PETITIONER: RAVINDER SINGH Vs. RESPONDENT: JANMEJA SINGH & ORS. DATE OF JUDGMENT: 19/09/2000 BENCH: N.Santosh Hegde JUDGMENT:
L…..I………T…….T…….T…….T…….T…….T..J
JUDGMENT
This appeal is directed against an order of the High
Court of Punjab and Haryana dated 3.6.1999, dismissing an
election petition filed by the appellant at the threshold on
sustaining preliminary objection.
The appellant, who was a candidate set up by the
Congress Party was defeated by respondent No .1, the
returned candidate, who had been set up by the Akali Dal
(Badal group). The elections to constituency No .96,
Perozepur Cantt of Punjab Legislative Assembly were held in
1997. The polling took place on 7.2.1997 and after counting
of votes on 9.2.1997, respondent No.l was declared elected.
In view of the limited nature of controversy involved in
this appeal, we are relieved of the necessity of giving
break-up
of votes or mention about other candidates, who had
also contested the election.
The appellant filed an election petition seeking to
declare the election of returned candidate void on various
grounds and for a further declaration that the appellant be
declared duty elected as Member of the Legislative Assembly
after setting aside election of the returned candidate. In
the election petition, two main corrupt practices were
alleged to have been committed by the returned candidate –
one falling under Section 123 (1)(A)(b) of the
Representation of the People Act, 1951 (hereinafter referred
to as the Act) and the other falling under Section 123 (4)
of the Act. The material facts and particulars concerning
allegations of corrupt practice insofar as corrupt practice
under Section 123(1) is concerned, are contained from
paragraphs 28 to. 39 of the election petition, while
material facts and particulars concerning commission of
corrupt practice falling under Section 123 (4) of the Act
are contained in paragraphs 12 to 27 of the election
petition.
Mr. Talwar, learned counsel appearing for the
election petitioner has taken us through the election
petition.
Section 123(4) of the Representation of the People Act
provides :
“The pub1ication by a candidate or his agent or by any
other person with the consent of a candidate or his election
agent, of any statement of fact which -is false, and which
he either believes to be false or does not believe to be
true, i’n relation to the personal character or conduct of
any candidate, or in relation to the candidature, or
withdrawal, of any candidate, being a statement reasonably
calculated to prejudice the prospects of that candidate’s
election,”
In vain, have we searched through the election
petition and, particularly through paragraphs 12 to 27
thereof, dealing with the alleged commission of corrupt
practice which falls within the mischief of Section 123(4)
of the Act, for any averment to the effect, that the
publication was made by the returned candidate or. his
election agent or by any other person with the consent of
the candidate or his election agent’ or any statement of
fact which is false and which he either beIieves .to be
false. or does not believe .to be true in relation to the
personal character or conduct of the candidate.
The election petition -is singularly silent of any
such averment that the returned candidate, even “if, it be
assumed for the sake of the arguments, had published and
distributed certain documents, (Annexures A-1 to A-7), as
alleged in the election petition either himself or through
any other persons with his consent, that those statements
were false and that the returned., candidate .. eJ.the””.
be I i eved hem on be false or did not believe them to be
true, though in paragraph 9 of the election petition, which
has been verified as correct on the basis of legal advice,
this requirement emanating from Section 123(4) has been
mentioned but without any assertion that the returned
candidate in this case published the false statements
knowing them to be false and/or not believing them to be
true. The submission of Mr. Talwar, that at the trial, the
petitioner could have said so in his evidence is futile. It
is an established proposition that no evidence can be led on
a plea not raised in the pleadings and that no amount of
evidence can cure defect in the pleadings.
In the face of the pleadings, no charge could have
been framed insofar as corrupt practice under Section 123(4)
of the Act is concerned. We need not detain ourselves to
consider the ‘allegations’ in this behalf, because of
the absence of the essential averments to lay a charge under
Section 123(4) of the Act. The requirement of making such a
statement, as referred to above by us. is mandatory and in
the absence of any such statement, the charge could not be
put to trial. Paced with this serious lacuna in the
pleadings, Mr. Talwar sought to press the allegations of
bribery under Section 123(1) as detailed in paragraphs 28 to
39 of the election petition.
Coming now to the charge of corrupt practice falling
under Section 123(1) of the Act, for which material facts
and particulars have been detailed in paragraphs 28 to 39 of
the election petition, we find that those allegations could
not be put to trial either. There is no affidavit filed in
support of the allegations of corrupt practice of bribery.
Proviso to Section 83(1) of the Act lays down, in
mandatory terms, that where a.n election petitioner alleges
any corrupt practice, the election petition shall also be
accompanied by an affidavit, in the prescribed form, in
support of the allegations of such practice and the
particulars thereof. The affidavit, which has been filed in
support of the election petition, does not at all deal with
the charge of bribery falling under Section 123 (1) of
the Act. Leaving aside the questions that the affidavit is
not even in the prescribed form – Form 25. of the conduct
of Election Rules, the allegations of corrupt practice made
in the election petition are not supported by the otherwise
defective affidavit either. .All the names of the
informants which have been given in the affidavit relate to
the corrupt practice under Section 123(4) and the affidavit
in this respect is a verbatum reproduction of the
verification clause of the election petition concerning
corrupt practice under Section 123(4). No name of any
informant has been mentioned in respect of the allegations
of corrupt practice under Section 123(1) in the affidavit.
In the absence of the requisite affidavit filed in support
of the allegation of corrupt practice under Section 123(1)
of the Act, as detailed in the election petition, no issue
could be raised for trial.
Section 83 of the Act is mandatory in character and
requires not only a concise statement of material facts and
full particulars of the alleged corrupt practice, so as to
present a full and complete picture of the action to be
detailed in the election petition but under the proviso to
Section 83(1) of the Act, the election petition
levelling a charge of corrupt practice “is required, by law,
to be supported by an affidavit “in which the election
petitioner is obliged to disclose his source of information
in respect of the commission of that corrupt practice. The
reason for i:,his insistence is obvious. It is necessary
for an election petitioner to make such a charge with full
responsibility and to prevent any fishing and roving enquiry
and save the returned candidate from being taken by
surprise, in the absence of proper affidavit, in the
prescribed form, filed in support of the corrupt practice of
bribery, the allegation pertaining thereto, could not be put
to trial the defect being of a fatal nature.
We also wish to note here that the learned Senior
counsel appearing for the election petitioner in the High
Court had on 14.7.1998 made a statement in the High Court
that- he was not pressing his prayer relating to recounting
of votes. No other point was raised before us.
The learned Single Judge of the High Court dismissed
the election petition on deciding Issue No.5, which was
treated as a preliminary issue and reads thus :
“Whether the election petition lacks in material facts
and particulars, necessary to constitute
complete cause of action for setting as”‘de of the
election of ‘the respondent No.1, within the meaning of
Section 83, read with Sections 100(1)(d)(1v) and 123 of the
Representation of People Act.?”
For what. we have said above, the order of dismissal
of the election petition, without putting it to trial,
cannot be faulted with.
For our reasons) which are somewhat different from the
ones given by the High Court, we find that the decision of
the High Court to non-suit the election petitioner by
deciding the preliminary issue against him is well merited.
There is no merit in this appeal. It. consequently, fails
and is hereby dismissed. There shall, however, be no order
as. to costs.
