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2000 DIGILAW 502 (MAD)

Sanniyasi v. Srinivasan and another

2000-04-28

K.SAMPATH

body2000
ORDER: This revision has been filed against the order in Election O.P.No.8 of 1997 on the file of the Principal District Judge, Villupuram, who by order dated 8.12.1999 allowed the election petition filed by the first respondent herein, set aside the election of the revision petitioner as Chairman of Sankarapuram Panchayat Union Council. 2. The first respondent, who was a candidate for the said post, filed the Election O.P. alleging as follows: He represented Tamil Maanila Congress and the revision petitioner represented All India Anna D.M.K. The election for Sankarapuram Panchayat Union Chairman post was held on 25.10.1996. The voting figures as announced by the Returning Officer were as follows: Total votes: ... 24 Total votes polled: ... 23 Votes secured by the revision petitioner: ... 12 Votes secured by the first respondent ... 11 The revision petitioner was declared elected. His election was void on the following grounds, viz. (1) Chandrasekaran, a Council Member representing Ward No.1 was a ‘B’ grade supervisory common cadre employee of Kallakurichi-I Co-operative Sugar Mills at 3, Moongi Thuraipattu. The Sugar Mill was a body corporate controlled by the State Government and under Secs.34 and 243-F of the Constitution of India, he was disqualified to be elected as Council Member. The Polling Officer illegally permitted him to vote in the election. He openly voted in favour of the revision petitioner. (2) The revision petitioner was a Government Contractor on the date of filing his nomination and having subsisting contracts with Public Works Department, Highways Department, Forest Department, etc. He was not legally qualified to contest in the above election and vote. His candidature should have been rejected by the Election Officer. (3) The revision petitioner bribed all the voters by paying Rs.25,000 to Rs.1 lakh. Thus the petitioner was guilty of corrupt practice to win the election. (4) The revision petitioner was a deaf person by birth and legally not qualified to contest the election. The Election Officer had unduly rejected the objections raised by the first respondent. The election petition was filed under Sec.258 of the Tamil Nadu Panchayats Act (Act 21 of 1994) (hereinafter referred to as the Act). The prayer is for declaring the election of the revision petitioner to the post of Chairman, Panchayat Union Council, Sankarapuram, as void and further declaring the first respondent herein as elected to the post of Chairman, Panchayat Union Council, Sankarapuram. 3. The prayer is for declaring the election of the revision petitioner to the post of Chairman, Panchayat Union Council, Sankarapuram, as void and further declaring the first respondent herein as elected to the post of Chairman, Panchayat Union Council, Sankarapuram. 3. The revision petitioner resisted the election petition contending inter alia as follows: The said Chandrasekaran was duly qualified to vote. The allegation that the first respondent objected to his participation was false. It was equally false to say that Chandrasekaran openly voted in favour of the revision petitioner. The said Chandrasekaran had written permission to contest and no disqualification was attached to his contesting in the election and afterwards participating in the Chairman election and voting. In fact, when Chandrasekaran contested for the Member post no objection was taken. The allegations regarding the revision petitioner being a Government Contractor on the date of his filing of the nomination and having subsisting contract in the Public Works Department, Highways Department, Forest Department etc. were false. On the date of the nomination the revision petitioner had no subsisting contract. On 6.9.1996 his contract was cancelled. Equally false was the allegation relating to bribe. The revision petitioner was not deaf by birth. The election petition had been filed out of political animosity. The petition was bad for non-joinder of the necessary party, namely, the Returning Officer. 4. Thereafter, the first respondent filed the necessary application for impleading the Returning Officer, the second respondent herein and the same was allowed. 5. The learned District Judge framed the following issues: (1) Whether the election of the revision petitioner as Chairman of Sankarapuram Panchayat Union Council is valid ? (2) Whether the first respondent should be declared to have been elected as Chairman of Sankarapuram Panchayat Union Council ? 6. On the side of the first respondent Exs.A-1 to A-4 were marked and the first respondent besides examining himself as P.W.1, examined one Appavoo as P.W.2. On the side of the revision petitioner no witness was examined and no documents were marked. Exs.C-1 to C-3 were marked as Court documents. 7. The learned District Judge found that the revision petitioner had a subsisting contract during the relevant period and that he was disqualified from getting elected. As regards the other three allegations made in the election petition, the learned District Judge held that they had not been substantiated. Exs.C-1 to C-3 were marked as Court documents. 7. The learned District Judge found that the revision petitioner had a subsisting contract during the relevant period and that he was disqualified from getting elected. As regards the other three allegations made in the election petition, the learned District Judge held that they had not been substantiated. However, the learned District Judge set aside the election of the revision petitioner and declared the first respondent as having been elected to the said post on the basis of his finding on the first point. As against this, the present civil revision petition has been filed under Art.227. 8. The revision was admitted on 10.12.1999 and in C.M.P.No.21157 of 1999 interim stay was also granted by Shanmugam, J. on 10.12.1999. 9. Mr. V.T. Gopalan, learned Additional Solicitor General for Mr. T. Dhanyakumar appearing for the revision petitioner, made the following submissions: (i) The pleadings are defective. Material facts as opposed to particulars have not been disclosed in the petition. The mere allegation that the revision petitioner is a Government P.W.D. Contractor without specific details, falls short of the requirement and the election petition ought to have been dismissed in limine; (ii) Assuming that there are enough pleadings, still the relevant provision in the Panchayat Act, viz. Sec.39(3)(c) only talks of disqualification if the candidate is interested in a subsisting contract with any panchayat and in the instant case conceding that the revision petitioner had any Government contract, it would not disqualify him; and (iii) lastly the first respondent had attempted to prove the subsistence of Government contracts by summoning records/files which were marked without affording an opportunity to the revision petitioner to peruse them and cross-examine the witness. 10. According to the learned Additional Solicitor General, Sec.83 of the Representation of the People Act is in pari materia with Sec.258(3) of the Act and in the instant case the requirements regarding pleadings in an election petition have not been satisfied. The learned senior counsel drew pointed attention to the contents of the election petition and submitted that the material particulars are wanting and no details have been given in the election petition regarding the contracts stated to be subsisting. 11. The learned senior counsel drew pointed attention to the contents of the election petition and submitted that the material particulars are wanting and no details have been given in the election petition regarding the contracts stated to be subsisting. 11. The learned Additional Solicitor General relied on the following judgments in support of his this contention: (1) Azhar Hussain v. Rajiv Gandhi, 1986 S.C.C. (Supp.) 315 in particular reference to paragraphs 8 and 11. (2) Dhartipakar Madan Lal Agarwal v. Rajeev Gandhi, (1987) S.C.C. (Supp.) 93 in particular reference to paragraphs 8 and 11. 12. In Azhar Hussain v. Rajiv Gandhi, 1986 S.C.C. (Supp.) 315 there were allegations of obtaining assistance from person in service of Government, who it was alleged made speeches on Government controlled news media praising the elected; however material particulars not having been furnished, the Supreme Court observed that "there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure, that appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Sec.83 of the Representation of the People Act to incorporate the material facts in the election petition are not complied with. The Supreme Court has referred to its earlier judgments, Samant N. Balakrishna v. George Fernandez, (1969)3 S.C.C. 238 and Udhav Singh v. Madhav Rao Scindia, (1977)1 S.C.C. 511 . In Samant’s case it has been expressed in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. 13. In Udhav Singh v. Madhav Rao Scindia, (1977)1 S.C.C. 511 it has been enunciated that, “all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts.” In the context of a charge of corrupt practice, according to the Supreme Court in Azhar Hussain v. Rajiv Gandhi, 1986 S.C.C. (Supp.) 315, “it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the matter of the charge levelled and the circumstances of the case. (Italics supplied). All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Sec. 83(1)(a). An election petition therefore can be and must be dismissed if it suffers from any such vice.” 14. In Charan Lal Sahu v. Giani Zail Singh, (1984)1 S.C.C. 390 : (1984)2 S.C.R. 6 : A.I.R. 1984 S.C. 309 it is observed as follows: “It is now well settled that in election petitions pleadings have to be precise, specific, unambiguous and if the election petition does not disclose a cause of action it is liable to be rejected in limine.” This is referred to and reiterated in Bhagwati Prasad Dixit Ghorewala v. Rajeev Gandhi, (1986)4 S.C.C. 78 by the Supreme Court. 15. In Dhartipakar Madan Lal Agarwal v. Rajeev Gandhi, (1987) S.C.C. (Supp.) 93 it has been, held that, “If a pleading is vague and the allegation contained in the election petition even assuming to be true and correct do not make out any case of corrupt practice on any ground under Sec.100 of the Act, the pleading would be unnecessary, frivolous and vexatious. It is always open to strike out the same. If after striking out defective pleadings the Court finds that no cause of action remains to be tried, it would be duty bound to reject the petition under O.7, Rule 11 of the Code of Civil Procedure O.6, Rule 6 of the Code of Civil Procedure permits striking off pleadings at any stage of the proceedings. It does not admit any exception that the respondent must file written statement before the preliminary objections could be entertained.” 16. In Manohar Joshi v. Nitin Bhaurao Patil and another, (1996)1 S.C.C. 169 it has been held by the Supreme Court that, “in order to constitute corrupt practice it must be shown that the act was done during the election campaign between the date when the returned candidate became a candidate and the date of poll, and that it was the act of the candidate or his agent or any other person with his consent. Unless all these constituent parts of the corrupt practice are pleaded to constitute the cause of action raising a triable issue and are then proved by evidence, the corrupt practice cannot be held to be pleaded and proved.” In the case before the Supreme Court, the act attributed was by the display of a video cassette recorded sometime earlier. It was observed by the Supreme Court that, "a mere display of the video cassette does not prove all the constituent parts of the corrupt practice, inasmuch as it must also be pleaded and proved that such display was by the candidate or his agent or any other person with his consent." 17. In H.D.Revanna v. G.Puttaswamy Gowda and others, (1999)2 S.C.C. 217 it has been held as follows: "The provisions in the Representation of the People Act 1951 are very specific. Sec.86 provides for dismissal of an election petition in limine for non-compliance of Secs.81, 82 and 117. Sec.81 relates to the presentation of an election petition. .... Sec.86 does not refer to Sec.83 and non-compliance with Sec.83 does not lead to dismissal under Sec.86. The Supreme Court has laid down that non-compliance with Sec.83 may lead to dismissal of the petition if the matter falls within the scope of O.6, Rule 16 or O.7, Rule 11, C.P.C. ....." 18. The Supreme Court has laid down in Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and others, A.I.R. 1964 S.C. 1545: (1964)3 S.C.R. 573 that, "a defect in the verification of an election petition as required by Sec.83(1)(c) of the Act was not fatal to the maintainability of the petition and that a defect in the affidavit was not a sufficient ground for dismissal of the petition." 19. In Ch.Subbarao v. Member, Election Tribunal, A.I.R. 1964 S.C. 1027: (1964)6 S.C.R. 213 it has been held that, "even with regard to Sec.81(3) substantial compliance was sufficient and only in cases of total or complete non-compliance with the provisions of Sec.81(3) it could be said that election petition was not one presented in accordance with provision of that part of the Act." 20. in H.D.Revanna v. G.Puttaswamy Gowda and others, (1999)2 S.C.C. 217 already referred to the Supreme Court held that, "the election petition contained necessary facts constituting the cause of action for invalidating the returned candidate’s election and the corrupt practice allegedly committed by him had been substantially pleaded and the view of the High Court that omission to state material facts and particulars in respect of one of such practices, would not render the entire election petition liable to be dismissed in limine." The Supreme Court pointed out the distinction between material facts and particulars. In case of want of particulars, Court should afford opportunity to include the same. In so far as material facts are concerned, they should be fully set out in the election petition and if any fact is not set out, the petitioner cannot be permitted to adduce the evidence relating thereto later; nor will he be permitted to amend the petition after expiry of the period of limitation prescribed for an election petition. As regards particulars, the consistent view expressed by the Supreme Court is that the petition cannot be dismissed in limine for want of particulars and if the Court finds that particulars are necessary, an opportunity should be given to the petitioner to amend the petition and include the particulars. This is reiterated in Mahendra Pal v. Ram Dass Malanger & others, (2000)1 S.C.C. 261 . 21. In Raj Narain v. Indira Nehru Gandhi, (1972)3 S.C.C. 850 it was held that, "pleadings need not be construed strictly. While a corrupt practice has got to be strictly proved but from that it does not follow that a pleading in an election proceeding should receive a strict construction. This Court has held that even a defective charge does not vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on reasonable construction could sustain the action, the Court should accept that construction. The Courts are reluctant to frustrate an action on technical grounds. The charge of corrupt practice in an election is a very serious charge. Purity of election is the very essence of real democracy. The charge in question has been denied by the respondent. It has yet to be proved. It may not be proved. The allegations made by the appellant may ultimately be proved to be wholly devoid of truth. The charge of corrupt practice in an election is a very serious charge. Purity of election is the very essence of real democracy. The charge in question has been denied by the respondent. It has yet to be proved. It may not be proved. The allegations made by the appellant may ultimately be proved to be wholly devoid of truth. But the question is whether the appellant should be refused an opportunity to prove his allegations. Should the Court refuse to enquire into those allegations merely because the appellant or someone who prepared his brief did not know the language of the law? We have no hesitation in answering those questions in the negative. The implications of the rule of law are manifold. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the Court to ascertain that principle and implement it." 22. Sec.258(4) of the Tamil Nadu Panchayats Act requires that, "an election petition (a) shall contain a concise statement on the material facts on which the petitioner relies; (b) shall with sufficient particulars, set forth the ground or grounds on which the election is called in question; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Central Act V of 1908) for the verification of pleadings." 23. In my view, there is no deficiency in the pleadings. In fact, the revision petitioner has clearly understood the scope and ambit of the allegations made against him in the election petition. He has filed his written statement specifically stating that on the date of the nomination, he had no subsisting contract and that on 6.9.1996 his contract was cancelled. 24. The relevant Section, viz. Sec.259 makes a clear distinction between want of qualification/disqualification on the one side and a corrupt practice on the other. He has filed his written statement specifically stating that on the date of the nomination, he had no subsisting contract and that on 6.9.1996 his contract was cancelled. 24. The relevant Section, viz. Sec.259 makes a clear distinction between want of qualification/disqualification on the one side and a corrupt practice on the other. In the case of allegations of corrupt practice since they are in the nature of criminal charges indeed particulars in detail are required so that the returned candidate may know the case he has to meet - there cannot be a fishing and roving enquiry. That pleadings in an election petition alleging corrupt practice are treated differently would be evident from the fact that such an election petition has additionally to be accompanied by an affidavit in Form 25 prescribed by Rule 94-A of the Conduct of Election Rules, 1961 in support of the allegations of such corrupt practice and the particulars thereof. The Supreme Court has in R.P.Moidutty v. P.T.Kunju Mohammad, (2000)1 S.C.C. 481 observed as follows: "The legislature has taken extra care to make special provision for pleadings in an election petition alleging corrupt practice." Thus there is always a line to be drawn when the pleadings relate to corrupt practice. Not a single authority has been cited at the bar where the election petition was dismissed in limine on the ground of inadequacy of material facts set out when it came to the returned candidate suffering from any disqualification. However, in a case where disqualification of the candidate concerned is pleaded minute details are not necessary. As has been stated in Azhar Hussain v. Rajiv Gandhi, 1986 S.C.C. (Supp.) 315, "material facts are facts which if established would give the petitioner the relief asked for and the test required to be answered is whether the Court could have given a direct verdict in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition." In the instant case, it is specifically stated that the revision petitioner suffered from disqualification that he had a subsisting contract, no doubt, in the Public Works Department. It was not necessary to have been more specific. The revision petitioner admits that he had a Government contract but then it was not a subsisting one. 25. It was not necessary to have been more specific. The revision petitioner admits that he had a Government contract but then it was not a subsisting one. 25. In D.Ramachandran v. R.V.Janakiraman and others, (1999)3 S.C.C. 267 : J.T. (1999)2 S.C. 94 it is stated that it is for the Court to assume the averments in the petition to be true initially to find out whether the averments disclose a cause of action or triable issue and any of the prayers could be granted. Again, a plaint cannot be rejected partially by dissecting the pleadings in several parts and holding that one of them does not disclose a cause of action. In case of defective material facts, petition has to be rejected at the outset. But, in the case of defective material particulars, it can be cured subsequently. See also V.S.Achuthanandan v. P.J.Francis & another, J.T. (1999)2 S.C. 347: (1999)3 S.C.C. 737 : A.I.R. 1999 S.C. 2044. 26. As already noticed, I do not find any defect in the pleadings and if the pleadings are taken as a whole, the contention raised on behalf of the revision petitioner cannot be accepted. 27. The next point urged by the learned Additional Solicitor General is that the contract of the revision petitioner did not relate to the Panchayat and that his contract was only with the Highways Department. 28. Sec.259 of the Act provides that, "if the District Judge is of opinion that on the date of his election a returned candidate was not qualified or was disqualified to be chosen as a member under this Act, should declare the election of the returned candidate to be void and this would be subject to the provisions of Sub-Sec.(2)." Under Sec.37(3)(c) of the Act, "for a person to be disqualified for election as a member if at the last date for filing of nomination or at the date of election he is interested in a subsisting contract made with or any work being done for, any panchayat except as a shareholder (other than a director) in a company," (Italics supplied). 29. 29. In the submission of the learned Additional Solicitor General no doubt Art.243-F(1) provides that a person shall be disqualified for being chosen as and for being a member of the Panchayat if he is disqualified to be a member of the Legislature of the State concerned and equally Art.243-K endows the State Election Commission with the superintendence etc. but it is specifically provided that if any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications set out in 243-F(1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State, may, by law provide and the State of Tamil Nadu not having constituted any such authority, the petitioner ought not to have been disqualified. 30. I do not agree. My reasoning is as follows: Art.243-F runs as follows: "(1) A person shall be disqualified for being chosen as, and for being a member of a Panchayat - (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years; (b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide." Art.243-K provides as follows: "(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. (2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine: Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment. (3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1). (4). Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats." 31. Sec.9-A of the Representation of the People Act, 1951 provides for disqualification for Government contractors etc. as follows: "A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government. Explanation: - For the purpose of this Section, where a contract has been fully performed by the person by whom it has been entered into with the appropriate Government, the contract shall be deemed not to subsist by reason only of the fact that the Government has not performed its part of the contract either wholly or in part." Under this Section the revision petitioner will be disqualified. The disqualification is there. The authority referred to in the Article is the one to whom the question whether a particular person suffers from any disqualification is to be referred. As rightly pointed out by Mr. N. S. Varadachari, learned counsel for the first respondent, the aggrieved person could not be going in search of the authority in the present situation where the election has already taken place. The matter was there for the Election Tribunal to consider. As rightly pointed out by Mr. N. S. Varadachari, learned counsel for the first respondent, the aggrieved person could not be going in search of the authority in the present situation where the election has already taken place. The matter was there for the Election Tribunal to consider. In my view, there is no lacuna and even if there is a lacuna the same cannot be taken advantage of by the revision petitioner. It does not also pass muster that a person who is a Government contractor but not a Panchayat contractor, will not be disqualified from contesting the Panchayat elections. 32. The next submission of the learned Additional Solicitor General was that certain files summoned from the Government were brought to Court and marked as Court documents, that the revision petitioner was not allowed to peruse the documents nor was he permitted to cross-examine. The documents had come from proper custody. No objection was raised by the revision petitioner when the documents were marked and proved before the Tribunal. No grounds also have been raised here in the memorandum of grounds of revision. 33. On facts, it has been found that the revision petitioner was disqualified to contest for the post. He denied the very existence of the contract. He did not examine himself. The Tribunal has found that there was a subsisting contract and this finding is based on adequate materials and it has not been shown as to how that finding is erroneous. 34. In view of the discussion above I hold that none of the grounds raised is tenable and there is no case made out for interference. The civil revision petition fails and the same is dismissed. There will however by no order as to costs. Consequently, the connected miscellaneous petitions C.M.P.Nos. 21157, 21658 and 21829 of 1999 are closed.