Jagram Singh v. Pritam Singh — 1992 DIGILAW 180 (ALL)

ORDER Om Prakash, J. - This election petition is filed by the petitioner, an unsuccessful candidate of Janta Dal calling in question the election of the respondent No. 1 who was declared elected as Member of the U.P. Legislative Assembly from 27 Gangeshwari Assembly Constituency, in district Moradabad at the general election, held in the year 1991. 2. Grounds A, B and C challenging the election of the respondent No. 1 have been stated in para 7 of the petition. Ground A states that respondent No. 1 was not qualified on the date of filing nomination and also on the date of the election as he had not been completed age of 25 years. In ground B, it is averred that the election has been materially affected, insofar as respondent No. 1 is concerned, because of the non-compliance of the provisions of the Representation of the People Act, 1951 (briefly, the Act). In the last ground C, charge of corrupt practice as stated in S. 123(8) of the Act is levelled against the respondent No. 1. 3. Material facts relating to the aforesaid grounds are said to be given in paragraphs 8 and 9 of the petition. 4. The respondent No. 1 has made two applications : one under Order 6, Rule 16 of the Code of Civil Procedure (for short, the C.P.C.) to strike off the grounds A, B and C. paragraphs 8 and 9 and schedule 1 to the election petition and the other for dismissing the election petition under S. 86(1) of the Act for non-compliance of S. 81(3) of the Act. 5. First, I take up application under Order 6, Rule 16 C.P.C. Ground `C' relates to corrupt practice of booth capturing under S. 123(8) of the Act. The contention of the respondent No. 1 is that material facts and particulars pertaining to that charge, have not been set out and, therefore, ground `C' and para 9 of the petition which is said to have contained material facts and particulars relating to that charge, be struck off. 6. Section 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. 6. Section 80 of the Act states that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. S. 81 says that the election petition calling in question any election may be presented on one or more of the grounds specified in S. 100(1) and S. 101 of the Act. S. 83(1)(a) mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. And S. 83(1)(b) directs that election petition shall state forthwith full particulars of any corrupt practice that petitioner alleges including as full 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. S. 123(8) deems booth capturing as a corrupt practice. 7. The question for consideration is whether material facts and particulars in respect of charge of booth capturing levelled by the petitioner in ground `C' have been disclosed, as required by S. 83(1) of the Act, 1951 ? Then the question is what are material facts and full particulars of the charge of corrupt practice and what consequences would follow if they are not disclosed as required by S. 83(1) ? The material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as to afford a basis for the allegations made in the petition. Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276 . S. 83 is mandatory and requires the election petition to contain first a concise statement of material facts and then requires the fullest possible particulars. The word `material' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but two are quite distinct. The function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. There may be some overlapping between material facts and particulars but two are quite distinct. The material facts will show the ground of corrupt practice and complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts, it will not do merely to quote the words of the section because then the efficacy of the words `material facts' will be lost. The fact which constitute the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. An election petition without material facts relating to a corrupt practice is no election petition at all. Such legal position has been elucidated by the Supreme Court in Samant N. Balakrishna v. George Fernadez, AIR 1969 SC 1201 . The Supreme Court years after reiterated in Udhav Singh v. Madhav, Rao Scindia, AIR 1976 SC 744 that 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. To sum up the Supreme Court says that all those facts which are essential to cloth the petitioner with a complete cause of action, are "material facts" which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of S. 83(1)(a). The Supreme Court went on to say that "particulars" on the other hand, are "the details of the case set up by the parties" ..material particulars" within the contemplation of Clause (b) of S. 83(1) would, therefore, mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the requirements of clause (a). "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. "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. In Daulat Ram Chauhan v. Anand Sharma, AIR 1984 SC 621 , the Supreme Court impressing upon flawless pleadings when a charge of corrupt practice is levelled against a returned candidate, said (at p. 625 of AIR) : "We must remember that in order to constitute corrupt practice, which entails not only the dismissal of the election petition but also other serious consequences like debarring the candidate concerned from contesting a future election for a period of years, the allegation must be very strongly and narrowly construed to the every spirit and letter of the law. In other words in order to constitute the corrupt practice, the following necessary particulars, statement of facts and essential ingredients must be contained in the pleadings : (1) Direction and detailed nature of corrupt practice as defined in the Act. (2) Details of every important particular must be stated giving the time, place, names of persons use of words and expressions etc. (3) It must clearly appear from the allegations that the corrupt practices alleged were indulged in by (a) the candidate himself (b) his authorised election agent or any other person with his express or implied consent." 8. Considering the gravity of the charge of corrupt practice, the Supreme Court equating the charge of corrupt practice with a criminal offence ruled down in Surinder Singh v. Hardial Singh, AIR 1985 SC 89 thus (Paras 16 and 23) : "It is well settled that allegations of corrupt practice are quasi-criminal charges and the proof that would be required in support of such allegations would be as in a criminal charge. Charges of corrupt practice are to be equated with criminal charges and proof thereof would be not preponderance of probabilities as in civil action but proof beyond reasonable doubt as in criminal trials." 9. The Supreme Court further observed in para 34 on page 100 (of AIR 1985 SC 89 ) that allegations of corrupt practice have to be strictly pleaded with material particulars and evidence beyond the ambit of plea would not be permitted to be led. 10. The Supreme Court further observed in para 34 on page 100 (of AIR 1985 SC 89 ) that allegations of corrupt practice have to be strictly pleaded with material particulars and evidence beyond the ambit of plea would not be permitted to be led. 10. Coming to the consequences flowing from non-compliance of S. 83(1) useful reference may be made to Azhar Hussain v. Rajiv Gandhi, AIR 1980 SC 1253 : 1986 All LJ 625 in which the Supreme Court clearly held that an election petition can be and must be dismissed under the provisions of Civil Procedure Code if the mandatory requirements enjoined by S. 83 to incorporate the material facts and particulars relating to the alleged corrupt practice in the election petition are not complied with. Under S. 86, the High Court shall dismiss an election petition which does not comply with the provisions of S. 81 or 82 or S. 117. It does not allude to S. 83. As S. 83 does not find berth in S. 86, it is very often pleaded that the petition cannot be dismissed under S. 86 for non-compliance of S. 83. Answering this question, the Supreme Court says in Azhar Hussain (supra) that the Civil Procedure Code applies to the trial of an election petition by virtue of S. 87 of the Act. Since Civil P.C. is applicable, the Court trying the election petition can act in exercise of the powers of the Code including the Order 6, Rule 16 and Order 7, Rule 11(a). As the election petition can be dismissed or rejected applying the provisions of Civil Procedure Code, the Supreme Court says that S. 83 does not find place in S. 86 of the Act, 1951, and omission of S. 83 in S. 86 could not be construed to say that there was no power under the Act to dismiss or reject the election petition for want of material facts and particulars. 11. Then, the Supreme Court reiterated in Azhar Hussain (1986 All U 625) (supra) that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without material facts relating to corrupt practice is not an election petition at all. 12. 11. Then, the Supreme Court reiterated in Azhar Hussain (1986 All U 625) (supra) that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without material facts relating to corrupt practice is not an election petition at all. 12. The submissions of the respondent No. 1 made in the application under Order 6 Rule 16 C.P.C. have to be considered in the light of the aforestated legal position. As already stated that ground `C' relates to charge of corrupt practice as specified under S. 123(8), read with S. 135A of the Act and the material facts and particulars in respect of that are said to have been furnished in para 9 and schedule 1 appended to the election petition. In para9(i), it is averred that the respondent No. 1, his workers, supporters and agents, whose names have been given in column 6 of the schedule 1, had captured the polling centres, specified therein. Column 6 of the schedule 1 bears the following caption : "Name of the person or persons who captured the polling station, stamped and inserted the ballot papers inside the ballot box." As stated in para 9(1), booth capturing according to the petitioner, was done by respondent No. 1, his workers, supporters and agents. Column 6 of the schedule does not specify as to who were the workers or supporters or agents of the respondent No. 1. The question is how should the Court know as to who of the person as named in the column 6 of the schedule 1, falls in which category, namely workers or supporters or agents as stated in para 9(i). Details of persons, indulging in booth capturing bereft of the category which each of them belongs to, do not satisfy the mandate of S. 83(1). In para 9(ii), it is averred that the respondent No. 1 accompanied by the persons referred to in schedule 1, some of whom possessed fire arms, had visited the polling centres and having entered the polling station they snatched away the ballot papers from the polling staff and put the seal on them against the names of the respondent No. 1 and then inserted them into ballot boxes. Who of them possessed fire arms, who snatched away how many ballot papers and from whom, on how many ballot papers seal was put by whom and who inserted how many ballot papers in the ballot box - these material facts have not at all been stated in para 9. It is pleaded that two home-guards and one, police constable who were on duty at the polling centre remained "mute spectator of the whole episode of booth capturing". What were the names of the home-guards and the police constable and at which polling centre they were deputed these facts have not been stated. In para 9(iv), it is stated that after the persons as named in column 6 of schedule 1 had the polling centre, the polling agent of the petitioner delivered a protest letter to the Presiding officer who refused to acknowledge the same. What is the name of the polling agent who handed over the protest note, the name of the Presiding Officer whom the protest note sought to be delivered and who refused to acknowledge the same - these details have not been stated. In para 9(v), it is stated that finally Sector Magistrate was contacted by the polling agent of the petitioner who too refused to acknowledge their representations. The names of the polling 'agents and the name of the Sector Magistrate have not been given. Also the time, date and place of contacting the Sector Magistrate are not stated. 13. Serial number of ballot papers which are said to have been snatched away from the polling staff and which are said to have been inserted into the ballot box after having put the seal marks thereon, has not been disclosed. It is also not disclosed as to how many ballot papers were forcibly inserted and how such ballot papers could affect the result of the election, insofar as it concerns the returned candidate, materially. It is simply stated in para 9(xiii) of the petition that whereas respondent No. 1 secured 28979 votes, the petitioner secured 27665 votes and that the respondent No. 1 was declared elected only by a margin of 1324 votes. There is no pleading that had there been no booth capturing then the petitioner would have secured more than 1324 votes. It is simply stated in para 9(xiii) of the petition that whereas respondent No. 1 secured 28979 votes, the petitioner secured 27665 votes and that the respondent No. 1 was declared elected only by a margin of 1324 votes. There is no pleading that had there been no booth capturing then the petitioner would have secured more than 1324 votes. It is also not stated as to how many ballot papers were snatched away and inserted into the ballot box by each of the persons, as named in column 6 of the schedule 1 and in whose presence such act was done. 14. Section 100(1)(b) of the Act states that an election on the ground of corrupt practice shall be declared void by the High Court if the corrupt practice has been committed by any other person with the consent of a returned candidate or his election agent. The heading of schedule I is as follows : "Particulars of corrupt practice of booth capturing committed by respondent No. 1, his election agent, workers, supporters and agents and other persons with his consent and with the consent of his election agent." It is not stated as to who took whose consent-either of the respondent No. 1 or his election agent. An omnibus averment was made in the schedule that booth capturing was done by the persons, named in column 6 of the schedule 1 with the consent of returned candidate and of this election agent. It is, therefore, clear that paragraph 9 of the petition does not disclose the material facts and particulars of the charge of booth capturing as required by S. 83(1)(a) and (b). 15. From all this, it is manifest that the petition is bereft of the material facts and particulars pertaining to the charge of booth capturing and, therefore, the application under O. 6, R. 16 C.P.C. is allowed. Consequently ground `C' and para 9 of the petition containing facts relating to that ground and Schedule 1 are struck off. 16. The respondent No. 1 has made another application praying that election petition be dismissed under S. 86(1) for non-compliance of S. 81(3) of the Act. The contention of the respondent No. 1 is that copy of the election petition supplied to him by the petitioner is not a true copy of the petition. 16. The respondent No. 1 has made another application praying that election petition be dismissed under S. 86(1) for non-compliance of S. 81(3) of the Act. The contention of the respondent No. 1 is that copy of the election petition supplied to him by the petitioner is not a true copy of the petition. S. 81(3) mandates that every election petition shall be accompanied by an 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. The contention of the petitioner is that respondent No. 1 had not completed age of 25 years either on date of filing nomination or on the date of election and, therefore, he was not eligible to contest the election. In para 8(v) of the petition, it is stated that the respondent No. 1 had passed High School Examination conducted by the Board of High School and Intermediate Education, U.P. in the year 1982 and that, his date of birth was then recorded in the High School Certificate as 11-9-1967. In para 8(vi), it further stated that the aforesaid date of birth had been recorded in the record of High School Examination on the basis of the date of birth as furnished by respondent No. 1 in this application form which he had filled in himself under his signature. When the petitioner made reference of High School certificate and the application form submitted for High School Examination in the petition, respondent No. 1 contends that those documents became integral part of the petition, as they stood incorporated by reference in the petition and, therefore, omission of supplying copy of High School Certificate and copy of the application form filled in for High School Examination with the election petition, rendered election petition not to be a true copy of the petition as required by S. 81(3). In short, the contention is that when a High School Certificate and the application form filled in for High School examination, became integrated part of the petition by virtue of their being referred to in the petition, then a copy of the election petition should have contained copies of such documents without which election petition would not be a true copy of the petition. This is how it is stated that the petition deserves to be dismissed under S. 86(1) for non-compliance of section 81(3). 17. The question for consideration is whether the aforesaid documents referred to in the petition can be said to have become integral part of the petition ? As already stated, disclosure of material facts in every petition and disclosure of material facts coupled with the disclosure of particulars when the election of a returned candidate is called in question on ground of corrupt practice is necessary. A catena of authorities referred to in connection with the disposal of the application under O. 6, R. 16 C.P.C., throws enough guideline as to what does constitute material facts. Material facts are those facts which constitute cause of action or give a composite picture of cause of action, disclosure of which is essential for the maintainability of the petition. Non disclosure of any material fact will result in dismissal of the petition for want of cause of action. The allegation of the petitioner is that the respondent No. 1 having not completed age of 25 years either on the date of filing nomination paper or on the date of election, was not eligible to contest and that an objection assailing his date of birth was filed by him before the Returning Officer in writing, but the later refused to acknowledge the same. When the petitioner relies on the aforesaid documents to support his contention that respondent No. 1 was underage either on the date of nomination or on the date of election, then it was his duty either to reproduce them in the petition or to annexe them to the petition. The petitioner has verified paragraphs 8(iv), (v) and (vi) in the verification part on the basis of records. It is, therefore, implied that the petitioner had seen the High School certificate as well as the application form filled in by respondent No. 1 for the High School Examination. It is not the case of the petitioner that he had personal knowledge about the date of birth of respondent No. 1. It is, therefore, implied that the petitioner had seen the High School certificate as well as the application form filled in by respondent No. 1 for the High School Examination. It is not the case of the petitioner that he had personal knowledge about the date of birth of respondent No. 1. For the allegation that respondent No. 1 was below 25 years, when the nomination paper was filed by him, the petitioner wholly relied on the High School Certificate and the application form and referred to them in the petition and, therefore, respondent No. 1 is right in contending that those documents have become integral part of the election petition and they stood incorporated in the petition by reference. 18. Certain provisions of Code of Civil Procedure . can be usefully referred to conclude that the contents of the High School certificate and the application form submitted for High School Examination are material facts and, therefore, such documents ought to have been produced with the petition. O. 7, R. 14(1) C.P.C. states : where plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. From the averments made in the petition, it is manifest that the contention of the petitioner that respondent No. I was under age, is based on perusal of High School certificate and the application form and it is on the basis of those documents the petitioner alleged that respondent No. I was not qualified to file the nomination papers. When in the verification clause, the petitioner clearly averred that he perused the record then it can be safely assumed that it was within the power of the petitioner to obtain copies of those documents and file the same in the Court with the petition. O. 7, R. 14 (2) C.P.C. says that where a plaintiff relies on any other document (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. O. 7, R. 14 (2) C.P.C. says that where a plaintiff relies on any other document (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. O.7, R. 18(1) further states that a document which ought to be produced in Court by the plaintiff when the plaint is presented or to be entered in the list to be added or annexed to the plaint and which is not produced or entered accordingly, shall not without the leave of the Court, be received in evidence on his behalf at the hearing of the suit. All these provisions made in the Code of Civil Procedure, enjoin upon a plaintiff to file the documents on the basis of which a suit is filed or which forms the basis of his claim. For the allegations made in Grounds `A' and `B' by the petitioner, the basis is the facts as contained in the High School certificate and the application form and, therefore, they must have been filed with or re-produced in the petition. These provisions hold a clue that facts mentioned in the High School certificate and in the application form are material facts and if such documents are not re-produced in the petition their they must have been annexed to the petition to make a copy of the petition as a true copy thereof within the meaning of S. 81(3) of the Act. In taking this view, I am fortified by U.S. Sasidharan v. K. Karunakaran, AIR 1990 SC 924 . In U.S. Sasidharan, election of the returned candidate was called in question on the ground of various corrupt practices and then the Supreme Court took the view that if a document contains material facts relating to corrupt practice, then that document should be made a part of the petition, otherwise a copy of the petition would not be a true copy. Though such rule was laid down by the Supreme Court in the petition filed on the ground of corrupt practice, but I see no good reason why that rule should not be applied to a petition filed on the ground other than corrupt practice or to the petition raising one or more grounds not relating to corrupt practice. Though such rule was laid down by the Supreme Court in the petition filed on the ground of corrupt practice, but I see no good reason why that rule should not be applied to a petition filed on the ground other than corrupt practice or to the petition raising one or more grounds not relating to corrupt practice. The basic requirement in every petition is that it must disclose the material facts or the full composite picture of cause of action to make it maintainable. As a plaint which discloses no cause of action is liable to be rejected under O.7, R. ll(a) C.P.C., similarly an election petition is liable to be rejected for the same reasons under that provision, read with S. 87 of the Act. Disclosure of material facts is a common requirement of any election petition either filed on the ground of corrupt practice only or on the ground other than corrupt practice or on the mixed grounds of corrupt practice and other one. The only difference is that a petition filed on ground of corrupt practice is subjected to more serious rigours, as the charge of corrupt practice is equated with the criminal charge to be decided considering the rigours of criminal jurisprudence. 19. Before proceeding with election petition, it is the duty of the Court to ensure that full material facts, that is, full cause of action has been disclosed. If requisite attention is not paid to this precedent condition, then the representatives of the people, election of whom is the mirror in which will of the people is reflected, will remain under constant trauma and engaged in the Court proceedings with a sword of damocles always handing on their heads instead of discharging their onerous legislative duty for which they are elected by the people in a democratic polity. 20. For the reasons, I hold that the application made for dismissing the petition under S. 86(1) for non-compliance of S. 81(3) of the Act also deserves to succeed and is allowed. 21. Ground `C' and paragraph 9 along with schedule I to the election petition have already been struck off while allowing the application under O. 6, R. 16 C.P.C. The election petition cannot proceed on grounds A and B and paragraph 8, as there is no compliance of S. 8 (3). 21. Ground `C' and paragraph 9 along with schedule I to the election petition have already been struck off while allowing the application under O. 6, R. 16 C.P.C. The election petition cannot proceed on grounds A and B and paragraph 8, as there is no compliance of S. 8 (3). inasmuch as true copies of the election petitions cannot he said to have been supplied to the respondents. its they do not include the copies of the High School certificate and, or of the application form filled in for High School examination by respondent No. I and on that score the petition is liable to be dismissed under S. 86(1) of the Act. 22. In the result, the election petition is dismissed with costs to be paid to respondent No. 1, which is assessed at Rs. 500/-. The balance of the security amount, if any will be refunded to the petitioner upon his making a proper application therefor.