KUNHIMOHAMMED v. T. M. JACOB — 1987 DIGILAW 533 (KER)

Judgment :- 1. Respondent and 17 other candidates contested for the Assembly seat from (No. 81) Kothamangalam Assembly Constituency in the general election held in March 1987. The nearest rival Prof. T. M. Parly was defeated by the respondent by a margin of 2132 votes. Positioner, an elector, seeks to declare the election void on several grounds coming under S.123(2) and one ground coming under S.123(7) of the Representation of the People Act. 2. Respondent filed written statement denying the allegations and issues were settled. Petitioner was examined as Pw.1. At that time it was felt in the interest of justice that it is better to have a preliminary bearing on the disclosure of cause of action before the trial of the petition being allowed to engage the precious time of the court further. Both sides agreed to such a course and the matter was heard. 3. There was some doubt regarding the feasibility and legality of such a course especially in view of the pronouncement of a Constitution Bench of the Supreme Court in Balwan Singh v. Lakshmi Narain (AIR 1960 SC. 770). But on ultimate analysis it was found that the said decision is not having the effect of invalidating a preliminary hearing or rejection of the petition at the threshold for want of cause of action even in a case in which issues were settled and trial started by examination of parties and witnesses. That decision dealt with a corrupt charge under S.123(5) as it stood before the amendment which contained concise statement of all material facts, but full particulars were insufficient. The court said that in such a case even though insistence upon full particulars of corrupt practices is of paramount importance to constitute the cause of action, the dismissal of a petition in limine for that reason after the parties went for trial with the insufficient materials and let in evidence may not be proper without affording an opportunity to amend the pleadings by supplying the deficit particulars. The reason alleged is that when all the material facts are supplied there is no question of want of jurisdiction to entertain the petition and want of particulars is only a defect in procedure which could be supplied by amendment. The reason alleged is that when all the material facts are supplied there is no question of want of jurisdiction to entertain the petition and want of particulars is only a defect in procedure which could be supplied by amendment. Expression of that view is in consonance with S.86 (5) which permits the court in appropriate cases, for ensuring a fair and effective trial, to allow amendment or amplification of the particulars of the corrupt practices, the material facts of which are already allaged. But there is a total prohibition in allowing any amendment which will have the effect of bringing in new corrupt practices by supplying the particulars. Now it is well established by a series of decisions of the Supreme Court itself that omission of even a single material fact, as distinguished from particulars of the corrupt practice, is a fatal defect which will render the cause of action in respect of that charge incomplete, entailing the pleading in respect of that cause of action liable to be struck out under 0.6 R.16 CPC., the provisions of which are made applicable under S.87. So also, it is now an accepted position of law that when a cause of action is defective or incomplete by omission of material factor incomplete statement of material facts, that defect cannot be cured by amendment by supplying the material facts because it is a defect in the filing of the petition affecting the jurisdiction of the court to entertain and proceed with the petition. 4. Balwan Singh v. Lakshmi Narain (AIR 1960 SC 770) was considered by the Supreme Court in many later decisions including Rasik Ram v. J.S. Chauhan (AIR 1975 SC 667), Balwan Singh v. Prakash Chand (AIR 1976 SC 1187) and Jhartipakar v. Rajiv Gandhi (AIR 1987 SC 1577). That decision was understood and interpreted by the Supreme Court as laying down that in a charge of corrupt practice full statement of the particulars is necessary to complete the cause of action. So far as the case in hand is concerned, except the bald allegations of the corrupt practices there is no concise statement of any material facts as required under S.83(1)(a). When S.83(1)(b) requires the fullest particulars to be pleaded, the petition does not contain any particulars at all. So far as the case in hand is concerned, except the bald allegations of the corrupt practices there is no concise statement of any material facts as required under S.83(1)(a). When S.83(1)(b) requires the fullest particulars to be pleaded, the petition does not contain any particulars at all. The right to set aside an election is only a statutory right as distinguished from common law rights, fundamental rights or rights in enquiry. Due to the peculiar circumstances and reasons enforcement of that right could only be by strict compliance of the provisions observing the strict letter of the law. Any defective or abortive pleading cannot be allowed to waste the time of the court or the elected candidate. Pleadings coming within the ambit of 0.6 R.16 could and must be struck out by the court. That provision itself says that the striking out could be at any stage of the proceeding. Rejection of the pleading under 0.7 R.11 CPC. for not disclosing cause of action or for other reasons enumerated therein also could be bad at any stage because that rule also done not place any fetter in that respect. When the statutory provisions do not place any restrictions as to the point of time at which the power could be exercised and further says that it could be exercised at any stage, why should there be a self imposed restriction which will stand in the way of doing justice between the parties. Avoidance of the embarassment of the ordeal of an unnecessary trial which is likely to prove abortive is necessary in the ends of justice. If the pleadings could be struck out at any stage bow could there be a restriction in the rejection of the balance pleadings which do not disclose any cause of action at all. The question whether a chance for amendment itself should be given to amend or amplify the particulars before striking out pleadings or rejecting the same is a matter within the discretion of the court to be exercised judicially in view of the requirements under S.86(5). Balwan Singh v. Lakshmi Narain (AIR. 1960 SC. 770) has hot in any way fettered the discretion in individual cases. This aspect has been considered and eloquently established by the decision of the Supreme Court in Samar Singh v. Kedal Nath (AIR 1987 SC 1926). Balwan Singh v. Lakshmi Narain (AIR. 1960 SC. 770) has hot in any way fettered the discretion in individual cases. This aspect has been considered and eloquently established by the decision of the Supreme Court in Samar Singh v. Kedal Nath (AIR 1987 SC 1926). Further when there is a defect affecting jurisdiction which cannot be rectified by amendment there is no point in thinking that simply because trial started, the court has to wait till the end of the trial and compel the parties to undergo the ordeal of the full trial. Therefore I am of opinion that in a case like this when no cause of action is established and the defect cannot be supplied, the application of 0.6 R.16 and 0.7 R.11 could be bad inspite of the fact that issues were settled and trial started. 5. In this case toe corrupt practices alleged are the following (I) With the intention of influencing the voters who are Catholic nuns the respondent who was then a Minister gave undue preference to a lady in the matter of appointment. (2) After declaration of election with the positive purpose of influencing the electors he sanctioned or caused to be sanctioned six pre-primary schools in his Constituency. (3) In order to influence the voters he sanctioned Rs.1 lakh each for the development of certain schools in the Constituency. (4) With the same object he distributed uniforms to students out of turn with a request to the teachers to tell the parents that victory of the respondent is essential for the good of the locality (5) After nomination he influenced the officers of the K.S.E.B. to supply electric posts to create an impression that a number of new electric connections are going to be given. (6) Pots and implements were supplied to Harijan families with information that they are supplied by the respondent and with request that they should vote for him (7) Loans were distributed with the object of influencing electors (8) In order to influence the electors the construction of a road was started (9) Water connections were given on the eve of the election to influence the voters (10) Workers of the respondent gave one saree and Rs. 100 each to poor Harijan families (11) One Kuriakose was appointed on the eve of election to a particular post (12) For influencing the electors a bus route was started and (13) Respondent distributed a false appeal from Mr. P.J.Joseph to vote for him. These are the corrupt practices alleged under S.123(2). One allegation coming under S.123(7) is that certain Government officers worked for the respondent. The only other allegation is under S.123(6) that in violation of S.77 respondent incurred election expenditure of Rs. 75 lakhs. 6. In a democratic set up when people elect the persons to govern them every individual is entitled to have his own choice to select bis candidate and canvass for him. That right is as important as the right to vote. It becomes a violation only when it transgresses certain limits provided by law. So far as the right to canvass is concerned there may be some restrictions imposed on Government officers by the conduct rules or otherwise. If they are guilty of any violation they may be liable for action. But that cannot become a corrupt practice coming under S.123(7) unless it is established by proper allegations of material facts and full particulars that their assistance was procured or obtained by the candidate or bis election agent or any other person with the consent of the candidate or the election agent and that too for the furtherance of the election prospects. The only allegation in Ground (I) is that certain Government officers worked for the respondent. The nature of the assistance is not stated. Apart from the question of material facts or full particulars there is not even an allegation that their assistance was procured or obtained by anybody, much less the respondent or his election agent. The petitioner does not seem to be aware of the requirements of S.123(7) and it appears that he is under the impression that even any voluntary assistance by a Government Officer to a candidate in election without bis knowledge or consent will form a corrupt practice vitiating the election. The allegation in this respect is without any requisite material facts or particulars and hence lacking in cause of action. The allegations regarding the charge under S.123 (b) is also without any material facts or particulars. 7. Then what remains are only the charges under S.123 (2). The allegation in this respect is without any requisite material facts or particulars and hence lacking in cause of action. The allegations regarding the charge under S.123 (b) is also without any material facts or particulars. 7. Then what remains are only the charges under S.123 (2). If at all anything is disclosed by these allegations it is only something done by the respondent or on his behalf by somebody else at his request with the unilateral intention of getting some advantage in election using his official position as a Minister. It is true that purity of election is important and on the eve of election public money should not be spent even for developmental activities with the object of influencing the voters. But such practices are only evil practices and not corrupt practices. They will become grounds for challenging an election only when it becomes undue influence. Doing something even by a Minister in his Constituency with the object of enhancing bis election prospects by itself will not become a corrupt practice. Simply because election is going to come Governmental activities or programmes or developmental activities need not be placed at a standstill. 8. Election process involves canvassing which is the right of every candidate or bis supporters. Canvassing will involve influencing the minds of electors also. That is an essential feature allowed by law. Only thing is that it should not transgress the limits and reach the stage of tyranny over the mind interfering with the free exercise of his electoral right and leaving him no choice in the matter. Something more than influencing is required. It is the essence of the ingredient of S.123(2) that a unilateral intention or act on the part of the candidate or bis election agent or any other with their consent is not sufficient to constitute the charge. Undue influence requires consensus of mind. (Ghasi Ram v. Dal Singh reported in AIR 1968 SC 1191 and Om Prabha v. Abnash Chand reported in AIR 1968 SC 1083). A promise of a gift or an offer is equally a corrupt practice. But the gift or offer or promise must be made to an elector to vote or refrain from voting and it must act as an interference with the free exercise of the electoral right. A promise of a gift or an offer is equally a corrupt practice. But the gift or offer or promise must be made to an elector to vote or refrain from voting and it must act as an interference with the free exercise of the electoral right. A unilateral act of saying something, doing something or promising something, whatever may be the intention or object can have the maximum only a persuasive and not compelling effect leaving no choice. It cannot be undue influence. Offer, acceptance, influencing and submitting are necessary. The material facts in these respects and the full particulars are to be alleged and the court must be satisfied that if these ingredients are proved the corrupt practice will be established showing that the elector or electors were left without any choice but to vote for the respondent. If it is by any another person the consent of the candidate or his election agent and their details are also factors to be alleged. 9. The allegations in the petition do not disclose any of these ingredients regarding material facts or particulars. An element of bargaining is the essential feature. Something must be done or promised after obtaining a promise or assurance. What is evident even from the vague and insufficient allegation is only that something was done by the respondent or on his behalf which may have the effect of furthering his election prospects. That is not sufficient and a trial on the basis of such allegations is not possible. Trial on such pleadings will amount to an abuse of the process of court. Distribution of an alleged false appeal also will not come under any corrupt practices. The pleadings in the petition coming under clauses (a) to (o) are therefore struck out under 0.6 R.16 CPC. and the petition itself is rejected under 0.7 R.11(a) as disclosing no cause of action. Petitioner will pay Rs. 1000/- as costs to the respondent. Dismissed.