-TMT- OA7.rTTT: ^T IMDIA : 1ANUARY .10, :001/rAUSA 30, 1922

[PART II—SEC 3(1E)]

L. Adik::lraj

M. Rajasekaran

K, Muthusatny

A. K. Pilchai

S. Kannan

A. Nagendrim

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.

2. In view¹ of the above submission,

the

petition v; dismissed as infructuous.

Witness, the Hcn'ble Thiru

Justice

Nagendra

Kumar Jain, Chief Justice, at Madras aforesaid,

this the 10th dny of November, 2000.

K. KARUPPIAH, Assi-.tunt Registrar

Original Side-II

[No. 82ITN-HP'27164!99]

By order,

BABU RAM, Secy.

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

Shrj Vinod Khanna,

Member of Parliament,

Resident of 17, Balwant Rai Mehta Lane,

New Delhi.

. .. Respondent

Election Petition under Section 80, 80 A. 81

and 8? of the Representation of Peoples Act, 1951

read with Section 100 of the Representation of

Peoples Act, 1951, praying that the Hon't!; High

Court may be pleased to allow the present election

petition and declare the election of returned candi-

date void with costs.

Dated the 20th October, 2000

PRESENT :

The Hon'ble Mr. Justice A. S.. Garg.

For the Petitioner : Shri M. L. Saggar, Advocate

For the Respondent : Mr. S. P. Jain, Sr, Advo-

cate with

Mr. Dheeraj Bali, Advocate

JUDGEMENT

A. S. GARG. J.—Mrs. Sukhbans Kaur, a de-

feated candidate has di;Jlenged the election of

Shri Vinod Khanna, otherwise a film

Actor,

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,

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 GAZETTE OF INDIA : JANUARY 20, 2C01/PAUSA 30, 1922

[PAKI II—SEC. 3(iji)J

The

other • cheques

were

encashed

after

11-7-1999, the details

of which are given here-

nnder :—

Sr.

No.

IT

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

Date of

encashment

13-7-99

14-7-99

15-7-99

20-7-99

22-7-99

23-7-99

24-7-99

27-7-99

29-7-99

30-7-99

2-8-99

3-8-99

4-8-99

10-8-99

31-8-99

14-9-99

Cheque No.

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

Amount

Rs.

37,500~

37,500

1,50,000

37,500

38,500

3,00,000

1,25,000

75,000

18,750

37,500

75,000

3,00,000

37,500

18,750

37,500

1,00,000

56,250

All these cheques were stated to have be?n signed on

previous dales as the election schedule was announced on

11-7-1999.

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 :—

Sr.

No.

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

Dat of deposit

of cheques

13-8-99

-do-

-do-'

-do-

Amount

(Rs.)

50,000

1,00,000

50,000

60,000

50,000

70,000

40,000

50,000

40.000

50,000

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<v7-1999,

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.

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.

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.

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.

Ihc 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.

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.

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 elfction

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

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,

was

also

mentioned

liiat

the

respon-

dent filed his nomination papers on IHth August,

i9¹Jj

and the

election took

place

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

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

(4) Whether the respondent is guilty of committing cor-

rupt piactice<: of bribrrv :i'.. nlK-cr in jvn.i"; V, ami

1,ⁿ of fhe petition 1 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 dKclo^ces 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.

Firstly, coming to the questions raised

by the

learned

counsel for the petitioner, it may be stated that bcfoie the

election process commenced, a Mfdel Code of Conduct was

en ciliated and anncjunced on 11-7-1999 and the paities con-

testing the election were bound by such instructions in th:

Code. According to the Model Code of Conduct announced

ihe parties were to observe absolute discipline and not to

mfiuM; the State machinery in any way. However no copy

<if the Model Code of Conduct has been placed on record

nor details of the same have been mentioned in any paragraph

of tht: petition or annexed with it. He also urged that under

Section 8G of the Act, an election petition is to be proceeded

like a "civil suit" and the pleadings could be construed in

view of the provisions of Order 6 Rule 16 of the Code of

Civil Procedure and as far as possible the petition be read

as n whole anJ not m piece-meal and much water has flown

vner the earlier pronouncement came and that the plaint could

not b<~ rejected under Order 7 Rule 11 of the Code of Civil

Procedure on unimportant points which do not come into

the vvny of a fair trial of the entire controversy.

In support

of his contention he cited the authority of the Apex Court

' in n. Ramiichandran Vs. R. V. Janakiraman and

olhers.

199p|.i) S.C.C. 267. in which there was a question regarding

expenditure in excess than permitted one and that the win-

ning candidate did not disclose the expenses incurred and

then: were certain basic questions which allegedly violated

the law and the rules ancf il was laid down bv the Ape-:

Conit that there was distinction between "material facts'' and

"full p.irlieulars" and thr poitfons of pleading could not

Iv ?timk down under Order f> Rule Id ct the Cod., nl¹ Civic

Procedure without appreciating the true lerrns.

TME CJAZtllE OF INDIA : JANUARY 20, :U'J1/1-"AU3A 30, 1922

[PART II—SKC. 3(iii)J

'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.

Shri ij. P. Jain, learned scnioi counsel lor the respondent

has taken me thiougn the relevant provisions of the Act

and has made R scurrilous attack during the course of argu-

ments and has urged that in fact the election petition does

not coiitain the matenal i:icts ivquiied to be menioned in

any civil suit or in any election petition so that a case is

made out, according to the contention oi the petitioner him-

self, and those facts if disclosed would constitute some com-

plete act alleged to have been commitkd by the respondent

against whom the petition is filed so as to enable the peti-

tioner himself to be legally permitted to bad evidence.

those material tacts are not mentioned on wh.it basis anil

on whut ground a petitioner or plaiiilili may have a riyh:

to lend the evidence; the events lcraaia incomplete. Accord-

ing to him, the cause of action is a "bundle of facts'¹ and

it must construe some complete act oi acts oi events which

arc thought to have been committed by the icspondcnt or

the offence mu>t be exposed with full particulars so that

the petitioner himself c;'n lead evidence to project those

acts and series ot acts and any respondent or defendant can

defend the same with a definite assertion with which Le is

confronted vvilh by way of evidence of the petitioner or

plaintiff.

He alf.o urged that in fact all the ali;fi?d cheques

were issued much piior to the rt pondent lihnd the nomi-

iKilion papers or, 18-ii IW^>. The claim in the ckciion peti-

tion is al=o that these cheques were also encashed prior to

the period the icspcndent became a candidate for eleclii.n

and the material date was 18-8-199? while the yioJl'riH lofil.

place on 5-9-l!W.

The re-poiuierU v/as not a candidate

prior io 18-t!-l999 nud although none of the alleged acts is

done by the rt^pondcul but even if he had done anything

lie could not be made responsible under the Act.

One may

make up cue s mind to bo a c;T.diiiate at the eleventh hour.

A party may field ar,y candidate it deems proper. So, accord-

ing to him, none of the allegations mentioned in the peti-

tion are relevant lor the purpusos of the election petilion

and cannot be leokej into and it m s therefore, alr.o sub-

mitted that a sufficient cause of action only arises to the

petitioner whfn. the alleged act¹; are stated to have befu

committed tiiicr one becomes a candid'nte and not earlier to

that.

So, it was further contended that the petitioner did

not discloses as <o which of the sjx;ci(ic cheques were

ante-dated, by whom, at which place, who were ihe

persons who conspired and •What was the object of

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.

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 that

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 n s made in para-

prinh ? of the netit'on. tr. already mentioned,

fhe. 'Ves 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

W3^C ^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 or

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, Judge

THE GAZETTE OF JNDIA : JANUARY 10, 2001/PAUSA 30, 1922

[PART II— Stc. 3(iim

ORDER;

New Delhi: the 8th January, 2001

ON. 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;

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 :—

TABLi:

Particular of

Election

Bye-election to the

.Legislative Assembly

in the State of Uttar

Pradesh, 2000

-do-

S. No. & Name of

Constituency

20NGauri Ba/ar

-do-

Name & Address of Contesting

Candidates

Rakesh Singh,

Vill & P.O. : I avakani

Distt. : Deoria,

Uttar Pradesh.

Anirudh.

Vill. & Post : SirjarrT

Distt, : Deoria,

Uttar Pradesh.

Ajtti ljumar,

Vill. & P.O. : Deogaon,

Distt. : Deoria,

Uttar Pradesh.

Kedar,

Vill. : Keshobari,

Post : Barpar

Dislt. : Deoria,

Uttar Pradesh.

Reason of Disqualification

Failure to lodge any account

of election expenses.

-do-

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

By Order,

L.H, FARUQT, Secy.

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.

Particulars

General Election to

the Orissa Legislative

Assembly, 2000.

-do-

S.No. and Name

of Assembly

28-Bari-Derabish

-do-

Namc and Address of Candidate

Sh. Ashok Kumar Samal

Vill.—Chandanpur

P.O.—Ramachandrapur

Dist.—Jajpur

Orissa.

Df. Deba Ray

At—Boitalupatana

P.O.—Mohan pur

Dist.—Jajpur

Orissa.

Sh. Adwaita Biswal

At—Rampii

P.O.—Bari

Disi—Jajpur

Orissa.

Reason for Disqualification

Failed to lodged any account

of election expenses.

-do-

[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<H