ORDER
1. Elections to the Punjab Vidhan Sabha were held in January/February 1992. Polling was held on 19-2-1992 and the counting was done on 20-2-1992. Petitioner contested (he election as a candidate of Bahujan Samaj Party (hereinafter referred to as B.S.P.) from 95 Ferozpur Assembly Constituency in Ferozpur district. Respondent No. I who was declared elected was a candidate of Congress (I). Respondent No. 1 polled 12513 votes whereas petitioner polled 12158 votes. Respondent No. I was declared elected having polled the highest number of votes.
2. Petitioner filed the present election petition for declaration that the election of respondent No. I be declared void, recounting of votes be done again and the petitioner be declared elected as having polled the highest number of votes. The allegations in the petition are regarding illegalities and irregularities committed by the relumed candidate, his agents and Shri H. S. Grewal, who was the Returning Officer for this constituency. No allegations of corrupt practices have been levelled against the returhed candidate or his agents having committed the corrupt practices with the consent of the candidate. No relief has been claimed against the respondents on the ground that any of them had committed any corrupt practice. The allegations levelled pertains to the con-duct of Sh. H. S. Grewal, Returning Officer, who allegedly committed irregularities and illegalities in counting votes resulting victory for the returned candidate respondent No. 1.
3. Written statement has been filed by respondent No. I in which apart from the objections taken on merits, a preliminary objection taken is that the petition is liable to be dismissed on the ground that petitioner has made allegations of corrupt practice against respondent No. 1 within the meaning of S. 123(7) of Representation of the People Act, 1951, (hereinafter referred to as ‘the Act’). No affidavit has accompanied the petition in support of the allegations of corrupt practice which is a clear violation of mandatory provisions of S. 83 of the Act r.w. R. 94(A) of the. Conduct of Election Rules, 1961 (hereinafter referred to as the Rules) and R. 12 Ch. 4-GG of Vol. V of the Rules and Orders of the Punjab and Haryana High Court. Proviso to S. 83(1)(c) of the Act provides that wherever allegations of corrupt practices are made, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practices and particulars thereof; that the affidavit in support of the corrupt practices is an integral part of the election petition and since no affidavit has been filed, the election petition presented is no petition in the eye of law and is, therefore, liable to be dismissed. Although no words to the effect that respondent No. 1 is guilty of commission of the corrupt practice in the guise of obtaining the assistance of government servant in furtherance of his election prospects are there in the petition but the resultant effect of the allegation made is that the petitioner has in fact made allegations of commission of corrupt practice of obtaining assistance of a gazetted officer in the furtherance of his election prospects.
4. In the replication filed, the petitioner denied the averments made by respondent No. I in his written statement and pleaded that there was no question of filing any affidavit along with the petition because the petitioner did not seek disqualification of respondent No. 1 for having committed any corrupt practice and that the affidavit is required only in those election petitions where prayer is made that the election of the respondent be declared void because of his having committed any corrupt practice with a further prayer seeking disqualification of such a candidate.
5. From the pleadings of the parties, the following issues were framed :–
1. Whether the irregularities were committed at the time of counting of votes? OPP.
2. Whether the petitioner is entitled to a re-count of votes? OPP.
3. Whether the petitioner should have filed an affidavit in support of the petition? If so, what is the effect of non-filing of the same? OPR.
4. Relief.
6. Issue No. 3 was to be treated as a preliminary issue.
7. Respondent No. 1 filed C. M. No. 34-E of 1992 under 0.14, R. 2 and 0. 7, R. 11 r.w. 0. 6, R. 16 of the Civil P.C. and Ss. 81(3), 83 and, 87(1) of the Act, for deciding the preliminary objection raised in the written statement before proceeding with the trial of the election petition and further for striking off certain paragraphs of the election petition being vague and indefinite which did not disclose a cause of action. To be specific, the prayer made is that the petitioner has alleged corrupt practices and the petition is not accompanied by an affidavit as provided in S. 83(1)(c) of the Act and as such the election petition presented is no petition in the eye of law being incomplete and, therefore, is liable to be dismissed. It has been further stated that certain paragraphs of the election petition which do not disclose any cause of action and lack in material facts and particulars are liable to be struck off from the petition as the same are not in accordance with S. 83(1) of the Act.
8. Reply to this application was filed in which it was stated that there was no violation of the provisions of S. 83 of the Act and, therefore, there was no question of striking off any paragraph of the petition. It has further been stated that the petitioner did not allege any corrupt practice and, therefore, there was no question of filing the affidavit along with the election petition. In the alternative, it was stated that the defect of non-filing of the affidavit in the election petition even on the ground of corrupt practice was not fatal.
9. I have heard the learned counsel for the parties at length.
10. At the time of arguments, the only point pressed was regarding the filing of the affidavit in support of the election petition as provided in S. 83(1)(c) of the Act. No argu-ments were addressed regarding striking off certain paragraphs of the petition on the ground that these paragraphs are vague, lack in material facts and particulars and, therefore, do not disclose any cause of action and hence liable to be struck off. So, the only point being decided is as to whether the election petition is liable to be dismissed on the ground that it is not accompanied by an affidavit as provided V S. 83(1)(c) of the Act or not.
11. Firstly, it has to be borne in mind that the Act is a self-comained code. The right to file an election petition, the grounds on which such a petition can be filed, the persons against whom it can be filed, the period within which it can be filed, the relief which can be claimed therein and the finding which the Court is required to or bound to give in such a petition, are all matters for which express and clear provisions have been made in the Act. Section 81(1) provides that an election petition calling in question any election may be presented on one or more of the grounds specified in sub-sec. (1) of S. 100 and S. 101 to the High Court by any candidate at such election or any elector within forty-five days from the declaration of the result. The election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition. Section 82 of the Act deals with the parties to the petition. It provides that a petitioner shall join as respondents, to his petition where the petitioner, in addition to claiming declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates; and any other candidate against whom allegations of any corrupt practice are made in the petition. Section 83 of the Act deals with the contents of an election petition. It provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies and further that the petition shall set forth full particulars of any corrupt practice alleged to have been committed. Sub-clause (c) of this section provides that the petition shall be signed by the petitioner and verified in the manner laid down in the Civil P.C., 1908 (5 of 1908) for the verification of pleadings. Proviso to this sub-section reads as under:–
“Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.”
Relief which can be granted by the Court in the election petition is given in Ss. 98 and 99 of the Act which are reproduced below:–
“98. Decision of the High Court — At the conclusion of the trial of an election petition the High Court shall make an order –
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates to be void; or
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.”
“99. Other orders to be made by the High Court.– (1) At the time of making an order under S. 98, the High Court shall also make an order (a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording –
(i) a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice; and
(ii) the names of all perosns, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and
(b) fixing the total amount of costs payable and specifying the persons by and to whom costs shall be paid;
Provided that a person who is not a party to the petition shall not be named in the order under sub-clause (ii) of clause (a) unless
(a) he has been given notice to appear before the High Court and to show cause why he should not be so named; and
(b) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the High Court and has given evidence against him, of calling evidence in his defence and of being heard.
(2) In this section and in section 100, the expression “agent” has the same meaning as in section 123.”
Section 100 of the Act deals with the grounds for declaring election to be void and the same is reproduced below:–
“100. Grounds for declaring election to be void.–(1) Subject to the provisions of sub-sec. (2) if the High Court is of opinion – (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seal under the Constitution or this Act or the Government of Union Territories Act, 1963 (20 of 196.1); or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent;
(c) that any nomination has been improperly rejected; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-
(i) by the improper acceptance of any nominalion, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act,
the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied-
(a) that no such corrupt practice was commilted at the election by the candidate or his election agent, and ever such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent;
(b) omitted
(c) that the candidate and his election agent took reasonable means for preventing the commission of corrupt practices at the election; and
(d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents,
then the High Court may decide that the election of the returned candidate is not void.”
Section 101 of the Act enumerates the ground on which a candidate other than the returned candidate may be declared to have been elected. The same is also reproduced below:–
“101. Grounds for which a candidate other
than the returned candidate may be declared
to have been elected. — If any person who has
lodged a petition has, in addition to calling in
question the election of the returned candi
date, claimed a declaration that he himself or
any other candidate has been duly elected and
the High Court is of opinion–
(a) that in fact the petitioner or such other
candidate received a majority of the valid
votes; or
(b) that but for the votes obtaibed by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes.
the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected.”
12. Section 123 of the Act deals with corrupt practices. Sub-section (7) of Section 123 of the Act to which we are concerned herein is reproduced below:–.
“123. Corrupt practices : The following shall be deemed to be corrupt practices for the purposes of this Act: –
(1) to (6) xxxxx
(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of the candidate or his election agent, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate’s election, from any person in the service of the Government and belonging to any of the following classes, namely: —
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers known as iambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and
(g) such other class of persons in the service of the Government as may be prescribed:
Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his offficial duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to any candidate or his agent or any other person acting with the consent of the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the properties of that candidate’s election.”
13. After referring to the relevant provisions of the statute, I revert back to the following allegations contained in the petition which respondent No. I pleads should have been accompanied by an affidavit in support of the allegations of corrupt practices as prescribed in Section 83(1)(c) of the Act r.w. Rule 94(A) of the Rules:–
“That in para 9 of the petition, it is alleged that Shri H.S. Grewal, S.D.M., Ferozepur, is very close to Shri Beant Singh, who was, at that time the President of Punjab Pradesh Congress (1) and now Chief Minister Punjab ….. Respondent No. 1 and Shri Bcant Singh are close Friends, in addition to their belonging to the same political party i.e. Congress (I). Since Shri H.S. Grewal was very close to Shri Beant Singh, he was especially shifted as S.D.M. Ferozepur, a few months before the start of the election process. His transfer was managed by respondent No. 1 and Shri Beant Singh with view to get undue benefit in the election process.”
In para 17, it was alleged that:
“….. At about 3.30 a.m. respondent No. 1 came out of the counting hall and rang up Shri Beant Singh from the adjoining room, where the telephone has been installed by the election department. He contacted Shri Beant Singh with a view to request Shri H.S. Grewal, S.D.M. who was the Returning Officer to declare respondent No. 1 elected by any hook or crook. Shri Beant Singh by that time was almost sure to be the new Chief Minister of Punjab and being very close to Sh. H.S. Grewal, S.D.M. Ferozepur, he called Shri Grewal on the telephone. He instructed Shri Grewai to declare respondent No. i as elected and to give him all possible help legally or illegally.”
In para 18 it was alleged:
“That after talking to Shri Beant Singh, on telephone, Shri Grewal (Returning Officer) came back to the counting ball and ordered that the votes lying in the ballot boxes belonging to polling Booth No. 73, be also counted”. Further in para 18, it was alleged:
“….. It was around 4.00 a.m, at that time. After shunting out all the persons from the counting hall, except respondent No. 1 and his two sons, and 3-4 counting agents, the Returning Officer, bolted the door of the counting hall from inside. About 4.30 a.m. he declared, respondent No. 1 to have been duly elected to the Punjab Vidhan Sabha, illegally, against the actual counting.”
In para 19 it was alleged:
“That Shri H.S. Grewal, committed illegalities and irregularities in counting with a view to oblige his boss Shri Beant Singh. the present Chief Minister, Punjab whose close confident he was. Shri H.S. Grewal, thereafter, immediately rushed to Chandigarh and he was present in the oath-taking ceremony of Shri Beant Singh, as the Chief Minister, Punjab. Immediately, after the oath taking ceremony, Shri Grewai was appointed as Officer on Special Duty to the Chief Minister.”
In para 23, the allegations are made regarding the rejections of voters. It was further alleged that:
“……The intention of the voter was very clear and he marked his choice in favour of the petitioner. However, the Returning Officer under the influence of respondent No. 1 had declared all those votes as invalid.”
In para 24 the allegations were made regarding the rejection of 150 votes. Part of the allegations made are:–
“That in the 7th round, the Returning Officer openly sided with respondent No. 1, and he shunted out the petitioner as well as all other contesting candidates and their polling agents including the candidates….”.
In para 26 the allegations are also made:
“…..The fate of the candidates rest in the hands of the counting staff and since the counting staff was under pressure from the Returning Officer, and the respondent No. 1, they tilted balance in his favour.”
14. Learned counsel appearing for respondent No. I argued that the allegations reproduced in the foregoing paragraphs cleartly establish that the petitioner levelled the allegations of commission of corrupt practice against respondent No. 1 within the meaning of Section 123 of the Act. According to him, Shri H. S. Grewal, Returning Officer, was a gazetted officer and respondent No. I obtained his assistance for the furtherance of his prospects in the election inasmuch as he rang up Shri Beant Singh, President Pradesh Congress Committee with a view to request Shri H. S. Grewal, S.D.M. who was the Returning Officer to declare him elected by hook or crook: that on the asking of respondent No. I Shri Beant Singh who by that time was almost sure to be the new Chief Minister of Punjab, rang up Shri H. S. Grewal, the Returning Officer and instructed him to declare respondent No. 1 as having been elected and give him all possible help legally or illegally; that this allegation amounted to the commission of a corrupt practice of obtaining the assistance of a Government servant who was of the rank of gazetted officer in the furtherance of the election prospects of respondent No. 1 which is a corrupt practice under Section 123(7) of the Act. A perusal of the allegations made in the petition, which have been reproduced in the earlier part of this judgment clearly shows that the petitioner has not charged respondent No. 1 with the allegations of having committed any of the corrupt practices mentioned in Section 123 of the Act rather in para No. 19 of the petition, it has been specifically mentioned that Shri H. S. Grewal committed illegalities and irregularities in counting votes with a view to oblige his boss Shri Beant Singh, the present Chief Minister Punjab, whose close confidant the Returning Officer was. The petition does not contain any allegation of the commission of any corrupt practice and no relief has been claimed against the returned candidate on account of the commission of corrupt practice such as disqualification and barring such candidate to contest the election in future for a specified period. Section 98 of the Act, which has been reproduced earlier provides that at the conclusion of trial of the election petition the High Court shall make an order either dismissing the election petition or declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected. This section does not talk of recording of finding regarding the commission of the corrupt practices. Section 99 of the Act which has also been reproduced in the earlier part of the judgment says that at the time of making of an order under Section 98, the High Court shall also make an order where any charge is made in the petition of any corrupt practice having been committed at the election, recording a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice and further the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice. Petitioner does not claim any relief under Section 99 of the Act. Petitioner has not charged respondent No. 1 with the commission of any corrupt practice. Since respondent No. I has not been charged with the commission of corrupt practice, the Court is not called upon to record any finding under Section 99 of the Act and further the petitioner would not be required to lead any evidence regarding the commission of corrupt practice. The election petition against the relumed candidate can be filed on different grounds seeking different reliefs. The petitioner in the present election petition is not alleging any corrupt practice against respondent No. I. The facts stated by the petitioner regarding the roll played by the Returning Officer Shri H. S. Grewal, allegedly on the asking of Shri Beant Singh, Chief Minister, Punjab, in getting respondent No. 1 declared elected have been stated just to prove the illegalities and irregularities committed in the process of counting with a view to seek recounting of votes. Under Section 99 of the Act. the Court is called upon to make an order under this section where any charge is made in the petilion of any corrupt practice having been committed for recording a finding whether any corrupt prectice has or has not been proved to have been committed at the election and the nature of that corrupt practice and the names of persons who are guilty of such corrupt practice. In this petition, no charge is made against respondent No. I of the commission of corrupt practice at the election. Allegations in support of illegalities and irregularities committed during the course of counting made in certain cases may amount to and bring such allegations in the ambit of corrupt practice but where the petitioner does not charge the respondent with the commission of the corrupt practice, the Court is not called upon to record a finding regarding the commission of a corrupt practice. In the counting hall, the counting is done by officials of the Government, Some of these officials may be gazetted officers as well. If allegations are made that any such officer helped the returned candidate at the time of counting of votes, it would not be taken to mean that the assistance rendered by that officer would be a corrupt practice within the meaning of Section 123(7) of the Act for the furtherance of the prospects of that candidate’s election until and unless the petitioner makes an allegation of commission of corrupt practice chargingj the returned or any other candidate with the commission of corrupt practice. Petitioner is seeking relief to the effect that the election of the returned candidate be declared to be void and the petitioner to have been duly elected as envisaged under Section 98(c) of the Act, Under Section 100 of the Act there are given the grounds for declaring election to be void which are numerous. Sub-section (b) says that election may be declared void if any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent. Petitioner is not seeking the relief of declaration of the election to be void under sub-clause (b) of Section 100 of the Act. He is seeking relief under sub-clauses (iii) (iv) of clause (d) of Section 100(1) of the Act declaring the election of the returned candidate to be void because of improper reception, refusal or rejection of the votes in his favour and for non-compliance with the provisions of the Constitution and of this Act and Rules. Under sub-section (2) of Section 100 of the Act, if the Court conies to the conclusion that corrupt practice committed was without the consent or contrary to the orders of the candidate or his election agent then the Court may decide that the election of the returned candidate is not void. Court is not called upon to pass any order declaring the election to be void under sub-section (b) of Section 100 (1) and (2) of the Act. Petitioner has sought the relief under clause (d) of Section 100 r.w. Section 101 of the Act of declaring the election of the returned candidate to be void as having been materially affected by the improper reception, refusal or rejection of any votes or reception of any votes which are void or by any non-compliance with the provisions of the Constitution or of this Act or any rules or orders made under this Act with a further declaration under Section 101 of the Act to have been duly elected as having polled the majority of votes.
15. It has often been held by various Courts that law relating to trial of election petition is technical in nature and until and unless a relief is claimed, the same cannot be granted. An indication to this maxim can be gathered from Section 97 of the Act which deals with recrimination petitions. When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. It is further provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in Ss. 117 and 118 respectively.
Every notice referred to in sub-section (1) shall be accompanied by the statement and particulars as required by Section 83 in the case of an election petition and shall be signed and “verified in like manner …… meaning thereby that until and unless a recrimination petition is filed, the returned candidate would not be entitled to give evidence to prove that the election of that candidate would have been void if that candidate had been the returned candidate and the petitioner had been presented calling in question his eleclion. In conclusion it is held that the petitioner has not charged respondent No. 1 with the commission of corrupt practice and, therefore, was not required to file a separate affidavit in support of the petition as provided in Section 83(1)(c) of the Act r.w. Rule 94(A) of the Rules and Rule 12 of the Rules and orders of Punjab and Haryana High Court.
16. There is no case law on this point. No direct judgment was cited at the Bar. Following judgments were cited by the counsel for respondent No. 1 :–
“(I) N. P. Ponnuswami v. The Returning Officer etc. etc., AIR 1952 SC 64.
(2) Smt. Indira Nehru Gandhi v. Sh. Raj Narian AIR 1975 SC 2299.
(3) Narendra Madivalapa Kheni v. Manikrao Patil, AIR 1977 SC 2171.
(4) M. Kamalam v. Dr. V. A. Syed Mohammed, AIR 1978 SC 840.
(5) Dhartipakar Madan Lal Aggarwal v. Shri Rajiv Gandhi, AIR 1987 SC 1577 and
(6) U. S. Sasidharan v. K. Karunakaran, AIR 1990 SC 924.”
None of these judgments is relevant to the point in discussion and that is why a detailed reference is not being made to these judgments.
17. The challenge to the election of respondent No. 1 having not been founded upon the commission of corrupt practice and claiming of relief on that account, it cannot be held that the petitioner was, in law, required to file an affidavit in support of the petition in terms of Section 83(1)(c) of the Act. CM. No.34-E of 1992 is accordingly dismissed. Issue No. 3 is decided in favour of the petitioner and against respondent No. 1. Costs shall be costs in this petition.
18. Case to come up on 22-10-1992 for scrutiny of list of witnesses.
19. Order accordingly.