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2001 DIGILAW 234 (KAR)

K. B. Prakash v. S. Kumara Bangarappa

2001-03-09

R.GURURAJAN

body2001
ORDER R. Gururajan, J.—Sri K.B. Prakash has presented this petition seeking for an order to declare the election of Sri S. Kumara Bangarappa declaring him as successful candidate from Soraba Assembly Constituency as void in terms of Section 100 (b) & (d)(2)(4) of the Representation of Peoples Act, 1951. 2. In the petition it is stated that the Petitioner and Respondents 1 to 6 contested for elections to 166 Soraba Assembly Constituency. Petitioner contested as an independent candidate and the first Respondent contested from Indian National Congress. Respondent No. 3 from Janata Dal (s) and the fourth, fifth and sixth Respondents contested as independents. Elections were held to the eleventh Karnataka Legislative Assembly from 166 Soraba Assembly Constituency and to the 13th Lok Sabha for 21 Shimoga Parliamentary Constituency on 11.9.1999. Petitioner submitted his nomination on 20.8.1999 and the results were declared on 6.10.1999. Sri S. Kumara Bangarappa was declared as elected to the Soraba Assembly Constituency in terms of Annexure-A. He was elected by a majority of 12495 votes. Respondent-7, returning officer is entrusted with the duties and responsibilities of conducting the election. According to the Petitioner, Sri M. Lakshminarayana, was appointed as Returning Officer (District Election Officer) for Shimoga constituency. He appointed 9 Assistant Returning Officers to assist the election works. Sri M. Lakshminarayana was functioning as Deputy Commissioner for Excise when Father of Respondent No. 1 was the Chief Minister of Karnataka. The said officer, along with certain others was involved in the rectified spirit scandal and a decision was taken to initiate disciplinary proceedings against the said officer and it was only because of Sri Bangarappa, the District Election Officer is still continuing in service without any disciplinary action being taken against him by the State Government. The DEO is indebted to Father of Respondent No. 1 for certain favours bestowed on him by Father of Respondent No. 1 when he was in the office as Chief Minister and also as Member of Legislative Assembly and Member of Parliament. Father of Respondent No. 1 using this opportunity conspired with the DEO to do all illegal, improper and corrupt practices for the prospects and success of this election. The DEO using his office had directed the 7th Respondent to do all these improper and illegal activities. Father of Respondent No. 1 using this opportunity conspired with the DEO to do all illegal, improper and corrupt practices for the prospects and success of this election. The DEO using his office had directed the 7th Respondent to do all these improper and illegal activities. The 7th Respondent, who is subordinate to the DEO, has colluded to carryout all the instructions and oral orders and became a conspiror to the electoral malpractice and corrupt practices. Sri S. Bangarappa was interested in the winning of the first Respondent who is none other than his own son and also mainly responsible for contesting of the first Respondent from the Indian National Congress. In view of the simultaneous election to the Parliament and Legislate Assembly, Sri S. Bangarappa extended the domain of his illegal activities to the assembly constituency as any gain in vote in the assembly constituency also benefits him personally as the congress candidate in the parliamentary election. 3. The election to the 11th Legislative Assembly was held along with parliamentary elections to the Shimoga Lok Sabha Seat. The counting of votes took place in Tobacco godown Abbalagere 6 kms away from Shimoga Town. Petitioner has very strong reasons to believe that Respondent No. 1 in collusion with the 7th and 8th Respondents and the other Assistant Returning Officers had planned to commit certain irregularities in the election process. Petitioner approached the Returning Officer on 30.9.1999 seeking for serial number of ballot boxes issued to different polling stations in the assembly constituency. The DEO furnished the serial number of ballot boxes held in stock vide letter dated 30.9.1999 stating the number of boxes belonging to Election Commission of India as 549 and the number of boxes belonging to State Election Commission as 239. In all 839 boxes. The total ballot boxes, which were required by the polling stations, were much less than what was available in stock. Petitioner requested the 7th Respondent to furnish certified copies of Form No. 16 for all booths, Form Nos. 21, 21, check memos and check list, list of ballot boxes used and unused with serial numbers etc. Petitioner had also requisitioned the details as to whether any ballot boxes were received from other constituency or that any ballot boxes were sent from this constituency and their details. Petitioner had also requested for the issue of certified copy of the tabulation sheet each round. Petitioner had also requisitioned the details as to whether any ballot boxes were received from other constituency or that any ballot boxes were sent from this constituency and their details. Petitioner had also requested for the issue of certified copy of the tabulation sheet each round. That inspite of the receipt of the said letter, the 7th Respondent has failed to furnish any details to the Petitioner. Instead he has issued an endorsement stating that he will have to examine the aspect of furnishing the details sought for by the Petitioner from the DEO. 4. Petitioner wrote a letter to the Chief Electoral Officer in this regard. As per the Conduct of Elections Rules, 1961, the ballot boxes will have to be serially numbered. Sufficient safeguards are provided in the said Rules to prevent the manipulation of ballot boxes. Petitioner refers to Rule 33 in this regard. The returning officer has to maintain proper account in respect of all ballot boxes so used polling station-wise. Only those boxes held in stock can be given to polling station for conducting of the poll. If these ballot boxes are not in the counting hall, then it is a clear proof of the fact that the actual vote polled by the voters has not arrived at the counting hall. 5. The counting of votes was held on 6.10.1999 at Abbalagere, Shimoga City. In the counting hall there were eight different halls for counting of votes polled to eight different assembly segments. In each counting hall, the votes pooled to the assembly election as well as to the parliamentary election were counted simultaneously on different tables. There were 21 counting tables for the counting of votes of the assembly segment only. On the day of counting it was noticed that the serial number of the ballot boxes as intimated by the DEO in his letter dated 30.8.1999 did not tally with the ballot boxes which arrived at the counting hall. Immediately the counting agents of the Petitioner objected the same before the counting supervisor. The oral objections raised by the Petitioner and his counting agents were not taken into account by the officers. The Petitioner approached the Returning Officer and the DEO. The DEO was unable to clarify the situation. However he assured that he would verify the matter immediately and inform them before the actual counting. 6. The oral objections raised by the Petitioner and his counting agents were not taken into account by the officers. The Petitioner approached the Returning Officer and the DEO. The DEO was unable to clarify the situation. However he assured that he would verify the matter immediately and inform them before the actual counting. 6. The DEO, 7th and 8th Respondents and their Assistant Returning Officers who has assured the Petitioner about clarifying the matter immediately did not do so at all. The DEO has not just bothered to examine such a serious lapse. Further he went to the extent of stating in his press note that no complaint by any candidate has been received either by himself or by any officials. It is significant to note that the DEO has failed to provide the list of ballot boxes issued to the polling station to the Petitioner. The DEO along with the RO of the Soraba assembly segment has therefore adopted a systematic method by which who they have manipulated the ballot boxes thereby seeing to it that the votes actually polled in the polling stations did not arrive in the counting hall. In its place, a different set of ballot boxes had arrived and it is the votes in these ballot boxes, which have been counted thereby leading to the victory of the first Respondent. 7. The returning officer has prepared detailed statement containing information about the boxes and other materials issued to the polling stations. This statement initially did not contain any detail about the serial number of the ballot boxes it is only after allegations made by the Petitioner and others in this regard the 7th and 8th Respondents manipulated these records and inserted the serial number of ballot boxes which actually arrived in the polling stations. It is clear that the documents are a fabricated one. The 8th Respondent is now making a feeble attempt to contend that the serial number of ballot boxes issued to the polling stations and the serial number of ballot boxes in the counting table tallies. The entire exercise of 8th Respondent leaves no doubt that he is indulging in fabrication/manipulation and alteration of documents. 8. The 8th Respondent is now making a feeble attempt to contend that the serial number of ballot boxes issued to the polling stations and the serial number of ballot boxes in the counting table tallies. The entire exercise of 8th Respondent leaves no doubt that he is indulging in fabrication/manipulation and alteration of documents. 8. The illegalities in the matter of conducting the elections did not stop only in the matter of manipulating and substituting ballot boxes, but it extended to further acts of commission and omission in the matter of actual counting also. Rule 38 of the Conduct of Elections 1962 clearly shows that the very ballot paper should have both the mark of the polling station and the signature of the presiding officer and according to Rule 56(2)(h) the Returning Officer should reject the ballot paper if it does not have the mark and signature. The counting agents of the Petitioner observed that in certain ballot papers, the mark and the signature were absent and objected to the counting of these ballots. The objections were overruled. The 7th and 8th Respondents has carried out a systematic method of rigging at the instance of the first Respondent and his father Sri Bangarappa. The extent of rigging that has taken place in this election is in relation to 23 ballot boxes affecting the total of 13,687 votes in total almost 15% of the polled votes. These 23 ballot boxes did not pertain to the serial number of the ballot boxes held in stock. One of the candidates from Shimoga constituted submitted a detailed representation to the Election Commissioner of India. A press note came to be issued in terms of Annexure-K. In the light of these allegations Petitioner has raised grounds in support of violation of Section 100 (b) and (d)(2)(4) of the Representation of Peoples Act, 1951. 9. Notice was issued in this petition, pursuant to which the Respondent No. 1 has filed his detailed written statement. A preliminary objection was raised for non-compliance of the provisions of Sections 81 and 83 of the Representation of Peoples Act, 1951 and for striking out the paragraphs which are unnecessary, scandalous, vexatious or frivolous. It is contended in the written statement that Section 83 of the Act provides for contents of election petition. A preliminary objection was raised for non-compliance of the provisions of Sections 81 and 83 of the Representation of Peoples Act, 1951 and for striking out the paragraphs which are unnecessary, scandalous, vexatious or frivolous. It is contended in the written statement that Section 83 of the Act provides for contents of election petition. Whenever an allegation of corrupt practice is made in a petition, the Petitioner shall also set forth full particulars of such corrupt practice including a 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. In the context of an election petition 'material facts' are facts which if established, would give the Petitioner the relief asked for. 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. Therefore it becomes imperative that omission of a single material fact would lead to an incomplete cause of action and statement of claim becomes bad. The function of 'material 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. In order to constitute an allegation of corrupt practice the essential ingredients that must be contained in a petition are (i) direct and detailed nature of the corrupt practice as defined in the Act, (ii) details of every important particular must be stated giving the date place, names of persons. The nature, form of assistance, measure of assistance and how such assistance, manipulation, fabrication has furthered the election prospects of the returned candidate in case where the Petitioner pleads the corrupt practice as enumerated in Section 123(7) of the Act. 10. Respondent has also stated that no case is made out by the Petitioner in support of his petition. According to him material facts are lacking. In fact the Respondent has dealt with each para and has submitted a very detailed statement opposing the petition. 11.I As, I is filed by the first Respondent seeking to delete Respondents 7 and 8 from the array of parties. According to him material facts are lacking. In fact the Respondent has dealt with each para and has submitted a very detailed statement opposing the petition. 11.I As, I is filed by the first Respondent seeking to delete Respondents 7 and 8 from the array of parties. IA-III is filed by the Returning Officer praying to delete him from the array of parties. IA-IV is filed by the 8th Respondent praying to delete him from the array of parties. Learned Counsel for the Petitioner was given several opportunities to file his objections to these I As. Adjournments were granted on 2.6.2000, 19.6.2000, 26.6.2000, 13.7.2000, 17.7.2000 and 25.7.2000, but inspite of several opportunities no objection as such was filed by the Petitioner. After hearing the learned Counsel I have passed an order on 31.8.2000 permitting deletion of Respondents-7 and 8 from the array of parties. 12. IA-II is filed seeking for an order to strike of para 4-14 of this election petition and to dismiss the petition. No objections were filed in spite of several opportunities given to the Petitioner. In these circumstances, the matter was finally heard on IA-II. 13. Sri G.V. Shantharaju, learned Senior Counsel invites my attention to the averments made in the petition and contended that no material facts are placed on record as required by Election Laws. He refers to Sections 81(b), 87, 100 and 123(7) of the Representation of Peoples Act in support of his case. He argues that corrupt practice is a serious allegation and unless sufficient material facts in terms of law are placed on record, the Court has to reject the petition for want of material facts. He states that every one of the averment even if taken to be true cannot become corrupt practice in law. He relies on the following judgments of the Supreme Court in support of his case. a) Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, AIR 1969 SC 1201 b) Hardwari Lal Vs. Kanwal Singh, AIR 1972 SC 515 c) Shri Udhav Singh Vs. Madhav Rao Scindia, AIR 1976 SC 744 d) Surinder Singh Vs. Hardial Singh and Others, AIR 1985 SC 89 e) Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, AIR 1987 SC 1577 f) Mr. V. Narayanaswamy Vs. Mr. C.P. Thirunavukkarasu, AIR 2000 SC 694 g) G. Shankaregowda Vs. Kanwal Singh, AIR 1972 SC 515 c) Shri Udhav Singh Vs. Madhav Rao Scindia, AIR 1976 SC 744 d) Surinder Singh Vs. Hardial Singh and Others, AIR 1985 SC 89 e) Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, AIR 1987 SC 1577 f) Mr. V. Narayanaswamy Vs. Mr. C.P. Thirunavukkarasu, AIR 2000 SC 694 g) G. Shankaregowda Vs. Rathan Singh, ILR (1992) KAR 2565 Per contra, learned Counsel for the Petitioner has only argued that the petition cannot be dismissed based on the averments only. According to him evidence is required to be led before rejecting the election petition. Learned Counsel for the Petitioner does not say anything more than this in reply to the argument of Mr. G.V. Shantharaju, learned Counsel for the Respondent in the case on hand. 14. Section 83 of the Representation of Peoples Act reads as under: Section 83(1) An election petition- (a) shall contain a concise statement of the material facts on which the Petitioner relies; (b) 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; and (c) Shall be signed by the Petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleadings: Provided that where the Petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or Annexure to the petition shall also be signed by the Petitioner and certified in the same manner as the petition. Section 87 provides for the procedure before the High Court. Section 100 reads as under: 100. (2) Any schedule or Annexure to the petition shall also be signed by the Petitioner and certified in the same manner as the petition. Section 87 provides for the procedure before the High Court. Section 100 reads as under: 100. Grounds for declaring election to be void.-(1) Subject to the provisions of Sub-section (2) if the High Court is of opinion.- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidates by an agent other than his election agent, or (iii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied- (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without consent, of the candidate or his election agent; (b) .... (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and (d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents then the High Court may decide that the election of the returned candidate is not void. Order 6, Rule 16 deals with striking out pleadings and Order 7, Rule 17 speaks of rejection of plaint. 15. In the light of these provisions it is clear to me that the Court may at any time order to strike off the pleadings which may be unnecessary, frivolous and vexatious in terms of Order 6, Rule 16 of the Code of Civil Procedure. Section 87 provides for applicability Code of Civil Procedure. 16. Suffice it to say that the petition must be self-contained, and it should make out a case of corrupt practice with material facts in terms of the provisions of law. These very provisions have come for judicial scrutiny. The first case Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, AIR 1969 SC 1201 relied on by the learned Counsel for the Petitioner deals with Section 83. The Supreme Court in para 29 has stated in unmistakable terms as under; Section 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 the 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 details 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 the two are quite distinct. The material facts will show the ground of corrupt practice and the 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 fact 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 constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. An election petition without the material facts relating to a corrupt practice is no election petition at all. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. An election petition without the material facts relating to a corrupt practice is no election petition at all. A petition, which merely cites the sections, cannot be said to disclose a cause of action where the allegation is the making of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. 17. The next case is Shri Udhav Singh Vs. Madhav Rao Scindia, AIR 1976 SC 744 wherein the Supreme Court again notices the impact of Section 83(1)(a) in para 38 as under: All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are 'material facts'. 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 ground relied upon and the special circumstances of the case. In short, 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 Section 83(1)(a). 18. The Supreme Court again in Azhar Hussain Vs. Rajiv Gandhi, AIR 1986 SC 1253 noticed Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, AIR 1969 SC 1201 observed 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 and it is settled law 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. 19. Again in Dhartipakar Madan Lal Agarwal Vs. 19. Again in Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, AIR 1987 SC 1577 the Supreme Court as stated in paras 8 and 14 as under: On a combined reading of Sections 81, 83, 86 and 87 of the Act it is apparent that those para of an election petition which do not disclose any cause of action, are liable to be struck off under Order 6, Rule 15 Code of Civil Procedure 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, embarrass or delay the fair trial of the petition or suit. It is the duty of the Court on examination of the plaint and it need not wait till the Defendant files written statement and points out the defects. If the Court on examination of the plaint or election petition finds that it does not disclose any cause of action it does not disclose any cause of action it would be justified in striking out the pleadings. Order 6, Rule 15 itself empowers the Court to strike out pleadings any stage of the proceedings which may even be before the filing of the written statement by the Respondent or commencement of the trial. 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. If after striking out the pleadings the Court finds that no triable issues remain to be considered it has the power to reject the election petition under Order 6, Rule 11. Vidya Charan Shukla Vs. G.P. Tiwari and Others, AIR 1963 MP 356 Overruled. (Para 8) The Act is a complete and self contained Code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of the Code of Civil Procedure are applicable to the extent as permissible by Section 87. Vidya Charan Shukla Vs. G.P. Tiwari and Others, AIR 1963 MP 356 Overruled. (Para 8) The Act is a complete and self contained Code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of the Code of Civil Procedure are applicable to the extent as permissible by Section 87. The Scheme of the Act would show that an election can be questioned under the statute as provided by Section 80 on the grounds as contained in Section 100, Section 83 lays down a mandatory provision in providing that an election petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings are regulated by Section 83 and it makes it obligatory on the election Petitioner to give the requisite facts, details and particulars of each corrupt practice with exactitude. If the election petition fails to make out a ground under Section 100 it must fail at the threshold. Allegations of corrupt practice are in the nature of criminal charges, it is necessary that there should be no vagueness in the allegations so that the returned candidate may know the case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated in the pleadings, the trial of the election petition cannot proceed for want of cause of action. The emphasis of law is to avoid a fishing and roving enquiry. (Para 14) 20. Again in Hardwari Lal Vs. Kanwal Singh, AIR 1972 SC 515 the Supreme Court has stated in para 22 as under: 22. The allegations in paragraph 16 of the election petition do not amount to any statement of material fact of corrupt practice. It is not stated as to what kind of form of assistance was obtained or procured or attempted to obtain or procure. It is not stated from whom the particular type of assistance was obtained or procured or attempted to obtain or procure. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen of the charge of corrupt practice within the meaning of Section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. It is not stated in what manner the assistance was for the furtherance of the prospects of the election. The gravamen of the charge of corrupt practice within the meaning of Section 123(7) of the Act is obtaining or procuring or abetting or attempting to obtain or procure any assistance other than the giving of vote. In the absence of any suggestion as to what that assistance was the election petition is lacking in the most vital and essential material fact to furnish a cause of action. 21. In Mr. V. Narayanaswamy Vs. Mr. C.P. Thirunavukkarasu, AIR 2000 SC 694 , the Supreme Court in para 28 has stated thus: An election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the Court cannot exercise dispensing powers to waive non-compliance. For the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the Court has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83(1)(c) read with Rule 94-A of the Rules and Form 25 are to be read conjointly as an integral scheme. When sop read if the Court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There is difference between 'material facts' and 'material particulars'. While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. "Material facts" mean the entire bundle of acts, which would constitute a complete cause of action and there must be concisely stated in the election petition i.e., Clause (a) of Sub-section (1) of Section 83. Then under Clause (b) of Sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election Petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of corrupt practice is required by law to be supported by an affidavit and the election Petitioner is obliged to disclose his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as contemplated by law it has to be specifically alleged that the corrupt practice were committed with the consent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or conjecture for the Court to draw inference by adopting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation could have no legal existence and the Court could not take cognizance thereof. Charge of corrupt practicing quasi-criminal in nature the Court must always insist on strict compliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act, which can attract the application of the doctrine of substantial compliance. The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles contained in the Code of Civil Procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter fails within the scope of Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil procedure. Non-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter fails within the scope of Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil procedure. Where neither the verification in the petition nor the affidavit gives any indication of the source of information of the Petitioner as to the facts stated in the petition which are not to his knowledge and the Petitioner persists that the verification is correct and affidavit in the form prescribed does not suffer from any defect the allegations of corrupt practices cannot be inquired and tried on threshold for non-compliance with the mandatory provisions of law as to pleadings. It is no part of duty of the Court suo motu even to direct furnishing of better particulars when objection is raised by other side. Where the petition does not disclose any cause of action it has to be rejected. Court however, cannot dissect the pleadings into several parts and consider whether each one of them discloses a cause of action. Petition has to be considered as a whole. There cannot be a partial rejection of the petition 22. In the light of the clear pronouncement of law by the Apex Court, let me see as to whether the Petitioner has discharged his statutory mandatory requirement in the matter of providing 'material particulars' in the case on hand. 23. In the petition, the first averment is that Sri Lakshminarayana was functioning as DEO of Shimoga District, he was working as Deputy Commissioner (Excise) when Father of Respondent No. 1 was the Chief Minister, he was involved in the rectified spirit scandal and no action was taken against him on account of his close association with father of Respondent No. 1 for more than a decade, father of Respondent No. 1 using his association with the said Lakshminarayana conspired with the DEO to do all illegal, improper and corrupt practices. Father of Respondent No. 1 was interested in the winning of Respondent No. 1 who is none other than his own son. In para 4 except linking Sri Lakshminarayana with Father of Respondent No. 1, no material facts are placed on record with regard to the role played by the winning candidate. It is not stated as to how the present Respondent is a party to these activities as alleged. In para 4 except linking Sri Lakshminarayana with Father of Respondent No. 1, no material facts are placed on record with regard to the role played by the winning candidate. It is not stated as to how the present Respondent is a party to these activities as alleged. Para read as a whole would show that it is more against Father of Respondent No. 1 rather than Respondent-1. There is lack of material details with regard to Respondent-1. In the absence of any consent or a rule of this Respondent it cannot be said that this Respondent has committed any corrupt practice in accordance with the provisions of the Representation of Peoples Act. 24. Again in para 5 it is stated that this Respondent in collusion with Respondents-7 and 8 committed certain illegalities. On a request made by one of the candidates the DEO furnished the particulars and the serial number of ballot boxes issued to different polling stations; there were in all 839 ballot boxes but the number of ballot boxes required were much less than what was available in stock; Respondent-7, inspite of request did not furnish the copies sought for by the Petitioner. Here again material facts are lacking. No details are forthcoming as to how this Respondent colluded with Respondents-7 and 8. Collusion is a very serious plea made against the winning candidate. There are no material particulars with regard to the date, time and place as required in law. It is also not stated in clear terms as to how this Respondent sought any assistance from the Returning Officer or the DEO. It is also not stated as to how the issuance of the ballot boxes has resulted in winning of this election by the Respondent. 25. Again in para 6 Petitioner states that a representation was made to the Chief Election Commissioner against the Assistant Returning Officer. Here again nothing has been stated against the winning candidate namely Respondent No. 1. 26. In para 7 Respondents refers to the rules and the Hand Book. Mere reliance on rules and Hand Book by itself does not give material particulars as held by Courts. 27. Here again nothing has been stated against the winning candidate namely Respondent No. 1. 26. In para 7 Respondents refers to the rules and the Hand Book. Mere reliance on rules and Hand Book by itself does not give material particulars as held by Courts. 27. In para 8, Petitioner has pleaded that there were eight different halls for counting of votes, in each counting hall the votes pooled to the assembly election as well as to the parliamentary election were counted simultaneously on different tables; Soraba Constituency had 18 counting tables and the same number of tables for the counting of votes of Lok Sabha; in total there were 21 counting tables to the assembly segment only; Petitioner noticed that the serial number of the ballot boxes as intimated by the DEO did not tally with the ballot boxes which arrived at the counting hall; objections were raised orally; Petitioner approached the DEO seeking for clarification. 28. Again in para 9 it is stated that Respondents-7 and 8 did not clarify the matter. A request was made on 30.9.1999 to provide the list of ballot boxes and the same was not furnished by the DEO, the DEO on coming to know of the serious lapses appears to have made an attempt in recording the serial number of ballot boxes which came to the counting hall as the ballot boxes issued to polling stations and furnished certain information accordingly to some of the candidates; the District Election Officer along with the Returning officer adopted a systematic method by which they have manipulated the ballot boxes leading to the victory of the first Respondent. In para 10 again it is stated that the 8th Respondent on the basis of the manipulated entries is now making a feeble attempt to contend that the serial number of ballot boxes issued to the polling stations and the serial number of ballot boxes on the counting table tallies; the said exercise of the 8th Respondent leave no doubt that he is indulging in fabrication/manipulation and alteration of documents. 29. In all these paras as rightly pointed out by the learned Counsel for the winning candidate the material facts with regard to serial number pertaining to various polling stations and serial number of ballot boxes and nature of manipulation made by the Respondent has not been stated. 29. In all these paras as rightly pointed out by the learned Counsel for the winning candidate the material facts with regard to serial number pertaining to various polling stations and serial number of ballot boxes and nature of manipulation made by the Respondent has not been stated. The names of those persons who substituted the ballot papers and ballot boxes have also not been stated. 30. It is stated in paras 11 to 14 that the counting officer mechanically continued the counting contrary to Rule 56(h). In para 12 it is stated that Respondents-7 and 8 have therefore carried out the systematic method of rigging at the instance of the first Respondent's father Father of Respondent No. 1 thereby materially affecting the result of the petition. 31. In para 13 it is stated that 23 ballot boxes did not pertain to the serial number of the ballot boxes held in stock. 32. In para 14 it is stated that a detailed representation was submitted to the Election Commission of India by one of the candidates from Shimoga Parliamentary constituency and the same was not submitted by a candidate belonging to Soraba Assembly Constituency. 33. After going through the averments made in these paras it is clear to me that the Petitioner has failed in his duty in terms of the statutory provision and in providing material facts. Mere reference to Rules do not by itself amount to corrupt practice so also the mere allegation of 'rigging' without any further details is again in violation of the statutory requirement of material facts. Petitioner himself is not clear as to how the boxes came to the assembly constituency. He states that they do not belong to the same. How they have come and at whose instance they have come is not stated. In the circumstances, the Counsel for the successful candidate is right in stating that the material facts have not been placed before this Court. Therefore a case is made out for striking of these averments in the light of the Representation of Peoples Act read with Code of Civil Procedure. 34. In this connection, I may usefully refer to AIR 1986 SC 1523 Azhar Hussain Vs. Therefore a case is made out for striking of these averments in the light of the Representation of Peoples Act read with Code of Civil Procedure. 34. In this connection, I may usefully refer to AIR 1986 SC 1523 Azhar Hussain Vs. Rajiv Gandhi, wherein while considering a corrupt practice with regard to an allegation on a Gazetted Officer making a speech in praising elected candidate, the Supreme Court ruled that it was not mentioned as to who procured or obtained the services of the gazetted officer, in what manner he obtained the services and what were the facts which went to show that it was with the consent of the elected candidate nor was it shown which, if any, facts went to show that the speech was in furtherance of the prospects of the elected candidate's election. The petition also did not disclose the exact words used in the speech; or the time and date of making such a speech. Again in para 21 the Supreme Court ruled that there is no mention of the names of the workers said to have been employed by the Respondent or his agents who have allegedly painted the slogans and the same amounts to failure to incorporate material particulars. It was also observed that in the absence of time, date and place of speech, and exact extract of speech, the essential ingredients of corrupt practice is not spelled out. Again in the very same judgment the Court with regard to distribution by returned candidate of book containing objectionable statements in constituency, it was observed that there is no averment to show that the book was published with consent or knowledge of returned candidate and in the absence of any particulars with regard to consent petition suffers from lack of material particulars. 35. Again in Dhartipakar Madan Lal Agarwal Vs. Rajiv Gandhi, AIR 1987 SC 1577 the Supreme Court notices with regard to the mother of the candidate being the Prime Minister touring with the candidate by itself does not amount to corrupt practice and undue influence. 36. In the light of these decisions of the Apex Court, unless the Petitioner comes out with all the details with regard to the consent or the method of influence with the consent of the candidate it cannot be said that a case is made out of a corrupt practice. 36. In the light of these decisions of the Apex Court, unless the Petitioner comes out with all the details with regard to the consent or the method of influence with the consent of the candidate it cannot be said that a case is made out of a corrupt practice. Therefore in the light of the clear pronouncement of the law with regard to the material particulars, I am clearly of the view that the Petitioner has filed to make out a case in terms of the mandatory provisions of Sections 83, 86 read with the provisions Code of Civil Procedure. 37. The only argument of the learned Counsel for the Petitioner is that the allegation of corrupt practice is a matter of evidence and the petition cannot be thrown out at a threshold. This argument has to be rejected in the light of the clear pronouncement of law in the case of Azhar Hussain Vs. Rajiv Gandhi, AIR 1986 SC 1253 , wherein a similar contention was urged and the Court in para 12 notices the arguments and rejects the same as under: 12. Learned Counsel for the Petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the Court must proceed with the trial, record and evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned Counsel, it is an argument, which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court and exercise the mind of the Respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action. On the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Even in an ordinary civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action. On the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law. An order directing a party to strike out a part of the pleading would result in the termination of the case arising in the context of the said pleading. The Courts in exercise of the powers under the Code of Civil Procedure can also treat any point going to the root of the matter such as one pertaining to jurisdiction or maintainability as a preliminary point and can dismiss a suit without proceeding to record evidence and hear elaborate arguments in the context of such evidence, if the Court is satisfied that the action would terminate in view of the merits of the preliminary point of objection. The contention that even if the election petition is liable to be dismissed only after recording evidence is a thoroughly misconceived and untenable argument. 38. This petition read as a whole shows that the Petitioner seems to have been influenced by the factum of the returning candidate being the son of Sri Bangarappa, former Chief Minister. The first Respondent being the son of former Chief Minister by itself cannot be taken for raising a plea of corrupt practice of Respondent-1. Corrupt Practice is a serious allegation affecting the future of a political personality. In a democratic set up it cannot be ruled out that children of political leaders do contest to the various political bodies. Just because they happen to be the children of a political leader that by itself cannot be taken as a ground by a rival candidate and charge him (son/daughter of a political leader) of a corrupt practice without providing sufficient material facts in accordance with law. There are several references in this case to the father of Respondent-1, the then Chief Minister, but it is nowhere pleaded that Respondent is a party to any of these allegations as required in law and that he has given his consent for the alleged acts of corrupt practice. There are several references in this case to the father of Respondent-1, the then Chief Minister, but it is nowhere pleaded that Respondent is a party to any of these allegations as required in law and that he has given his consent for the alleged acts of corrupt practice. It is also not pleaded that the father of Respondent No. 1 is an agent of this Respondent. 39. In A.S. Sulochana Vs. C. Dharmalingam, AIR 1987 SC 242 the Supreme Court while considering the sub-tenancy under the Rent Control Act notices the 'sin' as rule as to who has violated the provisions of the Act. The Court notices as under; When the Statute says the tenant who is sought to be evicted must be guilty of the contravention, the Court cannot say, will suffice guilt of his predecessor in interest. The flouting of the law, the sin under the Rent Act must be the sin of the tenant sought to be evicted, and not of his father or predecessor in interest. The Respondent inherited the tenancy, not the sin, if any of his father. The law in its wisdom seeks to punish he guilty who commits the sin, and not his son who is innocent of the rent law offence. 40. In the case on hand as I mentioned earlier the allegation if at all is against the Former Chief Minister, Father of Respondent No. 1 for having committed certain acts, which according to the Petitioner is a sin of corrupt practice under the election laws, that sin cannot be passed on to his son (Respondent No. 1) as sought to be made out in the case on hand for which there is no approval of law on account of no "material facts". The Supreme Court in the said judgment in unmistakable terms has held that the law in its wisdom seeks to punish the guilty who commits the sin and not his son who is innocent of an offence. In the case on hand, no allegations are made against Respondent-1 with regard to corrupt practice in terms of Representation of Peoples Act. Corrupt practice is a very serious matter affecting a candidate and those who make these allegations should be careful in evaluating and in pleading with regard to material particulars. In the case on hand, no allegations are made against Respondent-1 with regard to corrupt practice in terms of Representation of Peoples Act. Corrupt practice is a very serious matter affecting a candidate and those who make these allegations should be careful in evaluating and in pleading with regard to material particulars. Any omission on their part has to be taken note of by Courts seriously and as pointed out by the Supreme Court, the petition has to be thrown out at the threshold. In the absence of material facts, the sword of Damocles cannot be permitted to hang on the head of a winning candidate. In the circumstances, I am of the view that the allegations made in the petition reads as a whole would show that material facts constituting any corrupt practice is missing in this case. The vague allegations support the support the contention of Respondent-1 for striking out paras 4 to 14 in terms of Order 6, Rule 16 of the Code of Civil Procedure. In addition they also do not make out any valid cause of action in the election petition thereby rejecting this election petition under Order 7, Rule 11 Code of Civil Procedure. 41. I further get support from the judgment of this Court reported in ILR 2001 Kar 148 S.R. Morey Vs. Bellad Chandrakanth Gurappa and Ors. wherein another learned Judge of this Court has rejected the election petition in somewhat same/similar circumstances. 42. In the result, IA.II is allowed and the election petition stands dismissed in view of no grounds in terms of Section 100(1)(d) of the Act. 43. The allegations are made with imperfect material causing an unnecessary election petition in this Court. The various averments made in this petition, as I mentioned earlier, are more aimed at the Father of Respondent No. 1 than the winning candidate. In the circumstances I deem it necessary to award costs of Rs. 2,000/- and the costs be paid to the Chief Minister's Gujarat Relief Fund by the Petitioner within four weeks from today.