Rohiteswar Saikia v. Tonu Konwar and others — 1989 DIGILAW 39 (GAU)

Judgement In this petition, the petitioner has prayed for striking out pleading contained in paras 4 to 23, 29, 30, 32, 34, 42, 43, 44 and 45 of the election petition on the ground that allegations in those paras do not disclose cause of action and pleading contained in paras 39,40, 41 and 47 have not been verified. 2. It is settled that on a combined reading of Ss. 81, 83, 86 and 87 of the Representation of the People Act, 1951 (Act 43 of 1951), for short the "Act", those paragraphs of the election petition which do not disclose any cause of action are liable to be struck out under O.6, R. 15, CPC as the Court is empowered at any stage of the proceedings to strike out or delete pleading which is unnecessary, scandalous, frivolous or vexatious, or which may tend to prejudice, embarras or delay the fair trial of the petition, or which otherwise an abuse of the process of the Court. However, a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and read it out of the context, in isolation. In other word, it is not right to pick up one or two words out of the context and to draw inferences therefrom. 3. The Act is a complete and self-contained Code. Under the Act an election can be questioned only on the grounds as contained in S.100. Section 83 provides that an election petition shall contain a concise statement of material facts and shall set forth full particulars or corrupt practice. The pleadings are regulated by S.83, and it makes it obligatory on the election petitioner to give the requisite facts, details and the particulars of each corrupt practice with a full statement with exactness as possible. The provisions under Section 83 are mandatory. Therefore, if material facts constituting the cause of action, or corrupt practice, are not averred, then no ground is made out for challenging the election, and if the election petition fails to make a ground provided u/s. 100, it must fail. 4. "Particulars" are "details of the case set up by the party". The provisions under Section 83 are mandatory. Therefore, if material facts constituting the cause of action, or corrupt practice, are not averred, then no ground is made out for challenging the election, and if the election petition fails to make a ground provided u/s. 100, it must fail. 4. "Particulars" are "details of the case set up by the party". "Material particulars." within the contemplation of Cl.(b) of S.83(I) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition to make it full, more detailed and more informative. See Udhav Singh v. M.R.Scindia, AIR 1976 SC 744 . 5. Keeping the above principle in view, let me now examine the case on hand. The election petition runs into 56 paras. The averments made in paras 1 to 3A are the narration of facts regarding notification calling upon "104-Nazira Assembly Constituency" in the State of Assam to elect a member (by election), making of nomination, scrutiny and allotment of symbols. The above paras further show that the petitioner was set up by Indian National Congress (I), Respondent 1, the returned candidate, was set up by Assam Gana Parishad. 6. The allegations made in para 4 relates to the alleged illegality or irregularity committed in course of counting and alleged illegality in taking fresh poll on 10-1-88, at four (4) Polling Stations mentioned in the petition. This matter shall be discussed along with other paragraphs later in this judgment. 7. In para 5, the petitioner has stated that the returned candidate Tonu Konwar committed corrupt practice of undue influence as contemplated u/s. 123(2) of the Act. A perusal of para 5 of the petition indicates that no particulars of the corrupt practice have been set out as provided u/s. 83. Section 83 lays down a mandatory provision that the petitioner shall set forth full particulars of corrupt practice, as already stated. 8. The allegation contained in para 6 relates to a notice dt. 15-12-87 issued by the Assam State Transport Corporation to the effect that bus services to and from Nazira would be inaugurated by the Minister in charge of Transport. It has been further stated that the notice was illegal and was to induce the voters to vote in favour of the returned candidate, the candidate set up by Assam Gana Parishad. 15-12-87 issued by the Assam State Transport Corporation to the effect that bus services to and from Nazira would be inaugurated by the Minister in charge of Transport. It has been further stated that the notice was illegal and was to induce the voters to vote in favour of the returned candidate, the candidate set up by Assam Gana Parishad. There is no allegation that the returned candidate or his election agent or his workers with the consent of the returned candidate or his election agent made any promise to any elector to vote or refrain from voting at the election. If some development activity was to be carried on in the constituency just before the election, it would not amount to any promise to voters. It would be helpful at this stage to refer to a decision of the Supreme Court in Dhartipakar v. Rajiv Gandhi, AIR 1987 SC 1577 . The relevant observation is at page 1591 and it is as follows: "....... The allegations merely disclose that Amethi Railway Station was being constructed and during the election its work was speeded up which persuaded the voters to cast their vote in favour of the returned candidate. There is no allegation that Rajiv Gandhi or his workers with his consent made any gift, offer or promise to any elector to vote or refrain from voting at an election. If some developmental activity was carried on in the constituency and if it was completed during the election period it could not amount to any gift or promise to the voters." 9. The allegations contained in para 7 are in respect of a memorandum submitted to the Chief Election Officer, requesting to engage sufficient CRPF personnel on the ground of alleged demolishing of polling offices of the petitioner by the workers and supporters of the Assam Gana Parishad. These are averments of facts which have no bearing of corrupt practice or any ground for challenging the petition u/s. 100. 10. The allegations made in para 8 disclose that the returned candidate, his election agent, workers and supporters threatened the petitioner, his agents, volunteers, supporters, and the voters in general to "create a climate of terror" in the constituency. Shri B.K.Phukan, the Home Minister supervised the election campaign by staying in the Government Inspection Bungalow at Geleky for the purpose of electioneering. Shri B.K.Phukan, the Home Minister supervised the election campaign by staying in the Government Inspection Bungalow at Geleky for the purpose of electioneering. The other Ministers, namely Shri Pradip Gogi, Chandra Arandhara, Lalit Rajkhowa and B.P.Telengana, and some other MLAS were working in electioneering for the prospect of the returned candidate by using Circuit Houses, Government Premises and their Official Vehicles allotted to them by the Government. Particulars of the Government vehicles are given in the petition. A corrupt practice, as contemplated u/s. 123(7), contemplates obtaining or procuring by a candidate or his election agent, assistance from the Government servant belonging to the classes specified in S.123(7) for the furtherance of the prospect of the candidates election. In order to constitute a corrupt practice u/s. 123(7), it is essential to plead mode of assistance, measure of assistance and all facts pertaining to the assistance. The Ministers and the MLAs are not officers specified in S.123(7). Therefore, there is no requisite allegations or basic ingredients to make out a ground u/s. 123(7) for challenging the election. 11. The allegations made in para 9 relate to alleged procession led by MLA Pradip Hazarika by carrying a revolver openly on 10-12-87 at 10 a.m, from Nazira Town to Gana Parishad Office. The allegations only contained the narration of facts which have no hearing of any corrupt practice or any other ground of challenging the election. 12. In para 10 of the petition, the petitioner has stated that the Minister Pradip Gogoi went to Bihubor Tea Estate on 22-12-87 at about 10 a.m. accompanied by about 100 workers armed with lethal weapons carrying wine and intoxicants to be distributed among the voters. The Ministers Shri B.P. Talengana went to Athkhal. Tea Estate on 22-12-87 at about 10.30 p.m. along with antisocial elements. The Ministers and workers of the returned candidate entered different houses and threatened the voters with dire consequences if they do not vote for the returned candidate, the candidate set.-up by the Assam Gana Parishad. There is no allegation that it was done with the consent of the returned candidate or his election agents. In the absence of such allegations, no ground is made out for challenging the election. 13. There is no allegation that it was done with the consent of the returned candidate or his election agents. In the absence of such allegations, no ground is made out for challenging the election. 13. The allegations made in para 11 are that during the period of campaign, the returned candidate, his election agent, workers and supporters resorted to large scale violence, intimidation threat and harassment not only to the workers and the supporters of the petitioner, but also to the voters in general. Even the petitioner was not spared. The police remained as silent spectators. The allegations contained in para 12 show that Shri M. Sarma, the General Secretary APCC (1) lodged a complaint on 8-12-87 with the Returning Officer about the terror and threat made by the workers and supporters of the returned candidate. On 14-12-87 telegrams were sent to the Chief Election Commissioner New Delhi and Home Minister, Government of India, informing about the violence committed and attacks made at Sundarpukhri, Solelkalita and Abohipuri on 13-12-87. Para 13 shows that in spite of telegrams and complaints, the workers of the Assam Gana Parishad continued intimidation violence and terrorism and, therefore, further telegrams were sent to the Prime Minister and others. On 14-12-87, in view of the alleged large scale distribance and assault on the workers and ransacking of elect on officers, a complaint was made to the Chief Election Commissioner New Delhi. On 17-12-87 Tarun Gogoi, the President, APCC (1) also sent a telegram to the Governor of Assam and others. Similarly, in paras 14 to 20, the petitioner has stated about alleged large scale violence, intimidation, threat, attacks and ransacking of election offices of the petitioner committed by the workers of Assam Gana Parishad and also about the alleged injuries sustained by the workers of the petitioner. The petitioner has also stated about the complaints made and telegrams sent for ensuring fair election, to different authorities including the Prime Minister, the Home Minister, Government of India, the Chief Election Commissioner. The allegations made in these paras relate to sending of telegrams to the Prime Minister and others by the petitioner, the President APCC (1) and others for the alleged terrors, etc, A perusal of the allegations made in those paras indicate that full particulars of the corrupt practice have not been given. The allegations made in these paras relate to sending of telegrams to the Prime Minister and others by the petitioner, the President APCC (1) and others for the alleged terrors, etc, A perusal of the allegations made in those paras indicate that full particulars of the corrupt practice have not been given. The allegations made in those paras also do not constitute any ground for challenging the election, as provided under Section 100. 14. In view of the above conclusions, the allegations made in paras 5 to 20 are to be struck out. Let me now deal with paras 4, 21, 22 and 23. 15. In para 4, the petitioner has stated that counting votes was started from the morning of 24-12-87. At the time, when the counting of votes for 76 polling stations was over, the petitioner was leading by more than 1000 votes. Votes concerning 13 other polling stations were to he counted. But the workers of Assam Gana Parishad led by their leaders entered the counting hall and compelled the Returning Officer to stop the counting of votes. There were incidents of lawlessness, disturbance and ballots committed by the workers of the returned candidate with his knowledge and consent. On 26-12-87, a memorandum was submitted to the Central Observer praying for the continuance of the counting. After discussion, it was decided that the counting for the remaining polling would continue on 29-12-87 at the Election Office Sibasagar instead of HS School. On 29-12-87 from 10 a.m. to 1.30 p.m. the Returning Officer and Central Observers were discussing the procedure for counting. The Central Observers pointed out that, from the report sent by the Returning Officer, the Returning Officer opened the sealed boxes and kept the ballot papers. Thereafter the trunk was opened and ballot papers were kept ready for counting. At that time the returned candidate asked for fresh poll at those 13 polling stations. The Returning Officer refused to count the votes on the plea that there would be large scale of looting and arson in the district. The Returning Officer rang up the Chief Election Commissioner, New Delhi and obtained an order for suspension of counting. At that time the returned candidate asked for fresh poll at those 13 polling stations. The Returning Officer refused to count the votes on the plea that there would be large scale of looting and arson in the district. The Returning Officer rang up the Chief Election Commissioner, New Delhi and obtained an order for suspension of counting. The petitioner has further stated that, on 4-1-88, the Returning Officer after meeting of the political parties at Gauhati with the Chief Election Officer, Assam issued a notice for counting of votes on 6-1-88 at the Election Office Sibasagar in presence of the four observers including the Chief Election Officer, Assam. Accordingly, the counting started on 6-1-88 in presence of four observers including the Chief Election Officer, Assam. After finishing counting of votes for 9 polling stations, the Returning Officer announced that he had found some anomalies for four (4) polling stations and hence he would sent a report to the Cheif Election Commissioner, New Delhi and suspended the counting. But after a few minutes, the Returning Officer informed that Shri Rose, who was an observer, was authorised to take action in the matter, and that he had decided for fresh poll at the four polling stations, namely polling stations Nos. 73, 85, 86 and 88. The adjournment of counting again and again was illegal and without jurisdiction. Order for repoll was illegal and without jurisdiction. Report took place on 9-1-88. The petitioner and his workers were virtually debarred from taking part in the election. Counting- of the four polling stations took place on 10-1-88 and returned candidate was declared to have been elected by a margin of about 714 votes. The petitioner has furthermore stated that details of incidents on the days of counting on 24-12-88, repoll on 9-1-88 and counting on 10-1-88 are in the following paragraphs. 16. The statements made in paras 21, 22 and 23 are some of the particulars regarding the illegalities in counting of votes concerning the 13 polling stations. In paras 21, 22 and 23, the petitioner has, however, stated more than what is required. In paras 39 and 41, the petitioner has stated that in view of the illegalities the result of the returned candidate has been materially affected. In paras 21, 22 and 23, the petitioner has, however, stated more than what is required. In paras 39 and 41, the petitioner has stated that in view of the illegalities the result of the returned candidate has been materially affected. Therefore it will not be prejudicial to the returned candidate and to strike out some of the sentences out of the context may destroy the pleadings of the petitioner. For these reasons, I am not inclined to strike out the statements made in paras 4, 21, 22 and 23. 17. As regards the allegations made in paras 29, 30, 32 and 42 of the petition, the allegations are substantially repetitions of the statements made in paras 25, 26, 4 and 22 respectively. Therefore, these paragraphs are to be struck out. 18. Although the petitioner has not prayed for striking off the para 31, a reading of para 31 shows that the statements made therein is repetition of part of the statements made in para 4 of the petition. Therefore, para 31 is also liable to be struck out. 19. In sub-para (1) of para 34, the petitioner has alleged that the petitioner and his workers were virtually debarred from taking part in the election and that there was a large, scale rigging and impersonation in connivance with the active support of the Presiding Officers themselves. The first part of the allegation is repetition of part of para 4. As regards the second part of the allegation, it is reiterated in para 35 of the petition. That apart, material facts or particulars are lacking. Therefore, the sub-para (1) is to be struck out. 20. As regards sub-para (2), para 34 relates to the alleged illegalities of violation of the Rules during the course of the poll. If those allegations are read along with other paragraphs, and if the allegation is proved, it is disputable whether it may be a ground for challenging the election u/s. 100. Therefore, at this stage, I am not inclined to struck out this sub-para. As regards the remaining sub-paras of para 34, material facts or particulars are lacking. To the utmost, the allegations may amount to election offence. Therefore, those allegations would not be a ground for challenging the election. 21. Therefore, at this stage, I am not inclined to struck out this sub-para. As regards the remaining sub-paras of para 34, material facts or particulars are lacking. To the utmost, the allegations may amount to election offence. Therefore, those allegations would not be a ground for challenging the election. 21. So far as the last three (3) sentences of, para 23, which the petitioner has paryed for striking off is concerned, the statements made in the first two sentences of that paragraph are repetition of the para 35 and the remaining sentences is more or less evidence or argument. Therefore, no prejudice will be caused to the petitioner if that portion is struck out. 22. In para 44, the petitioner has stated that there was personation of voters. That paragraph cannot be read out of context in isolation. There are allegations in para 50 and other paras that the total number of votes cast in favour of respondent No. 1 would be more than 700 and the result of the election has been materially affected. Therefore, para 44 cannot be struck out. 23. In para 45 of the petition, it is alleged that one day before the poll, the house of one of the workers of the petitioner, Asob Uddin Bora, was surrounded and three gun shots were heard. However, there was no casualty. The workers of the Assam Gana Parishad and supporters set fire to the car belonging to Ranjan Kumar Gogoi, General Secretary, Sibasagar, DYC(I) party and which was parked near the house of Asob Uddin Bora. The car was completely damaged. The Assam Gana Parishad workers threatened the workers of the petitioner concerned not to attend the polling station No. 85 and therefore no agent or the workers of the petitioner was present on the date of polling. Particulars of the corrupt practice are set forth. There is also no allegations that the workers of the returned candidate committed the alleged acts with the consent of the returned candidate or his election agent. In this view of the matter, full particulars of the corrupt practice have not been given, or that the allegations made do not constitute any ground for challenging the election as provided under Section 100. 24. In this view of the matter, full particulars of the corrupt practice have not been given, or that the allegations made do not constitute any ground for challenging the election as provided under Section 100. 24. As regards the omission to verify respecting paras 39,40, 41 and 47, on perusal of the verification, the pleadings contained in paras 39, 40, 41 and 47 have not been verified. But the question which arises for consideration is whether those paras are to be struck out for the want of verification. 25. Omission to verify will not make those paragraphs annulled or defunct. In other words, omission to verify, or want of verification, are curable irregularities. Therefore, the omission to verify can be rectified by permitting the petitioner to remove the defect or omission. In Murarka Radey Shyam v. Roop Singh, AIR 1964 SC 1545 , the Supreme Court has held that a defect in verification in the matter of election petition is a matter which comes within Cl. (c) of sub-sec. (1) of S.83. The defect can be removed in accordance with the principle of the Code of Civil Procedure. Such a defect does not attract S.90. In view of the above discussion, the allegations made in paras 39, 40, 41 and 47 cannot be struck out at this stage. 26. Consequent upon the striking out of para 8, para 54 of the petition becomes redundant. That apart para 54 does not amount corrupt practice. In para 54 it is, alleged that in view of the statements made in para 8, with the knowledge of the returned candidate, his workers and supporters particularly Assam Gana Parishad Ministers„ MLAs and MPs have used Government vehicles, particulars of which are given in that paragraph, therefore, the returned candidate was guilty of corrupt practice, as defined u/s. 123(7) of the Act. A corrupt practice Ms contemplated by S.123(7) contemplates obtaining or procuring by a candidate or his election agent the assistance from the Government servant belonging to the classes specified in S.123(7) in furtherance of the prospect of the candidates election. The Ministers, Members of the Parliament and the Members the Legislature are not the officers specified in S.123(7). Therefore, there is no requisite allegations or the basic ingredients to make out the ground u/s. 123(7). The Ministers, Members of the Parliament and the Members the Legislature are not the officers specified in S.123(7). Therefore, there is no requisite allegations or the basic ingredients to make out the ground u/s. 123(7). The above discussion together with the discussion in respect of para 8 of the petition, that paragraph is liable to be struck out. 27. For the foregoing reasons, it is ordered that paras 5 to 20, 29, 30, 32, 42, 45, 54, the last three sentences of para 43, and para 34 except the sub-para (2) of 45 and the annexures referred under three paras shall be struck out as regards the paras 39,40, 41 and 47, the petitioner is directed to remove the defect or the omission in verification. The judgment could not be delivered earlier as I was out of Gauhati for holding circuit Courts at Imphal and Shillong. Order accordingly.