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TMI Blog2000 (1) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... f States (Rajya Sabha) from the Pondicherry Legislative Assembly. 2. On September 16, 1997 Election Commission issued a notification calling upon the Legislative Assembly of the Union Territory of Pondicherry to fill up the vacancy on the completion of the term of the appellant in the Rajya Sabha. The notification also stipulated the election schedule. By the same notification the Secretary, Pondicherry Legislative Assembly was appointed as Returning Officer for the election. On September 26, 1997 the Election Commission released the list of contesting candidates. These were the appellants belonging to the Indian National Congress (INC) and the respondent belonging to Dravida Munnetra Kazhagam (DMK). On October 23, 1997 election was held and results declared the same day. Out of the total electorate of 29 members of the Legislative Assembly 27 cast their votes. Respondents polled 15 votes, the appellant 12. On October 7, 1997 notification dated October 6, 1997 to this effect was published in the Government Gazette. On November 17, 1997 appellant filed the election petition in the High Court challenging the election of the respondent. He alleged that election of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed the name of the respondent, took Mr. Kandaswamy and Mr. K. Rajasekharan to Goa with a view to influence them. They were taken there in a Government vehicle bearing registration No. PY-01 -C-2345 and PY-01 -D-9289 on September 27, 1998, returning on October 1, 1997. In Goa all the three stayed in Government Guest House. Entire expenses for their travel and stay at Goa were met by the Government of Pondicherry. Both Mr. Kandaswamy and Mr. Rajasekharan were taken to Goa and entertained there as a reward for voting in favour of the respondent. They were influenced to cast their votes in favour of the respondent. This conduct of Mr. C. Jayakumar, who was agent of the respondent, amounted to corrupt practice. Both Mr. C. Jayakumar and Mr. R.V. Janakiraman, the Chief Minister, did the corrupt practice with the consent of the respondent, which materially affected the election result in so far as it concerned the respondent. 5. Mr. N. Keshavan, another agent of the respondent, also influenced Mr. R. Rajaraman, Janata Dal MLA. Mr. N, Keshavan, MLA is the Government whip belonging to DMK. Mr. R. Rajaraman was kept at Ashok Hotel at Pondicherry and then taken to Kovalam, Che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court in D. Ramachandran v. R.V. Janakiraman [1999] 1 SCR 983 holding that the Court cannot dissect the pleadings into several parts to consider whether each one of them disclosed a cause of action. Mr. Bhandare said following questions arose for consideration by this Court: (i) Whether the High Court was justified in dismissing the election petition without trial although material facts were set out in the petition and issues were framed for trial. (ii) Whether the High Court was justified in entertaining a miscellaneous application on behalf of the returned candidate for striking out paragraphs 5 to 11, 13 and 14 of the election petition after framing issues for trial on the basis of the pleadings and after hearing the parties. (iii) Whether the High Court was justified in dissecting the pleadings into several parts to consider whether each one of them discloses a cause of action. (iv) Whether the High Court was justified in rejecting the election petition without trial without appreciating the crucial distinction between material facts and material particulars. 7. We may refer to the verification to the election petition and also to the affidavit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to constitute cause of action had not been pleaded. He had also prayed for dismissal of the election petition under Order 6 Rule 16 and Order 7 Rule 11 of the Code. Appellant, it appears, filed his rejoinder denying that the material facts had not been stated or that the petition had not been verified properly or the affidavit in support of corrupt practice did not conform to the requirements of law. In the miscellaneous application (Original Application No. 298/98), the respondent had again prayed for striking out the paragraphs 5 to 11. 13 and 14 of the election petition as well as for dismissal of the election petition on the grounds that the averments pleaded in those paragraphs did not give rise to (i) any triable issue and (ii) the election petition suffered from lack of valid verification and the affidavit. Again in reply to this, the appellant denied that there were no material facts and that the verification in the petition was not proper or that the affidavit was not in accordance with the Rules. 10. The question, therefore, before us, is - what is the effect of lack of material facts, material particulars proper verification to the election petition and the defec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that the affidavit was neither in the prescribed form nor was it properly sworn as required by the Rules under the Conduct of Election Rules, 1961. Therefore, there was a failure to comply with the provisions of Section 83(1) of the Act. Further argument was that an election petition under Section 81 must comply with the provisions of Section 83 and unless it complies with those provisions, it is not an election petition under Section 81. The Court approved the view of the Election Tribunal that the affidavit was in the prescribed form but due to inexperience the Oath Commissioner had made a mistake in the verification portion of the affidavit. This Court did not think that the defect in the verification due to the inexperience of the Oath Commissioner was such a fatal defect as to require the dismissal of the election petition. 14. In Daulat Ram Chauhan v. Anand Sharma [1984] 2 SCR 419 , this Court laid two propositions: 1. A person may, due to sympathy or on his own, support the candidature of a particular candidate but unless a close and direct nexus is proved between the act of the person and the consent given to him by the candidate or his election agent the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would visit the returned candidate with certain serious consequences and must, therefore, be viewed seriously. It was further held by this Court that inquiry being quasi-criminal in nature, the Court must always insist on strict compliance with the provisions of law in that behalf and failure to do so must prove fatal. This Court said (Para 14 of AIR SCW AIR): It is fairly well settled that our election law being statutory in character must be strictly complied with since an election petition is not guided by ever changing common law principles of justice and notions of equity. Being statutory in character it is essential that it must conform to the requirements of our election law. But at the same time the purity of election process must be maintained at all costs and those who violate the statutory norms must suffer for such violation. If the returned candidate is shown to have secured his success at the election by corrupt means he must suffer for his misdeeds. This Court observed that where the petitioner has alleged corrupt practice that is not enough, proviso to Section 83 demands that the petition shall be accompanied by an affidavit in the prescribed form suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;particulars' of any corrupt practice alleged against a returned candidate. These 'particulars' are obviously different from the 'material facts' on which the petition is founded and are intended to afford to the returned candidate an adequate opportunity to effectively meet with such an allegation. The underlying idea in requiring the election petitioner to set out in a concise manner all the 'material facts' as well as the 'full particulars' where commission of corrupt practice is complained of, is to delineate the scope, ambit and limits of the inquiry at the trial of the election petition. Then the Court held as under Para 27 of AIR SCW and AIR: From the text of the relevant provisions of the R. P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges (i) a defect in the verification, if any, can be cured (ii) it is not essential .that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of Information in regard to the averments or allegations which are based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 86(1) of the Act. Then considering the provisions of Sections 81, 82, 83, 86(1) and 86(5) of the Act the Court said Para 43 of 1999 AIR SCW and AIR: (That apart), to our mind, the legislative intent appears to be quite clear, since it divides violations into two classes - Those violations which would entail dismissal of the election petition under Section 86(1) of the Act like non-compliance with Section 81(3) and those violations which attract Section 83(1) of the Act, i.e., non-compliance with the provisions of Section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial compliance as expounded in Murarka Radhey Shyam Ram Kmar v. Roop Singh Rathore [1964] 3 SCR 573 and Ch. Subbaraov. Member. Election Tribunal, Hyderabad [1964] 6 SCR 213 cases. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the CPC. 18. In D. Ramachandran v. R.V. Jankiraman [1999] 1 SCR 983 a three Judge Bench of this Court observed Para 8 of AIR SCW and AIR: It is well settled that in all cases of preliminary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Section 83(l)(c) of the Act. The objection was upheld by the High Court and appeal against that was dismissed by this Court. The question thus raised before this Court for its consideration was whether the copy of the election petition accompanied by supporting affidavit served on the respondent along with Form 25 prescribed under Rule 94-A of the Conduct of Elections Rules, 1961 without attestation part duly verified by the District Magistrate/Notary/Oath Commissioner could be said to be true and correct copy of the election petition as envisaged in Section 81(3) of the Act. Explaining the judgment in Dr. Shipra's case the Constitution Bench in T. M. Jacob's case [1999] 2 SCR 659 observed: The defect found in the 'true copy' of the affidavit in Dr. Shipra case was not merely the absence of the name of the Notary or his seal and stamp but a complete absence of Notary endorsement of the verification as well as absence of an affirmation or oath by the election petitioner. It was in that context that the Bench had found in Dr. Shipra's case that the returned candidate would have got the impression on a perusal of the true copy of the affidavit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition as well as to the affidavit required to be filled in Form No. 25 appended to the Rules. The verification was as under at page 4539 of AIR SCW: 1. R. P. Moidutty, S/o. Abubakker Haji, aged 54, petitioner in the above election petition do hereby declare that the averments in paras 1 to 17 are true and made from personal knowledge and on the basis of personal enquiry I believe that all the averments made in paras 1 to 17 is true. Signed and verified in this the 21st day of June, 1996. PETITIONER This Court then said at pages 4534, 4538 and 4539 of AIR SCW: Application of the above noted well settled principles to the case at hand raises a gloomy picture indeed. The petition is bereft of some material facts and particulars. It does not set out names of even a few persons who viewed the film and/or in whose presence it was exhibited though it was not necessary for the petitioner to have alleged the names of each and every person who had viewed the video film. However, the names of a few persons who had viewed the film and in whose presence it was exhibited were expected to have been alleged in the election petition so as to put respondent No. 1 on notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in verification was rectified, the petition could not have been tried. For want of affidavit in required form and also for lack of particulars, the allegations of corrupt practice could not have been enquired into and tried at all. In fact, the present one is a fit case where the petition should have been rejected at the threshold for non-compliance with the mandatory provisions of law as to pleadings. 22. In L.R. Shivaramagowda v. T.M. Chandrashekar (dead) by L.Rs. AIR 1999 SC 252 this Court again considered the importance of pleadings establishing in an election petition alleging corrupt practice falling within the scope of Section 123 of the Act and said: This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between material facts and material particulars . While the failure to plead material facts is fatal to the election petition and no amendment of the pleading could be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. In Balwan Singh v. Lakshmi Narai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that it is a very serious defect. 23. In H. D. Revanna v. G. Puttaswamy Gowda [1999] 1 SCR 198 appeal was filed by the candidate who had succeeded in the election and whose application for dismissal of the election petition in limine was rejected by the High Court. This Court noticed that it has been laid down by this Court that non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6, Rule 16 and Order 7, Rule 11 of the CPC. Two of the grounds on which dismissal of the election was sought were that (1) allegations of corrupt practice were vague and did not contain material facts or particulars and (2) affidavit in support of the allegations of corrupt practice was not in conformity with Rule 94A or Form 25 as prescribed. On facts, this Court held that contents were not vague and that there had been substantial compliance with the provisions of law. The Court noticed that the body of the petition itself mentioned the matters which were within the knowledge of the petitioner himself and the matters of which he got information from others and believed them. The Court distinguished the judgments of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remain uniformed under the verification clause as well as the affidavit, the unsworn allegations could have no legal existence and the Court could not take cognizance thereof. Charge of corrupt practice being quasi-criminal in nature the Court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand, can be dealt with under the doctrine of curability, on the principles contained in the CPC. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of the Order 6, Rule 16 and Order 7, Rule 11 of the CPC. Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial facts and material particulars certainly connote two different things. Material facts are those facts which constitute the cause of action. In a petition on the allegation of corrupt practices cause of action cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based on the allegations of corrupt practices. An election petition seeking a challenge to the election of a candidate on the allegation of corrupt practices is a serious matter, if proved not only that the candidate suffers ignominy, he also suffers disqualification from standing for election for a period that may extend to six years. Reference in this connection may be made to Section 8A of the Act. It was for this purpose that proviso to Sub-section (1) of Section 83 was inserted by Act 40 of 1961 (w.e.f. September 20, 1961) requiring filing of the affidavit in the prescribed form where there are allegations of corrupt practice in the election petition. Filing of the affidavit as required is not a mere formality. By naming a document as an affidavit it does not become an affidavit. To be an affidavit it has to conform not only to the form prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shing of better particulars and requiring amendment of petition for the purpose of verification and filing of proper affidavit. In a matter of this kind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with the provisions of law is on the petitioner. (See in this connection Constitution Bench decision in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani [1955] 2 SCR 428. 29. Grievance of the appellant is that he wanted to meet the MLAs other than MLAs of the Congress party to which he belonged but those MLAs were kept first in Hotel Ashoka at Pondicherry and then taken to five star hotels at Mahabalipuram. Appellant alleged that MLAs were kept in Hotel Ashoka but he has not given particulars as to what he meant by the word kept . Kept is certainly not confined . What entertainment was provided to those MLAs In Hotel Ashoka, Pondicherry or in five star hotels in Mahabalipuram has also not been specified. It is not his case that he was prevented in any way from meeting any of these MLAs. It was a material fact to allege which he failed to do so. This is apart from the fact that the material pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Chairman to various committees came out much later after the results were declared. It is correct that none of the nominees belonged to the Congress party. 31. It will be thus seen that election petition not only lacked the material facts, it lacked material particulars, defective verification and the affidavit filed was not in the form prescribed. Moreover, ingredients of corrupt practices, as defined in Sections 123(1)(B) and 123(2) of the Act are also lacking. It is also not the case of the appellant that any MLA whom the appellant could not meet, received any gratification, as defined, whether as a motive or a reward for voting or refraining from voting, or there was any inducement or attempt to induce any such MLA to vote or refrain from voting. Also it is not the case of the appellant that any undue influence was exercised with the free exercise of any electoral right of any MLA which right, as noted above, has been defined in Clause (d) of Section 79 of the Act. There is no allegation if any particular MLA was induced to vote or not to vote in a particular way because he was entertained or otherwise. The allegation is that appellant himself could not meet the MLAs and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. 123. Corrupt practices.-The following shall be deemed to be corrupt practices for the purposes of this Act;- (1) Bribery , that is to say.- (A) .... (B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward- (a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or (c) 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, of 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 entertainment and all forms of employment for reward but it does not include the payment of any expenses bonafide incurred at, or for the purpose of, any election and duty entered in the account of election expenses referred to in Section 78. (2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not. (2)...(omitted by Act 47 of 1966, Section 39 (w.e.f. 14-12-1966)) (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. 6. 83, Contents of petition.- (1) An election petition - (a) shall contain a concise statement of the material facts on which the petitioner relies; (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 CPC, 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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