I. Rama Rai v. M. Ramanna Rai — 1990 DIGILAW 212 (KER)

JUDGMENT K.G. Balakrishnan, J. 1. The petitioner contested the general election to the House of the People (Lok Sabha) held on 22-11-1989 from No. 1 Kasaragod Parliamentary Constituency as a candidate of the Indian National Congress (1) party. There were 12 candidates and the first respondent Contested the election as a candidate of the Left Democratic Front consisting of Communist Party of India (Marxist) and other allied groups. Poll to Kasaragod Parliamentary Constituency took place on 22-11-1989, the counting of votes started on 26-11-1989 and the result was declared on 27-11-1989. The first respondent secured 3, 58, 723, votes as against his nearest rival the petitioner, who secured, 3, 57, 177 votes. Thus, the first respondent won the election by a margin of 1546 votes. The petitioner now challenges the validity of the election mainly on the ground of corrupt practices. 2. The petitioner has alleged several grounds to set aside the election. The first respondent filed a preliminary objection and he seeks to strike down the pleadings of the petitioner regarding corrupt practices. The first respondent would contend that the election petition does not contain any 'specific charges of corrupt practice and the allegations contained therein are vague and of general nature, and therefore it is submitted that the election petition is liable to be rejected under S.100 of the Representation of the People Act, 1951. 3. It is now well settled by various decisions of the Supreme Court that the pleadings of the election petitioner should be absolutely precise and clear containing all necessary details and particulars as required by law. The allegations in the petition should not be vague, general in nature or lack in materials or be frivolous or vexatious and the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue. An electron petition where corrupt practices are imputed must be regarded as proceedings of a quasi criminal nature where strict proof is necessary. An electron petition where corrupt practices are imputed must be regarded as proceedings of a quasi criminal nature where strict proof is necessary. S.83 of the Representation of the People Act, 1951 (for short the Act) specifically states that an election petition shall contain a concise statement of the material facts on which the petitioner relies and that the petitioner 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. In Udhay Singh v. Madhav Rao Scindia (1976 (2) S. C. R.246) the Supreme Court explained as to what are the material facts. It was held: "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, 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 grounds relied upon and the special circumstances of the case. Particulars on the other hand are the details of the case set up by the party. 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. The gist of the corrupt practice of undue influence as defined in S.123 (i) is direct or indirect interference or attempt to interfere on the part of the candidate or his agent." "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 O.6, R.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." "It is therefore vital that the corrupt practice charged against the respondent should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full opportunity to the respondent to meet the case and to defend the charges." 4. The Supreme Court in various decisions have repeatedly held that a combined reading of S.81, 83, 86 and 87 of the Act would show that those paragraphs of an election petition which do not disclose any cause of action are liable to be struck off under O.6, R.16 C. P. C. 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, embarrass or delay the fair trial of the petition or suit and if the Court is satisfied that the election petition does not make out any cause of action and that the trial would prejudice, embarrass and delay the proceedings, the court need not wait for the filing of the written statement instead it can proceed to hear the preliminary objections and strike out the pleadings. (See Dhartipakar v. Rajiv Gandhi ( AIR 1987 SC 1577 ). The law on the point has been laid down by the Supreme Court that the allegations in the election petition should not be vague, general in nature or lacking of materials or frivolous or vexatious and the court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue. (See Manphul Singh v. Surinder Singh ( 1973 (2) SCC 599 ). In Ashar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253) it was held that an election petition can be and must be dismissed under the provisions of the C.P.C. if the mandatory requirements enjoined by S.83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not complied with. In Ashar Hussain v. Rajiv Gandhi (AIR 1986 SC 1253) it was held that an election petition can be and must be dismissed under the provisions of the C.P.C. if the mandatory requirements enjoined by S.83 to incorporate the material facts and particulars relating to alleged corrupt practice in the election petition are not complied with. The two decisions Balan v. Manoharan Master ( 1988 (1) KLT 717 ) and P. C. George v. Returning Officer ( 1987 (2) KLT 842 ) have also emphasised the point that the facts necessary to formulate complete cause of action should be stated in the petition and the omission of a single material fact would lead to incomplete cause of action. 5. The election petition and the preliminary objection raised by the first respondent are to be viewed in the light of the above 'principles. In Para.8 to 13 of the election petition the petitioner has challenged the validity of the electoral rolls. In para 9 it is alleged that there were several duplication of names in the electoral roll and the petitioner filed a petition to rectify these mistakes, but the mistakes were not corrected by the officials. Petitioner produced Ext. P1 annexure purporting to be a list of electors whose names entered twice in the electoral rolls and recorded as cast both votes in the election held on 22-11-1989; Ext. P1 is not an authenticated copy issued by any electoral Officer. It appears to be a self serving document prepared at the instance of the petitioner. Similarly, the petitioner produced Annexure P3 and he contends that 113 persons shown in the list were dead at the time of polling and other persons impersonated and cast votes in the names of those persons. The petitioner states that he would "produce the death register from the concerned Panchayat and Municipality and in Annexure P4 the petitioner has mentioned the names of several persons and contends that they all belonged to C. R. P. F. and Armed Forces and they were not present in the constituency and other persons impersonated and cast the votes of these persons. In para 13 the petitioner mentioned the persons mentioned in Annexure P5 were outside India on 22-11-1989 and the votes of these persons were also seen cast. 6. In para 13 the petitioner mentioned the persons mentioned in Annexure P5 were outside India on 22-11-1989 and the votes of these persons were also seen cast. 6. The petitioner points out in paras 8 to 13 that there was defect in the electoral roll and that some persons have impersonated and cast votes in the names of some other persons. The question that would arise for consideration is whether the petitioner has supplied all material facts to raise a cause of action. 7. The petitioner in Para.9 to 13 has mentioned that there were lot of impersonation by electors and the electoral roll was defective in so far as it contained several names of dead persons and the petitioner would further state that the votes were cast against the name of these dead persons. The petitioner has produced Ext. P3, which according to him would show the list of 113 persons who were dead at the time of polling. It is important to note that the petitioner has not mentioned the name of any of them specifically to show that there was impersonation and the vote was cast against the names mentioned in Ext. P3 list. Normally the polling agent of the petitioner would be present at the polling station Polling agent would be a local person, who has acquaintance with the voters. The petitioner has not produced a scrap of paper to show that his polling agents had raised any objection when impersonation took place. If the petitioner or his agents knew that the persons shown in the voters' list were already dead and if somebody comes for casting vote against their name, the polling agent could very well object to that and the vote can be treated as tendered vote. The polling agent of the petitioner has not done any such thing and no such instances have been mentioned in the petition. So also, the petitioner contended that officers belonging to the C. R. P. F. and the Armed Forces were posted outside the State, but the votes were polled against the names of these persons by impersonation. The details of the allegations are not given by the petitioner. The names of the persons, who impersonated, are not mentioned in the petition. So also, the petitioner contended that officers belonging to the C. R. P. F. and the Armed Forces were posted outside the State, but the votes were polled against the names of these persons by impersonation. The details of the allegations are not given by the petitioner. The names of the persons, who impersonated, are not mentioned in the petition. The petitioner has given only annexure P4 to show that the names included in that list were persons working in C. R. P. F, and Armed Forces. So also, the petitioner mentioned that the persons stated in Annexure P5 had been residing in foreign countries at the time of election and against their names votes were cast by others. The names of 326 persons have been mentioned in Annexure P6. The petitioner has no case that he raised an objection at the time of voting. It is also not mentioned as to who made the impersonation and thereby voted against the names of the parsons who are in foreign countries. The allegations' in Para.13 are too vague and general. The first respondent may not be in a position to defend this sort of allegations. In the nature of the allegations the petitioner should have mentioned the names of the persons who had cast their votes by impersonation. 8. The petitioner was given opportunity to raise objection regarding the electoral roll. The electoral roil was finalised after complying with all formalities. The Petitioners has no case that he had raised various objections regarding the electoral roll and his objections were wrongly dismissed by the concerned officer. It is not open to the petitioner to challenge the validity of the electoral roll at this distance of time. The allegations in Para.9 to 13 do not give rise to any cause of action. They are liable to be struck out under O.6 R.16 of the C. P. C. 8A. In Para.14 of the election petition it is alleged that there was rigging and booth capturing in various polling stations. Booth Nos. 97, 112 and 113 of Hosdurg Legislative Assembly Segment and 16, 17, 18, 19, 38 and 60 to 63, 66, 82, 121 and 122 of Payyannur Legislative Assembly Segment and 97 to 113, 122,123, 128 and 129 of Taliparamba Legislative Assembly Segment have been mentioned as the polling stations where there was booth capturing and rigging. Booth Nos. 97, 112 and 113 of Hosdurg Legislative Assembly Segment and 16, 17, 18, 19, 38 and 60 to 63, 66, 82, 121 and 122 of Payyannur Legislative Assembly Segment and 97 to 113, 122,123, 128 and 129 of Taliparamba Legislative Assembly Segment have been mentioned as the polling stations where there was booth capturing and rigging. The petitioner would contend that he had raised objection and however, the same was not considered properly. The petitioner has not mentioned the nature of the booth capturing and rigging in the petition. In Para.15 he would say that his polling agents were not allowed to enter the polling booths. The petitioner would say that he informed this matter to the returning officer orally. He met his party president and apprised him of the situation and the latter assured him that he would take up the matter with the Chief Electoral Officer, Trivandrum and Election Commission. Ext. P7 is a copy of the petition submitted by the petitioner to the President of the K. P. C. C. The same is dated 23-11-89. Ext. P7 is not sufficient to show that the petitioner had raised objection regarding booth capturing and rigging. In Ext. P7 he had mentioned that certain polling booths in Payyannur Legislative Assembly Segment were captured by the workers of C. P. I. (M) from early morning and the agents of the U. D. F. were beaten before entering the booth and were not allowed to enter the booth till the close of the voting. Even in Ext. P7 the petitioner had not mentioned the alleged booth capturing in the palling stations of Hosdurg Legislative Assembly Segment and the various polling booths mentioned in Para.14 of the Taliparamba Legislative Assembly Segment. 8B. The nature of the alleged booth capturing is not mentioned either in Ext. P7 or in the election petition. Who were all the persons who captured the polling booths are not mentioned. It is also not mentioned as to whether petitioner did filed any objection either before the returning officer or election commission regarding the alleged rigging and booth capturing. The petitioner indicated that in certain polling stations the polling was more than 90% and this indicated rigging and booth capturing. I am unable to accept this plea raised by the petitioner. The petitioner had absolutely no objection at the time of polling. The petitioner indicated that in certain polling stations the polling was more than 90% and this indicated rigging and booth capturing. I am unable to accept this plea raised by the petitioner. The petitioner had absolutely no objection at the time of polling. In Para.16 the petitioner has mentioned that in certain polling booths in Taliparamba Legislative Assembly Segment the workers of the first respondent captured certain polling booths. The numbers of the polling booths are mentioned by the petitioner. The petitioner has also produced Ext. P8 copy of the alleged petition submitted by one T. Balan Master, who was contesting in the assembly constituency. The election of the same was held along with the Kasaragod Parliamentary constituency election. In Ext. P8 also the nature of the booth capturing is not mentioned. The only compliant is that some of the election agents of Balan Master were not allowed to enter the polling station. No such objection was raised by the petitioner during the time of election. He has no case that he had submitted a petition either to the returning officer or the Election Commission indicating the nature of the alleged booth capturing. In Para.14 to 16 the petitioner has not mentioned any of the names of the persons, who committed booth capturing. The learned counsel for the petitioner contended that from the pattern of voting it is discernible that C. P. I.(M) workers alone were allowed to cast their votes. This allegation also is not true and correct. 9. The allegations mentioned in Para.14, 15 and 16 are too vague. The manner and nature of the alleged rigging and booth capturing is not mentioned. The persons or the time of the alleged booth capturing also are not mentioned by the petitioner. Therefore, they do not raise any cause of action and I strike out Para.14, 15 and 16 of the election petition. 9A. The petitioner alleges that the counting of votes was not done properly. The petitioner would contend that the officers belonging to N. G. O. union conducted the counting and while they were making bundles, each containing 50 ballot papers, they made manipulations. 9A. The petitioner alleges that the counting of votes was not done properly. The petitioner would contend that the officers belonging to N. G. O. union conducted the counting and while they were making bundles, each containing 50 ballot papers, they made manipulations. According to the petitioner the bundles were so made that there were more than 50 ballot papers cast in favour of the petitioner in one bundle and that there were less than 50 ballot papers cast in favour of respondent No. 1 in several other bundles. In polling booth No. 3 of Udma segment this mistake was found and the Returning Officer was willing to set right the mistake in respect of 3 bundles. The petitioner has not furnished the details of these allegations. It is not made clear whether the petitioner or his counting agents had made any such objection at the lime of counting. It is important to note that the counting is made in the presence of the counting agents and after the counting, the counting agents would affix their signature to the effect that there was no complaint regarding the counting, it is not mentioned by the petitioner in as to which constituency the bundling of votes was done improperly. So also, the allegation that members of the N. G. O Union attended the counting is too general. The petitioner should have mentioned as to who are the officers belonging to the N. G. O. Union participated in the counting and the nature of irregularities committed by them. A general statement that some officers belonging to the N. G. O. Union committed irregularities will not raise any cause of action. Therefore, the allegations in Para.17 of the election petition is only to be struck out. 10. In Para.18 of the petition it is mentioned that AIR and TV had been announcing the progress of the counting till 3 A. M. and they regularly made announcement at every half an hour but, they abruptly stopped the announcement and only after 7.30 A. M. on 27-11-1989 they gave forth announcement and by that time the petitioner was leading by 9130 votes. Thereafter the announcement was at 4. 30 P.M. on 27-11-1989. According to petitioner this was because of certain manipulations done in the result sheet of each Legislative Assembly segment due to the interference from the Left Democratic Front. Thereafter the announcement was at 4. 30 P.M. on 27-11-1989. According to petitioner this was because of certain manipulations done in the result sheet of each Legislative Assembly segment due to the interference from the Left Democratic Front. It is important to note that the petitioner has not mentioned the manipulations made by the officers so as to affect the result. It is not made clear that AIR and TV announcements were distorted to help the respondent. No inference can be made on the basis of the announcements made by AIR and TV. The allegations in Para.18 of the election petition are too vague and general and they are also liable to be struck, out as they do not give rise to any cause of action. 11. In Para.19 the petitioner has alleged that the final result sheet from Hosdurg segment of the Kasaragod Parliamentary Constituency would show that the petitioner has secured 57342 votes whereas the respondent No. 1 has secured only 50037 votes. But, while summarising and carrying over this into final result sheet in Form No. 20 it was recorded that the 1st respondent had secured 59937 votes and the votes secured by the petitioner was shown as 57342. The petitioner has produced Annexure P. 9, which is the final result sheet of Kasaragod Parliamentary Constituency. The petitioner has produced a true copy of the final result sheet issued to him. I have perused the result sheet prepared by the electoral officers. There is apparently some inconsistency. The learned counsel for the respondents would point out that the final result sheet produced by the petitioner is not a true copy and that the petitioner produced copy of unauthenticated records and if at all there was any mistake the same would be corrected in the final C stage. It is not possible to say anything at this stage. The petitioner contended that there was difference of 9900 votes and this itself is sufficient to tilt the balance in favour of the petitioner. The veracity of the allegation could be determined on seeing the actual final result sheet prepared by the Returning Officer. This is a matter to be proved by the petitioner after adducing evidence. In view of the nature of the allegations made by the petitioner. The veracity of the allegation could be determined on seeing the actual final result sheet prepared by the Returning Officer. This is a matter to be proved by the petitioner after adducing evidence. In view of the nature of the allegations made by the petitioner. I am of the view that this gives rise to a cause of action and the allegations contained in Para.19 of the election petition are not liable to be struck out. 12. In Para.20, 21, 22 and 23 the petitioner has alleged that the ballot paper account and the handling of ballot papers were not properly made by the presiding officers and the ballot paper accounts were not correctly written. In Para.21 the petitioner alleges that Presiding Officers had not signed 60 ballot papers and the, ballot papers to be found in the ballot box was shown as 980 whereas in the final result sheet the number of ballot papers was shown as 920. So also, in Para.22 it is mentioned that the total ballot papers used was 975 and the total ballot papers unused was 975, but the total ballot papers received by the polling station was only 1260, In Para.23 it is alleged that in booth No. 39 of Payyannur segment of the No. 1 Kasaragod Parliamentary Constituency where 666 votes alone were to be found in the ballot box, but when actually counted it was 673. The petitioner has produced Annexure P. 12 series to prove that there was excess and shortage of votes in various polling booths and this, according to the petitioner, has affected the result of the election. From the allegations in Para.21, 22 and 23 it appears that the petitioner alleges some irregularities occurred in the counting and in the preparation of final result sheet. Whether any such mistakes occurred or whether it materially affected the result of the election are matters to be decided at a later stage. Hence allegations in Para.21, 22, and 23 are not liable to be struck out. 13. In Para.24 and 25 of the petition the petitioner alleged that the votes polled in polling stations No. 39, 57, 102, 110 and 43 of Payyannur segment and 131, 118, 103, 43, 34, 84, 75, 30, 23, 19,17,9, 97, 113, 144, 145 and 146 of Hosdurg segments should have been eliminated from counting. 13. In Para.24 and 25 of the petition the petitioner alleged that the votes polled in polling stations No. 39, 57, 102, 110 and 43 of Payyannur segment and 131, 118, 103, 43, 34, 84, 75, 30, 23, 19,17,9, 97, 113, 144, 145 and 146 of Hosdurg segments should have been eliminated from counting. According to the petitioner the percentage of polling shows that there was rigging and booth capturing. I have already mentioned that the petitioner had not filed any complaint regarding the rigging or booth capturing and that he had also not mentioned the nature of the booth capturing and rigging. The time and the persons who have indulged in such electoral offences are also not mentioned by the petitioner. Therefore, the allegations in Para.24 and 25 of the election petition do not give rise to any cause of action, I strike out Para.24 and 25 of the petition. 14. In Para.26 of the petition it is alleged that there was booth capturing and threatening of voters by the people belonging to the 1st respondent's party at Booth No. 39 of Payyannur segment and the petitioner received information from one Thayineri. A copy of the same is produced as Annexure P. 14. Even Annexure P. 14 does not mention as to who were all the persons who committed the alleged booth capturing. In Annexure P. 14 it is only alleged that in Booth Nos. 38 and 39 there were false votes cast extensively and some Muslim voters were threatened and driven away from, the polling booths. It is not mentioned as to who had threatened the Muslim voters and who were all the Muslim voters. In the absence of such details regarding the time, place and names of the persons who committed such electoral offences the allegations could only be termed as general and vague. The allegations in Para.26 are also liable to be struck out. I do so. 15. In Para.27 of the petition, the petitioner alleges that he had submitted Ext. P 15 petition to the returning officer and requested for recounting of votes, but the returning officer declared the result at 4.30 p.m. on 27-11-1989 without hearing him. It is not alleged that the returning officer has violated any of the previsions of the Constitution and the Act. The petitioner was served with Ext. P16 rejection order at 4.30 p.m. on 27-11-1989. It is not alleged that the returning officer has violated any of the previsions of the Constitution and the Act. The petitioner was served with Ext. P16 rejection order at 4.30 p.m. on 27-11-1989. The petitioner bad also requested for recounting of votes, of Manjeswaram, Hosdurg and Uduma Legislative Assembly segments for which he submitted Ext. P17 petition. That was not replied at all by the returning officer and on 29-11-1989 the petitioner sent reminder and later the returning officer sent a copy of the order which was predated. It is pertinent to note that the petitioner has not specifically alleged as to what was the nature of the violation committed by the returning officer. It is also not alleged as to why the petitioner requested for recounting. It is important to note that the petitioner has not prayed for recounting in the present election petition. The various allegations contained in Para.27 that application for recounting was submitted and that was rejected by the returning officer are not sufficient to create a cause of action. The allegations contained in Para.27 are liable to be struck out. 16. In Para.28 of the petition the petitioner alleges that some of the votes cast in favour of the petitioner were wrongly rejected and treated as invalid for the reason that, the seal and ink were not completely and fully imprint in the ballot papers and that no such elimination was dose in the case of votes cast in ' favour of respondent No. 1. It is not even mentioned as to how many of such votes were rejected and whether it materially affected the result of the election. The petitioner has also not mentioned as to whether his counting agents had raised any objection at the time of rejection of these ballot papers. In the absence of any such details, the allegation can be characterised only as vague and general. So, I strike out the allegations contained in Para.28 of the petition. 17. In Para.29 it is alleged that many of the followers of the petitioners were prevented from casting their votes and when they reached the polling booth, it was found that their votes had already been cast by somebody without their knowledge, and even though tendered votes were applied for, only in vary few cases tendered votes were allowed. The details of these allegations are also not mentioned. The details of these allegations are also not mentioned. Who were all the petitioner's supporters who could not cast their votes, which was the polling booth in which such incident happened and in how many cases tendered votes were allowed, are not mentioned in Para.29. Unless these details are available, the first respondent may not be in a position to defend these allegations. The allegations are vague and general These allegations are also struck out. 18. In Para.30 of the petition the petitioner alleges that in a meeting held on 10-11-1989 at 4 p. m. the first respondent made a speech wherein the petitioner was characterised as an anti labour and that the first respondent misled the voters saying that the petitioner took an anti labour stand in settling the strike by beedi workers. The petitioner has not produced copy of this speech made by the first respondent. He also did not produce any paper report or any such materials, from which it could be gathered as to whether the first respondent had made such a speech. He has also not cited any witness, who heard the speech. In the same paragraph the petitioner alleges that a pamphlet was published wherein the petitioner was described as an anti labour trade unionist. A copy of the petition is produced and marked as Ext. P20. Its true English version is Ext. P20 (a). It is not even specifically alleged that it was at the instance of the first respondent that Ext. P20 was published. It is not mentioned as to who published it and whether the first respondent had given any consent to such publication. The name of the person who published or distributed the pamphlet is not mentioned in the petition. In the absence of any such details, the allegation in Para.30 is only to be said to be vague and general and liable to be struck out. 19. In the various grounds alleged in the election petition the petitioner has reiterated all the allegations made in the petition. So, on a close perusal of the election petition, it is clear that except the allegations contained in Para.19, 21, 22 and 23 of the petition, the allegations contained in all other paragraphs are of general and vague character. In many of the allegations the time, place and name of the electoral offences are not mentioned. So, on a close perusal of the election petition, it is clear that except the allegations contained in Para.19, 21, 22 and 23 of the petition, the allegations contained in all other paragraphs are of general and vague character. In many of the allegations the time, place and name of the electoral offences are not mentioned. In Para.19, 21, 22 and 23 the petitioner alleges that there was some defect in the preparation of result sheets prepared by the returning officer. The mistake, if any, is to be found out after perusing the final result sheets and other relevant records prepared by the Returning Officers. Therefore, except, the allegations contained in Para.19, 21, 22 and 23, the various other allegations made in Para.8 to 30 are struck out.