IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14/06/2005
CORAM
THE HONOURABLE MR.JUSTICE C.NAGAPPAN
Original Application No.105 of 2005
in
Election Petition No.3 of 2004
P.Chidambaram .. Applicant/
1st respondent
-Vs-
1. Suba. Karuppiah .. 1st respondent/
Election Petitioner
2.Navshad Alikhan
3.Venkatachalapathy
4. Irudayaraj
5. Kayambu
6.Gunasekaran
7.Shanmugam
8.Chidambaram
1/77, Thuvarampatti
Panangudi Post
Natarajapuram via
Sivaganga District.
9.Chidambaram
Mariammankoil Street,
Kovilur, Managiri Post
Sivaganga District.
10.Chidambaram
Kallamanakkudi
Puduvayal Post
Karaikudi Taluk
Sivaganga District.
11.Subramanian Mutharayar
12.The Returning Officer/
District Collector,
Sivaganga Parliamentary
Constituency,
Sivaganga District.
13.The Election Commission of India
represented by its Secretary,
Nirvachan Sadan, Ashoka Road,
New Delhi - 110 001.
(Respondents 2, 4, 5, 6, 7,8, 9
and 10 are called absent and
set exparte). .. Respondents
!For Applicant/ : Mr.G.Masilamani
1st respondent
Senior Advocate
for M/s.S.Silambanan
and Gladys Daniel
For 1st respondent/ : Mr.R.Thiagarajan
Election Petitioner
For Respondent No.11 : Mr.S.Nagarajan
For Respondents 12
and 13 : Mr.M.R.Raghavan
:ORDER
Application under Order XIV Rule 8 of Original Side Rules and Rule 3
of the Rules of the Madras High Court Election Petitions 1967 read with Order
VI Rule 16 and Order VII and Rule 11 C.P.C. and Sections 81 (1), 83, 86 and
100(1)(d)(i)(ii) of the Representation of People Act, 1951.
2. The first respondent in the Election Petition No.3 of 2004 has filed the
above application praying for striking out the offending paragraphs in the
Election Petition and consequently dismiss the Election Petition for want of
material facts, particulars, evidence, cause of action and triable issues.
3. The first respondent in this application has filed the Election Petition
No.3 of 2004 under Sections 80 and 80(A) read with Sections 10 0(1)(b), 100
(1)(d) and 101 of the Representation of People Act, 1951 seeking for a
declaration that the election of the Returned candidate/Applicant herein as
void and bad in law for improper acceptance of his nomination papers to
contest from No.33, Sivaganga Parliamentary Constituency by the 12th
respondent and also for a declaration that the election of the Returned
candidate is null and void as vitiated by corrupt practices and set aside the
same and consequently to declare that the next candidate, who has polled the
highest number of votes, namely, the first respondent herein, as returned
elected.
4. For the sake of convenience, the petitioner in the Election Petition, who
is the first respondent in this application, will be referred to as the
‘Election Petitioner’, while the applicant in this application, who is the
first respondent in the Election Petition, will be referred to as the
‘Returned Candidate’ in this Order.
5. According to the Election Petitioner, he contested from No.33, Sivaganga
Parliamentary Constituency as a candidate of the All India Anna Dravida
Munnetra Kazhagam in the election conducted on 10.5.2004 and the returned
candidate filed his nomination papers as the candidate of the Indian National
Congress Party. The second respondent was the candidate of the Bahujan Samaj
Party and respondents 3 to 11 contested the election as independents. The
12th respondent was the Returning Officer and the 13th respondent is the
Election Commission of India.
6. The averments have been raised from para 5 onwards in the Election
Petition and they are referred to in seriatim.
a) In paragraph No.5, it is stated that the returned candidate was a Member of
the Indian National Congress which is a recognised national political party
and in 1996, he was expelled from that party, as he joined the Tamil Manila
Congress (Moopanar), a recognised State Political Party and he contested the
Sivaganga Parliamentary Constituency thrice, namely, in 1996, 1998 and 1999 as
a candidate of the said Party and on account of difference of opinion during
2001 Assembly Elections, he was expelled from that Party and he founded the
Congress Jananayaga Peravai and registered the same as a Political Party with
the Election Commission of India and it is found as an unrecognised registered
Political Party in Sl.No.204 of Table No.3 in Tamilnadu Government Gazette
(Extract) Part V. Sec.4.
b) In paragraph 6, it is stated that the returned candidate was a member of
Congress Jananayaga Peravai on the date of filing of his nomination and his
declaration as an Indian National Congress candidate is false and the election
petitioner’s agent sent a written representation on 21.4.2004 to the 13th
respondent requesting for furnishing of details regarding the official
position of the returned candidate in Congress Jananayaga Peravai as on
20.4.2004 and there was no reply from the 13th respondent.
c) In paragraph 7, it is stated that as per law, a person could not be a
member of more than one political party at a given point of time and while
registering a political party, particulars regarding the names of its
President, Secretary, Treasurer and other office bearers should be furnished
along with an affidavit duly signed by the President/General Secretary of the
party and sworn before a First Class Magistrate/Oath Commissioner/Notary
Public to the effect that no member of the organization is a member of any
other political party registered with the Commission and individual affidavits
from at least 100 members of the party duly sworn to the effect that the said
member is a registered Elector and is not a member of any other political
party should also be furnished and after registration of the political party,
any change in its name, head office, office bearers, address or in any other
material matters shall be communicated to the Election Commission without
delay.
d) In paragraph 8, the election petitioner has averred that the returned
candidate is either a founder leader or President or General Secretary of the
Congress Jananayaga Peravai and if he had resigned and joined the Indian
National Congress subsequently, that fact should have been informed to the
13th respondent and if it is so informed, the 13th respondent could have
informed the same to the election petitioner on his request and since the 13th
respondent has not replied to the request of the petitioner’s election agent,
it is presumed that there is no change as on 20.4.2004 in the particulars
furnished by the Congress Jananayaga Peravai at the time of its registration.
e) In paragraph 9, it is further stated that during the scrutiny of
nominations on 24.4.2004, the agent of the election petitioner and proposers
raised serious objections before the 12th respondent seeking for rejection of
the nomination of the returned candidate, but the objections came to be
rejected by the 12th respondent in his proceedings dated 24.4.2004 and the
agent of the election petitioner also sent a petition dated 25.4.2004 to the
13th respondent requesting it not to publish the final list of candidates and
stop the election till the disposal of the petition.
f) In paragraph 10, it is averred that the 12th respondent rejected the
objections without going into the root of the question and improperly accepted
the nomination of the returned candidate as a valid one and the said
acceptance is wrong, improper, illegal and against the spirit of the
Constitution, the Representation of the People Act, 195 1, the Election
Symbols (Reservation & Allotment) Order, 1968, the Conduct of Election Rules,
1961 together with the periodical instructions issued by the 13th respondent.
g) The election petitioner has reproduced his objections made on his behalf to
the 12th respondent on 24.4.2004 in verbatim in paragraph No.11 and briefly
they are thus. The returned candidate on the date of filing of nomination is
the founder and leader of the registered unrecognized political party, namely,
“Congress Jananayaga Peravai” and as per the Election Symbols (Reservation and
Allotment) Order, 1968 , the political parties are classified as recognized or
unrecognized and among the recognized political parties, there are two
categories, namely, State Party and National Party and the symbols are
allotted as prescribed therein and the reserved symbol i s the recognition
accorded by the Election Commission to the particular political party and it
is neither a chattel owned by the party which could be bartered or sold or
mortgaged or gifted nor is it available to the candidate not set up by the
political party and Schedule X of the Constitution of India speaks about a
candidate nominated by a political party and if a person leaves the membership
of a particular party, he would be disqualified from being a Member of the
House and it is an admitted fact that the returned candidate is not a member
of the Indian National Congress nor can he claim that he is a member of that
party and it is learnt that he filed Forms A and B as if he is a candidate set
up by the Indian National Congress headed by Mrs. Sonia Gandhi and a combined
reading of the provisions of the Representation of People Act, the provisions
of the Election Symbols ( Reservation and Allotment) Order, 1968 coupled with
Schedule X of the Constitution of India would show that a candidate must be a
member of a political party to qualify himself to make use of Forms A and B so
as to get the reserved symbol of the said political party whose Forms A and B
he files and seeking the reserved symbol in the absence of his membership,
would make his nomination not a valid one. The returned candidate in all
probability must be deemed only an independent candidate and if it is so, he
should be proposed by at least 10 voters, which is not the case with respect
to the nomination filed by him before the Returning Officer. The returned
candidate is not a member of the political party, which has given Forms A and
B in his favour and he has not fulfilled the formalities that are required
while submitting the nomination by an independent candidate and hence his
nomination has to be rejected.
h) The election petitioner has further stated in paragraph 12 that the entire
election process right from the beginning to the announcement of election
results is vitiated and materially affected the result of the election for the
following reasons. When the returned candidate filed his nomination on
19.4.2004, he was not a member of the Indian National Congress and hence the
declaration submitted by him was a false one and that vitiates the entire
election process and it is not known as to when the returned candidate
resigned from the primary membership of Congress Jananayaga Peravai and on
re-joining enrolled himself as a member of the Indian National Congress.
Neither he nor the 12th respondent disclosed the same to the election
petitioner and the returned candidate has played a fraud on the Constitution
of India and has failed to maintain the high traditions of democracy and
purity of elections by misrepresenting that he is a member of the Indian
National Congress and he no longer continues to be a member of Congress
Jananayaga Peravai and the 13th respondent has failed in its duty to provide
the requested information about the returned candidate to the petitioner’s
election agent and has not complied with the various provisions of law in this
regard and the improper acceptance of the returned candidate’s nomination by
the 12th respondent has materially affected the election results and the
polling trend and the returned candidate continues to be a member of the
Congress Jananayaga Peravai as evident from the various Press releases and
advertisements given out by that party upon his victory in the election.
i) In paragraph 13, the election petitioner has once again reiterated the
averment that by the improper acceptance of the nomination of the returned
candidate by the 12th respondent, the result of the election insofar as it is
concerned with the returned candidate had been materially affected and there
had been violations of the provisions of the Constitution of India and the
Representation of the People Act, 1951 and the rules framed thereunder, the
Election Symbols ( Reservation & Allotment) Order, 1968 and the Conduct of the
Election Rules and in view of the illegalities, the election of the returned
candidate has to be declared as void and bad in law.
j) In paragraph 14, the election petitioner has further averred that the
returned candidate by making a false representation in his nomination, has
indulged in corrupt practice which though not per se come under the purview of
Section 123 of the Representation of the People Act, 1951, by confusing the
mind of electorate as being a Congressman.
k) The election petitioner, in paragraph 15 of the petition, has mentioned
various dates on which cause of action arose for filing of the election
petition.
7. The present Original Application has been filed by the returned candidate
seeking for striking out various offending paragraphs in the Election Petition
by mentioning their numbers and consequently dismiss the Election Petition for
want of material facts and triable issues. Hence, it is appropriate to
mention the contents of the affidavit in the same manner as stated therein.
“4. The only ground in the Election Petition is that the nomination of the
returned candidate was “improperly accepted”. Presumably the election
petitioner seeks to invoke Section 100(1)(d)(i) of the Representation of the
People Act, 1951, hereinafter referred to as the “195 1 Act”. In order to
invoke the said ground the election petitioner should prove the following:–
(a)that the nomination paper was improperly accepted;
(b)that the said improper acceptance has materially affected the result of the
election; and
(c)that the material effect on the result of the election concerns the
returned candidate.
5. The presentation of the nomination papers, scrutiny, acceptance and the
publication of the list of contesting candidates are dealt with in Sections 32
to 39 of the 1951 Act. Section 32 prescribes the qualifications for a person
to be nominated as a candidate. Such qualifications are contained in Article
84 of the Constitution of India and in Section 4 of the 1951 Act. Once a
person who possesses the aforesaid qualifications is nominated as a candidate,
the nomination paper shall be scrutinized (U/S. 36) and the list of validly
accepted candidates shall be prepared [U/S.36(8)]. Thereafter a list of
contesting candidates shall be prepared (U/S. 38).
6. There is no averment anywhere in the Election Petition that any of the
provisions of the Constitution of India or of the 1951 Act has been violated
in the present case. There is no averment or pleading as to how the
acceptance of the nomination of the applicant herein was in violation of any
mandatory provision of the Constitution of India or of the 1951 Act; nor is
there any averment or pleading as to how the acceptance of the nomination was
‘improper’. It is in the background of the absence of any relevant averment
or pleading that the other averments in the Election Petition have to be
examined and struck out if the said averments are irrelevant, immaterial,
unnecessary, frivolous and/or vexatious.
7. The averments in paragraph 8, and in particular the averments in
sub-paragraphs (b), (c) and (d), are irrelevant and unnecessary to the issues
raised in the Election Petition. There is no obligation on the part of a
person/citizen to inform respondent No.13 (Election Commission) when he has
joined a political party. There is no obligation that respondent No.13 should
convey the said information to the election petitioner’s agent. There is no
presumption that since the election petitioner did not receive a reply, there
was no change as on 2 0.4.2004 in the particulars furnished by the Congress
Jananayaga Peravai. An enquiry into these aspects would be wholly irrelevant
and immaterial to the issues raised in the Election Petition. Such an enquiry
would be vexatious. Hence, the averments in paragraph 8(b) to (d) are liable
to be struck out.
8. In paragraph 11 of the election petition, the election petitioner has
reproduced in verbatim the objections made by him to respondent No.12
(Returning Officer). Although those objections were rejected by the Returning
Officer, since the objections have been reproduced in the Election Petition
and made part of the Election Petition, the applicant submits that many of
those averments are liable to be struck out on the ground that they are
unnecessary, irrelevant and immaterial to the issues raised in the Election
Petition. For instance the 5 th bullet and the paragraph starting with the
words, “It is reliably learnt that???.” and ending with the words “gift it to
anybody or to abuse it”, is liable to be struck out. The said paragraph
raises no disputed question of fact or issue of law. It simply reflects the
opinion of the election petitioner. No issue of fact or law can be framed on
the basis of the averments in the said paragraph. Hence, the whole of the
said sub-paragraph is liable to be struck out.
9. Similarly, the 8th bullet and the paragraph starting with the words, “In
the case of Thiru P.Chidambaram ??.” and ending with the words “cannot be
allotted to other persons by the Returning Officer”, is liable to be struck
out. The said paragraph does not raise any disputed question of fact or issue
of law. It simply reflects the opinion of the election petitioner. No issue
of fact or law can be framed on the basis of the averments in the said
paragraph. Any enquiry into the averments in the said paragraph would be
wholly irrelevant and immaterial to the issues raised in the Election
Petition. Hence, the whole of the said sub-paragraph is liable to be struck
out.
10. Similarly, the 9th bullet and the paragraph starting with the words, “As
already mentioned???.” and ending with the words “as a matter of adjustment or
as a matter of will”, is liable to be struck out. The said paragraph does not
raise any disputed question of fact or issue of law. It simply reflects the
opinion and the presumptions of the election petitioner. It is not founded on
any provision of the Constitution of India or of the 1951 Act. No issue of
fact or law can be framed on the basis of the averments in the said paragraph.
Any enquiry into the averments in the said paragraph would be wholly
unnecessary and irrelevant to the issues raised in the Election Petition by
the petitioner. Hence, the whole of the said sub-paragraph is liable to be
struck out.
11. Similarly, the 10th bullet and the paragraph starting with the words, “If
the above analogy is accepted ??.” and ending with the words “have not been
followed by the said candidate”, is liable to be struck out as unnecessary and
irrelevant. The said averments do not raise any disputed question of fact or
issue of law. It is simply the arguments based on the election petitioner’s
erroneous understanding of the legal position and his presumptions. No issue
of fact or law can be framed on the basis of the averments in the said
paragraph. Any enquiry into the averments in the said paragraph would be
wholly irrelevant and immaterial to the issues raised in the Election
Petition. Hence, the whole of the said paragraph is liable to be struck out.
12. Similarly, the 13th bullet and the paragraph starting with the words,
“Neither the Tenth Schedule ???” and ending with the words ” above political
gimmicks”, are liable to be struck out as unnecessary and irrelevant to the
issues raised in the Election Petition. The averments in the said paragraph
are not founded on any provision of the Constitution of India or of the 1951
Act. They are simply the arguments based on the election petitioner’s
erroneous understanding of the legal position and his presumptions. The said
averments do not raise any disputed question of fact or issue of law. No
issue of fact or law can be framed on the basis of the averments in the said
paragraph. Hence, the whole of the said sub-paragraph is liable to be struck
out.
13. The averments in paragraph 12, sub-paragraphs (d), (e), (g), (i), (j),
(k) and (l), are liable to be struck out as unnecessary and irrelevant to the
issues raised in the Election
Petition. For the reasons stated already, there is no obligation to disclose
any information to the election petitioner. These allegations have no
foundation in law. There is no averment that any mandatory provision of law
has been violated. No issue of fact or law can be framed on the basis of the
said averments in paragraph 12. Hence, the aforesaid sub-paragraphs (d), (e),
(g), (i), (j), (k) and (l), are liable to be struck out.
14. The averments in paragraph 12, sub-paragraphs (h) and (m) are liable to
be struck out. The election petitioner has made an irresponsible allegation
of fraud without giving any particulars of the alleged fraud. Under Order VI
Rule 4 of the C.P.C., when a party pleads fraud, particulars of the alleged
fraud shall be stated in the pleadings. Except for a bare allegation of fraud
no particulars have been given. Even the allegation is based on a presumption
of the election petitioner and not on the basis of any facts. There can be no
enquiry into the irresponsible and unsubstantiated allegations made by the
election petitioner in sub-paragraphs (h) and (m). Any such enquiry into the
averments in the said paragraph would be vexatious, and wholly irrelevant and
immaterial to the issues raised in the Election Petition. Hence, the whole of
subparagraphs (h) and (m) are liable to be struck out.
15. It is submitted that the averments in sub-paragraph (n) of paragraph 12
is liable to be struck out as unnecessary and irrelevant to the issues raised
in the Election Petition. No reliance can be placed on any alleged press
releases or advertisements. In any event, no connection has been alleged or
established between the returned candidate (applicant herein) and the said
press releases and advertisements. No enquiry can be made into the said press
releases and advertisements. No issue of fact or law can be framed on the
basis of the averments contained in sub-paragraph (n). Hence, the whole of
the said sub-paragraph (n) is liable to be struck out.
16. It is submitted that the averments in sub-paragraph (o) of
paragraph 12 is liable to be struck out as unnecessary and irrelevant to the
issues raised in the Election Petition. The averments in the said
sub-paragraph are not based on any facts or documents. The said averments do
not raise any disputed question of fact or issue of law. No issue of fact or
law can be framed on the basis of the averments in the said paragraph. Hence,
the whole of the said sub-paragraph ( o) is liable to be struck out.
17. It is submitted that the averments in paragraph 14 of the Election
Petition are liable to be struck out. Although there is a bald allegation of
corrupt practice and a reference to Section 123 of the 195 1 Act, there is no
averment regarding any corrupt practice or the kind of corrupt practice or the
provision of law which is attracted. Corrupt practices are defined in Section
123 of the 1951 Act and in as much as there is no specific allegation of any
corrupt practice within the meaning of Section 123 of the 1951 Act, there can
be no enquiry into the bare allegation. Since paragraph 14 of the Election
Petition contains only a bare allegation, any enquiry into the averments in
the said paragraph 14 would be wholly irrelevant, immaterial and vexatious.
Hence, the whole of paragraph 14 is liable to be struck out.
18. Without prejudice to the above, it is respectfully submitted that the
Election Petition itself is liable to be dismissed in limine for the reasons
stated in paragraph 3 of the counter-statement filed by respondent No.1
(applicant herein). Unless the Election Petition furnishes or constitutes a
cause of action or ground in support of the Election Petition as required
under law, the Election Petition itself is not maintainable. Since no ground
of law in support of the Election Petition, as required under the 1951 Act,
has been made out in the Election Petition, it is submitted that any enquiry
into the Election Petition would be unnecessary, irrelevant and vexatious.
Hence, the whole of the Election Petition is liable to be dismissed in
limine.”
8. The election petitioner has filed the counter affidavit in the
Original Application reiterating what he has stated in the Election Petition
and has stated that the returned candidate was a member of Congress Jananayaga
Peravai on the date of filing of nomination on 19.4.2004 and admittedly, he
was a member of two political parties as per his claim and as such, the
nomination submitted by him is vitiated and the same should not have been
accepted by the 13th respondent herein and that would vitiate the entire
election process. It is further stated in the counter that the allegations
contained in the Election Petition have to be substantiated by the election
petitioner only at the time of trial and not at the interlocutory stage as
alleged by the applicant. It is also stated in the counter that whether the
returned candidate continued to be the founder leader/President of the
Congress Jananayaga Peravai and when he re-joined the Indian National Congress
are all matters to be considered at the time of trial and not at the
interlocutory stage. According to the election petitioner, the material facts
and material particulars, which are essential, would depend upon the cause of
action pleaded by him and the evidence that may be led by him at the time of
trial and the pleadings as set out in the Election Petition cannot be struck
out or amended according to the whims and fancies of the returned candidate
and it cannot be contended by the applicant that it is an abuse of process of
Court. It is further stated in the counter that there is a clear distinction
between the full particulars and the material facts and the Court cannot
dissect pleadings into several parts and struck out a portion which does not
disclose the cause of action as alleged by the applicant/returned candidate
and the contention that the election petitioner has not disclosed the source
of materials to substantiate the plea of corrupt practices indulged by the
returned candidate would be pre-mature and the Court has to necessarily take
into consideration the pleadings in entirety and it cannot be read in
isolation. The election petitioner has further stated in the counter that the
returned candidate has to necessarily prove and establish that he was not a
member of two political parties at the time of filing of his nomination before
the 13th respondent and substantiate the fact as to when he resigned the
primary membership of Congress Jananayaga Peravai and relinquished his
position as the Founder leader/President of that party and when he rejoined
the Indian National Congress, and those matters have to be considered and
decided only at the time of trial. The prayer seeking for the rejection of
the Election Petition under Order VII, Rule 11(A) C.P.C on the basis that it
does not disclose the cause of action cannot be considered unless the
evidence, both – oral and documentary, are let in by the parties to the
proceedings and not otherwise. Lastly, it is stated in the counter that the
present application filed by the returned candidate is nothing but a
fraudulent and vexatious attempt made with a view to avoid a fair trial with
regard to the various allegations levelled against him and hence it is liable
to be dismissed.
9. The returned candidate has filed a detailed reply denying the averments in
the counter affidavit by stating that the allegations contained in the
Election Petition do not constitute a valid cause of action as required under
law and no pleadings in the Election Petition, if proved, would vitiate the
election process; it is for the election petitioner to satisfy the Court as to
how the acceptance of the nomination of the returned candidate was invalid and
improper, since all official acts are deemed to have been done correctly and
properly; the election petitioner has not produced any valid document to prove
his imaginary allegation about the membersh ip of the returned candidate in
political party or parties and further as to how and under what law it would
invalidate his nomination; the burden is on the election petitioner to prove
as to how the election process is violated by referring the relevant provision
of laws and producing the documentary evidence therefor; the election
petitioner’s mere assertion that the acceptance of the nomination is contrary
to laws without specifically pointing out the relevant provisions of law is
untenable, since such assertion is general, vague and untenable in law; no
valid document has been filed by the election petitioner to show that the
returned candidate was a member of the Congress Jananayaga Peravai on
19.4.2004, i.e., on the date of nomination; the returned candidate is the best
person to speak about his political affiliation and his statement and
documents have been accepted by the Returning Officer; the election petitioner
who alleges the contrary facts alone has to prove the allegations with
documentary evidence, but has not done so; the newspaper cuttings filed by the
election petitioner are inadmissible in evidence and unreliable in an election
petition, since there was no authenticity for the news mentioned therein; the
election petitioner is trying to convert the Election Petition into a Civil
Suit under C.P.C in general, contrary to and without complying with the
stringent provisions of Representation of People Act relating to Election
Petition; the election petitioner is trying to make a roving enquiry which is
impermissible in law; it is not correct to state that the allegations made in
the Election Petition are to be tested only at the time of trial and even at
the initial stage, the Court can strike out the paragraphs in the Election
Petition which do not satisfy the legal requirement of the election law; the
allegation that the returned candidate was originally a member of the Indian
National Congress and later on, in Tamil Maanila Congress and Congress
Jananayaga Peravai are general statements without material particulars and not
germane to the gravamen of charge in the Election Petition; the allegation
that the returned candidate continued to be the founder leader of the Congress
Jananayaga Peravai on the date of filing of his nomination is denied; the
returned candidate has filed this application only on the basis that there is
no cause of action for the Election Petition and does not file to delay the
fair trial as alleged by the election petitioner; the allegation of the
election petitioner that the returned candidate was a member of the two
political parties on the date of filing of his nomination is nothing but per
se scandalous, fraudulent and vexatious and it is not supported by material
particulars and evidence; it is not correct to state that there is a clear
distinction between the full particulars and material facts and the Court
cannot dissect the pleadings into several parts and to find out which part
does not disclose the cause of action; the election petition cannot proceed to
trial on the basis of newspaper reports, presumption, assumption only since
the same is not permissible in law; the election petitioner has not disclosed
any material source, facts, particulars, documents or evidence to substantiate
the plea of corrupt practices and hence the same has to be struck out; the
averments in the Election Petition would not lead to any conclusion, much less
to irresistible conclusion of valid cause of action even to try it and the
returned candidate has placed valid material facts, circumstances and law for
the rejection of the Election Petition, since after striking out the untenable
portions in the Election Petition, there shall remain no relevant portion to
constitute cause of action and triable issues in the Election Petition; the
election petitioner cannot throw the burden of disproving his suspicion on the
basis of assumption and presumption on the shoulder of the returned candidate
and the averments made in the counter affidavit have to be rejected in limine;
the election petitioner has attempted to seek trial in an Election Petition in
respect of matters which are not triable; the election law has to be followed
strictly, consequently pleadings and averments in an Election Petition which
are not in consonance with the requirement of election law have to be struck
out at the initial stage itself, so that the trial in the Election Petition is
not clouded and miscarried otherwise than in compliance with, as required by
law.
10. The first respondent alone has filed his counter in this application and
the learned counsel for respondents 11 to 13 have made an endorsement that
they are not filing any counter to the application. All other respondents are
already set exparte in the main Election Petition.
11. Mr.G.Masilamani, learned Senior Counsel appearing for the
applicant/returned candidate contended that the right conferred in the matter
of election is not a common law right and it is only a statutory right; that
the only ground alleged in the election petition is that the nomination of the
returned candidate was improperly accepted invoking the provision under
Section 100 (1)(d)(i) of the Representation of People Act and there is no
averment or pleading as to how the acceptance of the nomination was in
violation of any mandatory provision of the Constitution of India or of the
Representation of People Act, 1951 and as to how the acceptance of the
nomination was improper and has materially affected the result of the election
and also insofar as it concerned the returned candidate and hence the said
averment is frivolous and vexatious and liable to be struck out; that the
first respondent/election petitioner has made irresponsible allegation of
fraud without giving any particulars of the alleged fraud and any enquiry into
it would be vexatious, irrelevant and immaterial; that there is a bald
allegation of corrupt practice mentioned in the election petition, but there
is no specific allegation of corrupt practice within the meaning of Section
123 of the Act and there can be no enquiry into the bald allegation; that the
election petitioner has not filed any valid document to show that the returned
candidate was a member of Congress Jananayaga Peravai on 19.4.2004 i.e., on
the date of nomination and the returned candidate is the best person to speak
about his political affiliation and his document and statements have been
accepted by the Returning Officer and the authorised person of the Congress
Party has certified about the returned candidate and has given letter of
requisition, which was accepted by the Returning Officer and the election
petitioner is trying to shift the burden of proof on the shoulder of the
returned candidate, which is impermissible in law and the newspaper cuttings
filed by the election petitioner are inadmissible evidence and there is no
authenticity for the news mentioned therein and the election petitioner is
trying to make a roving enquiry, which is not permissible in law and the
election petitioner is trying to convert the Election Petition into a Civil
Suit under CPC in general, contrary to and without complying with the
stringent provisions of the Representation of People Act relating to Election
Petition; that the allegation that the returned candidate is continued to be a
Founder leader of Congress Jananayaga Peravai on the date of nomination is not
correct and the election petitioner has not disclosed his source of
information and the material particulars with regard to the same; that the
allegation of the election petitioner that the returned candidate was a member
of two political parties on the date of filing his nomination, is nothing but
per se scandalous, fraudulent, vexatious and unsupported by material facts and
particulars or even list evidence as required in the election law; that the
election petition cannot proceed to trial on the basis of newspaper reports,
presumption and assumption only and the absence of material facts and material
particulars and documentary evidence will suffice to strike out the
unsupported averments in the election petition which are vexatious, irrelevant
and immaterial and the election petitioner has not referred to any provisions
of law in the election petition, disclosing any disqualification flowing from
the alleged membership of political parties even if proved and the
non-disclosure of the relevant provision of law is fatal to the
maintainability of the election petition; that the election petition has to be
dismissed in limine for want of material facts, cause of action and triable
issues and that the requirement of Section 83 of the Representation of People
Act is mandatory and the election petitioner has not satisfied the said
requirement.
12. In support of the contention that the Representation of People Act is a
self contained enactment and the election petition is neither a fundamental
right nor a common law right, but only a statutory right, the learned Senior
Counsel appearing for the applicant/returned candidate relied on the following
decisions of the Apex Court:
“1) N.P.PONNUSWAMI v. RETURNING OFFICER, NAMAKKAL CONSTITUENCY, NAMAKKAL
SALEM DIST., AND OTHERS (AIR 1952 SUPREME COURT 64).
2) DHARTIPAKAR MADAN LAL AGARWAL v. SHRI RAJIV GANDHI ( AIR 1987 SUPREME
COURT 1577).
3) C.NARAYANASWAMY v. C.K.JAFFER SHARIEF AND OTHERS (1994 Supp (3) Supreme
Court Cases 170).
4) JAIPAL SINGH v. SMT.SUMITRA MAHAJAN AND ANOTHER (AIR 2004 SUPREME COURT
2066 : (2004) 4 Supreme Court Cases 522).”
13. The following decisions of the Apex Court were also relied on by
the learned Senior Counsel appearing for the applicant/returned candidate for
the proposition that the portions of the election petition which do not
disclose any cause of action are liable to be struck off under Order VI, Rule
16 CPC and the Court is empowered to strike out the pleading which is
unnecessary, scandalous, frivolous or vexatious and after striking out the
pleadings, if there is no triable issue remains to be considered, the Court is
empowered to reject the election petition under Order VI, Rule 11 CPC and
there should be no vagueness in the allegation of corrupt practice and there
should be a full and complete statement of material facts in the allegation of
corrupt practice and the pleadings relating to it have to be scrutinized in a
strict manner and to declare the election to be void under Section 100 (1)(d)
of the Representation of People Act, the election petitioner has to plead and
show that the result of the election insofar as it concerned to the returned
candidate has been materially affected by the alleged improper acceptance of
any nomination or by the alleged non-compliance with the provisions of the Act
or of the Rules.
“1) VASHIST NARAIN SHARMA v. DEV CHANDRA AND OTHERS (A.I.R. 1954 S. C.
513).
2) DHARTIPAKAR MADAN LAL AGARWAL v. SHRI RAJIV GANDHI ( AIR 1987 SUPREME
COURT 1577)
3) LALIT KISHORE CHATURVEDI v. JAGDISH PRASAD THADA AND OTHERS (AIR 1990
SUPREME COURT 1731).
4) KRIPA SHANKAR CHATTERJI v. GURUDAS CHATTERJEE AND OTHERS ( AIR 1995
SUPREME COURT 2152).
5) JAGJIT SINGH v. DHARAM PAL SINGH AND OTHERS (1995 Supp (1) Supreme Court
Cases 422).
6) L.R.SHIVARAMAGOWDA AND OTHERS v. T.M.CHANDRASHEKAR (DEAD) BY LRS AND
OTHERS ((1999) 1 SCC 666 : AIR 1999 SC 252).
7) UMA BALLAV RATH (SMT) v. MAHESHWAR MOHANTY (SMT) AND OTHERS ((1999 ) 3
Supreme Court Cases 357).
8) SANTOSH YADAV v. NARENDER SINGH (AIR 2002 SUPREME COURT 241).
9) SALEEM BHAI AND OTHERS v. STATE OF MAHARASHTRA AND OTHERS (AIR 2003
SUPREME COURT 759).
10) JAIPAL SINGH v. SMT.SUMITRA MAHAJAN AND ANOTHER (AIR 2004 SUPREME COURT
2066 : (2004) 4 Supreme Court Cases 522).
14. The following decisions of the Apex Court were further relied on
by the learned Senior Counsel appearing for the applicant/ returned candidate
for the proposition that a newspaper report is only a hearsay secondary
evidence unless proved by evidence aliunde:
“1. SAMANT N.BALAKRISHNA, etc., v. GEORGE FERNANDEZ AND OTHERS etc., (AIR
1969 SUPREME COURT 1201).
2. LAXMI RAJ SHETTY AND ANOTHER v. STATE OF TAMIL NADU (1988 Supreme Court
Cases (Cri) 633).
3. S.A.KHAN v. CH.BHAJAN LAL AND OTHERS ((1993) 3 Supreme Court Cases 151).”
15. Per contra, Mr.Thiagarajan, learned counsel appearing for the
first respondent/election petitioner contended that the application is not
maintainable in law and on facts and liable to be dismissed in limine; that
the election of the applicant/returned candidate has to be declared as void
and bad in law for the improper acceptance of his nomination, overruling the
objections raised by the first respondent/election petitioner before the
Returning Officer; that the returned candidate was a member of Congress
Jananayaga Peravai on the date of filing of nomination on 19.4.2004 and he was
a member of two political parties and as such the very nomination submitted by
him is vitiated and should not have been accepted; that the returned candidate
did not possess the requisite qualification since he was the founder leader
and primary member of the Congress Jananayaga Peravai at the time of filing of
his nomination and the election petitioner has set out the facts and
circumstances as to how there was violation of the mandatory provisions of the
law and the allegations can be substantiated only at the time of trial by
letting in evidence and at this stage, it cannot be said that he has not
disclosed any cause of action or abused the process of Court as mentioned
under Order VII, Rule 11(a) CPC; that the applicant/returned candidate had
originally resigned from the Indian National Congress and joined Tamil Manila
Congress, a regional outfit and it is a mystery as to when he re-joined the
Indian National Congress and he had not furnished any information about that
at the time of filing of his nomination as required by law and those matters
have to be considered at the time of trial only; that the issue before the
Court is whether the returned candidate was a member of two political parties
at the time of filing of his nomination before the Returning Officer and
whether the sequence of events set out in the election petition would vitiate
the election process; that the particulars furnished in the election petition
would amount to material facts and the election petitioner would demonstrate
the cause of action at the time of trial; that the pleadings as set out in the
election petition cannot be struck out as sought for unless the applicant
makes out that it is an abuse of process of Court and process of law; that
there is distinction between the full particulars and the material facts and
the Court cannot dissect pleadings into several parts and struck out a portion
which does not disclose the cause of action as alleged by the applicant; that
the averment that the election petitioner has not disclosed the source of
material to substantiate the plea of corrupt practice, at this stage, would be
premature and the application has been filed only to mislead the Court with
regard to various provisions more particularly, Sections 83(1)(a) and 86 of
the Representation of People Act; that the applicant/ returned candidate has
not set out in detail as to how the allegations made against him are
unnecessary, scandalous and frivolous or vexatious and abuse of process of
Court and the plea for rejection of the election petition on the basis that it
does not disclose the cause of action, is liable to be rejected and the
pleadings have to be tested only at the time of trial and not at the
interlocutory stage.
16. In support of his contentions, the learned counsel for the first
respondent relied on various decisions of the Apex Court. In fact, some of
the decisions were relied on by both sides for the propositions of law laid
down therein.
17. The learned counsel for the first respondent relied on the
following decisions of the Apex Court with regard to the distinction between
the material facts and the material particulars and the power of Court to
permit the election petitioner to furnish material particulars at a later
stage and the requirement of law pertaining to the allegation of corrupt
practice:
“1. UDHAV SINGH v. MADHAV RAO SCINDIA (AIR 1976 SUPREME COURT 74 4) .
2. ROOP LAL SATHI v. NACHHATTAR SINGH (AIR 1982 SUPREME COURT 1559).
3. AZHAR HUSSAIN v. RAJIV GANDHI (1986 (Supp) Supreme Court Cases 31 5).
4. F.A.SAPA AND OTHERS v. SINGORA AND OTHERS ((1991) 3 Supreme Court Cases
375).
5. D.RAMACHANDRAN v. R.V.JANAKIRAMAN AND OTHERS (AIR 1999 SUPREME COURT
1128).
6. V.S.ACHUTHANANDAN v. P.J.FRANCIS AND ANOTHER (AIR 1999 SUPREME COURT
2044).
7. H.D.REVANNA v. G.PUTTASWAMY GOWDA AND OTHERS ((1999) 2 Supreme Court
Cases 217).
8. MAHENDRA PAL v. RAM DASS MALANGER AND OTHERS (2000) 1 Supreme Court Cases
261).
9. MR.V.NARAYANASWAMY v. MR.C.P.THIRUNAVUKKARASU ( 2000 (1) Supreme 290).
10. REGU MAHESH ALIAS REGU MAHESWAR RAO (2004) 1 Supreme Court Cases 46)
11. AJAY KUMAR POEIA v. SHYAM AND OTHERS (2004) 1 Supreme Court Cases 429).
12. BORGARAM DEURI v. PREMODHAR BORA AND ANOTER (2004) 2 Supreme Court Cases
227).
13. SOPAN SUKHDEO SABLE AND OTHERS v. ASSISTANT CHARITY COMMISSIONER AND
OTHERS ((2004) 3 Supreme Court Cases 137).
14. JAIPAL SINGH v. SMT.SUMITRA MAHAJAN AND ANOTHER (AIR 2004 SUPREME COURT
2066 : (2004) 4 Supreme Court Cases 522).
15. CHANDRIKA PRASAD YADAV v. STATE OF BIHAR AND OTHERS ((2004) 6 Supreme
Court Cases 331).
16. MAHADEORAO SUKAJI SHIVANKAR v. RAMARATAN BAPU AND OTHERS ((2004) 7
Supreme Court Cases 181).
17. RUPADHAR PUJARI v. GANGADHAR BHATRA ((2004) 7 Supreme Court Cases 654).
18. LIVERPOOL & LONDON S.P. & I ASSOCIATION LTD. V. M.V.SEA SUCCESS I AND
ANOTHER ((2004) 9 Supreme Court Cases 512).
19. CHANDRAKANT UTTAM CHODANKAR v. DAYANAND RAYU MANDRAKAR AND OTHERS
((2005) 2 Supreme Court Cases 188).”
18. The learned counsel for the first respondent cited some more
decisions with regard to the dispute as to the symbol between two parties
arising under Election Symbols (Reservation & Allotment) Order and as such
they are not relevant to this application and hence they are not mentioned.
19. The law relating to election petition filed under the
Representation of People Act, 1951 is well settled and the observations of
Their Lordships of the Supreme Court in some of the landmark Judgments are
extracted below:
“1. DHARTIPAKAR MADAN LAL AGARWAL v. SHRI RAJIV GANDHI (AIR 1987
SUPREME COURT 1577).
“Para 8. The first question which falls for our determination is
whether the High Court had jurisdiction to strike out pleadings under O. VI,
R. 16, C.P.C . and to reject the election petition under O. VII, R.11 of
the Code at the preliminary stage even though no written statement had been
filed by the respondent. Section 80 provides that no election is to be called
in question except by an election petition presented in accordance with the
provisions of Part VI of the Act before the High Court. Section 81 provides
that an election petition may be presented on one or more of the grounds
specified in S.100 by an elector or by a candidate questioning the election of
a returned candidate. Section 83 provides that an election petition shall
contain a concise statement of material facts on which the petitioner relies
and he shall set forth full particulars of any corrupt practice that he may
allege including full statement 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. Section 86 confers power on the High Court to dismiss an
election petition which does not comply with the provisions of Ss.81 and 82 or
S.117. Section 87 deals with the procedure to be followed in the trial of the
election petition and it lays down that subject to the provisions of the Act
and of any rules made thereunder, every election petition shall be tried by
the High Court as nearly as may be in accordance with the procedure applicable
to the trial of suits under the Code of Civil Procedure, 1908. Since
provisions of Civil Procedure Code apply to the trial of an election petition,
O.VI, R.16 and O.VI, R.17 are applicable to the proceedings relating to the
trial of an election petition subject to the provisions of the Act. On a
combined reading of Ss.81, 83, 86 and 87 of the Act, it is apparent that those
paras of a petition which do not disclose any cause of action, are liable to
be struck off under O.VI, R.16, as the Court is empowered at any stage of the
proceedings to strike out or delete pleading which is unnecessary, scandalous,
frivolous or vexatious or which may tend to prejudice, embarrass or delay the
fair trial of the petition or suit. It is the duty of the court to examine
the plaint and it need not wait till the defendant files written statement and
points out the defects. If the court on examination of the plaint or the
election petition finds that it does not disclose any cause of action it would
be justified in striking out the pleadings. Order VI, Rule 16 itself empowers
the Court to strike out pleadings at any stage of the proceedings which may
even be before the filing of the written statement by the respondent or
commencement of the trial. If the Court is satisfied that the election
petition does not make out any cause of action and that the trial would
prejudice, embarrass and delay the proceedings, the court need not wait for
the filing of the written statement instead it can proceed to hear the
preliminary objections and strike out the pleadings. If after striking out
the pleadings the court finds that no triable issues remain to be considered,
it has power to reject the election petition under O.V1, R.11????..
Para 14. Before we consider various paras of the election petition to
determine the correctness of the High Court order we think it necessary to
bear in mind the nature of the right to elect, the right to be elected and the
right to dispute election and the trial of the election petition. Right to
contest election or to question the election by means of an election petition
is neither common law nor fundamental right instead it is a statutory right
regulated by the statutory provisions of the Representation of the People Act,
1951. There is no fundamental or common law right in these matters. This is
well settled by catena of decisions of this Court in N.P.Ponnuswami v.
Returning Officer 1952 SCR 218: (AIR 1952 SC 14), Jagan Nath v. Jaswant
Singh AIR 1954 SC 210, Jyoti Basu v. Debi Ghosal (1982) 3 SCR 31 8: (AIR
1982 SC 983). These decisions have settled the legal position that outside
the statutory provisions there is no right to dispute an election. The
Representation of the People Act is a complete and self contained Code within
which any rights claimed in relation to an election or an election dispute
must be found. The provisions of the Civil Procedure Code are applicable to
the extent as permissible by S.87 of the Act. The scheme of the Act as
noticed earlier would show that an election can be questioned under the
statute as provided by S.80 on the grounds as contained in S.100 of the Act.
Section 83 lays down a mandatory provision in providing that an election
petition shall contain a concise statement of material facts and set forth
full particulars of corrupt practice. The pleadings are regulated by S.83 and
it makes it obligatory on the election petitioner to give the requisite facts,
details and particulars of each corrupt practice with exactitude. If the
election petition fails to make out a ground under S.100 of the Act it must
fail at the threshold. Allegations of corrupt practice are in the nature of
criminal charges, it is necessary that there should be no vagueness in the
allegations so that the returned candidate may know the case he has to meet.
If the allegations are vague and general and the particulars of corrupt
practice are not stated in the pleadings, the trial of the election petition
cannot proceed for want of cause of action. The emphasis of law is to avoid a
fishing and roving inquiry. It is therefore necessary for the Court to
scrutinize the pleadings relating to corrupt practice in a strict manner.
???.
Para 30. The aforesaid allegations do not amount to any corrupt
practice as contemplated by S.123 of the Act. At best these allegations raise
a grievance that the presiding officers did not perform their duties in
accordance with law inasmuch as they failed in their duty to remove the
posters and other propaganda material from the polling booth and the hand
which was the election symbol of Rajiv Gandhi and the same was displayed
within 100 meters of the polling booth in violation of the rules. The
allegations do not make out any charge of corrupt practice. If at all the
allegations could be a ground under S.100(1)(d)(iv) of the Act for setting
aside election on the ground of it being materially affected but no such plea
was raised. Paras 54 to 58 do not deal with any corrupt practice.”
2. L.R.SHIVARAMAGOWDA AND OTHERS v. T.M.CHANDRASHEKAR (DEAD)
BY LRS AND OTHERS ((1999) 1 Supreme Court Cases 666).
“Para 10. That apart, it is rightly pointed out by the appellant’s
counsel that in order to declare an election to be void under Section
100(1)(d)(iv), it is absolutely necessary for the election petitioner to plead
that the result of the election insofar as it concerned the returned candidate
had been materially affected by the alleged non-compliance with the provisions
of the Act or of the Rules. We have already extracted para 39 of the election
petition which is the only relevant paragraph. One will search in vain for an
averment in that paragraph that the appellant had spent for the election an
amount exceeding the prescribed limit or that the result of the election was
materially affected by the failure of the appellant to give true and correct
accounts of expenditure. In the absence of either averment, it was not open
to the appellant to adduce evidence to that effect. It cannot be denied that
the two matters referred to above are material facts which ought to find a
place in an election petition if the election is sought to be set aside on the
basis of such facts.
Para 11. This Court has repeatedly stressed the importance of
pleadings in an election petition and pointed out the difference between ”
material facts” and “material particulars”. While the failure to plead
material facts is fatal to the election petition and no amendment of the
pleading could be allowed to introduce such material facts after the
time-limit prescribed for filing the election petition, the absence of
material particulars can be cured at a later stage by an appropriate
amendment. In Balwan Singh v. Lakshmi Narain (AIR 1960 SC 770: (1960) 3 SCR
91) the Constitution Bench held that an election petition was not liable to be
dismissed in limine merely because full particulars of corrupt practice
alleged were not set out. On the facts of the case, the Court found that the
alleged corrupt practice of hiring a vehicle for the conveyance of the voters
to the polling station was sufficiently set out in the pleading. The Court
pointed out that the corrupt practice being hiring or procuring of the vehicle
for the conveyance of the electors, if full particulars of conveying by a
vehicle of electors to or from any polling stations were given, Section 83 was
duly complied with, even if t he particulars of the contract of hiring, as
distinguished from the fact of hiring were not given.
Para 12. In Samant N.Balkrishna v. George Fernandez ((1969) 3 SCC 23
8) the Court said that if the material facts of the corrupt practice are
stated, more or better particulars of the charge may be given later, but where
the material facts themselves are missing, it is impossible to think that the
charge has been made and later amplified and that would tantamount to making
of a fresh petition. ?..??.
Para 16. If the above well-settled principles are applied in this
case, there is no doubt whatever that the election petition suffers from a
very serious defect of failure to set out material facts of the alleged
corrupt practice. The defect invalidates the election petition in that regard
and the petitioner ought not to have been permitted to adduce any evidence
with reference to the same.
Para 16A. We have already extracted paras (f) and (g) of the
affidavit filed along with the election petition. It does not disclose the
source of information. Nor does it set out which part of the election
petition was personally known to the petitioner and which part came to be
known by him on information. Significantly, paras (a) to (e) of the affidavit
state that the averments therein are true to his information. Para (f) is
silent on this aspect of the matter. Para ( g) refers to all the 42
paragraphs in the petition. The affidavit is not in conformity with the
prescribed Form No.25. Thus there is a failure to comply with Rule 94-A of
the Conduct of Elections Rules. It is a very serious defect which has been
overlooked by the High Court.”
3. JAIPAL SINGH v. SMT.SUMITRA MAHAJAN AND ANOTHER (AIR 2004 SUPREME COURT
2066 : (2004) 4 Supreme Court Cases 522).
“Para 3. On the above pleadings, a preliminary issue was framed by the High
Court – as to whether the petition lacked in material facts and did not
disclose cause of action. By the impugned judgment, the High Court held that
Section 83(1)(a) of the said Act mandates that an election petition shall
contain a concise statement of material facts on which the petitioner relies,
that in the present case, the appellant had failed to aver and plead two
material facts viz. that his application for voluntary retirement was
accepted by the appointing authority before the date of scrutiny and that his
request for waiver of the notice period of three months was actually accepted.
In the absence of disclosure of the above facts, the High Court dismissed the
election petition. ?.???
Para 7. Section 83 deals with contents of petition. It states that an
election petition shall contain a concise statement of material facts, on
which the petitioner relies and shall state full particulars of any corrupt
practice which petitioner alleges and which shall be signed by him and
verified in the manner laid down in the Code of Civil Procedure. In the case
of Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and
others reported in [2004 (2) Scale 82 : (2004) 3 SCC 137] it has been held
that the Order VI, Rule 2(1) of CPC deals with basic rule of pleadings and
declares that the pleadings has to state material facts and not the evidence;
that there is a distinction between ‘material facts’ and ‘particulars’ and the
words ‘ material facts’ show that the facts necessary to formulate a complete
cause of action must be stated. Omission of single material fact leads to an
incomplete cause of action and consequently, the plaint becomes bad. The
distinction between ‘material facts’ and ‘particulars’ was brought by Scott,
L.J. in Bruce v. Odhams Press Ltd. [(1936) 1 KB 697] in the following
passage:-
“The cardinal provision in Rule 4 is that the statement of claim must state
the material facts. The word “material” means necessary for the purpose of
formulating a complete cause of action; and if any one “material” statement is
omitted, the statement of claim is bad: it is “demurrable” in the old
phraseology, and in the new is liable to be “struck out” under R.S.C. Order
XXV, Rule 4 (see Philipps v. Phillipps (1872) 4 QBD 127): or “a further and
better statement of claim” may be ordered under Rule 7. The function of
“particulars” under Rule 6 is quite different. They are not to be used in
order to fill material gaps in a demurrable statement of claim – gaps which
ought to have been filled by appropriate statements of the various material
facts which together constitute the plaintiff’s cause of action. The use of
particular is intended to meet a further and quite separate requirement of
pleadings, imposed in fairness and justice to the defendant. Their function
is to fill in the picture of the plaintiff’s cause of action with information
sufficiently detailed to put the defendant on his guard as to the case he had
to meet and to enable him to prepare for trial.”
Para 8. The above dictum of Scott, L.J. in Bruce’s case (supra) has been
quoted with approval by this Court in the case of Samant N. Balkrishna v.
George Fernandez ((1969) 3 SCC 238).
Para 9. As to what is the material fact has to be decided in the present
case, in the context of the election petition under the said Act. An election
petition is a matter of statutory right. In the petition, the key issue was
whether the appellant held an office of profit on the date of scrutiny. For
that purpose, the appellant ought to have stated that on 13.3.2002 he had
requested for waiver of the notice period; that the appointing authority had
received the notice on the specified date and that his request for waiver
stood granted on the date of scrutiny and he ceased to be a government
servant. These were the material facts which the appellant should have
pleaded so that the returned candidates would not be taken by surprise. They
are material facts within his knowledge and ought to have been pleaded in the
election petition. Lastly, even the letter of the appellant seeking the
waiver of the notice period did not form part of the election petition.
Hence, the High Court was right in dismissing the election petition for want
of material facts.
4. S.A.KHAN v. CH.BHAJAN LAL AND OTHERS ((1993) 3 Supreme
Court Cases 151).
“Para 21. The bone of contention of Mr.Parasaran is that the
statement of fact contained in a newspaper report is merely hearsay and
therefore inadmissible in evidence in the absence of any proof by evidence
aliunde. According to him, in the present case there is no proof that the
alleged contemptuous statement was in fact made by the Chief Minister as it
appears in the Press note. According to him, it is only for the applicant to
satisfy the Court by adducing acceptable evidence that the statement of fact
contained in the report is true and that it calls for issue of suo motu
notice. According to him, the decision in P.C.Sen, Re (AIR 1970 SC 1821)
cannot be availed of by the applicant because in that case, the evidence was
led before the Court to prove that the offending speech was in fact broadcast
by the Chief Minister on the All India Radio, Calcutta Station. In support of
his submission that the news item cannot be the basis for initiating contempt
proceeding against the alleged maker of the statement, he relied upon a
decision of this Court in Samant N.Balakrishna v. George Fernandez (1969) 3
SCC 238 wherein it has been held that news items when published are garbled
versions and cannot be regarded as proof of what actually happened or was said
without other acceptable evidence through proper witnesses. He also drew our
attention to the dictum laid down by this Court in Laxmi Raj Shetty v. State
of T.N. (1988) 3 SCC 319, 346 with regard to the admissibility of the news
item appearing in a Press report. The dictum reads thus: (SCC p.346, paras
25 and 26)
“We cannot take judicial notice of the facts stated in a news item
being in the nature of hearsay secondary evidence, unless proved by evidence
aliunde. A report in a newspaper is only hearsay evidence. A newspaper is
not one of the documents referred to in Section 78(2) of the Evidence Act,
1872 by which an alle gation of fact can be proved. The presumption of
genuineness attached under Section 81 of the Evidence Act to a newspaper
report cannot be treated as proved of the facts reported therein.
It is now well settled that a statement of fact contained in a
newspaper is merely hearsay and, therefore, inadmissible in evidence in the
absence of the maker of the statement appearing in court and deposing to have
perceived the fact reported.”
5. SANTOSH YADAV v. NARENDER SINGH (AIR 2002 SUPREME COURT 24 1).
“Para 16. The law as regards the results of election having been
materially affected in case of improper acceptance of nomination may be summed
up as under:-
(1) A case of result of the election, in so far as it concerns the returned
candidate, having been materially affected by the improper acceptance of any
nomination, within the meaning of S.10 0(1)(d)(i) of the Representation of the
People Act, 1951 has to be made out by raising specific pleadings setting out
all material facts and adducing cogent evidence so as to enable a clear
finding being arrived at on the distribution of wasted votes, that is, the
manner in which the votes would have been distributed if the candidate, whose
nomination paper was improperly accepted, was not in the fray. ???..
(4) The burden of proof placed on the election petitioner is very
strict and so difficult to discharge as nearing almost an impossibility.
There is no room for any guess-work, speculation, surmises or conjectures i.e.
acting on a mere possibility. It will not suffice merely to say that all or
majority of wasted votes might have gone to the next highest candidate. The
law requires proof. ????.
6. UDHAV SINGH v. MADHAV RAO SCINDIA (AIR 1976 SUPREME COURT
744) .
“Para 37. Like the Code of Civil Procedure, this section also
envisages a distinction between “material facts” and “material particulars”
Cl. (a) of sub-section (1) corresponds to Order 6, Rule 2, while Clause (b)
is analogous to Order 6, Rules 4 and 6 of the Code. The distinction between
“material facts” and “material particulars” is important because different
consequences may flow from a deficiency of such facts or particulars in the
pleading. Failure to plead even a single material fact leads to an incomplete
cause of action and incomplete allegations of such a charge are liable to be
struck off under Order 6, Rule 16, Code of Civil Procedure. If the petition
is based solely on those allegations which suffer from lack of material facts,
the petition is liable to be summarily rejected for want of a cause of action.
In the case of a petition suffering from a deficiency of material particulars,
the court has a discretion to allow the petitioner to supply the required
particulars even after the expiry of limitation.
Para 38. All the primary facts which must be proved at the trial by a
party to establish the existence of a cause of action or his defence, are
“material facts”. In the context of a charge of corrupt practice, “material
facts” would mean all the basic facts constituting the ingredients of the
particular corrupt practice alleged, which the petitioner is bound to
substantiate before he can succeed on that charge. Whether in an
election-petition, a particular fact is material or not, and as such required
to be pleaded is a question which depends on the nature of the charge
levelled, the ground relied upon and the special circumstances of the case.
In short, all those facts which are essential to clothe the petitioner with a
complete cause of action, are “material facts” which must be pleaded, and
failure to plead even a single material fact amounts to disobedience of the
mandate of Sec. 83(1)(a).
Para 39. “Particulars”, on the other hand, are “the details of the
case set up by the party”. “Material particulars” within the contemplation of
Clause (b) of Section 83(1) would therefore mean all the details which are
necessary to amplify, refine and embellish the material facts already pleaded
in the petition in compliance with the requirements of Clause (a).
“Particulars” serve the purpose of finishing touches to the basic contours of
a picture already drawn to make it full, more detailed and more informative.”
7. D.RAMACHANDRAN v. R.V.JANAKIRAMAN AND OTHERS (AIR 1999 SUPREME
COURT 1128).
“Para 8. ?.For the purpose of considering a preliminary objection,
the averments in the petition should be assumed to be true and the Court has
to find out whether those averments disclose a cause of action or triable
issue as such. The Court cannot probe into the facts on the basis of the
controversy raised in the counter.
Para 9. Under Order VI, Rule 16, the Court is enabled to strike out a
pleading (a) which may be unnecessary, scandalous, frivolous or vexatious or
(b) which may tend to prejudice, embarrass or delay the fair trial of the
suit; or (c) which is otherwise an abuse of the process of the Court. We have
already pointed out that it is not the case of the first respondent that the
pleading in the election petition is vitiated by all or any one of the
aforesaid defects mentioned in the rule. Hence striking out parts of the
pleading in this case was not at all justified.”
8. REGU MAHESH ALIAS REGU MAHESWAR RAO (2004) 1
Supreme Court Cases 46).
“Para 8. What is “corrupt practice” is set out in Section
123. In terms of Section 83(1)(b), wherever corrupt practice is alleged, full
particulars of such practice alleged including as full a statement as possible
of the names of the parties alleged to have committed corrupt practice and the
date and place of commission of such practice has to be indicated. Though
allegations of fraud etc. in obtaining a false caste certificate have serious
implications, under the Act and particularly as the language of Section 123(3)
specifies and enumerates, they do not per se constitute corrupt practice. The
fact that a candidate obtains a certificate that he belonged to and is a
member of the Scheduled Caste/Tribe to contest as one belonging to such
caste/tribe, essential and necessary for contesting as a candidate in a
reserved constituency, at any rate, cannot amount to an appeal to vote or
refrain from voting on the ground of his caste/tribe for the reason that what
was obligated by the statute upon anyone to be entitled to contest in such a
reserved constituency cannot become condemnable as “corrupt practice”. To
attract the vice of the said provisions as amounting to “corrupt practice”,
independent appeal or canvassing for votes by the candidate or his agent or by
another person with the consent of the candidate or the election agent for the
furtherance of the prospects of the election of that candidate or for
prejudicially affecting the election of any candidate is an essential
ingredient.”
9. MAHADEORAO SUKAJI SHIVANKAR v. RAMARATAN BAPU AND OTHERS ((200 4)
7 Supreme Court Cases 181).
“Para 6. Now, it is no doubt true that all material facts have to be
set out in an election petition. If material facts are not stated in a plaint
or a petition, the same is liable to be dismissed on that ground alone as the
case would be covered by clause (a) of Rule 11 of Order 7 of the Code. The
question, however, is as to whether the petitioner had set out material facts
in the election petition. The expression “material facts” has neither been
defined in the Act nor in the Code. It may be stated that the material facts
are those facts upon which a party relies for his claim or defence. In other
words, material facts are facts upon which the plaintiff’s cause of action or
the defendant’s defence depends. What particulars 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. It is, however, absolutely essential
that all basic and primary facts which must be proved at the trial by the
party to establish existence of cause of action or defence are material facts
and must be stated in the pleading of the party.
Para 7. But, it is equally, well settled that there is distinction
between “material facts” and “particulars”. Material facts are primary or
basic facts which must be pleaded by the petitioner 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 finishing touch to
the basic contours of a picture already drawn so as to make it full, more
clear and more informative. Particulars ensure conduct of fair trial and
would not take the opposite party by surprise.”
20. Keeping in view the above decisions and the relevant provisions
of law, the relief of striking out the offending paragraphs and the rejection
of election petition sought for in the application has to be considered by
examining the relevant paragraphs in the election petition.
21. In the averments in paragraphs 8(b) to (d) of the election petition, it
is averred that if the applicant/returned candidate, has joined Indian
National Congress, this fact should have been informed to the thirteenth
respondent, viz., Election Commission of India, and if it is so, the
thirteenth respondent could have informed the same to the election
petitioner’s agent on his request and since the thirteenth respondent has not
replied, it is presumed that there is no change as on 20.4.2004 in the
particulars furnished by Congress Jananayaga Peravai at the time of its
registration. Document No.1 filed alongwith the Election Petition, is the
xerox copy of the Tamil Nadu Government Gazette Amendment Notification dated
29.3.2004 to Election Symbols (Reservation & Allotment) Order, 1968 issued by
the Election Commission of India. Document No.2 is a Fax transmission report
dated 21.4.2004. Document No.3 is the xerox copy of the letter dated
21.4.2004 sent by one Haja Najmuddin claiming to be the chief election agent
of the election petitioner, addressed to the 13th respondent seeking
information about the returned candidate’s official status in Congress
Jananayaga Peravai as on 20.4.2004.
22. The contention of the applicant/returned candidate is that there
is no obligation on the part of a citizen to inform the 13th respondent viz.,
the Election Commission, as to when he joined a political party and there is
no obligation that 13th respondent should convey the information to the
election petitioner’s agent and there is no presumption that since the
election petitioner did not receive the reply, there was no change as on
20.4.2004 in the particulars given by Congress Jananayaga Peravai and any
enquiry into these aspects would be irrelevant and immaterial to the issues
raised in the election petition and such an enquiry would be vexatious and
hence the averments are liable to be struck out.
23. It is true that the election petitioner has not disclosed the
provision of law under which the parties/citizens are required to inform the
Election Commission furnishing the information about admission,
resignation/removal of their membership in the registered political party and
the Election Commission is required to maintain information about the members
of political parties and the obligation on their part to furnish such
membership information on request. In the absence of disclosure of relevant
provision of law constituting the material facts from which the presumption
can flow, those averments are liable to be struck out as sought for.
24. In paragraph No.11 of the election petition, the election
petitioner has reproduced in verbatim the objections made by him to the 12th
respondent, viz., the Returning Officer and although those objections were
rejected by the Returning Officer, they have been reproduced in the election
petition and according to the applicant/returned candidate many of those
averments are liable to be struck out on the ground that they are unnecessary,
irrelevant and immaterial to the issues raised in the election petition and
the applicant has sought for striking out the bullets bearing Nos.5, 8 to 10
and 13.
25. In the 5th bullet, the election petitioner has stated that the returned
candidate has filed Forms A and B, as if he is the candidate set up by the
Indian National Congress and the reserved symbol is the recognition accorded
by the Election Commission identifying the particular political party and it
is neither a chattel owned by the said political party which could be bartered
or sold or mortgaged or gifted nor it is available to the candidate not set up
by the political party and it is not the property to be gifted to anybody or
to be abused.
26. The learned Senior Counsel for the applicant/returned candidate
submitted that the election petitioner has not stated clearly as to whether
the Indian National Congress violated any law by setting up the applicant as
their candidate and whether the applicant has violated any law by filing the
nomination as the candidate of Indian National Congress and the averment
regarding reserved symbol being bartered, mortgaged, gifted or sold is vague
and does not specify the provision of law under which the said assumption is
made and how and under what provision of law this averment shall render the
acceptance of the nomination of the applicant improper and constitute a ground
to challenge the election and hence the averments in the said sub-paragraph
are unnecessary, frivolous, vexatious, scandalous and have to be struck off.
It is true that the said sub-paragraph raised no disputed question of fact or
issue of law and it reflects only the opinion of the election petitioner and
no issue of fact or law can be framed and the sub-paragraph is liable to be
struck out as prayed for.
27. In the 8th bullet, the election petitioner has stated that it is
an admitted fact that the returned candidate is neither a member of the Indian
National Congress nor can he claim so and hence the question of membership of
the said political party whose symbol he wants to utilize for the purpose of
election cannot be allotted to him and only a person who is a member or
card-holder of the particular political party can be given the reserved symbol
of that political party and the same cannot be allotted to other persons by
the Returning Officer.
28. The learned Senior Counsel for the applicant/returned candidate
contended that the averment that it is an admitted fact that the returned
candidate is not a member of Indian National Congress is a mere imaginary
assertion and it is not supported by any material fact on the basis of which
it can be said to be an admission and it is not stated as to who, where and
when admitted as said above and the election petitioner has neither furnished
documentary evidence nor pleaded the material facts, particulars regarding the
said assertion of alleged admission and the election petitioner has also not
disclosed the source of information and hence the said averment is liable to
be struck out. He further contended that the averment stating that the
returned candidate cannot claim that he is a member of that party is also an
empty assumption and imagination of election petitioner and liable to be
struck off for want of material facts and particulars. According to him, the
averment to the effect that the symbol of the political party which the
applicant wants to utilize cannot be allotted to him, is also not supported by
any material fact and no material fact is pleaded to show and prove as to how
the acceptance of the nomination and allotment of the symbol reserved for
Indian National Congress to the applicant has materially affected the result
of the election and the averment that the Returning Officer cannot allot the
symbol to the applicant is also not supported by any material fact as to why
it should not be allotted and the specific provision of law which prevent or
render the allotment of symbol as improper has also not been stated and the
sub-paragraph is liable to be struck off.
29. The learned counsel for the election petitioner contended that
the allegations contained in paragraph 11 of the election petition can be
substantiated only at the time of trial by letting in evidence and it cannot
be decided at this stage.
30. The above sub-paragraph only reflects the opinion of the election
petitioner and no issue of fact or law can be framed and any enquiry into the
said averments would only be irrelevant and immaterial and the averment has to
be struck out as prayed for.
31. In the 9th bullet, the election petitioner has averred that the
election symbol is not a movable property that could be bartered away and the
Tenth Schedule of the Constitution of India deals about the membership of a
particular person tracing him to the said political party and by mere
allotment of symbol, a person will not be deemed to be a member of that
political party and the membership is the basic fabric for any person to be
the candidate in an election to whom the reserved symbol of the particular
political party can be allotted and at the will and pleasure of the political
party, a third party unconnected with the political party, cannot be allotted
with the symbol as a matter of grace or as a matter of will.
32. The learned Senior Counsel for the applicant/returned candidate
contended that these averments do not specifically state as to how the Tenth
Schedule of the Constitution of India shall apply to the election petition and
Tenth Schedule relates to the certain conduct of the elected candidate and has
no relevance to a stage prior to the declaration of the election and further
the election petitioner has failed to state the material facts as to why the
symbol of Indian National Congress should not have been allotted to the
applicant and which provision of the Representation of People Act or Election
Symbols ( Reservation & Allotment) Order has been violated while allotting the
symbol and the averments contained no material facts and liable to be struck
off as irrelevant.
33. Nothing in reply is found in the counter of the election petitioner to
this averment of the applicant.
34. The Tenth Schedule of the Constitution of India contains the
provisions as to disqualification on ground of defection and it will come into
play only after declaration of election and it has no application to an
election petition. The averments in this subparagraph contain no material
fact as rightly contended by the applicant and it has to be struck out as
prayed for.
35. In the 10th bullet, the election petitioner has stated that the
applicant is no longer a candidate set up by the Indian National Congress and
in such a situation, he loses the character of the candidate set up by a
political party which has got the benefit under the Election Symbols
(Reservation & Allotment) Order and if that be so, he is deemed to be only an
independent candidate and as such he should have been proposed atleast by ten
voters which is not the case with respect to the nomination filed by him
before the Returning Officer and the mandatory requirements prescribed for
nomination of the independent candidate have not been followed by the
applicant.
36. The learned Senior Counsel appearing for the applicant/ returned
candidate contended that the election petitioner has failed to state the
material facts as to why the applicant is not a candidate set up by the said
political party viz., Indian National Congress, even though Forms A and B have
been duly presented to the Returning Officer and this allegation is made on
information, but the source and details relating thereto have been withheld
and it is also not stated with material facts as to how the result of the
election was materially affected by the allegation. It is his further
contention that the averment regarding deeming the applicant as an independent
candidate is imaginary hypothetical assumption and is not founded on any law
or facts and the election petitioner has failed to state the provisions as per
which the applicant is deemed to have been an independent candidate and the
election petitioner cannot plead/raise a hypothecated situation and answer the
same against the applicant.
37. It is true that the election petitioner in the above subparagraph has
chosen to state that the applicant is no longer a candidate set up by the
Indian National Congress though Forms A and B have been duly presented to the
Returning Officer, without stating the material facts based on which the
assumption is made and no issue of fact or law can be framed on the basis of
such averments and any enquiry into the same would be wholly irrelevant and
immaterial and this subparagraph deserves to be struck out as sought for.
38. In the 13th bullet, the election petitioner has averred that neither the
Tenth Schedule of the Constitution of India nor the Election Symbols
(Reservation and Allotment) Order could be taken for a ride by any political
party as if the authorised signatory can name anybody in Forms A and B to
allot the reserved symbol of the political party and if it is not so,
wayfarers in the political scenario could be benefited by such allotment of
symbols, which is not the intention of the very recognition of the political
party or reserved symbol and in order to preserve the democratic system, a
deep analysis of these aspects is necessary to avoid political persons to
over-ride the mandatory provisions in respect of acquiring symbols for
contesting elections.
39. The learned Senior Counsel for the applicant/returned candidate
contended that the averments regarding the intention and interpretation of the
Tenth Schedule of the Constitution of India and the Election Symbols
(Reservation and Allotment) Order is a product of the election petitioner’s
vagaries of mind based on presumptions and assumptions of facts and law that
ought to be and hence not relevant to the election petition and the said
averments do not fall within the four corners of election law and liable to be
struck off. The averments in this sub-paragraph are only the arguments of the
election petitioner and not relevant to the election petition and they have to
be struck out as sought for.
40. The election petitioner in Paragraph 12 (d) of the election
petition has stated that it is not known as to when the applicant has resigned
from the primary membership of Congress Jananayaga Peravai and re-joined and
enrolled himself as member of the Indian National Congress and though the
election petitioner has wanted those details, the same have not been furnished
either by the applicant or by the Returning Officer and in sub-para (e) of
Paragraph 12, the election petitioner has stated that the 13th respondent
viz., Election Commission of India, would have the records to show the
applicant’s position and status in the Congress Jananayaga Peravai and if
there had been any change, it could have been duly intimated to the agent of
the election petitioner and in sub-para (g) of Paragraph 12, it is averred
that the applicant and the Indian National Congress have treated the reserved
symbol like that of a chattel and it has been assigned to the applicant being
fully aware that he is a founder member of Congress Jananayaga Peravai.
In sub-para (i) of Paragraph 12 of election petition, it is stated that the
agent of the election petitioner filed his objections with the Returning
Officer and sought for information pertaining to the membership of the
applicant with the Indian National Congress and the Returning Officer did not
give any satisfactory reply to the objections raised and this only leads to
adverse inference as to his membership.
In sub-para (j) of Paragraph 12 of election petition, it is stated that the
13th respondent has failed in its duty to provide the requested information
about the applicant when contacted by the agent of the election petitioner and
it has not complied with the provisions of law which provide for the right of
the electorate to get information about the contesting candidates.
It is averred in sub-para (k) of Paragraph 12 of election petition that the
13th respondent has acted in a manner prejudicial to the interest of the
election petitioner and not responded to the request of the agent of the
election petitioner and has accepted the nomination of the applicant by his
proceedings dated 24.4.2004.
In sub-para (l) of paragraph 12, it is stated that the 13th respondent has not
acted in a transparent and accountable manner for the purpose of which it has
been made as an autonomous body with vast powers for the effective functioning
of democracy.
41. The learned Senior Counsel for the applicant/returned candidate contended
that the averments regarding the 13th respondent not furnishing of details are
alien factors to the present election petition and the same cannot form a
ground to challenge the election of the applicant and the inaction on the part
of the 13th respondent even if it is true, cannot form the basis or ground to
challenge the election of the applicant under the provisions of the
Representation of People Act and hence the averments have to be struck off.
The learned Senior Counsel further contended that the election petitioner
neither stated the material facts and particulars to prove that the applicant
was a member of Congress Jananayaga Peravai on the date of filing of his
nomination nor has he stated the material facts which would show that the
applicant was not a member of Indian National Congress on the date of filing
of his nomination and no material facts have been pleaded to show conclusively
that the applicant was not a member of Indian National Congress and the
averments having been made on information, the source and details of
information have not been pleaded by way of material facts and the averments
are only vague allegations and not supported by material facts and they are
liable to be struck off.
42. The learned counsel for the election petitioner contended that
whether the applicant re-joined the Indian National Congress as alleged by him
and whether he had furnished any information about this to the 13th respondent
as required by law and whether he continued to be a founder leader/president
of the Congress Jananayaga Peravai are all matters to be considered only at
the time of trial and not at the interlocutory stage.
43. As rightly contended by the learned Senior Counsel for the
applicant, the alleged inaction on the part of the 13th respondent cannot form
the basis or ground to challenge the election of the applicant/returned
candidate under the provisions of the Representation of People Act and no
material facts have been pleaded to show that the applicant was not a member
of Indian National Congress on the date of filing of nomination and these
averments are only vague allegations, not supported by material facts and have
to be struck off as sought for in the application.
44. The election petitioner in paragraph 12(h) of the election petition has
averred that the applicant has played a fraud on the Constitution of India and
has failed to maintain the high traditions of democracy and purity of
elections and he has resorted to fraudulent means by misrepresenting that he
is a member of Indian National Congress and that he no longer continues to be
a member of Congress Jananayaga Peravai. In sub-para (m), it is averred that
the improper acceptance of the applicant’s nomination has materially affected
the election result and the polling trend and the applicant misrepresented
that he is a member of the Indian National Congress and played a fraud on the
large number of illiterate mass who exercised their franchise by identifying
the candidate only with the help of his political symbol and hence they have
been duped into believing that he is a congressman and the result of the
election insofar as it concerns the returned candidate has been materially
affected by improper acceptance of the nomination by the 12th respondent.
45. The learned Senior Counsel for the applicant/returned candidate
vehemently contended that the election petitioner has made an irresponsible
allegation of fraud without giving particulars and the allegation is based on
presumption and not on the basis of any facts and the source of information
and the details of document or persons from whom these information are
gathered have not been disclosed by way of material facts and particulars and
these averments are per se scandalous and defamatory and ought to be struck
out.
46. The learned counsel for the election petitioner contended that
the details as to how the election process is vitiated on account of
irregularities and illegalities are mentioned in the election petition and
they have to be substantiated only at the time of trial and not at the
interlocutory stage.
47. It is true that the allegation of fraud has been made without
giving any particulars. It is settled law that when a party pleads fraud, he
shall state the particulars of it in the pleadings. The election petitioner
has made the allegation of fraud not on the basis of any fact and there can be
no enquiry into the averments contained in the sub-paragraphs and they are
liable to be struck out as prayed for.
48. In paragraph 12(n) of election petition, it is averred that the
applicant continues to be a member of Congress Jananayaga Peravai is very
clear and evident from the various Press releases and advertisements given out
by the Congress Jananayaga Peravai congratulating its party leader upon his
victory in the election.
49. It has been contended on behalf of the applicant/returned
candidate that the above averments are made on the basis of Press reports and
the same are not authentic facts which could be independently relied upon
without other pleading of material facts or documentary evidence in support of
the election petitioner’s claim to establish the cause of action for the
Election Petition and the material facts relating to the press reports such as
the reason for non-filing of the original manuscript, the name, address,
identity of the person who reported the news, the source of his information,
the name of the editor and publisher of the newspaper, the region of the
edition have not been pleaded and disclosed and no other material facts and
particulars to corroborate the newspaper report have been pleaded and no
connection has been alleged or established between the applicant and the said
Press releases and advertisements and no enquiry can be made into the same and
the averments ought to be struck off.
50. It is well settled that the newspaper reports are only hearsay
secondary evidence, unless proved by evidence aliunde. Documents 8 to 15 are
copies of the various newspaper reports. As rightly contended by the learned
Senior Counsel for the applicant, no material facts to corroborate the
newspaper reports have been pleaded and in the absence of the same, the
averments have to be struck out as prayed for.
51. In Paragraph 12 (o), the election petitioner has stated that even
prior to the polling date, when the profile and other details of the various
candidates were printed and circulated in the Press, the applicant was only
portrayed as a member of the Congress Jananayaga Peravai and they were having
an alliance with Dravida Munnetra Kazhagam and Indian National Congress and
hence the applicant was not entitled to contest under the political symbol
reserved for Indian National Congress.
52. It is urged on behalf of the applicant/returned candidate that
the above averment is not based on any facts or documents and do not raise any
issue of fact or law and hence ought to be struck off.
53. As already seen, Forms A and B have been duly presented to the
Returning Officer by the Indian National Congress setting up the applicant as
their candidate and the same has been accepted by the Returning Officer and
the election petitioner has not pleaded any material fact as to how the
applicant was not entitled to contest under the political symbol reserved for
the Indian National Congress. This averment is also liable to be struck out
as sought for.
54. The election petitioner in paragraph 14 of the election petition
has averred that the applicant by making a false representation in his
nomination, has indulged in corrupt practice, which though not per se come
under the purview of Section 123 of the Representation of People Act, by
confusing the mind of electorate as being a Congressman.
55. The learned Senior Counsel for the applicant/returned candidate
strenuously contended that this averment is contrary to the election law, as
there is a deeming provision as to what could be deemed to be a corrupt
practice under Section 123 of the Representation of People Act and the
election petitioner is not entitled to infuse any other criteria into the
deeming clause for treating it to be a corrupt practice. It is further
contended by the learned Senior Counsel for the applicant that the election
petitioner himself has candidly admitted that the applicant is not guilty of
corrupt practice as prescribed under Section 123 of the Representation of
People Act and hence no cause of action for the election petition is made out
and the averment has to be struck off.
56. Section 2(1)(c) of the Representation of People Act states that
‘corrupt practice’ means any of the practices specified in Section 123 of the
Act and the corrupt practices are exhaustively stated in Section 123 of the
Act and other than that, there cannot be any other corrupt practice. Hence,
there can be no enquiry into this bare allegation and the paragraph is liable
to be struck out as sought for.
57. As discussed above, the applicant is entitled for the relief of
striking out of the offending paragraphs as sought for in the application.
The averments contained in the remaining paragraphs have to be analysed.
58. Paragraphs 1 and 2 of the election petition deal with the
description of parties. The averments in paragraphs 3 and 4 are not germane
to the issue.
59. In paragraph 5, it is averred that the returned candidate was a
member of Indian National Congress and in the year 1996 he was expelled from
that party as he joined a new political out-fit, namely, Tamil Maanila
Congress (Moopanar) which was a recognized State political party and as its
candidate contested in the Sivaganga Parliamentary Constituency thrice, in the
years 1996, 1998 and 1999 and in the year 2001 he was expelled from that party
and he founded Congress Jananayaga Peravai and registered the same as a
political party with the Election Commission of India. There are no material
facts pleaded and the averments are irrelevant.
60. In para 6, the election petitioner has averred that the returned
candidate filed his nomination on 19.4.2004 declaring himself as a candidate
of Indian National Congress and as he was a member of Congress Jananayaga
Peravai on that date, his declaration is false and the Agent of the election
petitioner contacted the 13th respondent, namely, the Election Commission of
India, over phone on 20.4.2004 to ascertain the official position of the
returned candidate in Congress Jananayaga Peravai and as instructed he also
sent a written representation on 21.4.2004 to the 13th respondent requesting
it to furnish the details regarding the official position of the returned
candidate in Congress Jananayaga Peravai as on 20.4.2004 and there was no
response. As already seen, the election petitioner has not stated the
material facts to prove that the returned candidate was a member of Congress
Jananayaga Peravai on the date of filing of his nomination and no material
facts have been pleaded to show that the applicant was not a member of Indian
National Congress as on that date, and the averments having been made on
information, the source and details of information have not been pleaded by
way of material facts and the averments are only vague allegations not
supported by material facts. The learned Senior Counsel for the returned
candidate contended that the election petitioner has not stated material facts
to prove the appointment of the election petitioner’s Agent, the name and
address of the election Agent who was said to have given written
representation and also not pleaded ‘material facts’ and ‘material
particulars’ to show sending of written representation such as mode of
despatch, delivery, acknowledgement from the Office of the Election Commission
to prove the claim of sending written representation and the averments are
frivolous and vexatious. As already seen, the averments regarding the 13 th
respondent not furnishing details to the election petitioner are alien factors
to the election petition and the same cannot form a ground to challenge the
election.
61. In para 7, the election petitioner has averred that as per law a
person could not be a member of more than one political party at a given point
of time and while registering a political party, particulars regarding the
names of its President, Secretary, Treasurer and other Office Bearers should
be furnished under an affidavit duly signed by the President/General Secretary
of the party sworn in before a First Class Magistrate/Oath Commissioner/Notary
Public to the effect that no member of the Organisation is a member of any
other political party registered with the Commission and similar individual
affidavits from at least 100 members of the party should also be furnished and
after registration as a political party as per sub-Section of Sec.29(A) of the
Representation of the People Act, 1951, any change in its name, head office,
office bearers, address shall be communicated to the Election Commission
without delay. The learned Senior Counsel for the returned candidate
contended that though the election petitioner has stated on advice that as per
law a person cannot be a member of more than one political party, he has not
pleaded the material facts as to the name, identity and address of the person
who gave the advice and he has not set out the provision of law which
prohibits a person from being a member of more than one political party at a
given point of time and which constitutes a ground for declaring the election
invalid. It is true that no material facts have been pleaded stating the
relevant provision of law and the violation, if any, and the averments are
irrelevant, frivolous and vexatious.
62. In para 9, it is averred that during the scrutiny of nominations
on 24.4.2004, the agent and proposers of the election petitioner raised
serious objections before the Returning Officer, namely, the 12 th respondent,
seeking to reject the nomination of the returned candidate by filing the
written objection and the same came to be rejected by Order of the 12th
respondent dated 24.4.2004 and the Agent of the election petitioner sent a
petition dated 25.4.2004 to the 13th respondent requesting it not to publish
the final list and stop the election. Document No.4 is the written objection
dated 24 .4.2004 given by one Haja Najmuddin, claiming himself to be the Chief
Election Agent of the election petitioner, to the Returning Officer; Document
No.5 is the Proceedings of the Returning Officer, dated 24 .4.2004 rejecting
the objections; Document No.6 is the petition dated 25.4.2004 sent by Haja
Najmuddin addressed to the 13th respondent; and Document No.7 is a Fax
Transmission Report dated 26.4.2004. The learned Senior Counsel appearing for
the returned candidate contended that the election petitioner has failed to
furnish the material facts and material particulars about the name, identity
and address of his alleged Agent and his authority of appointment pleaded and
document produced, and the name, identity and address of his proposers also
have not been pleaded with material facts, who are said to have raised the
objection, and the election petitioner has failed to state under what
provision of law the election petitioner is entitled to request and the 13th
respondent is empowered to stop the election and not to publish the final list
of candidates and hence, the averments are irrelevant, frivolous and
vexatious. This contention raised on behalf of the returned candidate cannot
be brushed aside. No material facts and provisions of law have been pleaded
in these averments.
63. In para 10, it is averred that the 12th respondent, namely, the
Returning Officer, in his Proceedings has rejected the objections without
going into the root of the question and improperly accepted the nomination of
the first respondent as a valid one and it is wrong, improper, illegal and
against the spirit of the Constitution, the Representation of the People Act,
and the Election Symbols ( Reservation & Allotment) Order, 1968, the conduct
of Election Rules, 1961 together with the periodical instructions issued by
the 13th respondent. The learned Senior Counsel for the returned candidate
contended that no material facts have been pleaded to show as to how and why
the acceptance of nomination of the returned candidate was improper and the
relevant provision of law required to be satisfied for acceptance of
nomination, and which has not been satisfied. He further contended that the
election petitioner has not mentioned the provision of the Constitution,
Section of the Representation of the People Act, and the Rule made under it
and the particular Order made under that Act sought to be relied upon to prove
the allegation in the election petition and there are no averments much less
material facts to the effect that the allegation has materially affected the
result of the election of the returned candidate. The fact remains that the
election petitioner has not chosen to mention the specific provision of law
and the material facts regarding its violation. The averments are vague and
vexatious.
64. In para 13, it is averred that the averments in the election
petition would manifestly prove and establish that by the improper acceptance
of the nomination of the returned candidate by the 12th respondent, the result
of the election in so far as it concerns the returned candidate had been
materially affected and there had been flagrant violations of the provisions
of the Constitution, the Representation of the People Act and the rules framed
thereunder, the Election Symbols (Reservation & Allotment) Order and the
Conduct of the Election Rules and in view of the above illegalities, the
election has to be declared as ‘void’. As already seen, the election
petitioner has failed to plead material facts and furnish material particulars
to establish that the election in so far as it concerns the returned candidate
was materially affected on account of the alleged improper acceptance of his
nomination and further the election petitioner has not pleaded material facts
as to how he could have obtained a majority of valid votes to support his
claim to declare himself as elected. The averments in this paragraph also are
vague and frivolous besides bereft of material facts.
65. The election petitioner has mentioned various dates on which the cause of
action arose in para 15, and para 16 states the payment of costs and court fee
and para 17 is the prayer portion.
66. To sum up, the election petitioner has not pleaded either
material facts or violation of any specific provision of law to make out a
cause of action and a triable issue for the ground of improper acceptance of
the nomination of the returned candidate and further, no material facts to
prove violation of any specific provision of the Constitution of India or the
Representation of People Act or Rules or Orders made under it have been
pleaded in support of the election petition and moreover, no material fact is
pleaded in the election petition to make out a cause of action and triable
issue that the result of the election in so far as it concerns the returned
candidate was materially affected.
67. The election petitioner has not pleaded material facts or any specific
provision of law in the election petition to show that the returned candidate
was a member of Congress Jananayaga Peravai and was not a member of Indian
National Congress on the date of filing of his nomination and no allegation of
corrupt practice as set out in Section 123 of the Representation of People Act
has been pleaded. The election petition, read as a whole, does not disclose
any cause of action or triable issue and the same has to be rejected as sought
for in the application.
68. In the result, the Original Application No.105 of 2005 is allowed
as prayed for. Consequently, the Election Petition No.3 of 2004 is dismissed.
The parties have to bear the respective costs in the Original Application as
well as in the Election Petition.
Index : Yes
Internet: Yes
vks/pb.