriching herself. (b) She is spending so much money on herself and her various activities. Where does all this money come from? The insinuation is that the petitioner is possessed of wealth corruptly made w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely a clerical mistake. It is an indication of the fact that the pleading has been made without an application of mind and it seems to me that it is hit by one of the principles set forth in Section 86(5) of the Act for which an amendment must not be allowed. I am not satisfied that the proposed amendment could justly be allowed and therefore, must fail. On a consideration of all the matters, I would hold that the pleading in this paragraph is not sustainable, suffers from lack of material facts as a result of non-application of mind of the petitioner himself and is irrelevant. Whether the High Court was right in taking the aforesaid view : 23. There is no averment to show that the publication was made with the knowledge or consent of the returned candidate when the book was published in June, 1983. In fact, in 1983 there was no question of having acted in anticipation of the future elections of 1985 and in anticipation of the respondent contesting the same. In the election petition even the offending paragraphs have not been quoted. The petitioner has set out in paragraphs (a) to (h) the inferences drawn by him or the purport according to him. This apart, the main deficienc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng with the progress of Amethi and cannot permit the widow of Sanjay Gandhi to be in the company of the country's loafers, because no family of India can permit its daughters or daughters-in-law and the widow of its loved one to go about behaving like a vagabond. She is in acute distress about her late husband's property. She is conducting her politics in his name. She is abusing her mother-in-law and her brother-in-law. Having kicked her family, she is now doing her dirty deeds (Gulchhade Uda Rahai Hai) in a house which costs ₹ 80,000 annual rent….Social reformers had not advocated the pursuit of ambitions by widows and in the same vein, the pamphlet proceeds to state in other context thereafter that the petitioner moved about in the company of traitors. She has exploited the person of her innocent child for political purpose. For power and pleasure, Maneka can do anything. The petitioner says that the entire trend of this pamphlet and the propaganda conducted on the basis thereof casts serious aspersions on the personal character of the candidate of his party. It accuses her of being possessed of corrupt wealth, disregard of her husband's wishes, breaking o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vague statement that was done by the respondent, his election agent, a large number of other persons with his consent and/or with the consent of his election agent. The date, time and place of distribution, the names of the agents or persons who distributed it have not been indicated and, therefore, the pleading is vague and cannot be sustained. Whether the High Court was right in taking the aforesaid view: 25. On a scrutiny of the averments made in the election petition it is evident that it is not pleaded as to who has distributed the pamphlets, when they were distributed, where they were distributed and to whom they were distributed, in whose presence they were distributed etc. etc. pleading is ominously silent on these aspects. It has not even been pleaded that any particular person with the consent of the respondent or his election agent distributed the said pamphlets. (in fact it has been stated by the learned Counsel for the respondent that no election agent has been appointed by the respondent during the entire elections). The pleading therefore does not spell out the cause of action. So also on account of the failure to mention the material facts, the Courts coul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent is thus liable to be declared void under Section 100(1)(b). This was also liable to be set aside under Section 100(1)(d)(ii), inasmuch as the result, of the election in so far as it concerned the returned candidate, has been materially affected by this gross corrupt practice. In this pamphlet, the same Jagdish Piyush who is referred to in the pamphlet in the preceding paragraphs, is one of the contributors and in that contribution, he has referred to his publication mentioned in the previous paragraphs. Why the High Court held that material facts and particulars are absent and did not disclose a cause of action? The High Court observed : The petitioner has set out specific statements from this pamphlet commenting adversely on the character and conduct of Smt. Maneka Gandhi where, inter alia, her association with terrorists and other persons of questionable antecedents was set out. It has been stated that these statements are false to the knowledge of the respondent and others and the pamphlet was distributed by the agents of the respondent in the interest of the election of the respondent and that the result, so far as the respondent is concerned, has been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case the election petition was filed on the last day on which the election petition could have been presented having regard to the rigid period of limitation prescribed by Section 81 of the Act. It could not have been presented even on the next day. Such being the admitted position, it would make little difference whether the High Court used the expression 'rejected' or 'dismissed'. It would have had some significance if the petition was 'rejected' instead of being 'dismissed' before the expiry of the limitation inasmuch as a fresh petition which contained material facts and was in conformity with the requirements of law and which disclosed a cause of action could have been presented 'within' the period of limitation. In this backdrop the High Court was perfectly justified in dismissing the petition. And it makes no difference whether the expression employed is 'dismissed' or 'rejected' for nothing turns on whether the former expression is employed or the latter. There is thus no valid ground to interfere with the order passed by the High Court, and the appeal must accordingly fail. 29. But before the last word is s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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