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REGISTERED NO. D. L. 33001/99 The Gazette of India

PUBLISHED BY AUTHORITY

No. 3] NEW DELHI, SATURDAY, JANUARY 20, 2001/PAUSA 30, 1922 Separate Paging is given to this Part in order that it may be filed as a separate compilation

PART II—Section 3—Sub-section (III)

Orders and Notifications issued by Central Authorities (other than the Administrations of Union Territories)

28-9-2000 in Election Petition bearing diary No. 27164 of 1999.

IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORIGINAL JURISDICTION)

Thursday, the twenty eigth day of September, 2000

CORAM :

THE HON'BLE MRS. JUSTICE A.

SUBBULAKSHMY

Election Petition Diary No. 27164 of 1999

T. Maruthamuthu

. .. Petitioner

Vs.

ELECTION COMMISSION OF INDIA

1. Returning Officer|District Collector, New Delhi, the 29th December, 2000

Tiruchirappalli Parliamentary, Constituency, Tiruchirappalli.

2. P. Rengarajan Kumaramangalam O.N. 13.—In pursuance of Section 106/111 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission hereby publishes the judgement of the High Court of Madras dated

(deacesed)

60 GI/2001 1

(29)30 -TMT- OA7.rTTT: ^T IMDIA : 1ANUARY .10, :001/rAUSA 30, 1922 [PART II—SEC 3(1E)] 3. L. Adik::lraj 4. M. Rajasekaran 5. K, Muthusatny 6. A. K. Pilchai 7. S. Kannan 8. A. Nagendrim 9. S. Alagiya Manavalan

10. K. Anbazhagan 11. M. Anthonyraj 12. C. Anbazhagan 13. G. Sakthivel 14. A. Hussain Khan 15. M. Soundarapandian 16. A. Joseph Frances 17. R. Sakthivel . .. Respondents Election Petition under Section 80, 81 and 123 of the Representation of People Act 1951, praying for an- order to declare thai the Election of the Re- turned Candidate, the second respondent herein as void and to set as'de the. raid Election.

This Election Petition bearing Diary No. 27164 of 1999 coining on for orders before this Court on this day in the presence of Mr,. V. Sitharanj'jndas, Advocate lor the Petitioner, the Court, made the fallowing order :• •-

The Counsel for the petitioner submits that the second respondent is dead and ths petition has become infructuous.

ORDER

New Delhi, the 5th January, 2001 O.N. 14.—In pursuance, of Section J06 of the Representation of the People Act, 1951 (43 of 1951), the Election Commission hereby publishes judgement dated 20th October, 2000 of the High Court of Punjab nnd Haryana a-t Chandigarh in Election Petition No. 4 of 1999.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL ORIGINAL SIDE

Election Petition No. 4 of 1999 Mrs,, Sukhbuns Kaur wife of

Shri Pritam Singh Bhinder, resident of Mohalla¹ Onkar Nagar, Gurdaspur.

. .. Petitioner

Versus

successful candidates declared as Member Parlia- ment from Gurdaspur-I, Parliamentary consti- tuency of Punjab. The latter won the election by a margin of only 1399 votes.

The important dates of the election programme for the said constituency, which arc material, may be enumerated as such :—•

1. Calling of polls in constituency 11-7-1999 2. Last date for filing nomination lS-8-199'9 3. Scrutiny of nomination 19-8-1999.

*4. Last date for withdrawal of

candidatures 21-8-1999 5.. Dale of polling 5-9-1999 6. Hours of Poll 7 A.M. to 6 P.M. 7. Counting of votes 6-10-1999 8. Date before which the Election

shall be completed. 10-10-1999 9. Declaration of result 7-10-1999 The petitioner filed for nomination papers on 16-8-1999 and respondent, a' returned candidate, Shri Vinod Klianna, filed the nomination papers on 18-8-1999 for contesting the election in the said Parliamentary Constituency. The petitioner was a nominee of the Indian National Congress Party while respondent was a candidate or Bhartiya Jam Party (BJP) supported by Shiromani Akffii Dal. Ultimately five candidates remained in the field. The petitioner and the respondent were the main candidates. The respondent secured 3,15.267 votes while the petitioner secured 3,13,868 votes.

It was being claimed that Model Code of Con- duct was declared which came into force with effect from 12-7-1999 with the instructions that no- body was allowed to misuse the State machinery, i.e. Rest House, transfer of the State officials officers and to strictly follow the ethics and legal constraints.

Coming to the alleged facts straightaway that an amount of Rs. 2 Crores was placed at the dis- posal of the Members of the Parliament for being spent for the developmental work in the area' of one's constituency. It was further alleged that the respondent ceased to be 9 Member Parliament after the previous Parliament was dissolved and, therefore, the respondent got released a¹ sum of rupees one Crorc which was got credited in the niune ol" Additional Deputy Commissioner (Deve- lopment) Gnrdaspuron 26-5-1999. On 26^-1999, the Parliament was dissolved. So, according to the allegations, the respondent got released the afore- said amount through Shri S. S. Kcmwal, the then Deputy Secretary, Union of India and committed a' corrupt practice covered under Section 123(7) ci the Representation of People Act, 1951 (here- iniriter referred to as the Act).

Thereafter the respondent allegedly got the as- sistance of Shri S. K. Sandhu, IAS, then Deputy Commissioner (District Collector), Gurdaspur, who was also the Returning Officer of Gurdaspur-I, Parliamentary Constituency; that of Shri Som Nath Hoshiarpuri, IAS, Additional Deputy Commissioner (Development) for utilising the MPLADS fund. It v as also alleged that the respondent got adminis- trative approval for various matters from Shri S.K. Sandhu, IAS, Deputy Commissioner, Gurdaspur in 'he dates prior to 26-4-1999 by manipulating and ante-dating the official record and this was all done to assist the respondent, Shri Vinod Khanna, in the saidc election. The aforesaid officers issued scries of cheques in this connection bearing Nos. 179001 to 179100, 686201 to 686300 and 274198. These cheques were issued on 30-11-1998, 16-4-1999, 26-5-1999 and 27-5-1999.

It was further alleged that the administrative approval for developmental piojccts for various villages in the constituency were also obtained on previous dates and, therefore, the respondent was guilty of corrupt practices.

Besides the aforesaid alleged mal-practice, on 22-8-1999 the respondent addressed a public meeting in village Malikpur and proclaimed in the nieet'ng that the cheques had been issued to various Sarpanches, who had already assured their votes to be polled in thi> favour and to win over the electorate. Shri Raj Kumar, Sarpanch of village Bhoa, Tehsil Pathankos Shri BaMev Singh resident of Sliehr Chan-na, P.O. Forozepur Ka'lan, District Gurdaspur, Smt. Kantrc, Sarpanch of village Shehr, secured the presence of voters in their respective villages and were promised that they will get the cheques issued. It was further claimed that Shri Raj Kumar, Siupanch of village Bhoa, expressed his inability to support the respondent and the cheque was not issued to him. The cheques were issued to Shri Sat Pal Saint', BJP, M.L.A. and Smt. Kanta, Sarpanch, a'L 2.00 P.M. on, 23-8-1999 Shri Prem Kumar, Block Development and Panchayats Offi- cer, asked MLA Shri Satpal Saini to issue a cheque to Smt. Kanta and cheque No. 797058 dated 23-8-1999 was issued to her which was presented "?n 24-8-1^)9 in ilic account U tin- Gram Panchayai, Shehr Channa.

The other • cheques were encashed after 11-7-1999, the details of which are given here- nnder :—

The aluiesaid cheques were allegedly issued by Shri Prabh Dayai, Block Development and Panchayats Officer. The deques bearing No. 797001 to 797100 were also issued by Shri Prabh Dayal and these cheques were credited on 2

Date of

Cheque No.

Sr. No. encashment

IT

Shiri Viuod khanna, respondent, alleeedly convened a meeting m the Gurdwara ot village Ballagan on 23-8-1999 unU addressed the meeting wilh VAHE GURU Jl KA KHALSA VAHli GURU Ji K[ FATCH and rcqeusted them 10 vote for him and appealed to the voters in the Gurdwara ikat Congreiis (I) was always against the Sikh people and fcjJK.li religion and this act of the respondent came in the Indian Express on 26-8-1999 and a complaint was made to the Chief Election Commissioner.

2. 3. 4. 5. 6. 7. 8. 9.

On 24-S-1999, the respondent went on tour of Gurdaspur UiiLiet Courts •wii piomised the members of the Bar that Jic was going to donate a sum of Rs. 1.50 lac foi construction, of Bar room and library and cheque No. 686226 dated 26-5-1999 was issued. The cheque was issued hi the name ol Sub-Divisional Magistrate, Gurdaspur. It wim aJso claimed that the respondent misused a sum of Rs. 56,06,250 from 26-5-iy99 to 20-7-1999 and Rs. 16,68,750 i.e betoro and after the announcement of poll schedule on 11-7-1999.

A m o u nt Rs. 37,500~ 37,500 1,50,000 37,500 37,500 38,500 3,00,000 1,25,000 75,000 18,750 37,500 37,500 37,500 37,500 37,500 37,500 37,500 75,000 75,000 3,00,000 37,500 18,750 37,500 1,00,000 56,250

179074 686206 686232 686215 179069 686212 179070 686251 179044 179061 686240 179080 686203 686209 686244 686201 686237 179043 179041 179070 686205 179063 179059 274918 179049

13-7-99 13-7-99 13-7-99 14-7-99 14-7-99 14-7-99 15-7-99 15-7-99 20-7-99 20-7-99 22-7-99 23-7-99 23-7-99 23-7-99 24-7-99 27-7-99 29-7-99 30-7-99 2-8-99 3-8-99 3-8-99 4-8-99 10-8-99 31-8-99 14-9-99

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.

It was also claimed that the respondent, the returned candidate, obtained the assistance of Shri Gurdarshan Singh, Executive Officer, Municipal Council, Dinanagar oy using his official residence as his election office. A written com- plaint dated 26-8-1999 vra" made by Shri Neeraj Salholra, td the Chief Election Commissioner, New Delhi, and the Returning Officer Pradecp Kumar Sabbarwal, Sub Divisional Magistrate, Gurdaspur, was asked to take necessary action. He visited the official residence of Shri Gurdarshan Singh, I-xTcutive Officer and Smt. Roop Rani, BJP, MLA was pjesent at the said premiies along with Shri Parveen Kumar and Ashok Kumar and the party flags were hoisted on the building. The official residence of Shri Gurdarshan Siiif'h, Executive Officer was sealed by the Sub Divisional Magistrate, Gurduspur, In this way according to the petitioner, the it-spondent procured the assistance of the Government officials. The official telephone No. 41412 was also being misused, A resolution was also passed by the Municipal Council, Dina- nagar, condemning the use of official residence for election purposes.

All these cheques were stated to have be?n signed on previous dales as the election schedule was announced on 11-7-1999.

It was staled thai respondent took the help V'f a lnrge number of persons by bargaining with voters, the names ot wlicm are mentioned in paragraph 15 of the Election Petition.

I hc respondent allegedly appointed Shri Surinder Singh SOTI of Kartar Singh, M.L.A. as polling agent, who was a clerk in Slate Government Sugar Mill, Paniar and also appointed polling agent Shri Gurme.et Sin;;h. who was a Churgcman, at Thein Dam.

On 15lli, 16tn, 17th and 18th July, 1999, cheque-! burins Nos, G57W00 to 829 and 969499 were distributed in different village: in Sujanpur Assembly segment of Gurdaspur-l Parlia- mentary Constituency worth Rs. 40,000, Rs. 50,000, Rs. 90,000. These cheques were credited in the Slate Bank of India, Madhopur on 25-8-1999. The help of Shri Prem Kumar, Block Development and Panchayats Officer was obtained in this behalf. This information was provided by Shri Jiirnail Singh, Ex-Sarpanch. The fo,lowing cheques were deposited in the bank on 13-8-1999, the details of which are Riven below :—

Dat of deposit

of cheques

Sr. No.

The petitioner placed on record document Annexure P-l, the guidelines on Member Parliament Local Area Develop- ment Scheme (MPLADS). Appendix I is the list of works which could be undertaken under the said acheme. Appendix 11 is tho list of permissible work which could be done. Anucxure P-2 is the document dated 26-8-1999 Indicating that a complaint was made for misuse of tho residence of Executive Officer, Municipal Council, Dinanagar. Annexure P-3 is the complaint dated 22-7-1999 with regard to issuance of cheques. Annexure P-4 is complaint dated 26-8-1999 for misuse of Gurdwara. Annexure P-5 is a complaint regarding the conduct of tho respondent that he was wearing different types of dresses and was acting and meeting the other politicians "nd distributing scotch whisky and Tandoori chicken and proclaimed that he was going to model Gurdas- pur on Washington and Pathankot on a New Jersey city pattron and claimed that he was for some time with 'Rajneesh', There is a lint of documents attached with regard to the documents relied upon relating to the aforesaid cheques.

1. 2. 3. 4. 5. 6. 7. 8. 9.

A m o u nt (Rs.) 50,000 1,00,000 50,000 60,000 50,000 70,000 40,000 50,000 40.000 50,000 50,000 50,000

13-8-99 -do- -do- -do-' -do- -do- -do- -do- -do- -do- -do- -do-

10. 11. 12.

On thf basis of the" aforesaid, it WHS being asserted that the respondent has been gwllty of serious mal-practices and has violated Code- of Conduct and because of mis- use of the- State machinery and taking assistance from tlic high officers came to bo iected' and- Therefore ttai elfction33 as such was invalid, unconstitutional and void and was liable to be sci aside.

The impendent has iked a deladeu wnueu sui;emenL and has denied and controverted each and evwy iillejj.ii.ion mtn- tioncd m the petition and nas claimed iliac Hie ijeuliun was bad lor the iacL Umt it dw noi disclose me necessary maiojuii facts and circumstances, necessaiy inijiediciiis relating w Hit: questions 01 uik'geu misuse ot oniciai macninc.y jam .ssuuncc of ante-dated ciityL.cs and by kcepmjj concealed uiw ni"terial facts and not mentioning the lacts requited to be mentioned in the eiectioj petition and ihat the election petition is liable lo be dismissed. It was also asserted in tile writien suie- ment tliat ihe adegations m the fclecuon Petition should be mentioned as mentioned in a criminal trial. Them should be specific allegations regarding the time, the dutc, place where the alleged corrupt practices \ji ante-dated cheques or other mal-practices wel'e conducted and trie election petition could not be decided on the basis of uncer- tain and vague allegations. Tho nctitiuner was required to mention the place and the persons who ante-dated and sign- ed the cheques. The precise a>bislancc thai was obtained from the aforesaid officers of the district was also required to be mentioned and m what manner the assistance was obtainedd and who benefited fium it and in what manner should also have been mentioned in the petition so as lu allow the other side to controvert the same,

It was also mentioned liiat the respon- dent filed his nomination papers on IHth August, i9¹Jj and the election took place on 5-9-19'J^. Accord- ing to the written statement, the allegations against the res- pondent, the returned candidate, should relale to the period between filing of nomination papers and the date -ot polling. It was stressed In the written statement that the respondent became a candidate on 1K-8-1999 when he had presented his nomination papers before the Returning Officer and, there- fore, the alleged corrupt practices and conduct alleged in the election petitiion related to the period earlier to 18-8-1999.

The incidents relating to the help nought from Smt, Kantu Rani, Shri Sat Pal Saini, BJP, MLA and other allegations made regarding the misuse of the premises were also stoutly denied and controverted, [t was also claimed that the peti- tioner has mentioned tho names of their own supporters in the election petition to misrepresent the conduct of the res- pondent nnd they arc the witnesses of the petitioner herself. It was also denied that religious sentiments of any commu- nity were hurt. The main stress in [he written statement was on the non-disclosure of material tacts relating to thr- alle- gations of corrupt practicei and that the issuance of cheques related to the period prior to thu filing of the nomination papers.

Therefore, it was ultimately prayed that iln- petition de- serves to be dismissed on preliminary grounds though the petition was being contested on merits ns well.

In replication the allegations made in the petition were reiterated and the contentions rained in the written statement were denied.

The followlnc issues were cast (o delciinine the contro- versy between the parties :—

(1) Whether the, respondent obtained nnd procured Ihe assistance of Gazetted Officer in the UOT and is guilty of commitHnR corrupt practices as alleged In para 7 of the petition ? O P.P.

(2) Whether the respondent obtained and procured ihr assistance o'f Gazetted Officer in the Slate of Punjab and is guilty of committing corrupt practices ns alleged in paras 8, 9, 10, II. 12 n If 17 -md 19 of the Petition? OPP

O) Whether respondent obtained find proccured the assis- tance of Government seivants in the Stale and is fiuiltv of committing corrupt practices as alleged in para 16 of the petition ? OPP

(5) Wehther the respondent is guilty ot committing cor- rupt practices of appealing in the name of religion as alleged in para 18 of Ihe petition '1

(n) Whether the petition dKcloces no cause oi action and the averments nuide in various paragraphs do not lull under any provision of the Rl' Act, I ^51 ? If yes, its effect V OPR

(7) Whether the allegations of corrupt; practice prior to the filing of the nomination papeis by the respon- dents cannot be questioned in an election petition ? If yes, whether those allegations are liable tu be •.truck oil ? OPR

(H) Whether the Election Petition l.ieU in material facts and particulars and is cryptic, vague and unteitain and is liable to be dismissed / OPK

(9) Whether the atlidavit attached with the petition is not proper, if so its effect V OPR

(10) Whether the verification of the petition is not ac- coiding to law, if so its effect'/ OPR

(11) Relief.

It i,s the conceded position from the eonitntUnis m thj peuiiOn itself that the aforesaid cheques have been issued on 16-4-1944 i.e. even ten days before the Parliament wus di"- solvctl. Another set of cheques was issued on 2b-:>-l999, then on 27-5-1999 and then from 15 to J8-7-1999 and the amount of the said cheques was, deposited m ihe Central LoopuiUive Bank on 13-8-1999. Bargaimns with the voters i\ mentioned in para No. 15 with no details. The cheques weie allegedly encashed on 13-7-1999, 14-7-1999, 15-7-1999, 20-7-1'Jyy, 22-7-1999, 23-7-1999, 24-7-1999, 27-7-1999, _y 7-199'J, 30-7-1999, 2-8-1499, 3-8-1999. 4-8-1999, 10-K-iyyy, 31-8-199!* and 14-9-J999.

Shri M. I . Saggar, Ihe learned counsel for the peittionei has first of all urged, and which point also c;itn.' to tlv: mind of the Court and was duly discussed, that the cheques issued earlier to the holding of the actual polling would have repcicussion on development after the polling, may be irnme- diulely. or may take time, therefore, the issuance of cheques as such as mentioned above could be deemed to fmve been issued and Ihe benefit thereof cculd be deemed to have been intended lo gain voles at the polling would entitle the peii- lioncr to lead evidence in the case instead of deciding it on Ljreliminuiy issues. The learned counsel for the peti- tioner cli'imed that the repercussions of certain previous con- duct of tlit; jespondent which may result into some benelit to Ilie voters in future is also to bi seen. So this point will also In; taken up later on.

'Ihe learned counsel Lor .lie petitioner uls,o iv&ircd lo another authority of tue Ai"x Cuurl in H. D. Revamia Vs. G. 1-uUaswamy Gowda siucl otlieis, A.l.K. 19W S.C. 76o, iu say that ihe election petition eutinot be dismissed on tin: question ot maintiu:U)tluy on the ij.ound of uuu-LUsclosure ol mutuiial lucts when iiicre are ample avernicnis in i.ic peti- tion to eonsiituie a cnu.L of action. Tnis case ltiatcs to IIIL. illc^iiliry commuted JI ILL umc ot recounting of votes. It is mentioned m thii veiy pionoun^muu tiui mouth Ji- the muicj'inl ipies :ire luckinj; in the petition no ameiuimejit tit.: be allowed.

He fuithcr leteircd to a Division Ucmh audionly ol tin-. Conn in i-iui'bans Singh J;uji, bx-WLA, liiiatindu Vs. Union of Indid tniough Secicuny, JVnnistrj, Ministly oi Home Ati- uira, Nuw Deihi and utheis, (iyJ/'-Z) JJ6 F.L.R. 77S wnuiun /t was field mat "'ihe ticciion L oiiimivion m eiitiiled to Luke necessaiy steps for Lhe cj.in.duii of a free and lair election even aiiLii'ior to ihe dale ol issuance of notification'. iins case relates to ccituin loimaLion ol development schema before the cleaiond v.e;e actually held, In Uvy CLt^e there wele allgealHuii that :,ume giants were leleased a nionta piior to me holding oi tnu election for upnft of the a .u jnutiity und vuriou'; .imehuiative measures lor me benent oi OBncuUurists, tiade unJ industrial ncctor; for the, welfare oi women; tor the welfare of people belonsinji to economical!} backvvujd classes; war widows; pensioneis; students; h^.. and supplies sector and transport sector etc. were aiinoun-i;J This cited case only relaies to the question whether •.<, Chief election Cominis'.ioiiei could impose certain conditions in the Code or Conduct announced beiore the election, ,Su, according to the learned counsel, the petition contains si,,:.- cieut facts and ciicumstances utiu was already lull of mate- rial facts and, therefore, ihe plaint could not Lie rejecieo. returned or dismissed.

iaj issuance ol a particular cheque. It the place wncie me ciicqucs were aiue-utiKea or picpmca in DacK u'aieu ana me names ot toe persons in wbuse pic&cnce- tiie cnequcu were aiite-oanea baa been men- tioned jn me piescnt petiuon, tiie rc^ponaeuL would liavc d ri^iii to cioiis c-xAinme Uie wiuuwssei prouue- ea uy iiie pttmoner Jii order to controvert tliat situn- tion ana io put up thar fcugteiaan that no such event or act took place or that the cheques were ever ante-dated. It is like a tort of criminal proceedings that "A" is assaulted by "B' in presence ol " C" and "JJ" at place "Jti" mentioning motive, injuries and natuie ol onencc made out and an act or an occur- rence like this took place. The person made an ac- cused in such a case would haivc a, right to contro- ven the same. Similarly in a civil suit in which a prunote is allegedly executed by "A" in favour of " B' in presence of "C" and "D" or similar docu- ments is said to have been made ante-dated or forc- ed, inc other side has, at right to controvert that it was either forged! or ante-dated. So when there are no material facts mentioned neither the petitioner can have a right to lead the evidence nor the private respondent can have the chance in defence to know tne case against him to enanble him to defend him- self. Similar is the situation regarding all other che- ques mentioned in the table given in the petition, Jt i;, not mentioned as to when these cheques were issued, who were the persons and what transpired l>elween the persons issuing the cheques and to whom the cheques were handed over and what con- versation tuok place between them and what was the putt the petitioner witnted to attribute to the res- pondent that he conspired with others i.e. with whom and probably when. Similarly, what assistance was taken om\ when from the government officers or other employees also does not find mention. How the person; sitting in a Municipal office were connected with ihe respondent when the respondent asked them hi i-r-ach there and who brought the relevant material in the Municipal office for being used by the respon- dent ? What help was solicited from Sarpanches and Panches is not specifically mentioned ? Only names of la'rae number of persons arc mentioned in para 15 of the election petition that they were allured for vot- ing but no material facts as to when, how and why. Jn this connection the learned counsel has referred to the authoritier, of the Apex Court in Bhaf; Mai v. Ch. Parbhu Ram and others, A.I.R. 1985 S.C. 150 and La'kshmi Charan Sen and others vs. A. K, M. Hassan Uzzaman and others, A.I.R. 1985 S.C. 1233. He referred lo the observations of the Apex Court in nara No. 21 of the judgment in Lakshmi Cbaran Sen's case thaf there is no force in the directions issued bv the Election Commission and even the f;)iUirc on the pa'rt of the Chief Electoral Officer to comply with these dinectioiK would not vitiafe any election.

So, it was further contended that the petitioner did not discloses as

The learned counsel for the respondent further cited the authority in Subhash Etesai vs. Sharad J. Rao and others, A.I.R. 1094 S.C. 2277, which is an important pronouncement RS it m^ntinns ffliat if the petitioner omils to mention material facts and all circumstances in 1Si© petition, the same is liable to be dismissed. Another authrm'ty of the Apex Courf in Shri Satyanarain Dudhani v. Uday Kumar Singh and others, AJ.R. 1993 S.C, 367 again emphasis that35 the petitioner musf plead the material facts and only then supported by contemporaneous evidence that the relief can be granted otherwise not. In another autho- rity in Azhar Hussain. v. Rajiv Gandhi, A.I.R. 1986 S.C. 1253, the Apex Court goes to the extent that "fhe contention that even if the election petition is liable to be dismissed ultimately, it should be so dis- missed only after recording evidence and not at the threshold is thoroughly misconceived and untenable" The learned counsel for the respondent farther re- ferred to the case Dhartioakar Madan Lai Agarwal v. Shri Rajiv Gandhi, AIR 1987 S.C. 1577 which refers to the charges of corrupt practices and misuse of the official machinery should be so specific and giving full picture thereof and the Apex Court! very much felt concerned that the Parliament should also consi- der amendment of the law so that its fiine is not wasted in ever increasing such petitions and, there- fore, it was observed that material fact's must come in the petition. It was being claimed that late Shri Rajiv Gandhi used the influence of his mother, the then Prime Minister. The observations were that there must be some tangible disclosure in the peti- tion.

Coming to another authority in Vijluirani Thakur- das Jhamandas v. Sabir Shaikh, A.I.R. 1996 Bombay 356 where the persons pleaded that the returned candidate came In a particular dress or propagated a particular religion or posed as Muslim, it was held that if was not going to have ovy effect. So, a speech in Gurudwara as claimed hardly discloses any viola- tion. Narain Chand Prashar vs. Prem Kumar Dhumal and others, A.I.R. 1993 H.P. 84, also refers to the non-disclosure of the material facts and the objection of respondent No. 1 that* the entire petition does not disclose any cause of action and as such is liable to be dismissed. The petitioner on the other hand con- tends that the petition is not liable to be dismissed at the threshold on the basis of the preliminary ob- jections. The facts statted in various paragraphs of the election petition do constitute acts of corrupt practices and also disclose cause of action within the meaning of Section 100 of the Ac?.

In Smt. Indira Nehru Gandhi v. Shri Raj Narain, A.I.R. 1975 S.C. 2299, it was observed that there is nothing to indicate that the word "candidate" in clause (7) of Section 123 of the Act has been useri merely to identify the person who has been or would be subsequently nominated as a candidate. A defini- tion clause in a statute is legislative device with a view to avoid making different provisions of the sta- tute to be cumbersome. Where a word is defined in the statute and that word is used in a provision to which that definition is apolicable, the effect that wherever the word defined is used in tfiat provision, the definition of the word gets substituted. Reading of word "candidate" in Section 123(7) of the Act in the sense in which it has been defined as n result of the amendment made by Act 40 of 1975, the only reasonable inference drawn is that! the person referred to as a candidate in that clause should be a_ person who has been or claims to have been duly nominated as a candidate at an election and not one who is yet fo be nominated.

He quoted another authority in Mohan Rawale vs. Damodar Tatyaba alias Didasaheb and others, 1994(2) S.C.C. 392, wherein it was held as under:— "AH sub-sections of Sccf'oo 123 of the Act refer to the acts of a 'candidate" or his election agent or any other person with the consent of the candidate or his elec- tion agent. The substituted definition of the expression "candidate' in Section 79(b) completely excludes fhe acts by a candidate upto fihe date he is nominated as a candi- date. Therefore, the allegations relating to the period anterior to the commencement of the candidature cannot be relied upon to' establish corrupt practice proprio vigore. But on fhe question whether they are rele- vant and admissibly for all purposes, no opinion need be expressed.

It was further held that a reasonable causa of action is said to mean a cause of action with some chances of success when only fhe allegations in the pleadings are con- sidered. But so long as the claim discloses some cause of action oi raises some ques- tions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the plc"V-v", hi be struck out on the ground t•>,.:" it 'disposes no reasonable cause of action are quite often more known than clearly understood. It does introduce another special demurrer in a new shape. The failure of the plead- ings to disclose a reasonable cause of action is distinct from the absence of full parti- culars."

. So far as the allegations contained in para- graph 7 of fhe petition arc concerned these relate to the release of certain grants. The grant was released when the respondent was still a Member Parliament and,* therefore, it cannot be said that the said grant was relea- sed after the respondent ceased to be a Member of the Parliament. So this gives no c?n^e of action to the petitioner.

As rvsards. the a i l e r o ns made in para- prinh ? of the netit'on. tr. already mentioned, fhe. ' V es o-i which the cheqv.es were signed, by whom and at what place and when they w?re arte dr.ied have not beers mentioned. A toblr shov/injr number of cheques, amounts of chcGuer- purpose of issuance of cheques rre mentioned but it is not mentioned that as to *"b.-?-i the construction of various buildings W3C ^iictioned- by whom and whether the same have been constructed and completed c<- not. Similarly, as ree^rds fhe other cheques ?il-^d *o hav? been issued for construction °f S^-fum. Bar room of .Advocates, there is "o?hi>T when p^ncrion for construction of the?" hniir'irsps v/nr obtained and whether those buildings were actually constructed or36 THE GAZETTE OF INDIA ; JANUARY 20, 2001/FAUSA 30, 1922 [PART II—SEC. 3(111/, . not. So unless the main allegations made in the form of material facts are mentioned, the respondent would not be able to controvert as to which construction work the evidence would relate to i.e. datewise and placew^se and whether the work has been completed or not ? The learned counsel for the respondent has vehemently urged that the construction of so many buildings would not be possible within a period of two months since the issuance of cheques relates upto July, 1999 and the payments arc deposited in the Banks till August, 1999. So mere allegations can- not take the place of material facts supposed to be alleged in the petition. The learned counsel for the respondent has stated that if the dates of sanction and dates of actual construction had been given only then there would have been some material facts avail- able on the file. Issuance of some cheques would not be enough. Similar is the position as regards the allegations made in para- graphs n, 12, 13, 14 and 15 of the petition.

The details regarding the allurement to the Sarpanchcs and persons is mentioned in para- graph 15 of the petition. The allegations in paragraph 18 are about exploitation of reli- gion in Gurdwara and allegations in paragraph 19 about the construction of Bar Room. It is not known whether the said bar room has been constructed or not and like- wise the allegations that the respondent tried to claim that he was going to be convert Gurdaspur to Washington and Pathankot to New Jersy do not constitute material facts and are mere allegations. Nor such slogans moan anything.

Therefore, regarding the first argument of the learned counsel for the petitioner that the issuance of the aforesaid grants and com- pletion of the works would have repercussions on the voters in future also lack material facts because no dote of completion of anv of the aforesaid work is mentioned in the petition anywhere. So then this argument goes. So far as the argument of the learned counsel for the petitioner that the Code of Civil Procedure is applicable, it may be sta- ted that the Representation of Peoples Act as well as the Code of Civil Procedure are complementary and supplementary and are not ooposed to each other. Tt remains a fact from the observations in the various iudiei^l pronouncements that the material facts are main fabric of the allegation"! which give a right to relief and constitute a cause of action. Merely saying about the issuance oi cheques for certain purpose without explain- ing the objects for which-the cheques were issued have been achieved or not the petition would be devoid of material facts. The other details if had been furnished regarding the execution of those works would have been material facts and not material particulars. So the petition utterly lacks the disclosure of material facts to enable the petitioner to lead, evidence or to the respondent to defend and the allegations made in the petition are not sufficient to make out a cause of action suffi- cient to deal with the matter and the entire alleged development work relates to the period before the respondent got the nomi- nation as candidate and the model code is not referred in the petition any where to have actually interfered with or having been vio- lated by the respondent to enable. the petitioner to take advantage of the respon- dent's alleged conduct.

Sum and substance of the entire discussion comes to be that though the Courts are not absolute omniscient legalist but with the best of assessment it can be said in this case that the allegations made by the petitioner relate to the period prior to 18-84999 i.e. the date when the respondent filed nomination as a candidate and, therefore, cannot be looked into as per the authorities mentioned above. Secondly, the petitioner did not disclose the material facts. The election law contained in the Representation of Peoples Act, 1951 and the rules applicable here and there, are not to be taken as a legal quagmire but have to be read meticulously and with precision and to be strictly applied.

!

Hence in the absence of sufficient cause of action, no evidence can be led legally or effec- tively on issues No. 1 to 5 nor the respondent is expected to defend something which comes out in evidence for the first time without being controverted in the written statement; therefore, issues No. 6, 7 and 8 are decided in favour of tlv respondent. Issues No. 9 and 10 are formal in nature and nothing urged goes against the respondent. Election of the re-pendent is upheld.

As a result, the petition fails on prelimi- nary points and is dismissed with costs of Rs.' 10-000/-.

October 20, 2000.

Sd/-

A. S. GARO, Judge37 MEMO OF COSTS

,.- *—'-"

Memo of costs incurred by the Respon- dent in the Court as taxed by the Court and payable by the petitioner.

Note:—Costs assessed by the court to be paid by the petitioner to the res- pondent.

Bv Anoellant Bv ResDondent.

Rs. P.

Rs. P.

—_ 10-000.00

Law Stamps

Process fees

—

—•

Counsefs fees

—

—

Miscellaneous

—-

10.000.00

Total

(Rupees Ten Thousand only)

Sd/-

Asstt. Registrar (Writs).

[No. 82iPB-HP 41991

By Order,

K. R. PRASAD, Secy.

M> Gl, 2C0I--2.

ORDER;

New Delhi: the 8th January, 2001 O N. 15.—Whereas, the Election Commission is satisfied that each of the contesting candidates specified in column 4 of the table below at the Bye-election to the Legislative Assembly in the Stale of Uttar Pradesh as specified in column (2) held from the Constituency specified in column (3j against his name has failed to lodge the account of his election expenses as required by the Repre- sentation of the People Act, 1951 and the rules made thereunder as shown in column (5) of the said table;

TABLi:

And, whereas^ flits- ^aj4 candidates have either not furnished any reason or expiHrnrtion^ for the said failure even after due notices of the Election Commission, after considering the representation made by them, if any the Election Commission is satisfied that they have no good reason -or justi- fication for the said failure;

Now, therefore, in pursuance of Section 10A of the said Act, the Election Commission hereby dec- lares the persons specified in column (4) of the table below to be disqualified for being chosen as, and for being a member of either house of the Parlia- ment or of the Legislative Assembly or Legislative Council of a State'Union Territory for a period of three years from the date of this order :—

Name & Address of Contesting

S. No. & Name of Particular of

Constituency

>. Election

s. Nc

20NGauri Ba/ar

1. Bye-election to the .Legislative Assembly in the State of Uttar Pradesh, 2000

-do-

2

-do-

-do-

-do-

3.

-do-

-do-

4.

Reason of Disqualification Candidates

Failure to lodge any account of election expenses.

Rakesh Singh, Vill & P.O. : I avakani Distt. : Deoria, Uttar Pradesh.

-do-

Anirudh. Vill. & Post : SirjarrT Distt, : Deoria, Uttar Pradesh.

-do-

Ajtti ljumar, Vill. & P.O. : Deogaon, Distt. : Deoria, Uttar Pradesh.

-do-

Kedar, Vill. : Keshobari, Post : Barpar Dislt. : Deoria, Uttar Pradesh.

[No. 76/UP-LA/2000(BycJ]

By Order,

L.H, FARUQT, Secy.

ORDER

New Delhi, the 8th January, 2001

O.N. 16.—Whereas, the Election Commission is satisfied that each contesting candidate specified in column (4) of the Table below at the General Election to the Orissa Legislative Assembly held in 2000 from the Assembly Constituency as specified in column (3) against his/her name has failed to lodge an account of his/her election expenses or in the manner required by the law as shown in column (5) of the said Table as required by the Represen- tation of the People Act, 1951, and the Rules made thereunder;

And whereas, the concerned candidate has either not furnished any reason/explanation for the said failure even after due notice and the Election Commission, after considering the representation, if any made by him/her is satisfied that he/she has no good reason or justification for the said failure;

Now, therelbreon pursuance of.Section 10A. of the.Representation of the People Act. 1951, the Election Commission hereby declares"fhcpofcons specified in column (4^ of the Table belov/to be disqualified for being40 THE GAZETTE OF INDFA : JANUARY 20, 2001/FAUSA 30, 1922 [PART IT—Stc. 3(lii)l chosen as, and for being, a member of cither House of the Parliament or of the Legislative Assembly or Legislative Council of a State/Union Territory for a period of three years from the date of this order.

TABLF.

Reason for Disqualification Particulars

Namc and Address of Candidate

s.

S.No. and Name of Assembly

Nc

1.

28-Bari-Derabish

Failed to lodged any account of election expenses.

General Election to the Orissa Legislative Assembly, 2000.

Sh. Ashok Kumar Samal Vill.—Chandanpur P.O.—Ramachandrapur Dist.—Jajpur Orissa.

-do-

2.

-do-

-do-

Df. Deba Ray At—Boitalupatana P.O.—Mohan pur Dist.—Jajpur Orissa.

3.

-do-

-do-

-do-

Sh. Adwaita Biswal At—Rampii P.O.—Bari Disi—Jajpur Orissa.

[No. 76/OR-LA/2000] By Order,

B.N. CHAWLA, Secy.

New Delhi, the 10th January, 2001

O.N. J7.— In exercise of the power conferred by Sub-section (1) of Section 13A of the Repre- sentation of the People Act, 1950 (43 of 1950) the Election Commission of India in consultation with Government of Chhattisgarh hereby nominates Shri Ajay Singh, IAS (RR : 83), as the Chief Electoral Officer for the State of Chhatttsgarh with effect from the date he takes over charge and until further orders.

2. Shri Ajay Singh while working as Chief Elec- toral Officer, Chhattisgarh is allowed to retain his present charge of Secretary, Energy & Water Re- sources. He shall cease to hold and hand over forthwith the said additional charge immediately after the announcement of elections in the State of Chhattisgarh.

[No. 154|CGH|2OOO,P: AdnrnJ

By Order,

I.AUT MOHAN, Under Secy.

Printed by tht Manager, Gc"t. dt India P w, Ring Road, New Dclhirl 10064 and PuMifhod by "he.ConiroMer of rwbltotions, Deilii-1 M>654, 26