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2023 DIGILAW 655 (PNJ)

Master Ramesh Khatri Lambardar v. Manohar Lal

2023-02-10

JAISHREE THAKUR

body2023
JAISHREE THAKUR,  J. 1. An election petition has been filed under Sections 77, 77(1), 80-a & 100 (b) & (d-ii & iv), 123, 125 (A), 126, 127-A of the Representation of the People Act, 1951 (hereinafter referred to as the Act of 1951) read with Rules 49C, 86, 89 of the Conduct of Election Rule, 1961 and under Article 324 of the Constitution of India seeking declaration of the result dated 24.10.2019 of the returned candidate i.e. respondent herein, as null and void, with a further prayer to debar the said candidate from contesting election for a period of six years as provided under Section 8 of the Act of 1951. 2. In brief, the facts as stated are that elections were notified to be held in the State of Haryana vide gazette notification dated 27.09.2019. The last date for filing the nomination papers was 04.10.2019; with scrutiny of nomination on 05.10.2019 and last date of withdrawal of candidature on 07.10.2019. Polling commenced on 21.10.2019 and counting of votes and declaration of result were scheduled for 24.10.2019. The petitioner contested the 21st Karnal Assembly Constituency election as an independent candidate and there were total 10 candidates in the fray. A total number of 122838 votes were polled and respondent-Manohar Lal secured highest number of votes with 79,492 votes. The second highest votes were obtained by Tarlochan Singh of Indian National Congress Party with 34,557 votes. The petitioner herein secured 170 votes. Alleging corrupt practices by the successful/returned candidate/and his election agents, the election petition has been filed. 3. The primary thrust of the allegations in the election petition as filed by Mr. The second highest votes were obtained by Tarlochan Singh of Indian National Congress Party with 34,557 votes. The petitioner herein secured 170 votes. Alleging corrupt practices by the successful/returned candidate/and his election agents, the election petition has been filed. 3. The primary thrust of the allegations in the election petition as filed by Mr. Ramesh Khatri, the petitioner in person, is that the successful candidate has not maintained a register of day-to-day accurate election expenditure as mandated under Section 77 of the Act of 1951; that the said respondent has filed a detailed affidavit stating his age as 65 years, however, he did not disclose his assets in the affidavit, which is mandatory as per Rules; that the respondent has filed his nomination paper in the 21st Karnal Assembly Constituency and at the time of filing of nomination form large number of vehicles including cars, jeeps, three wheelers were used and several persons accompanied the respondent; that Chief Minister of Uttar Pradesh and several Ministers of Haryana were also part of the rally conducted before filing nomination form and arrangements for thousand chairs, sofa sets, generator sets, loudspeakers, tents etc. were made, however, neither the candidate nor his election agent, has shown accurate day to day election expenses incurred on 01.10.2019; that the election campaign has been grossly undervalued; that on 07.10.2019 BJP President of the Chandigarh Unit participated in the campaign of assembly election but again these expenses were not reflected in the day to day expenditure register. Apart from these expenses, the petitioner has enlisted various other dates where rallies/election campaigns were done, however, it is pleaded that expenses of these rallies too did not find any reference in the election expenditure register. The sum and substance of the allegations as set out in the election petition is that various campaigns were held and expenditure as incurred which was to be detailed in the register to be maintained, has not been done. 4. The election petition filed is duly supported by an affidavit of the petitioner. 5. Pursuant to the notice of motion issued, successful candidate i.e. the respondent besides filing his written statement has filed an application under Order VI Rule 16 and Order VII Rule 11 read with Section 151 CPC and Section 86 of the Representation of the People Act, 1951 for dismissal of the election petition in limine. 5. Pursuant to the notice of motion issued, successful candidate i.e. the respondent besides filing his written statement has filed an application under Order VI Rule 16 and Order VII Rule 11 read with Section 151 CPC and Section 86 of the Representation of the People Act, 1951 for dismissal of the election petition in limine. The dismissal of the election petition has been sought primarily on the ground that the petitioner has to plead all ‘material facts’ and failure to plead even a single material fact would make the election petition liable to be dismissed in limine. 6. The application under Order VII Rule 11 CPC for dismissal of the election petition in limine has been countered by the petitioner by way of a reply filed thereto. Replication has also been filed to the written statement. 7. Mr. B.R. Mahajan, learned Senior Advocate assisted by Mr. Deepak Sabharwal, Mr. Prateek Mahajan and Ms. Nikita Goel, Advocates, would argue that in case the petitioner herein alleges corrupt practices, same is a quasi-criminal act in nature and therefore, vague allegations cannot be made. It was further argued that in order to constitute corrupt practices, which would entail not only declaring election of a returned candidate to be void but would also entail a serious consequence like debarring a candidate from contesting future elections for a period of six years, the allegations must be specific giving details of important particulars like time, place, names of persons involved in the corrupt practice. It is submitted that other than vague allegations of expenditure register not being maintained, or respondent using State machinery to garner votes, no particulars have been given therein. It is also submitted that the election petition filed is not supported by an affidavit in consonance with Form No.25 of the Rules. 8. It was contended by the petitioner that non-compliance of furnishing an affidavit in Form No.25 would per se not make the election petition invalid and not maintainable in the High Court as an opportunity to rectify the same ought to be allowed in terms of judgment rendered by the Hon’ble Supreme Court in A. Manju Vs. Prajwal Ravanna @ Prajwal R. & others (2022) 3 SCC 269 and Umesh Challiyil Vs. Prajwal Ravanna @ Prajwal R. & others (2022) 3 SCC 269 and Umesh Challiyil Vs. K.P. Rajendran (2008) 11 SCC 740 wherein it has been held that in case an election petition is not in format, an opportunity to amend or cure the defects as pointed out should be allowed. In the judgment rendered by the Hon’ble Supreme Court in G.M. Siddeshwar Vs. Prasanna Kumar (2013) 4 SCC 776 , it has been held that election petition supported by a defective affidavit is a curable defect and the petition should not be dismissed summarily. In Ponnala Lakshmaiah Vs. Kommuri Pratap Reddy and others (2012) 7 SCC 788 , the Hon’ble Supreme Court has held that the courts ought not to adopt a technical approach towards resolution of electoral disputes. 9. The primary question that needs to be decided at the present moment is whether the election petition ought to be dismissed in limine. The petitioner appeared in person and argued the matter at length. This Court with the assistance of the petitioner as well as learned Senior Advocate appearing for the respondent, has gone through the pleadings of the case and case laws cited. Sections 80, 80-A, 83 & 87 of the Act of 1951 clearly specify that no election shall be called in question except by an election petition presented in accordance with the provisions of the Act. Section 80-A empowers the High Court to try an election petition whereas Section 83 clearly specifies that an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall set forth full particulars of any corrupt practice that the petitioner envisages including a full statement as possible of the names of the persons alleged to have committed such corrupt practice and the date of place of commission of such practice. The pleadings are to be verified in the manner laid down in the Code of Civil Procedure for verification of pleadings. Therefore, in terms of the aforesaid Sections, when an election is sought to be challenged by way of an election petition before the High Court it has to contain specific and unambiguous pleadings in relation to the alleged corrupt practices. Therefore, in terms of the aforesaid Sections, when an election is sought to be challenged by way of an election petition before the High Court it has to contain specific and unambiguous pleadings in relation to the alleged corrupt practices. It is in this background, by virtue of Section 83 of the Representation of the People Act 1951, that the High Court has to look into the pleadings and allegations raised, whether the allegations are vague or specific enough to allow the election petition to continue, as without specific details of alleged corrupt practices i.e. time, date and place and the names of persons involved in the alleged corrupt practices, the election petition would not be maintainable. In such eventuality, proceeding with the same would be sheer waste of time. 10. Section 83 of the Act of 1951 mandates that an election petition ‘shall contain a concise statement of material facts’, on which the petitioner relies and ‘shall set forth particulars of any corrupt practice’ and therefore, requirement under the Act is that a petition must contain concise material facts. The term, ‘material facts’, is neither defined under the Act of 1951 nor under the Code of Civil Procedure. For this, one will have to refer to and take strength from various judicial pronouncements. The first reference can be made to the judgment rendered by the Hon’ble Supreme Court in Manubhai Nandlal Amarsey Vs. Popatlal Manilal Joshi (1969) 3 SCR 217 wherein it has been held that material facts are facts, which, if established, would give the petitioner the relief asked. The facts pleaded must be such that even if not defended, the Courts would give a verdict in the positive. The issue regarding allegations of corrupt practice in an election petition must detail the actual expenditure incurred by the returned candidate on account of campaigning done through different public meetings. In this regard, judgment rendered by the Hon’ble Supreme Court in Hardwari Lal Vs. Kanwal Singh (1972) 2 SCR 742 has enumerated what needs to be spelt out in an election petition, while alleging corrupt practice. The instances that needs to be narrated are as under:- “a) mode of assistance; b) measure of assistance; and c) all various forms of facts pertaining to the assistance. Kanwal Singh (1972) 2 SCR 742 has enumerated what needs to be spelt out in an election petition, while alleging corrupt practice. The instances that needs to be narrated are as under:- “a) mode of assistance; b) measure of assistance; and c) all various forms of facts pertaining to the assistance. (3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to obtain or procure the assistance of Government servants in election it is absolutely essential to plead the following : a) kind or form of assistance obtained or procured; b) in what manner the assistance was obtained or procured or attempted to be obtained or procured by the election-candidate for promoting the prospects of his election. [ AIR 1972 SC 515 ] (4) The returned candidate must be told as to what assistance he was supposed to have sought, the type of assistance, the manner of assistance, the time of assistance, the persons from whom the actual and specific assistance was procured [ AIR 1972 SC 515 ] (5) There must also be a statement in the election petition describing the manner in which the prospects of the election was furthered and the way in which the assistance was rendered.(supra). (6) The election petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same, all these will have to be set out in the particulars (supra). 11. Similarly, the judgment rendered by the Hon’ble Supreme Court in Azhar Hussain Vs. Rajiv Gandhi 1986 (sup) SCC 315 has held that the High Court has the power to dismiss an election petition, if the same does not disclose a cause of action. Para 12 of the said judgment is reproduced 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 Civil Procedure Code should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Civil Procedure Code for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Civil Procedure Code 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. Or 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 Civil Procedure Code 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 ultimately it should be so dismissed only after recording evidence is a thoroughly misconceived and untenable argument. The powers in this behalf are meant to be exercised to serve the purpose for which the same have been conferred on the competent Court so that the litigation comes to an end at the earliest and the concerned litigants are relieved of the psychological burden of the litigation so as to be free to follow their ordinary pursuits and discharge their duties. And so that they can adjust their affairs on the footing that the litigation will not make demands on their time or resources, will not impede their future work, and they are free to undertake and fulfil other commitments. Such being the position in regard to matters pertaining to ordinary Civil litigation, there is greater reason for taking the same view in regard to matters pertaining to elections. So long as the sword of Damocles of the election petition remains hanging an elected member of the Legislature would not feel sufficiently free to devote his whole-hearted attention to matters of public importance which clamour for his attention in his capacity as an elected representative of the concerned constituency. The time and attention demanded by his elected office will have to be diverted to matters pertaining to the contest of the election petition. Instead of being engaged in a campaign to relieve the distress of the people in general and of the residents of his constituency who voted him into office, and instead of resolving their problems, he would be engaged in a campaign to establish that he has in fact been duly elected. Instead of discharging his functions as the elected representative of the people, he will be engaged in a struggle to establish that he is indeed such a representative, notwithstanding the fact that he has in fact won the verdict and the confidence of the electorate at the polls. He will have not only to win the vote of the people but also to win the vote of the Court in a long drawn out litigation before he can whole-heartedly engaged himself in discharging the trust reposed in him by the electorate. The pendency of the election petition would also act as a hindrance if he be entrusted with some public office in his elected capacity. He may even have occasions to deal with the representatives of foreign powers who may wonder whether he will eventually succeed and hesitate to deal with him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom. He may even have occasions to deal with the representatives of foreign powers who may wonder whether he will eventually succeed and hesitate to deal with him. The fact that an election petition calling into question his election is pending may, in a given case, act as a psychological fetter and may not permit him to act with full freedom. Even if he is made of stern metal, the constraint introduced by the pendency of an election petition may have some impact on his subconscious mind without his ever being or becoming aware of it. Under the circumstances, there is greater reason why in a democratic set-up, in regard to a matter pertaining to an elected representative of the people which is likely to inhibit him in the discharge of his duties towards the Nation, the controversy is set at rest at the earliest, if the facts of the case and the law so warrant. Since the Court has the power to act at the threshold the power must be exercised at the threshold itself in case the Court is satisfied that it is a fit case for the exercise of such power and that exercise of such powers is warranted under the relevant provisions of law. To wind up the dialogue, to contend that the powers to dismiss or reject an election petition or pass appropriate orders should not be exercised except at the stage of final judgment after recording the evidence even if the facts of the case warrant exercise of such powers, at the threshold, is to contend that the legislature conferred these powers without point or purpose, and we must close our mental eye to the presence of the powers which should be treated as non-existent. The Court cannot accede to such a proposition. The submission urged by the learned counsel for the petitioner in this behalf must therefore be firmly repelled. In the matter of Ram Sukh Vs. Dinesh Aggarwal (2009) 10 SCC 541 , the Hon’ble Supreme Court has held that it is mandatory that all material facts are set out in an election petition, failing which the same is liable to be dismissed, further holding that material facts provide the basic foundation on which the entire edifice of the election petition is built. Relevant paragraphs of the said judgment are reproduced as under:- “11. Relevant paragraphs of the said judgment are reproduced as under:- “11. As already noted, it is mandatory that all "material facts" are set out in an election petition and it is also trite that if material facts are not stated in the petition, the same is liable to be dismissed on that ground alone. Therefore, the question is as to whether the election petitioner had set out "material facts" in his petition? 12. The phrase "material facts" has neither been defined in the Act nor in the Code and, therefore, it has been understood by the courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action. In other words, "material facts" are facts upon which the plaintiff's cause of action or defendant's defence depends. (See: Mahadeorao Sukaji Shivankar Vs. Ramaratan Bapu & Ors. 2004 (4) RCR (Civil) 228: (2004) 7 SCC 181 ). Broadly speaking, all primary or basic facts which are necessary either to prove the cause of action by theplaintiff or defence by the defendant are "material facts". Material facts are facts which, if established, would give the petitioner the relief asked for. But again, what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. 13. The requirement in an election petition as to the statement of material facts and the consequences of lack of such disclosure with reference to Sections 81, 83 and 86 of the Act came up for consideration before a three-Judge Bench of this Court in Samant N. Balkrishna & Anr. Vs. George Fernandez & Ors, (1969) 3 SCC 238 . 13. The requirement in an election petition as to the statement of material facts and the consequences of lack of such disclosure with reference to Sections 81, 83 and 86 of the Act came up for consideration before a three-Judge Bench of this Court in Samant N. Balkrishna & Anr. Vs. George Fernandez & Ors, (1969) 3 SCC 238 . Speaking for the three-Judge Bench, M. Hidayatullah, C.J., inter-alia, laid down that: (i) Section 83 of the Act is mandatory and requires first a concise statement of material facts and then the fullest possible particulars; (ii) omission of even a single material fact leads to an incomplete cause of action and statement of claim becomes bad; (iii) the function of particulars is to present in full a picture of the cause of action and to make the opposite party understand the case he will have to meet; (iv) material facts and particulars are distinct matters - material facts will mention statements of fact and particulars will set out the names of persons with date, time and place and (v) in stating the material facts it will not do merely to quote the words of the Section because then the efficacy of the material facts will be lost. 14. At this juncture, in order to appreciate the real object and purport of the phrase "material facts", particularly with reference to election law, it would be appropriate to notice distinction between the phrases "material facts" as appearing in clause (a) and "particulars" as appearing in clause (b) of sub-section (1) of Section 83. As stated above, "material facts" are primary or basic facts which have to be pleaded by the petitioner to prove his cause of action and by the defendant to prove his defence. "Particulars", on the other hand, are details in support of the material facts, pleaded by the parties. 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. Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that opposite party is not taken by surprise.” Judgment delivered by the Hon’ble Supreme Court in the case of Anil Vasudev Salgaonkar Vs. Unlike "material facts" which provide the basic foundation on which the entire edifice of the election petition is built, "particulars" are to be stated to ensure that opposite party is not taken by surprise.” Judgment delivered by the Hon’ble Supreme Court in the case of Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar (2009) 9 SCC 310 is on similar lines wherein it has been held that in the context of charge of corrupt practice, material facts would mean all basic facts constituting ingredients of particular corrupt practice, which must be pleaded. 12. In this background, this Court will have to see whether the application under Order VII Rule 11 CPC is to be allowed, considering the fact that authoritative pronouncements permit an election petition to be dismissed in case material facts are not disclosed. The law regarding rejection of a plaint under Order VII Rule 11 CPC is that the power to do so is on the satisfaction that the plaint does not disclose a cause of action. Section 83 of the Act 1951 makes the pleadings even more stringent with the stipulation that material facts have to be disclosed. Failure to disclose even a single material fact would entail dismissal. The petitioner herein has not been able to satisfy the Court as to whether there is disclosure about corrupt practices adopted by the successful candidate. The entire set of allegations as raised in the election petition as noted above, is that expenditure incurred has not been accounted for and that would constitute ‘corrupt practice’ in terms of Section 77 read with Section 123(B) of the Act of 1951. It is also alleged that petitioner had sought certified copies of the expenditure, vouchers, receipts etc. incurred by the returned candidate but the same were not supplied to him. The allegations regarding who and how the sources were obtained as to incur the alleged expenditure, whether the expenditure was incurred by the successful candidate, election agent or somebody else, are absent. The details of the rallies referred to in the pleadings are also absent and therefore, the vague allegations qua the alleged corrupt practices in such rallies would also not be sufficient to establish corrupt practices. No details of the figures involved and what was the source of information for coming to the conclusion that corrupt practices have been indulged, have been disclosed or stated in the election petition. No details of the figures involved and what was the source of information for coming to the conclusion that corrupt practices have been indulged, have been disclosed or stated in the election petition. This fact itself would establish that without necessary details, the present election petition has been filed. 13. The affidavit that has to be sworn in support of the election petition is to be in terms of Rule 94A of the Conduct of Election Rules, 1961, which specifies that the affidavit shall be sworn before a Magistrate of the first class or a Notary or a Commissioner of Oaths and shall be in Form 25. A perusal of the affidavit as furnished would reflect that allegations of corrupt practice have been reproduced; however, no material facts, details etc. are forthcoming, which would be fatal to the election petition. 14. The petitioner herein had filed a similar petition i.e. Election Petition No.12 of 2019 titled as Master Ramesh Khatri Lambardar Vs. Surender Panwar seeking to challenge election of another returned candidate from a different constituency wherein again identical grounds had been taken regarding the allegations of corrupt practices. A Coordinate Bench of this Court while allowing the application filed under Order VII Rule 11 of the Code of Civil Procedure has rejected the election petition on 09.01.2023. The relevant paragraphs of the said judgment, necessary to be noted, are reproduced as under:- “Irrespective of the above, the allegations of corrupt practices are found contained in paragraph 3 and its various sub-paragraphs. In paragraph 3(a) and 3(b) the petitioner avers that in case a candidate does not maintain or get verified or disclose expenses incurred by him in his election such inaction on his part would be violative of Section 77 of the Act and would also be a corrupt practice in terms of Section 123(6) of the Act. In para 3(c) the petitioner avers that the respondent abused the 'entire machinery' and adopted 'all illegal and unlawful' means to win the election. However, no details of which machinery and what means were allegedly used by the respondent have been given. Thus, these allegations are absolutely vague, non-specific and general. In para 3(d) the petitioner avers that the respondent has not declared in his affidavit anything apart from his assets. No particulars of what has been concealed by the respondent is forthcoming. However, no details of which machinery and what means were allegedly used by the respondent have been given. Thus, these allegations are absolutely vague, non-specific and general. In para 3(d) the petitioner avers that the respondent has not declared in his affidavit anything apart from his assets. No particulars of what has been concealed by the respondent is forthcoming. In para 3(e) allegations of unfair use of the media by the respondent are also found to be non-specific and general as it has nowhere been pleaded as to which media house in what manner allegedly helped the respondent to win his election. Para 3(f) simply narrates a fact. Paras 3(g) and 3(h) are found to contain vague averments that at the time of filing of his nomination the respondent was part of a large procession which included “around” 200 cars and “around” 5000 persons and that the respondent did not disclose the exact expenditure incurred by him. In all the remaining paragraphs of the election petition also allegations have been made with regard to the respondent having not disclosed actual expenses incurred by him while addressing different rallies. All the averments are not only found to be general in nature but also do not contain any specific averment that the respondent incurred or authorized expenditure which was beyond the prescribed limit. No fact showing any authorization of the alleged expenditure by the respondent or his election agent has also been pleaded. Details with regard to the expenses declared by the respondent are missing. What were the actual expenses incurred at the pleaded events have not been given. The details of the rallies referred to in the pleadings are also absent and therefore the allegations qua the alleged corrupt practice in such rallies/ jansabhas end up in a blur. Thus, in the averments regarding the alleged corrupt practices full particulars are missing. The petitioner also does not disclose his source of information with regard to the non disclosure of the actual expenditure allegedly incurred by the respondent as it is his own case in paragraph 3(b) of the election petition that before filing of the election petition the petitioner had sought details of the expenditure etc. incurred by the respondent from the Returning Officer but the same were not supplied.” 15. incurred by the respondent from the Returning Officer but the same were not supplied.” 15. In view of the aforesaid facts and circumstances, the petitioner has miserably failed to discharge the primary onus to prove the charges to the satisfaction of the Court as allegation of corrupt practice is quasi criminal in nature and material facts and full particulars in respect of even one corrupt practice are not stated in the election petition. Therefore, failure to state even a single material fact will entail dismissal of election petition summarily as it does not furnish any cause of action. Consequently, the application filed under Order VII Rule 11 CPC is allowed and the election petition stands rejected. Order accordingly.