JUDGMENT
Sunil Ambwani, J.
1. This is an application under Order VII, Rule 11 Code of Civil Procedure 1908 as amended (in short CPC) read with Section 86(1) of the Representation of the People Act, 1951 (in short, the Act) dated 19.8.2002, with a prayer to dismiss the election petition, as it does not disclose the cause of action as also the material facts and particulars, and on the ground that the election petition has not been filed in compliance with Section 83 of the Act. The application is supported by the affidavit of respondent No. 1, the elected candidate. The election petitioner has filed his objections to the application on 21.1 1.2003. The replication was filed on 7.12.2002.
2. The applicant Dr. Narendra Kumar Singh Gaur, was declared elected to the Uttar Pradesh Legislative Assembly from Allahabad (North) Assembly Constituency on 24.2.2002, in the elections notified on 16.1.2002. for which the polling took place on 21.2.2002, with 30187 votes. The election petitioner Shri Anugrah Narain Singh obtained 25976 votes.
3. The election petitioner has challenged the election on ground Nos. (1) to (viii), set out in paragraph No. 4 of the election petition filed on 8.4.2002, of which the concise statements of material facts is stated in the election petition from paragraph Nos. 6 to 50.
4. The allegations in paragraph No. 4 of the election petition are as follows:
4. That the election of respondent No. 1 (Dr. Narendra Kumar Singh Gaur) is void on the following grounds:
(i) Because respondent No. 1 (Dr. Narendra Kumar Singh Gaur) obtained and procured and abetted to obtain and abetted to procure the assistance of gazetted officer for the furtherance of prospects of his election from Sri Santosh Kumar Srivastva who was in the service of the State Government as gazetted officer as also similar such gazetted officers and thereby respondent No. 1 committed corrupt practice as contemplated under Section 123 of the R.P. Act.
(ii)Because respondent No. 1 (Dr. Narendra Kumar Singh Gaur) obtained and procured and attempted to obtain and procured the services of Government gazetted officers for the furtherance of the prospects of his election from gazetted officers, members of police force, the revenue officers for the furtherance of his election and thereby committed corrupt practice as contemplated under Section 123(7) of the Act.
(iii)Because respondent No. 1 (Dr. Narendra Kumar Singh Gaur), his agents and workers with the consent of respondent No. J committed undue influence upon the voters threatening them to cast votes in his favour since the entire developmental activities in the constituency have been done only by Him and by no other person and have been made during his regime of MLA and Minister and the voters should vote for him alone and in case they do not vole for him, then the entire developmental activities in the constituency will come to an end and will be stopped and, as such, thereby the respondent No. 1 interfered with the free exercise of electoral rights of the voters of the Allahabad North Assembly constituency and thereby committed the corrupt practice of undue influence as contemplated under Section 123(2) of the Act.
(iv)Because the result of the election was materially affected by improper acceptance of invalid votes in favour of respondent No. 1 (Dr. Narendra Kumar Singh Gaur) and improper rejection of the valid votes cast in favour of petitioner.
(v) Because the result of the election has been materially affected so far as the returned candidate is concerned by corrupt practice committed in the interest of returned candidate by his election agent, agents and workers.
(vi)Because the election of respondent No. 1, Dr. Narendra Kumar Singh Gaur, is liable to be set aside and declared void on the ground that he committed corrupt practice of undue influence by directly and indirectly interfering with the free exercise of the electoral right as provided under Section 123(2) of the Act.
(vii)Because the election of respondent No. 1, Dr. Narendra Kumar Singh Gaur, is liable to be set aside and declared void on the ground that he committed corrupt practice under Section 123(6) of incurring and authorizing of expenditure in contravention of Section 77 of the Act inasmuch as he has incurred expenditure in excess of prescribed maximum limit of Rs. 6 lacs as fixed under notification No. 7 (32)/97-Leg.II, dated 31st December, 1997, issued by the Government of India, Ministry of Law and Justice, in exercise of powers conferred by Section 169 of the Act after consultation with the Election Commission of India.
(viii)Because the election of respondent No. 1, Dr. Narendra Kumar Singh Gaur, is liable to be set aside and declared void on the ground of his committing corrupt practice of obtaining the assistance of Sri Santosh Kumar Srivastava, Public Relation Officer to the Sugarcane Minister and a gazetted officer under the service of the State of U.P. For the furtherance of the prospects of his election as contemplated under Section 123(7) of the Act.
5. The election petition was permitted to be amended by Court’s order dated 18.11.2003, on an application No. 164579 of 2003, carried out in the petition on 20.11.2003. The concise statement of material facts supporting the grounds taken as above and relied upon by the election petitioner are detailed in the election petition as follows:
Para 4 (i) – para 15, 33 (amended) and 34
para 4 (ii) – para 19 to 32, 43 and 46
para4(iv) – para 35, 43, 44, 45, 46
para 4 (v) – Schedule B
para 4 (vi) – para 19, 25, 26, 27 and 30
para 4 (vii) – para 31 and 33
para 4(viii)- Para 19 to 32, 43 and 46
6. Shri R.P. Goel assisted by Shri Manish Goel appearing for respondent No. 1- the elected candidate, submits that the election petition served upon respondent No. I is not the true copy of the petition, attested by the petitioner. It does not bear the name and designation of the Oath Commissioner before whom it was sworn in Form 25 under Rule 94-A of the Conduct of Election Rules, 1961. It does not contain the stamp of the Oath Commissioner nor the details about its affirmation. The Schedules-A, B and C, in the election petition have not been verified and duly sworn and thus the election petition is liable to be dismissed for non-compliance of mandatory provisions of Sections 81(3) and 83(1)(c) of the Act.
7. Shri Manish Goel who made submissions with the permission of the court and consent of Shri R.P. Goel, Senior Advocate submits that the alleged books and booklets, published and distributed with the consent of respondent No. 1, on the basis of which the corrupt practices have been alleged, have neither been annexed to the election petition nor supplied to the respondent no. 1. These alleged books and booklets are integral part of the statement of material facts, and as such the absence of these documents is in violation of Section 83(1) of the Act. The petition neither contains full particulars of the alleged corrupt practices nor full statement, or names and particulars of the parties alleged to have committed corrupt practices and as such the petition does not comply with the provisions of Section 83(1)(b) of the Act. He further submits that the election petition nowhere discloses that the alleged irregularities in the counting and voting affected the election of 215 Allahabad (North) Assembly Constituency. The election petition according to him does not disclose any cause of action and is liable to be rejected.
8. The Respondent No. 1 had earlier filed an application being Civil Misc. Application No. 145733 of 2002 (Paper No. 12) under Order VI, Rule 16 CPC, for striking out pleadings in the plaint. By order dated 12.4.2004, the Court struck out the contents of paras 12, 13 and 14 of the election petition. The application, however, was rejected in respect of other paragraphs. By the same order the application under Order VII, Rule 11 CPC was directed to be listed for hearing. For various reasons, the application could not be heard. The election petition was thereafter re-nominated on 18.4.2006. The application under Order VII, Rule 11 C.P.C. read with Section 86 of the Act was finally heard on 24.5.2006.
9. Shri M. Islam, learned Counsel assisted by Shri Himanshu Singh appearing for election petitioner, raised strong objections to the prayers made in the application. He submits that the Civil Procedure Code is not strictly applicable to the proceedings. The additional copies served upon respondent No. 1 are the true copies of the entire contents of the election petition. The affidavit has been sworn as prescribed in Form 25 in Rule 94-A of the Conduct of Election Rules, 1961 and in the copy served upon the respondent No. 1 the designation of Oath Commissioner has been mentioned as Commissioner of Oath. The name of the Oath Commissioner need not be mentioned. The schedules A, B and C in the election petition are verified in accordance with the procedure of Section 83(2) read with Section 83(1)(c) of the Act, which prescribes the schedule or the annexure to be signed and verified by the petitioner in the manner laid down in the Code of Civil Procedure 1908 for verification of the pleadings. Section 83 of the Act does not require the verification of the pleadings of the election petition, schedule and annexure before the Commissioner of Oath. The provisions of Section 81(3) and 83(1)(c) of the Act have been complied with.
10. Shri M. Islam, further submits that the election petition has been presented in accordance with the procedure laid in Chapter XV-A Rule 3 of the Rules of the Court, which only requires the submission of the list of documents and which have been submitted , Serial No. 7 of the list of documents mentions about all the documents referred to in the election petition, and serial No. 8 to such other material and other documents which will be necessary to prove his case. All the details of the books and booklets have been mentioned in concise statement of material facts in the election petition and also in material particulars given in schedule B and schedule C to the election petition. These books and booklets will be submitted before the Court at the appropriate time. These are not required to be filed along with the election petition. He further submits that the election petition contains full material particulars, statements and names of parties, who committed the corrupt practices with the consent of respondent No. 1. The petition fully complies with the provisions of Section 83(1)(b) of the Act. The entire election petition discloses the cause of action and hence it cannot be rejected.
11. Shri M. Islam further submits that Section 86 is in the nature of penal provision, as it empowers the High Court to dismiss an election petition at the threshold, if it does not comply with the provisions of Section 81 and Section 82 or Section 117 of the Act, all of which are patent defects evident on a bare examination and the documents filed along with the petition at the time of its presentation. The provisions, therefore, have to be strictly construed. The filing of documents at the time of its presentation is a ministerial act. There is no scope of enquiry for the purposes of Section 86 to ascertain the deficiency at this stage and thus the non-compliance of Section 83 is not specified as a ground for disposal of the election petition under Section 86 of the Act. He has relied upon Manohar Joshi v. Nitin Bhauro Patil and Ors. , to support his submission,
12. The first objection regarding service of true copies of the election petition duly signed by the election petition; the absence of the name of the Oath Commissioner and the verification and swearing of the schedules appended to the election petition, need not detain the court as it is not factually correct, The affidavit clearly bears the name of the Oath Commissioner ‘Anju Jain’, and her seal. The copies of election petition as also the schedules also bear the signature of the election petitioner. In T.M. Jacob v. C. Poulose , a constitution bench of Supreme Court held that there must be substantial compliance of the requirement of swearing and service of signed copies of election petition. These defects cannot be considered to be fatal, unless the other side is misled by incomplete copies and is prejudiced in his defence. The non-mention of the name of Notary or the absence of his stamp and seal is not a defect of vital nature so as to attract the consequences of Section 86(1) of the Act. In such cases doctrine of substantial compliance can be invoked.
13. The only question for determination at this stage is whether the election petition discloses the cause of action to be taken to trial, on the allegations against elected candidate, of corrupt practices under Section 123 of the Act?.
14. Section 83 of the Act provides that the election petition (a) shall contain a concise statement of material facts on which the petitioner relies; and (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full statement as possible of the names of the parties alleged to have committed such corrupt practice, and the date and place of the commission of each such practice. It is thus manifest that the election petition shall not only contain material facts but also set forth particulars of corrupt practice.
15. In Samant N. Balakrishna v. George Fernandez . M. Hidayatullah, C.J. speaking for the Court laid down these propositions; First, Section 83 of the Act is mandatory and requires a concise statement of the material facts and then requires the fullest possible particulars; Second, omission of single material facts leads to an incomplete cause of action and the statement of claim becomes bad; Third, function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case, he will have to meet; Fourth; material facts and particulars are distinct matters, material facts will mention statement of facts and particulars will set out the names of persons with the date, time and place; Fifth, 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/cause of action; Sixth, 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. The fact, which constitute a corrupt practice, must be stated and the facts must be co-related to one of the head of the corrupt practice; Seventh, an election petition, without the material facts relating to a corrupt practice, is not election petition at all. A petition, which merely cites the section, cannot he said to disclose a cause of action where the allegation is the obtaining or procuring of assistance unless exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further the prospect of the election are alleged as statement of facts.
16. In Manubhai Nandlal Amarsey v. Papat Lal Manilal Joseph . the distinction between the material facts and particulars was brought out. In this case the charge in the petition was that several persons with the consent of the appellant or his election agent induced or attempted to induce the elector to believe that if they voted for the Congress party candidate they would become the objects of divine displeasure and spiritual censure. At the stage of trial permission was given to amend the election petition. The Supreme Court held that if the corrupt practice was not previously alleged in the petition, no amendment in the shape of particulars is permissible. It is vital that the corrupt practice charge should be a full and complete statement of material facts to clothe the petitioner with a complete cause of action and to give an equal and full particular to the respondent to lead the case and to defend the charges, Simply alleging that the respondent maintained or procured or attempted to obtain or procure assistance are extracting words from the statutes which has no meaning unless the facts are stated to show what that assistance is and how the prospect of election is furthered by such assistance. The manner of assistance, mode of assistance and the measure of assistance or various aspects of the fact to clothe the petitioner with cause of action which will call for an answer. The material facts are facts which if established would give the petitioner relief asked for. The test is, if the respondent had not appeared, could the court have given a verdict in favour of election petitioner. If the answer is a negative, the petition does not disclose cause of action.
17. In Hardwari Lal v. Kanwal Singh , the Supreme Court followed the principles laid down in Samant N. Balakrisha’s case and Manubhai Nandlal Amarsay’s cases and reminded with the necessity of clear and precise allegations to support the plea of corrupt practice, emphasized in Harish Chandra Bajpai v. Trilok Singh . the Supreme Court allowed the appeal and dismissed the election petition as the election petition, based on corrupt practice under Section 123(7) of the Act, did not contain material fact of corrupt practice. It did not state as to what kind or form of assistance was obtained or procured or attempted to obtain or procure and from whom such assistance was obtained or procured. The manner in which such assistance furthered the prospects of the election.
18. In Azhar Hussain v. Rajiv Gandhi the election petition was dismissed on the ground that it did not comply with the mandatory requirement to furnish material facts and particulars enjoined by Section 83 of the Act and did not disclose cause of action. In Appeal, the Supreme Court relied upon Hardwari Lal’s case and held in para 9 as follows:
9. The fact that Section 83 of the Act does not find a place in Section 86 of the Act does not mean that the powers under the CPC cannot be exercised.
19. Para 11 of the judgment summarized the proposition as follows:
11. In views of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with. This Court in Samat’s case expressed itself in no unclear terms that the omission of a single material fact would lead to an incomplete cause of action and that an election petition without the material facts relating to a corrupt practice is not an election petition at all. So also in Udhav Singh’s case the law has been enunciated that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. In the context of a charge of corrupt practice it would mean that the basic facts which constitute the ingredients of the particular corrupt practice alleged by the petitioner must be specified in order to succeed on the charge. Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. All the facts which are essential to clothe the petition with complete cause of action must be pleaded and failure to plead even a single material fact would amount to disobedience of the mandate of Section 83(1)(a). An election petition, therefore, can be and must be dismissed if it suffers from any such vice. The first ground of challenged must therefore fail.
20. In Lalit Kishore Chaturvedi v. Jagdish Prasad Thada . R.M. Sahai, J., relying upon Hardwari Lal’s case and Azhar Hussain’s case considering the allegations of leaflets printed by the appellant, held that there was no allegation that the leaflet purported to refer the personal character of the respondent. Though it was pleaded that the leaflets were false but there was no whisper if the appellant believed it to be false or did not believe it to be true. Mere allegation that the leaflet was published which was false did not meet the requirement of Section 83(1)(b) of the Act. It is statement of law than fact, without necessary factual foundation could not be said to have given rise to any triable issues. In para 10 of the judgment, the Supreme Court repelled the arguments that once leaflets or pamphlets were produced and were made annexure to the petition, it became part of the pleading. The Supreme Court said that it did not do away with mandatory requirement of Section 83(1)(b). If there was no pleading that the speech delivered by Shri Dhariwal was not made on lst March then no evidence could be led on it. And if that was omitted, then the second part irrespective of evidence could not be said to refer to personal character of the Congress candidate. In Azhar Hussain’s case a poster published painting rival candidate as supporter of Khalistan and in conspiracy of terrorists was found to be vague not because poster was not produced but because the petitioner failed to disclose the names of relevant persons who were associated with its distribution. With regard to undue influence, the Supreme Court said as follows:
11. Although much was argued on Section 123(2) but no specific pleading could be pointed out in this regard. No details of undue influence or direct or indirect interference by the appellant, or his agent, with his consent with free exercise of electoral right was raised. In fact guilt under Section 123(2) was attempted to be made on same pleading, namely, paragraph 3 (i) (j). The ingredients of the two being different they were to be pleaded specifically and the details were to be furnished separately to give a clear picture of cause of action, Undue influence is an inference which arises on facts pleaded and proved. Mere averment that appellant exercised undue influence in absence of precise facts, namely the nature of such influence, the persons on whom it was exercised and time and place on it the pleadings in paragraphs (i) and (j) fell short of the requirement in law. Allegations fishing and roving, as were pleaded in this case could not be said to be sufficient compliance of Section 83(1)(b).
21. In Mulayam Singh Yadav v. Dharam Pal Yadav , a three-Judge bench of Supreme Court spoke through Bharucha, J in the matter in which there were allegations of booth capturing; arson and violence, captured in video cassettes. The original video cassettes mentioned and verified in Schedule 14 was not filed along with the election petition, although 15 copies thereof had been filed for service upon the respondents. There was no other statement in the election petition or in the schedule which gave any facts or particulars of booth capturing; arson and violence. Supreme Court held that what is mentioned and verified in Schedule 14 would have been set out in the election petition and then that video cassette would have been sought to be the evidence of the allegation made in the election petition. There was no description in the election petition as to what is shown on the video cassette except to say that it shows booth capturing; violence and arson. The video cassette mentioned and verified in schedule 14 was an integral part of the election petition which should have been filed in the court, along with copies thereof for service upon the respondent to the election petition. Whereas 15 copies thereof were filed the video cassettes itself was not filed and thus the election petition was not complete. Section 81 contemplates the presentation of an election petition that is complete and satisfies the requirement of Section 83. An election petition that is not complete having due regard to the imperative mandate of Section 86 is to be dismissed.
22. In Kailash v. Nanhku and Ors. JT 2005 (4) SC 204, the Supreme Court held that the rules of procedure contains in CPC apply to the trial of election petition with flexibility and only as guidance. In case of conflict between provisions of the Representation of Peoples Act, 1951 and the Rules framed thereof or the Rules framed by the High Court under Article 225. On the other hand the Rules of procedure contained in CPC, the former would prevail over the matter. The CPC is not attracted in trial of election petition with its rigidity and technicality. The rules of procedure contained in the CPC apply to the trial of election petition under the Act with furtherance and only as guidance.
23. In Sheikh Salim Haji Abdul. Khayumsab v. Kumar and Ors. , the Supreme Court following Salem Advocate Bar Assn. v. Union of India interpreting the Order 8, Rule 1 CPC held that all the rules of procedure are hand made for justice. The processual law may be liberal and stringent but the fact remains that the object of prescribing the procedure is to advance the cause of justice.
24. Coming to the facts of the case and the application under Order VII, Rule 11 CPC read with Section 86 of the Act under consideration the grounds on which the election petition is based and the statement of material facts, along with schedule is to be examined to find out whether the election petitioner has setforth particulars of any corrupt practice that he alleges as full a statement as possible with sufficient details to furnish a cause of action. In other words whether all the essential facts to complete the cause of action have been pleaded.
25. In para 4 (i), the election petitioner has stated that respondent No. 1 obtained and procured and abetted to obtain or abetted to procure the assistance of gazetted officers for furtherance of prospects of his election from Shri Santosh Kumar Srivastava, who was in the service of the State Government as gazetted officer has also such gazetted officers and thereby respondent No. 1 committed corrupt practice as contemplated under Section 123 of the R.P. Act. In sub para (2) it is stated that respondent No. 1 obtained and procured and attempted to obtain and procure the service of government gazetted officer for the furtherance of the prospect of his election from gazetted officers, members of police force, the revenue officers for the furtherance of his election and thereby committed corrupt practice as contemplated under Section 123 of the Act. Para 15, 33(amended) and 34 in relation to sub para (1) of para 4 and para 46 in relation to sub para (2) of para 4 are stated to be material facts in support of the grounds.
26. In para 15 it is stated that respondent No. 1 while procuring the services of gazetted officers of the government of U.P. namely Shri Santosh Kumar Srivastava, his personal relation officer by getting his books printed, published and distributed through him and his workers with his consent giving therein incorrect facts alleged that the developmental activities have been done in the constituency only by him and thereby misleading the voters and threatened them not to vote to any other candidate and to vote for him only has materially interfered with the electoral rights of the electors of the constituency. In amended para 33 it is stated that in the total expenditure of Rs. 2,74, 536/- as shown is totally incorrect and false. Respondent No. 1, his agents and workers and supporters spent far much more amount than shown in the said statement. The respondent No. 1, for instance, has not shown the real expenses incurred in the printing of 25000 copies of the booklets namely ‘Uchchya Shiksha Pravidhik Shiksha, Chikitsa Shiksha Evam Ganna Vikas – Chini Udyog Vibhag K e Vibliagiya Mantri Ke Roop Mein Dr. Narendra Kumar Singh Gaur Ki Pramukh Uplabdhiyan’ on which the expenditure incurred was Rs. 6, 25, 000/- as cost of booklets was Rs. 25/- each. Besides, respondent No. 1 got published two other booklets, one containing 25 pages and another 12 pages, both Rs. 25,000 each, which were distributed by his election agents, agents, workers and supporters in the constituency in question in furtherance of the election prospects of respondent No. 1. The cost of booklet containing 24 pages would come to about Rs. 1,25,000/- and cost of booklets containing 12 pages would come to Rs. 62,500/-. If the cost of the aforesaid publication (three booklets) would be added in the statement of expenditure submitted by respondent No. 1 under Rule 90 of the Conduct of Election Rules 1961, the total expenditure of the respondent No. 1 on election in question would come to Rs. 8, 12, 500/- each exceeds in a great way the statutory limit of Rs. 6 lacs. By amendment, it was added that aforesaid booklet was published under the authority of the U.P. Government by Shri Santosh Kumar Srivastava, Public Relations Officer to the then Ganna Vikas Mantri Dr. Narendra Kumar Singh Gaur, respondent No. 1 and was printed by Nelco printers and publishers, Buland Bagh, Wazirganj, Lucknow. The Nelco Printers Buland Bagh, Lucknow, is an authorised and approved Printer of Government of Utter Pradesh vide Government Order No. 334/SU Evam Ja. Sa. Vi (Praka Bu)-14/96 dated 16.4.1996 issued by the Director, Department of Information and Public Relations, Uttar Pradesh Government. The Nelco Printers, Buland Bagh, Lucknow is owned by Sri Anfas Lari.
27. In para 34, the election petitioner states as follows:
34. that Sri Santosh Kumar Srivastava, a gazetted Class II officer of the Government of U.P., in the capacity as Public Relation Officer to the cabinet minister, Sri N.K.S. Gaur, respondent No. 1, on the instruction of respondent No. I, obtained, procured and used the government machinery for the furtherance of the prospects of his election of respondent No. 1. The booklets namely ‘Uchchya Shiksha Pravidhik Shiksha, Chikitsa Shiksha Evam Ganna Vikas – Chini Udyog Vibhag Ke Vibhagiya Mantri Ke Roop Mein Dr. Narendra Kumar Singh Gaur Ki Pramukh Uplabdhiyan’ the expenditure of which has not been shown by respondent No. 1 in the statement of expenditure submitted under the Rules, were published out of the government fund by Sri Santosh Kumar Srivastava at Nalco Printers and Publishers, Buland Bagh, Wazirganj, Lucknow. The aforesaid booklets have been published under the copy right of the State of U.P. Having the emblem of the State of U.P. Thus, respondent No. 1 has committed corrupt practice as contemplated under Section c of the Act. The aforesaid corrupt practice committed by respondent No. 1 was highlighted in the news report published in Hindi daily “Amar Ujala” dated 3.2.2002 under caption “Kharch Sarkar Ka Prachar Dr. Gaur Ka”.
28. The next ground stated in sub para (iii) of para 4 relates to committing undue influence upon the voters in threatening them that in case they did not vote for him, then the entire developmental activities will be stopped. This allegation follows the averments in para 26 that for making propaganda and publicising respondent/s main plans and major issues for seeking re-election in the aforesaid 259 Allahabad North Assembly Constituency and to highlight the developmental activities undertaken by Dr. N.K.S. Gaur, he got printed and published two booklets titled ‘Allahabad Uttari Vidhan Sabha Kshetra Uttrottar Vikas Ke Path Par Agrasar” containing 24 pages and another containing 12 pages. In these booklets an appeal was made to the elector to exercise their electoral right in his favour. Since he had relentlessly endeavored during the last five years for the development of the constituency. It was alleged that these developmental activities in the constituency have been done only by him and by no other person and have been made during his regime as MLA and Minister and in case they do not vote for him then the entire developmental activities in the constituency will come to an end and will be stopped and as such thereby the respondent No. 1 interfered with the free exercise of electoral rights of the voters of the Allahabad North Assembly constituency and thereby committed corrupt practice of undue influence as contemplated under Section 123(2) of the Act. The material facts given in para 19 to 32 (para 12, 13 and 14 have been deleted by order of the Court) again relate to fact that Dr. Narendra Kumar Singh Gaur, the official candidate of Bhartiya Janata Party at the relevant time was Cabinet Minister of Medical Education, Sugarcane Development and Sugar Industry Department. He had represented as MLA from the Allahabad North Assembly in the elections held in 1991, 1993 and 1996 being a sitting member of the ruling Bhartiya Janata Party. He wanted to win the election by hook or crook to the extent of adopting any corrupt practice to ensure his election. Continuing with the allegations, it is stated in para 17 that respondent No. 1 manipulated defeat of the petitioner by manipulating and managing the electronic voting machines, whereas in fact the petitioner had received a majority of valid votes but because of undue influence and manipulation of respondent No. 1 the petitioner was shown to have lost the election by margin of 4211 votes. Para 18 to 30 of the petition relied upon by the learned Counsel for election petitioner to be the material particulars in support of the ground of undue influence exercise on voters is as follows:
18. That 259, Allahabad North Assembly constituency comprises of approximately 4 lakh electorates, out of which a large number of them are practicing advocates. At a rough estimate there would be about 4 thousand advocates-electors in the aforesaid constituency. The advocates belong to intelligentia class and because of their profession and the respect they command in the society, they have a pivotal role in the formation of public opinion for or against any candidate. It is a usual practice and a judicial notice can he taken of the fact that for this very reason every candidate of the aforesaid constituency visits the Allahabad High Court also for canvassing. The opinions of the advocates of Allahabad High Court can tilt the election in favour of any candidate.
19. That in order to influence the advocate-electors of Allahabad High Court and through them other electors of the constituency, Dr. Narendra Kumar Singh Gaur started spreading a false news, fully knowing it to be incorrect and false, that he was instrumental in getting available Rs. 50 lakhs for the library of the Allahabad High Court Bar Association and Rs. One crore for the construction of advocates chambers through the good offices of the Chief Minister. This fact was published on the front cover page and widely circulated as per details given hereinafter in the two booklets printed and published by Dr. Narendra Kumar Singh Gaur (respondent No. 1) tilled “Allahabad Uttari Vidhan Sahha Kshetra Uttarottar Vikas Ke Path Par Agrasar”.
20. That the fact of the matter is that Sri Raj Nath Singh the then Chief Minister, wax invited by Allahabad high Court Bar Association on the 24th July, 2001, in a seminar on ‘Nyaya Palika Va Karyapalika Ka Prajatantra Mein Samoohik Uttardayitya’. Sri S.P. Singh, the Secretary of the Allahabad High Court Bar Association drew the attention of the Chief Minister to the hardships being faced by the lawyers because of the non-availability of the funds for the purchase of law books for the library and the general conveniences of the lawyers and the litigants as there were insufficient number of lawyers’ chambers. It was pointed out by the Secretary, Bar Association, that the number of lawyers have increased manifolds and existing lawyers’ chambers are inadequate to accommodate large number of lawyers, who were forced to sit in verandahs. The Chief Minister them made a declaration of the aforesaid amount for the library and the lawyers chamber. Dr. Narendra Kumar Singh Gaur, respondent No. 1, was neither present at the meeting nor he had taken any interest in the sanction and availability of the aforesaid amount. The aforesaid amount was declared by the Chief Minister of the State as would be evident from letter No. 3527/Vikas-S.T.-2-Ma. Mu. Man. Gho. Dated 23rd November, 2001 written by District Officer, Allahabad to the Registrar, Allahabad High Court, requesting him that a formal proposal be set to the District Officer for the release of the said funds.
21. That it is relevant to mention here that out of the two declarations, namely, granting of Rs. .50 lakhs for the library and Rs. One crore for the lawyers’ chambers, only Rs. 50 lakhs had been received by the liar Association till the filing of the petition. The remainder Rs. One crore promised for lawyer’s chambers has not been received till 31.3.2002 end of the financial year. Thus the respondent No. 1 has committed corrupt practice as contemplated under Section 123(2) of the Act.
22. That on the back of the cover page of the aforesaid two booklets, the number of copies printed have been shown to be 2000 only, whereas the petitioner believes to be true that approximately 50,000 copies were printed and distributed in the constituency in quest ion.
23. That as per the most conservative estimate, at least 12, 00 electors were influenced by this false declaration as these electors have always been interested in the welfare of lawyers conveniences and the developmental activities in the Allahabad High Court.
24. That respondent No. 1, Dr. N.K.S. Gaur, has, thus, by making a false statement, knowing it fully to be false, directly interfered with the free exercise affranchise and electoral rights of approximately 12,000 voters who are in the direct touch with the advocates being their family members, friends and relatives, who would otherwise not have exercised their electoral right in favour of Dr. N.K.S. Gaur, respondent No. 1. Some of the advocates, on whom the undue influence was exercised are Sarvashri Narendra Bahadur Singh, Sarva Singh and Santosh Kumar Srivastava.
25. That the aforesaid 12,000 votes polled in favour of Dr. N. K. S. Gaur, respondent No. 1 were obtained by indulging in corrupt practice of undue influence as contemplated under Section 123(2) of the Act, 1951, and are liable to be deducted from his account as it is clear that but for the votes obtained by Dr. N.K.S. Gaur, respondent No. 1, the returned candidate by corrupt practice of undue influence, the petitioner would have obtained the majority of the valid votes and would have been entitled for a declaration in his favour.
26. That for making propaganda and publishing respondent No. 1’s main plans and the major issues of seeking re-election from the aforesaid 259, Allahabad North Assembly Constituency and to highlight the developmental activities undertaken by Dr. N.K.S. Gaur respondent No. 1, he got printed and published two booklets titled “Allahabad Uttari Vidhan Sabha Kshetra Uttrottar Vikas Ke Path Par Agrasar” and containing 24 pages and another containing 12 pages. In these booklets an appeal was made to the electors to exercise their electoral right in his favour since he had relentlessly endeavoured during the last 5 years for the development of the constituency. In the booklet the departmental achievements of Dr. N.K.S. Gaur, respondent No. 1 have been shown. Although in the print line of these separate booklets only 2000 copies have been shown to have been published but according to the information available with the petitioner at least 50,000 copies were printed and freely distributed in the election meetings, in the constituency in question, addressed by Dr. Narendra Kumar Singh, respondent No. 1 and during the election campaign by him and his supporters, w.e.f. 22.1.2002 to 18th February, 2002, as per the Schedule B. During the aforesaid election campaign respondent No. 1 (Dr. Narendra Kumar Singh Gaur), his agents and workers committed undue influence upon the electors by threatening them that in case they did not vote for him, then the entire developmental activities will be stopped and as such thereby the respondent No. J interfered with the electoral rights of the voters of the Allahabad North Assembly constituency.
27. That in the aforesaid two booklets it has been declared that Dr. N.K.S. Gaur, respondent No. J had got done a variety of developmental activities including reconstruction of a large number of roads, painting of roads etc. which works, in fact, were not got done out of ‘Vidhayak Nidhi’ of respondent No. 1. In fact, those works were got done out of their ‘Sansad Nidhi’ of the sitting member of Parliament and a cabinet minister of Government of India, namely, Dr. Murli Manohar Joshi as also Shri Janeshwar Misra as well as out of the budget of Nagar Nigam, Allahabad and even by the petitioner when he was elected member of Assembly from Allahabad north Constituency. The respondent No. J with a view to exercise undue influence on the minds of large number of electorates of 259, Allahabad North constituency, has successfully campaigned through his false propaganda by means of the aforesaid booklets and through press conferences, public meetings addressed by him and also through cable operators. The respondent No. 1 also in the said two booklets showed the works as ones to have got done by him, which works were done outside the constituency in question and those works could not have been done from the Vidhayak Nidhi of respondent No. J. the petitioner seeks to give the details of such false propaganda and statements, made at various places in the said two booklets, with a view to exercise undue influence over the electorates of the constituency, in a separate Schedule-C.
28. That, Dr. N. K. S. Gaur, respondent No. 1, has falsely claimed on page 5 of his aforesaid two booklets being instrumental in the sanction of Section 16 crores each for the construction of building of Homeopathic Medical Colleges in Lucknow, Kanpur and Allahabad, which he knew to be false, as for Homeopathic Medical College, Allahabad, sanction of Rs. 15, 67, 10373.87 was made by his Excellency the Governor of U.P. Shri Moti Lal Vora, and Shri N.K.S. Gaur, respondent No. 1, had no powers to sanction the aforesaid projects.
29. That similarly Dr. N.K.S. Gaur respondent No. I, has made false statement, knowing and believing it to be false, in the aforesaid booklet containing 24 pages at page 11 item No. 1 about a road through Majar, Chaitham Lines via Railway crossing, Uptron crossing to Teliarganj. The aforesaid statement is false as the aforesaid road was constructed in 1988-89 when the petitioner was the MLA from the then 275 (259) Allahabad North Assembly constituency.’
30. That respondent No. 1 (Dr. Narendra Kumar Singh Gaur) has made false statement falsely claiming that the developmental and other cultural achievements and works of Dr. Mudi Manohar Joshi, M.P. Were done out of his own Vidhayak Nidhi. Dr. Murli Manohar Joshi is an M.P. From 56 Allahabad Parliamentary constituency of which 259, Allahabad North assembly constituency is a part. These claims have been made in the ‘Smarika 2001 -Sanskriti Purush Dr. Murli Manohar Joshi Pustak Lokarpan Samaroh’ in chapter entitled ‘Sansad Vikas Nidhi Ke Antergat Sampanna Karya’, at pages No. 81 and 82, (hereinafter referred to as the ‘Smarkika 2001’)
29. Coming to the ground No. (iv) regarding improper acceptance of invalid votes and improper rejection of valid votes in favour of the petitioner, the material particulars are referred to in paragraphs 35 and 46 as follows:
35. That after the completion of polls, the Returning Officer of 259, Allahabad North Assembly constituency, sent information to the Election commissioner of India that in all 427 booths in the constituency 60, 770 men and 35, 205 women, in total 95, 975 votes were polled. The total votes counted and entered into Form 20 was 99, 581, resulting in the increase of 3606 votes on the completion of counting. Thus 3606 votes were improperly added in favour of the respondent No. 1, the returned candidate.
46. that in the following booths the total polled votes mentioned in the diaries of the presiding officer did not tally with the total member of votes mentioned in Form 20:-
——————————————————
SN Booth Polled votes Polled votes
No. mentioned mentioned
in form 20 diary of
P.O.
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1 28A 104 124
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2 167 304 378
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3 290a 144 157
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This discrepancy clearly establishes that deliberate attempts had been made by the official machinery to manipulate the process in favour of the returned candidate.
30. The material particulars for ground No. (vi) regarding corrupt practice and undue influence of directly or indirectly interfering with the free exercise of electoral right are given in para 19, 25, 26, 27 and 30, quoted above.
31. The next ground namely ground No. (vii) regarding incurring and wasting of expenditure in contravention of Section 77 of the Act inasmuch as the returned candidate incurred expenditure in excess of prescribed maximum limit of Rs. 6 lac fixed by notification dated 31.12.1997 under Section 169 of the Act in consultation with the Election Commission of India relies the material particulars in para 31 and 33 of the petition. Para 33 has already been referred to as above and in connection therewith para 31 is as follows:
31. That the maximum election expenses, the total expenditure of which is to be kept under Section 77 of the Act, have been given in the table appended to Rule 90 of the Conduct of Election Rules, 1961. For the assembly constituency of the State of U.P. The maximum permissible limit of expenses is 6 lakhs, as stated by notification SO 929 (E) dated 31.12.1997 w.e.f. 31.12.1997. Incompliance of the above, respondent No. 1, Dr. N.K.S. Gaur, has submitted abstract of expenditure of election in the prescribed proforma as under:
AMOUNT OF EXPENSES INCURRED
1. Public meetings, processions et. Rs. 14, 545/-
2. Campaigning material like hand Rs. 1, 640, 97.25
bills, posters, video, audio etc.
3. Vehicles used and petrol expenses on Rs. 97,349.79
4. Erection of tents etc. Rs. 2000/-
5. Visits of VIPs to the constituencies Rs. Nil
6. Other miscellaneous expenses Rs. 36, 542.00
Total Rs. 2, 74, 536.04
32. The last of the grounds in support of the corrupt practice again refers to obtaining assistance of Shri Santosh Kumar Srivastava, Public .Relation Officer to the Sugarcane Minister and a gazetted officer under the service of the State government for furtherance of the prospect of his election as contemplated under Section 123(7) of the Act.
33. The three booklets referred to in para 33 and alleged to be printed on instruction of respondent No. 1 proclaiming his achievements have not been annexed to the election petition. They are not even referred to in the list of documents under Chapter XV-A of Rule 3 of the Rules of the Court.
34. Shri M. Islam has relied upon item No. 7 and 8 of the list of documents, to refer to three pamphlets and stated that these pamphlets would be filed later in evidence. Item No. 7 and 8 of list of documents is as follows:
7) A11 the documents referred in the election petition.
8) All such other material and further documents which will be necessary in order to prove his case.
35. The date of publication of these pamphlets, which is most relevant as any allegation with regard to corrupt practice prior to the date of notification of the elections which in the present case is 16.1.2002, is not to be treated as corrupt practice under Section 77 of the Act is not given. There is no averment in the pleading that these booklets assail personal character or conduct of the returned candidate to prejudice the prospect of the election of the petitioner. Shri M. Islam fairly stated that the election petitioner has not taken any such ground of corrupt practice under Sub-section (4) of Section 123 of the Act.
36. It is contended that the three pamphlets though not mentioned and verified in schedule-14 are referred to in the election petition and are thus to be treated as integral part of the election petition. These have not been filed in court along with copies thereof for service upon the respondent to the election petition. In the election petition it is stated that the returned candidate was elected to the Legislative Assembly from the same constituency in the years 1991, 1993 and 1996 and had been Cabinet Minister of Medical Education, Sugarcane Development and Sugar Industry Department. It is alleged that the pamphlets proclaimed that the developmental activities were done in the constituency only by the returned candidate and if the voters failed to elect him, thus developmental activities will be stopped. The booklets thus were integral part of the election petition. They have not been filed and have not been served upon the respondent to complete the material particulars in support of the ground of corrupt practice of undue influence upon the electors. There is reference of booklets in the election petition without either quoting or referring to the contents thereof. The allegations in paragraph Nos. 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, and 30 refer to the booklets but do not quote or even summerise the contents thereof. The allegations that the respondent No. 1 started spreading false news only knowing it to be incorrect and false and publishing it in different page of the booklets titled (Allahabad Uttari Vidhan Sabha Kshetra Uttarottar Vikas Ke Path Par Agrasar”,’) regarding he being instrumental and getting Rs. 50 lacs for the library of the Allahabad High Court Bar Association and Rs. 1 Crore for construction of Advocates’ Chambers through the good offices of the Chief Minister and the fact that the elected candidate was not present in the meeting of Allahabad High Court Bar Association on 24.7.2001 when Shri Raj Nath Singh, the Chief Minister had visited and in which the Secretary of the Bar Association had informed him about the shortage of accommodation for the increasing number of lawyers on which the Chief Minister had made declarations for grant of Rs. 50 Lacs for library and Rs. 1 Crore for Lawyers’ Chambers out of which only Rs. 50 Lacs were received by the Bar Association till 31.3.2002, are stated to be the contents of the booklets which have not been quoted or annexed.
37. The election petitioner thereafter in paragraph Nos. 22, 23, 24 and 25 has made guess work which he believed to be true that approximately 50,000 copies were printed and distributed in the constituency, which as per most conservative estimate influenced, atleast 12000 electors on the false declaration, is a poor and simple guess work without a definite assertion about the number of copies printed and circulated.
38. A reference of the booklets which were published without annexing them do not complete the allegations which form material particulars in support of the facts constituting undue influence. The election petitioner has not given the date and time when these booklets were published and as to when instructions were given by him for publishing these booklets. The election petition is thus an incomplete document.
39. Sub-section (2) of Section 123 of the Act which defines undue influence as corrupt practice or challenging an election and which is one of the ground of challenge of this election petition is quoted as below;
(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right:
Provided that-
(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-
(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,
shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;
(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.
40. Even if the allegations in the election petition relied upon by the election petitioner are taking into consideration, these do not constitute undue influence so as to constitute corrupt practice as defined in the Act. There is no allegation that contents of the booklets even if they are taking to be false for the argument sake interfered with the free exercise of the electoral right of the electors. The illustration given in the proviso to Section 123(2) of the Act relates to threat of social ostracism and excommunication or expulsion from any caste or community and inducement or attempt of inducement by a candidate to an elector to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or spiritual censure. The allegations clearly do not fall within these illustrations which may be treated as guidelines for defining undue influence. The test is interference in the free exercise of electoral right. Sub Sub-section (b) of Section 123(2) clarifies that a declaration of public policy or a promise of a public action or on mere exercise of any legal right without intent to interfere with the electoral right, shall not be deemed to be interference within the meaning of the clause. Even if the electors believed the allegations made in the booklets to be false, this would not have, in any way interfered with the free exercise of electoral right of the electors of the constituency. The respondent No. 1 may have claimed to have carried out departmental activities in the constituency which may or may not have been possible without his effort but this by itself even if construed as false on a threat that activities would come to close on his losing the election, will not fall within the meaning of an attempt to interfere on the part of the candidate or his agent with the free exercise of electoral rights of the electors. The entire foundation of the ground of undue influence therefore is not well laid and thus the election petition need not be taken to trial.
41. The ground of procuring the service of gazetted officer namely Shri Santosh Kumar Srivastava, the Public Relation Officer to the Sugarcane Minister who alone had been named in the grounds and the material particulars (the reference to members of the police force and revenue officers is without giving their names or other particulars) do not make out the ground of corrupt practice under Sub-section (7) of Section 123. So far as Shri Santosh Kumar Srivastava is concerned, the allegations as against him for providing assistance for furtherance of the prospect of election, are only with regard to publication of the three booklets, discussed as above.
42. With regard to improper acceptance of invalid votes and improper rejection of valid votes, the allegations contained in para 46 and 47 do not constitute material particulars. It is stated in paras 35, 43, 44, 45, and 46 that the total votes counted and entered were of 99591 as against the information sent to the Election Commission of India of total number of 95,975 votes, and thus improperly adding 3606 votes. This allegation does not amount to improper acceptance of 3606 votes in favour of the returned candidate. The fact, that diaries of the presiding officers verifying number of votes polled at the various polling stations were missing, does not mean that the votes were not counted or invalid votes were improperly counted in favour of the returned candidate. Non-submission of records by the returning officer within the prescribed period would be an irregularity and not material particulars for pleading that the invalid votes were improperly accepted. Further, there is no pleading to connect the missing diaries with 3606 votes which were alleged to be improperly added in favour of returned candidate.
43. There are no material particulars relating to ground No. (v) in para 4 with regard to corrupt practice committed by the election agent, agents and workers of the returned candidate. This ground simply reiterates the words in Section 123 of the Act. Schedule B of the election petition refers to certain names who were present in the meeting/campaign on the dates given in Column 2. These persons are stated to have distributed the booklets with the consent of respondent No. 1. This brings the matter back to the booklets which have not been annexed to the election petition and thus the material particulars with regard to ground No. (v) is also lacking.
44. Coming to the last ground namely ground No. (viii) of para 4 regarding incurring and authorizing expenditure in contravention to Section 77 of the Act, the statement of exceeding the expenditure has been referred and approximated only to publication of the booklets. According to the allegation, 25000 copies of first booklet of which the pages and type of paper has not been given, and the allegation that 25000 copies of the other two booklets containing 24 pages and 12 pages respectively approximated to Rs. 8, 12, 500/- were incurred exceeding the statutory limit of Rs. 6 lacs. These allegations once again do not refer to the date when the booklets were printed and in the absence of the booklets annexed to the election petition which may give the date of printing, contents, size and the type of paper the allegation are just a guess work without any basis. They do not provide full details. A guess work without any basis cannot be the ground to allege that the cost of printing exceeded to maximum amount and expenditure permitted in law.
45. Further ceiling on expenses is referable to the date on which the election is notified. In the absence of date of printing and payment for these booklets, it cannot be said that such expenses were incurred in contravention to Section 77 of the Act.
46. The election petition as such does not disclose the material facts and particulars, constituting cause of action to challenge the election on corrupt practices. The election petition in the present case is an incomplete document. It does not contain concise statement of material facts with the fullest possible particulars. The pleadings do not lead to a complete cause of action or present full picture of cause of action to make the respondent understand the case, he has to meet. The election petition as such liable to be dismissed under Order VII, Rule 11 C.P.C. read with Section 86(1) of the Representation of People Act 1951.
47. The application is allowed and the election petition is dismissed.