Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 4600 (MAD)

T. Senguttuvan v. S. M. Kandhan (A) Murugesan

2012-11-06

K.VENKATARAMAN

body2012
JUDGMENT K. VENKATARAMAN, J 1. The present application is taken out to reject the election petition. 2. The election petition has been filed to set at naught the election of the returned candidate namely, the applicant herein from 54, Vepanahalli Constituency, Krishnagiri District in the state of Tamil Nadu in the election held on 13.04.2011 and for declaration of the result made on 13.05.2011 as null and void and to direct the respondents 1 to 4 to declare the election petitioner as the successful and elected candidate in the said constituency in the election held on 13.04.2011. 3. For the sake of convenience, the applicant will be referred as the returned candidate, the first respondent as the election petitioner and the other respondents as per their status in the election petition. 4. The Election petitioner has filed the Election Petition under Sections 80 to 84 r/w Section 100(1)(b)(d)(ii)(iv) of the Representation of the People Act, 1951 (herein after called as the Act). 5. The election petitioner stood in the election on behalf of the political party of Desiya Murpokku Dravida Kazhagam (DMDK). The returned candidate belongs to the DMK party. 6. The entire allegations made in the election petition, if seen as a whole, will make it clear that the grievance of the election petitioner is that his party viz., DMDK was allotted the symbol of "NAGARA" and one of the independent candidate was allotted the symbol of "BASKET" which resembled "NAGARA" symbol that was allotted to the petitioner's party and hence the voters were confused, as a result of which the election petitioner lost the chance of winning in the said assembly election. It is further contended that the returned candidate who contested on behalf of the DMK secured 71,471 votes and was declared as elected, whereas the election petitioner had secured 63,867 votes and was declared defeated. The difference between the votes secured by the returned candidate and the election petitioner was only 7,604 votes. In view of the confusion of the symbol in the minds of the voters, it is contended that the election petitioner could not secure more votes than the returned candidate. Further, the independent candidate who has been allotted the symbol of "BASKET" has secured 8,943 votes without he being canvassed in the election. In view of the confusion of the symbol in the minds of the voters, it is contended that the election petitioner could not secure more votes than the returned candidate. Further, the independent candidate who has been allotted the symbol of "BASKET" has secured 8,943 votes without he being canvassed in the election. This has happened only in view of the confusion in the minds of the voters of that constituency regarding the symbol. 7. Yet another reason that has been stated to set at naught the election of the returned candidate was that the returned candidate distributed money to the voters. As far as the corrupt practice is concerned, I am of the considered view that the election petitioner has vaguely stated that the returned candidate committed corrupt practice by distributing money to the voters and thus was successful in the election. In paragraph 8 and 9 of the election petition, the allegations regarding the corrupt practice was set out which are extracted here under: "8. It is submitted that the returned candidate (i.e.) 5th respondent herein involved in corrupt practice while campaigning in the election. The 5th respondent agents, Men, representatives distributed money to the voters in the Vepanahalli Constituency. The election commission officials also registered a case in Crime No.85/2011 against one Arjun, Krishnan who are the representative of the elected candidate alleging that they have distributed money to the voters on 11.04.2011 in front of the Magilas Association Building at Pethalapalli. The FIR has been filed herewith as a Document. The Inspector of Police, Vepanahalli Police Station has registered a case as against the DMK party peoples i.e., the representative of 5th respondent. Apart from that another case in Crime No.86/2011, 87/2011 was registered as against the DMK party representatives alleging that they have distributed money to the voters. The FIR has been filed herewith as Documents. In all the three cases the police filed the charge sheet before the Judicial Magistrate, Krishnagiri. Another case in Crime No.146/2011 was registered as against the DMK party people alleging that they have distributed money to the voters subsequently the charge sheet was laid and the concerned accused was admitted the offence and he was convicted and paid the fine amount of Rs.2,500/-. The said FIR also marked as a Document. 9. Another case in Crime No.146/2011 was registered as against the DMK party people alleging that they have distributed money to the voters subsequently the charge sheet was laid and the concerned accused was admitted the offence and he was convicted and paid the fine amount of Rs.2,500/-. The said FIR also marked as a Document. 9. It is submitted that the Petitioner waylaid by the DMK candidate and his party peoples and threatened the petitioner by saying "you will be finished off". Immediately petitioner lodged complaint before the Maharaj Kadai Police Station then the case was registered in Crime No.130/2011 as against one Parvati who is a representative of DMK candidate. But the candidate was not implicated in the said case. The said FIR also filed herewith as a Document. Apart from that there are so many cases are registered as against DMK party peoples for distribution of money to the voters and for the illegal activities done at the time of election. All these things are comes under the category of "Corrupt Practice", according to section 100(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 (d)(ii) says by any Corrupt Practice committed in the interest of the returned candidate shall declare the election of the returned candidate as void. So, as stated above the DMK candidate who is the 5th respondent herein committed "Corrupt Practice" by distributing money to the voters did illegal activities at the time of election. So the election of the returned candidate to be void as per section 100(b)(d)(ii). So this Honourable Court can declare the election of Vepanahalli Constituency has void" 8. In paragraph 8, it is vaguely stated that the returned candidate and his men distributed money in Vepanahalli constituency and the election officials have also registered an FIR against one Arjun, Krishnan, who are the representatives of the returned candidate. Even assuming that an FIR was registered against the said Arjun and Krishnan, it is not stated therein that they have distributed money with the consent of the returned candidate or his election agent. Even assuming that an FIR was registered against the said Arjun and Krishnan, it is not stated therein that they have distributed money with the consent of the returned candidate or his election agent. A vague allegation has been made by the election petitioner and even assuming that the FIR was registered against certain individuals, the same will not constitute a reason to come to a conclusion that the returned candidate committed corrupt practice and hence his election is liable to be set aside. Further more, in paragraph 8, a vague statement has been made about the corrupt practice without attributing anything against the returned candidate as required under Section 83 of the Act, which is extracted here under: “83. Contents of petition:- (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 (5 of 1908) for the verification of 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 verified in the same manner as the petition." 9. Even in paragraph 9 of the election petition, though it is stated that the returned candidate committed corrupt practice by distributing money to the voters, no material facts or particulars have been set out as to whom the money was distributed and the time, place etc., as contemplated under Section 83 of the Act. 10. Even in paragraph 9 of the election petition, though it is stated that the returned candidate committed corrupt practice by distributing money to the voters, no material facts or particulars have been set out as to whom the money was distributed and the time, place etc., as contemplated under Section 83 of the Act. 10. As regards the allegation that the election petitioner was allotted the symbol of "NAGARA" which has been reserved for his party DMDK and that in the said constituency an independent candidate was allotted the symbol of "BASKET" which has confused the voters and hence he could not succeed in the election is concerned, I am of the considered view that the two symbols which was seen by me, do not resemble the same. Further, the election petitioner has not proved that there was a confusion among the voters regarding the symbols "NAGARA" and "BASKET" which has resulted in his defeat. The allegations made in this regard are extracted here under: "Most of the voters in the Constituency are illiterates. They are not able to find out a difference between the NAGARA and BASKET. Most of the persons in the villagers after voting they have stated that hey have voted for "NAGARA" symbol which was listed in serial no.5. Actually in serial no.5 "BASKET" symbol was listed and the illiterate voters have got confused between "NAGARA" symbol and "BASKET" symbol. After voting the voters openly stated that hey all voted for DMDK candidate. The weekly magazines and daily newspapers all published in their newspapers that due to the confusion between the BASKET and NAGARA, the DMDK candidate lost his chance." 11. In paragraph 5, it is stated, "If the Returning officer allotted some other symbol other than BASKET to the independent candidate who is the 8th respondent, the petitioner would have been easily elected. This is purely a mistake committed by the respondents 1 to 4 and on that score alone the election of Vepanahalli constituency have to be declared as null and void." 12. Again in paragraph 6, it is stated that, "If the petitioner's request was considered and accepted, he would have chances of success in the election which was held on 13.04.2011." 13. Again in paragraph 6, it is stated that, "If the petitioner's request was considered and accepted, he would have chances of success in the election which was held on 13.04.2011." 13. Thus, a vague allegation has been made stating that the voters were confused between the symbols "NAGARA" and "BASKET" and that the chances of winning of the election petitioner was lost because of the allotment of the symbol of BASKET to the independent candidate. The allegations set out in the affidavit which are extracted above would make this very clear that the allegations are not only vague but also without any material facts and particulars. The particulars such as the name of the voters who came and informed the election petitioner that they have voted for BASKET thinking that it is a symbol of "NAGARA" which was allotted to the election petitioner have not been specified in the election petition. Thus, considering the over all circumstances, I am of the considered view that the election petitioner has not made out any prima facie case regarding the allegations made in the election petition that the voters have confused themselves between the symbols "NAGARA" and "BASKET" and that his chances of winning in the election was lost because of the allotment of the symbol. 14. Further, on a fair reading of the entire election petition, it is evident that there are no fundamental facts or primary facts constituting material facts supported by all particulars, substantiating the allegations made in the election petition. In the absence of such material facts, this Court is of the view that there is no cause of action at all for filing the election petition and hence, it has to be rejected in limine under Order 7 Rule 11 CPC. 15. The election petition has been filed on frivolous grounds and no conscious and unambiguous grounds have been pleaded. The petitioner cannot have the luxury of proceeding with the trial. He cannot require this Court to make a rowing enquiry about the allegations made in the election petition on mere surmises and conjunctions. 16. In (2006) 13 Supreme Court Cases 353 – Sathi Vijay Kumar v. Tota Singh and others, the Hon'ble Apex Court held in paragraphs 33, 34 and 55 as follows:- "33. He cannot require this Court to make a rowing enquiry about the allegations made in the election petition on mere surmises and conjunctions. 16. In (2006) 13 Supreme Court Cases 353 – Sathi Vijay Kumar v. Tota Singh and others, the Hon'ble Apex Court held in paragraphs 33, 34 and 55 as follows:- "33. At the same time, however, it cannot be overlooked that normally a court cannot direct parties as to how they should prepare their pleadings. If the parties have not offended the rules of pleadings by making averments or raising arguable issues, the court would not order striking out pleadings. The power to strike out pleadings is extraordinary in nature and must be exercised by the court sparingly and with extreme care, caution and circumspection (vide Roop Lal Sathi v. Nachattar Singh Gill: K.K.Modi v. K.N.Modi, United Bank of India v. Naresh Kumar)" 34. More than a century back, in Knowles v. Roberts Bowen, L.J. said: "It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right. It is a recognised principle that a defendant may claim ex debito justitiae to have the plaintiff's claim presented in an intelligible form, so that he may not be embarrassed in meeting it; and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery". "55. In our opinion, the High Court was not right in deleting the above para relying on Shiv Charan and Santosh Yadav. Neither of the above cases related to striking out pleadings. "55. In our opinion, the High Court was not right in deleting the above para relying on Shiv Charan and Santosh Yadav. Neither of the above cases related to striking out pleadings. What was held by this Court in those cases was that when an election petitioner alleges that there was improper acceptance of nomination paper of some candidate and had the said illegal acceptance been not allowed, the voters would have voted in favour of the petitioner, the burden of proof was on the election petitioner. This Court observed that though it was very difficult for the election petitioner to prove such fact, nonetheless, the onus was on him and he had to discharge it. We are here not at the stage of trial but only at the stage of pleadings. The ratio laid down in the above cases, therefore, in our considered opinion, has no application in the case on hand and the High Court was wrong in invoking the law laid down in the aforesaid decisions." 17. In (2012) 4 Supreme Court Cases 194 – Jitu Patnaik v. Sanatan Mohakud and Others, the Hon'ble Apex Court, in paragraphs 43 to 46, has held as follows:- "43. Order VI Rule 2 of CPC, to the extent it is relevant, reads as under : 2. Pleading to state material facts and not evidence.-- (1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. (2) ... (3) ... 44. Section 83(1)(a) of the 1951 Act is as follows : 83. Contents of petition.--(1) An election petition-- (a) shall contain a concise statement of the material facts on which the petitioner relies; 45. A bare perusal of the above provisions would show that the first part of Order VI Rule 2, CPC is similar to clause 1(a) of Section 83 of the 1951 Act. It is imperative for an election petition to contain a concise statement of the material facts on which the election petitioner relies. What are material facts? All basic and primary facts which must be proved at the trial by a party to establish the existence of cause of action or defence are material facts. It is imperative for an election petition to contain a concise statement of the material facts on which the election petitioner relies. What are material facts? All basic and primary facts which must be proved at the trial by a party to establish the existence of cause of action or defence are material facts. The bare allegations are never treated as material facts. The material facts are such facts which afford a basis for the allegations made in the election petition. The meaning of 'material facts' has been explained by this Court on more than one occasion. Without multiplying the authorities, reference to one of the later decisions of this Court in Virender Nath Gautam v. Satpal Singh and others shall suffice. 46. In Virender Nath Gautam, this Court referred to the case of Philipps v. Philipps and Others and the subsequent decision in Bruce v. Odhams Press Limited that referred to Philipps and observed in paragraphs 34 and 35 (Pg. 629) of the Report as follows: "34. A distinction between 'material facts' and 'particulars', however, must not be overlooked. 'Material facts' are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. 'Particulars', on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. 'Particulars' thus ensure conduct of fair trial and would not take the opposite party by surprise. 35. All 'material facts' must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial." 18. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial." 18. In (2001) 8 Supreme Court Cases 233 – Hari Shanker Jain vs. Sonia Gandhi, the Hon'ble Apex Court in paragraphs 23, 24 and 33 has held as follows:- "23. Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that 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 would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party 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. (see Samant N. Balkrishna v. George Fernandez, Jitendra Bahadur Singh v. Krishna Behari.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S.Achuthanandan v. P.J.Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition. 24. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition. 24. It is the duty of the court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose a cause of action. To enable a court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings. 33. Without further burdening this judgment by dealing with each and every other averment made in the two election petitions, it would suffice to say that we have carefully read each of the two election petitions and heard each of the two election petitioners (appellants) in very many details especially on the aspect of the election petitions suffering from the vice of not satisfying the mandatory requirement of pleading material facts as required by Section 82(1)(a) of RPA, 1951 and we are satisfied that the two election petitions do not satisfy the requirement statutorily enacted and judicially explained in umpteen number of decisions. The petitions are hopelessly vague and completely bald in the allegations made, most of which could not possibly be within the personal knowledge of the petitioners but still verified as "true" to their knowledge, without indicating the source. Such pleadings cannot amount to disclosing any cause of action and are required to be rejected/dismissed under Order 7 Rule 11 CPC." 19. Thus, the provisions of the Representation of the People Act and the dictum laid down by the Hon'ble Apex Court makes it clear that the election petition shall contain a concise statement of material facts on which the election petitioner relies and also the material particulars. If material facts and particulars are not found, the election petition shall be dismissed. 20. If material facts and particulars are not found, the election petition shall be dismissed. 20. Considering the overall circumstances referred to above, I am of the considered view that the election petitioner has not made out any prima facie case in his favour and hence the application filed by the returned candidate to reject the election petition under Order VII Rule 11 CPC is liable to be allowed and accordingly allowed.