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No. 10
NEW DELHI, APRIL 30— MAY 6, 2017, SATURDAY/ VAISAKHA 10-— VAISAKHA 16, 1939
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PART II—Section 3—Sub-section (iii)
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Orders and Notifications issued by the Central Authorities (Other than the Administrations of Union Territories)
भारत निर्ााचि आयोग
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ELECTION COMMISSION OF INDIA
New Delhi, the 21st April, 2017
O.N. 13.— In pursuance of section 106 of the Representation of the People Act, 1951 (43 of 1951), the Election
Commission of India hereby publishes the Judgement dated 7th December, 2016 of the High Court of Judicature at
Allahabad in Election Petition No. 9 of 2014.
40 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
ELECTION PETITION No. 9 OF 2014
(Under Section 80, 84, 98 & 99 of Representation of the People Act 1951)
DISTRICT : VARANASI
1. Ajay Rai son of Late Surendra
Resident of House No. 21/94,
Pishach Mohan, Varanasi.
2. Madhav Prasad Upadhyay
Son of Sri Durga Prasad Upadhyay
Resident of K53/20, Mohalla Madhyameshwar
Varanasi-1755
… ... … … ... ... ... ELECTION PETITIONER
VERSUS
Shri Narendra Modi
Son of Late Damodardas Modi
Resident of C-1, Someshwar Tenament,
Ranip, Ahmedabad – 382 480, Gujarat
Presently at 7 Race Course Road, New Delhi
…..... RETURNED CANDIDATE/ RESPONDENT
Court No. - 37
Case :- ELECTION PETITION No. - 9 of 2014
Petitioner :- Ajay Rai And Another
Respondent :- Shri Narendra Modi
Counsel for Petitioner :- In Persons, Jitendra Kumar, K.C.Mittal, U.N.Sharma
Counsel for Respondent :- Dheeraj Jain, K.R.Singh, S.C. Mishra, Satya Pal Jain
Hon'ble Vikram Nath,J.
The two petitioners namely Ajay Rai and Madhav Prasad Upadhyay have filed this petition
under sections 80, 84, 98 & 99 of the Representation of the People Act, 1951 (hereinafter referred to
as the Act) challenging the election of the sole respondent Sri Narendra Modi (the returned
candidate) as a Member of the Parliament from 77 Varanasi Parliamentary Constituency (hereinafter
II—
(iii)
41
referred to as the constituency) in the 15th General Elections of the Parliament. The General
Elections for constituting new House of Public (Parliament) was notified by the President of India
vide Notification dated 05.03.2014. As per the notification with respect to the constituency
following election schedule was declared by the Election Commission of India :
(1)
Date of Notification of the Election
05.03.2014
(2)
Last Date of filing of Nomination Paper
24.04.2014
(3)
Date of scrutiny of Nomination Paper
25.04.2014
(4)
Date of withdrawal of Nomination Paper
28.04.2014
(5)
Date of polling
12.05.2014
(6)
Date of counting of votes
16.05.2014
(7)
Date of declaration of result
16.05.2014
Petitioner No.1, Ajay Rai filed his nomination paper as a candidate of the Indian National
Congress and was allotted the symbol of Hanth Ka Panja (open palm). Petitioner No.2 is an
electorate of the same constituency. The respondent, Sri Narendra Modi (returned candidate)
submitted his nomination paper on 24.04.2014 as a candidate of the Bhartiya Janta Party and was
allotted the symbol of Kamal Ka Phool (Lotus flower).
The Returning Officer after completing the process for scrutinizing the nomination papers
declared as many as 42 candidates in fray. A list in terms of section 38 of the Act was published by
the Returning Officer. The polling of the election in the constituency took place on 12.05.2014 and
the counting of the same was scheduled for 16.05.2014. The results were announced on the same
day itself, i.e. 16.05.2014 and the sole respondent was declared as the returned candidate from the
constituency.
The present petition challenging the election of the respondent as a returned candidate was
presented before this court on 30.06.2014. Notices were issued to the sole respondent vide order
dated 18.07.2014. The respondent filed written statement on 20.12.2014. Before filing the written
statement the respondent filed two applications dated 29.10.2014 - one under section 86 (1) of the
Act (Paper No.A-11) praying to dismiss the election petition for noncompliance of the provisions
contained in section 81 (3) of the Act and the other application under under Order VI Rule 16 and
Order VII Rule 11 of the Code of Civil Procedure (CPC) (Paper No.A-10) praying for striking off
paragraphs 7 to 34 of the election petition under Order VI Rule 16 of the CPC and further for
dismissing the election petition under Order VII Rule 11 of the CPC as it did not disclose any cause
of action. Both these applications are supported by affidavits (Paper Nos.A-16 & 17) of the
respondent. The petitioners filed counter affidavits to both the applications to which the respondent
filed rejoinder affidavits (Paper Nos.A-18 & 19).
Sri S.P. Jain, learned Senior Advocate assisted by Sri K.R. Singh, learned counsel appearing
for the respondent and Sri U.N. Sharma, learned Senior Advocate assisted by Sri Jitendra Kumar,
learned counsel appearing for the petitioners have been heard on the aforementioned two
applications and the material placed before me on record has been perused.
Before adverting to the applications, certain facts need to be recorded. The election petition
as originally framed and filed raised as many as 10 grounds (grounds A to J) contained in paragraph
6 of the petition. Some of these grounds are interlinked. Factual averments in support of the grounds
have been stated in paragraphs 7 to 34 of the petition.
42 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
Grounds A and B relate to improper acceptance of the nomination paper of the respondent.
Ground C relates to corrupt practice as defined in section 123 (1) (A) of the Act. Ground D relates to
corrupt practice as defined in section 123 (2) of the Act. Ground E relates to corrupt practice as
defined in section 123 (3) of the Act. Ground F relates to corrupt practice as defined in section 123
(3A) of the Act. Grounds G, H and I relate to corrupt practice as defined in section 123 (6) of the
Act and Ground J relates to non-compliance of the provisions of the Constitution, the Act and Rules
framed thereunder.
During course of arguments Sri U.N. Sharma, learned Senior Counsel appearing for the
petitioners, on 22.11.2016 made a statement before the Court that he was pressing only grounds A,
B, G, H & I. Rest of the grounds namely C, D, E, F & J were not being pressed by the petitioners.
As a consequence paragraph nos.11 to 27 and 34 of the petition narrating facts in support of the
grounds C, D, E, F and J have been not pressed and no longer remain alive for consideration by this
Court. Thus this Court while considering the applications of the respondent has to deal with the
grounds A, B, G, H & I only and paragraph nos.7 to 10 and 28 to 33 of the petition.
The application under section 86 (1) of the Act was filed with the allegations that the election
petition was supplied to the respondent without documents which are integral part of the election
petition as such was not true copy of the election petition resulting in non-compliance of the
provisions contained in section 81 (3) of the Act. On this application Sri Jain, learned Senior
Counsel for the respondent has not advanced any arguments as such it is apparent that it is being not
pressed.
Insofar as the second application under Order VI Rule 16 and Order VII Rule 11 CPC read
with section 86 (1) of CPC is concerned it was filed on the following allegations :
(a) The election petition is completely bereft of material facts and does not disclose any cause of
action.
(b) The election petition contains absolutely indefinite, vague, general and misconceived
allegations.
(c) The pleadings in the election petition are also frivolous, vexatious, unnecessary, irrelevant
and tend to prejudice, embarrass and delay the fair trial of election petition.
(d) The election petition purports to contain alleged grounds of corrupt practices alleged to have
been committed by the respondent but material facts relating to consent of the respondent are
not stated.
The general rule is well settled that the statutory requirements of election law must be strictly
observed and that an election contest is not an action at law or a suit in equity but is a purely
statutory proceeding unknown to the common law and that the court possesses no common law
power. It is also well settled that it is a sound principle of natural justice that the success of a
candidate who has won at an election should not be lightly interfered with and any petition seeking
such interference must strictly conform to the requirements of the law. None of these propositions
however has any application if the special law itself confers authority on a Tribunal to proceed with
a petition in accordance with certain procedure and when it does not state the consequences of non-
compliance with certain procedural requirements laid down by it.
It is always to be borne in mind that though the election of a successful candidate is not to be lightly
interfered with, one of the essentials of that law is also to safeguard the purity of the election
process and also to see that people do not get elected by flagrant breaches of that law or by corrupt
II—
(iii)
43
practices. In cases where the election law does not prescribe the consequence or does not lay down
penalty for non-compliance with certain procedural requirements of that law, the jurisdiction of the
tribunal entrusted with the trial of the case is not affected.
It is in these circumstances necessary to set out the different provisions of the Act relevant to the
matter canvassed before us.
The above paragraph is an extract from the Constitution Bench of the Apex Court in the case of
Jagan Nath vs. Jaswant Singh and others, reported in 1952 AIR 210. The same has been the
backbone for the Tribunals/Court dealing with election petitions.
Legal provisions and relevant case laws
Section 87 of the Act lays down the procedure before the High Court. Sub-section (1) lays
down that subject to the provisions of the Act and of any rules made thereunder, every election
petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure
applicable under the CPC to the trial of suits.
Under the CPC, Order VI Rule 16 and its sub-rules deal with the pleadings generally. Rules
2, 4, 6 and 16 of Order VI CPC, relevant for the present context, are quoted herein under :
2. Pleading to state material facts and not evidence.- (1) Every pleading shall contain, and contain
only, a statement in a concise form of the material facts on which the party pleading relies for his
claim or defence, as the case may be, but not the evidence by which they are to be proved.
(2)
Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively,
each allegation being, so far as is convenient, contained in a separate paragraph.
(3)
Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.
4. Particulars to be given where necessary.- In all cases in which the party pleading relies on any
misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in
which particulars may be necessary beyond such as are exemplified in the forms aforesaid,
particulars (with dates and items if necessary) shall be stated in the pleading.
6. Condition precedent.- Any condition precedent, the performance or occurrence of which is
intended to be contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as
the case may be; and, subject thereto, an averment of the performance or occurrence of all
conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his
pleading.
16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or
amended any matter in any pleading -
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court.
The Act lays down similar provisions regarding facts to be pleaded in section 83 thereof which
reads as under :
83.
Contents of petition. - (1) An election petition-
(a) shall contain a concise statement of the material facts on which the petitioner relies;
44 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including
as full a statement as possible of the names of the parties alleged to have committed such
corrupt practice and the date and place of the commission of each such practice; and
(c) Shall be signed by the petitioner and verified in the manner laid down in the Code of Civil
Procedure, 1908 (5 of 1908) for the verification of pleadings':
Provided that where the petitioner alleges any corrupt practice, the petition shall also be
accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt
practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the
same manner as the petition.
The requirement under the Act as also under the CPC is that the petition must contain
concise material facts on which reliance is being placed, in case of allegations of corrupt practice
full particulars shall be set forth which may include a full statement as possible of the names of the
parties alleged to have committed such corrupt practice, the date and place of the commission of
each such practice.
Order VII Rule 11 of the CPC provides that a plaint shall be rejected under the given cases-
first being where it does not disclose a cause of action. Cause of action is not defined anywhere but
has been interpreted in a number of decisions to mean a bundle of facts which if proved would
entitle the party to the relief claimed.
In A.B.C. Laminart Pvt. Ltd. & Anr. vs. A.P. Agencies, Salem, reported in (1989) 2 SCC 163, the
Apex Court explained the meaning of ―cause of action‖ as follows :
A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to
prove in order to support his right to a judgment of the court. In other words it is a bundle of facts
which taken with the law applicable to them gives the plaintiff a right to relief against the defendant.
It must include some act done by the defendant since in the absence of such an act no cause of
action can possibly accrue. It is not limited to the actual infringement of the right sued on but
includes all the material facts on which it is founded. It does not comprise evidence necessary to
prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree.
Everything which if not proved would give the defendant a right to immediate judgment must be part
of the cause of action. But it has no relation whatever to the defence which may be set up by the
defendant nor does it depend upon the character of the relief prayed for by the plaintiff.
It would also be useful to refer to the judgment in Bloom Dekor Ltd. vs. Subhash Himatlal Desai &
Ors., reported in (1994) 6 SCC 132, wherein a three Judge Bench of this Court held as under :
By ―cause of action‖ it is meant every fact, which, if traversed, it would be necessary for the
plaintiff to prove in order to support his right to a judgment of the Court, (Cooke v. Gill, 1873 LR 8
CP 107) . In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to
succeed in the suit.
A bare reading of the aforesaid provision and the settled law indicates that an election
petition shall contain a concise statement of the material facts on which the petitioner relies. The
word ―concise‖ has been defined in the Oxford Dictionary as giving a lot of information clearly and
in a few words; brief but comprehensive.
II—
(iii)
45
The words ―material facts‖ used in the above section, have been subject matter of scrutiny
in large number of decisions of various High Courts and the Apex Court. Here also as the objection
raised by the respondent is that material facts have not been pleaded by the petitioners with regard to
Ground Nos. A & B and G, H & I, the same need to be dealt with as per the meaning of the said
words as interpreted by the Apex Court and different High Courts.
The expression ―material fact‖ has not been defined either in the Act or in the CPC.
Dictionary meaning of the word ―Material‖ under different dictionaries may be elaborated as
'material' means 'fundamental', 'vital', 'basic' 'cardinal', 'central' 'crucial, 'decisive', 'essential, 'pivotal',
indispensable', 'elementary' or 'primary'. The phrase 'material facts', therefore, may be said to be
those facts upon which a party relies for his claim or defence. In other words, 'material facts' are
facts upon which the plaintiff's cause of action or the defendant's defence depends. What particulars
could be said to be 'material facts' would depend upon the facts of each case and no rule of
universal application can be laid down. It would, however, be absolutely essential that all basic and
primary facts which must be proved at the trial by the party to establish the existence of a cause of
action or defence are material facts and must be stated in the pleading by the party. On behalf of the
respondent reliance was placed upon a judgment in the case of Azhar Hussain vs. Rajiv Gandhi,
reported in AIR 1986 Supreme Court 1253. Sri Jain, learned Senior Counsel submitted that in the
said judgment the Supreme Court has laid down with minute details that material facts must
necessarily be stated and failure of mentioning a single material fact would defeat the disclosure of
cause of action. In paragraph 11 of the aforesaid report the ratio laid down is as follows :
In view of this pronouncement there is no escape from the conclusion that an election petition
can be summarily dismissed if it does not furnish cause of action in exercise of the powers under
the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate
orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory
requirements enjoined by Section 83 of the Act to incorporate the material facts in the election
petition are not complied with. This Court in Samant N. Balkrishna & Anr. v. George Fernandez
& Ors., [1969] 3 S.C.C. 239, has expressed itself in no unclear terms that the omission of a
single material fact would lead to an incomplete cause of action and that an election petition
without the material facts relating to a corrupt practice is not an election petition at all. So also
in Udhav Singh v. Madhav Rao Scindia, [1977] 1 S.C.C. 511, the law has been enunciated that
all the primary facts which must be proved by a party to establish a cause of action or his
defence are material facts. In the context of a charge of corrupt practice it would mean that the
basic facts which constitute the ingredients of the particular corrupt practice alleged by the
petitioner must be specified in order to succeed on the charge. Whether in an election petition a
particular fact is material or not and as such required to be pleaded is dependent on the nature
of the charge levelled and the circumstances of the case. All the facts which are essential to
clothe the petition with complete cause of action must be pleaded and failure to plead even a
single material fact would amount to disobedience of the mandate of, Section 83(1)(a). An
election petition therefore can be and must be dismissed if it suffers from any such vice. The first
ground of challenge must therefore fail.
Further in paragraph 12 of the same judgment the Supreme Court repelled the contention that
even if the election petition is liable to be dismissed ultimately it should be so dismissed only after
recording evidence as a thoroughly misconceived and untenable argument and thereafter it
continued to give reasons as to why an election petition cannot be compared with an ordinary civil
litigation and why it is important that all material facts should be pleaded and failure to do so would
prove fatal in an election petition. Relevant extract from paragraph 12 is reproduced below :
12. Learned counsel for the petitioner has next argued that in any event the powers to reject an
election petition summarily under the provisions of the Code of Civil Procedure should not be
46 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
exercised at the threshold. In substance, the argument is that the court must proceed with the
trial, record the evidence, and only after the trial of the election petition is concluded that the
powers under the Code of Civil Procedure for dealing appropriately with the defective petition
which does not disclose cause of action should be exercised. With respect to the learned counsel,
it is an argument which it is difficult to comprehend. The whole purpose of conferment of such
powers is to ensure that a litigation which is meaningless and bound to prove abortive should
not be permitted to occupy the time of the court and exercise the mind of the respondent. The
sword of Damocle need not be kept hanging over his head unnecessarily without point or
purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a
plaint if it does not disclose any cause of action. Or the power to direct the concerned party to
strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings. Or such
pleadings which are likely to cause embarrassment or delay the fair trial of the action or which
is otherwise an abuse of the process of law. An order directing a party to strike out a part of the
pleading would result in the termination of the case arising in the context of the said pleading.
The Courts in exercise of the powers under the Code of Civil Procedure can also treat any point
going to the root of the matter such as one pertaining to jurisdiction or maintainability as a
preliminary point and can dismiss a suit without proceeding to record evidence and hear
elaborate arguments in the context of such evidence, if the Court is satisfied that the action
would terminate in view of the merits of the preliminary point of objection. The contention that
even if the election petition is liable to be dismissed ultimately it should be so dismissed only
after recording evidence is a thoroughly misconceived and untenable argument. The powers in
this behalf are meant to be exercised to serve the purpose for which the same have been
conferred on the competent Court so that the litigation comes to an end at the earliest and the
concerned litigants are relieved of the psychological burden of the litigation so as to be free to
follow their ordinary pursuits and discharge their duties. And so that they can adjust their
affairs on the footing that the litigation will not make demands on their time or resources, will
not impede their future work, and they are free to undertake and fulfil other commitments. Such
being the position in regard to matters pertaining to ordinary Civil litigation, there is greater
reason for taking the same view in regard to matters pertaining to elections. So long as the
sword of Damocles of the election petition remains hanging an elected member of the
Legislature would not feel sufficiently free to devote his whole-hearted attention to matters of
public importance which clamour for his attention in his capacity as an elected representative of
the concerned constituency. The time and attention demanded by his elected office will have to
be diverted to matters pertaining to the contest of the election petition. Instead of being engaged
in a campaign to relieve the distress of the people in general and of the residents of his
constituency who voted him into office, and instead of resolving their problems, he would be
engaged in a campaign to establish that he has in fact been duly elected. Instead of discharging
his functions as the elected representative of the people, he will be engaged in a struggle to
establish that he is indeed such a representative, notwithstanding the fact that he has in fact won
the verdict and the confidence of the electorate at the polls. He will have not only to wind the
vote of the people but also to win the vote of the Court in a long drawn out litigation before he
can whole-heartedly engaged himself in discharging the trust reposed in him by the electorate.
The pendency of the election petition would also act as a hindrance if he be entrusted with some
public office in his elected capacity. He may even have occasions to deal with the
representatives of foreign powers who may wonder whether he will eventually succeed and
hesitate to deal with him. The fact that an election petition calling into question his election is
pending may, in a given case, act as a psychological fetter and may not permit him to act with
full freedom. Even if he is made of stern metal, the constraint introduced by the pendency of an
election petition may have some impact on his sub-conscious mind without his ever being or
becoming aware of it. Under the circumstances, there is greater reason why in a democratic set-
up, in regard to a matter pertaining to an elected representative of the people which is likely to
inhibit him in the discharge of his duties towards the Nation, the controversy is set at rest at the
II—
(iii)
47
earliest if the facts of the case and the law so warrant. Since the Court has the power to act at
the threshold the power must be exercised at the threshold itself in case the Court is satisfied
that it is a fit case for the exercise of such power and that exercise of such powers is warranted
under the relevant provisions of law. To wind up the dialogue, to contend that the powers to
dismiss or reject an election petition or pass appropriate orders should not be exercised except
at the stage of final judgment after recording the evidence even if the facts of the case warrant
exercise of such powers, at the threshold, is to contend that the legislature conferred these
powers without point or purpose, and we must close our mental eye to the presence of the
powers which should be treated as non-existent. The Court cannot accede to such a proposition.
The submission urged by the learned counsel for the petitioner in this behalf must therefore be
firmly repelled.
Further in paragraph 14 of the said report the Supreme Court also dealt with as to the
contents of the expression material facts and particulars which are to be incorporated by virtue of
section 83 (1) of the Act. Paragraph 14 is also reproduced below :
14. Before we deal with these grounds seriatim, we consider it appropriate to restate the settled
position of law as it emerges from the numerous decisions of this Court which have been cited
before us in regard to the question as to what exactly is the content of the expression `material
facts and particulars', which the election petitioner shall incorporate in his petition by virtue of
Section 83(1) of the Act.
(1) What are material facts and particulars ?
Material facts are facts which if established would give the petitioner the relief asked for. The
test required to be answered is whether the Court could have given a direct verdict in favour of
the election petitioner in case the returned candidate had not appeared to oppose the election
petition on the basis of the facts pleaded in the petition. Manubhai Nandlal Amarsey v. Popatlal
Manilal Joshi & Ors., [1969] 3 S.C.R. 217. (2)
(2) In regard to the alleged corrupt practice pertaining to the assistance obtained from a
Government servant, the following facts are essential to clothe the petition with a cause of action
which will call for an answer from the returned candidate and must therefore be pleaded.
Hardwari Lal v. Kanwal Singh, [1972] 2 S.C.R. 742:
a) mode of assistance;
b) measure of assistance; and
c) all various forms of facts pertaining to the assistance.
(3) In the context of an allegation as regards procuring, obtaining, abetting or attempting to
obtain or procure the assistance of Government servants in election it is absolutely essential to
plead the following :
a) kind or form of assistance obtained or procured;
b) in what manner the assistance was obtained or procured or attempted to be obtained or
procured by the election-candidate for promoting the prospects of his election. (AIR 1972 SC
515)
(4) The returned candidate must be told as to what assistance he was supposed to have sought,
the type of assistance, the manner of assistance, the time of assistance, the persons from whom
the actual and specific assistance was procured [AIR 1972 SC 515].
(5) There must also be a statement in the election petition describing the manner in which the
prospects of the election was furthered and the way in which the assistance was rendered. (AIR
1972 SC 515) (supra).
48 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
(6) The election petition must state with exactness the time of assistance, the manner of
assistance, the persons from whom assistance was obtained or procured, the time and date of
the same, all these will have to be set out in the particulars. (AIR 1972 SC 515) (supra).
In the case of Ram Sukh vs. Dinesh Agarwal, reported in AIR 2010 SC 1227 a similar
situation had arisen that the High Court had dismissed the election petition at the threshold under
Order VII Rule 11 CPC on the ground that it did not disclose a cause of action the Supreme Court in
para 16 of the report recorded the two arguments raised by the election petitioner-applicant as :
(i) that even if the election petition was liable to be dismissed ultimately, it should have been
dismissed only after affording an opportunity to the election petitioner to adduce evidence in
support of his allegation in the petition and
(ii) since Section 83 does not find a place in Section 86 of the Act, rejection of petition at the
threshold would amount to reading into sub-section (1) of Section 86 an additional ground.
Both the arguments were repelled by the Supreme Court and held to be misconceived and untenable
in paras 17 & 18 of the report in the following words :
17. In our opinion, both the contentions are misconceived and untenable. Undoubtedly, by virtue
of Section 87 of the Act, the provisions of the Code apply to the trial of an election petition and,
therefore, in the absence of anything to the contrary in the Act, the court trying an election
petition can act in exercise of its power under the Code, including Order VI Rule 16 and Order
VII Rule 11 of the Code. The object of both the provisions is to ensure that meaningless
litigation, which is otherwise bound to prove abortive, should not be permitted to occupy the
judicial time of the courts. If that is so in matters pertaining to ordinary civil litigation, it must
apply with greater vigour in election matters where the pendency of an election petition is likely
to inhibit the elected representative of the people in the discharge of his public duties for which
the electorate have reposed confidence in him. The submission, therefore, must fail. Coming to
the second limb of the argument viz., absence of Section 83 in Section 86 of the Act, which
specifically provides for dismissal of an election petition which does not comply with certain
provisions of the Act, in our view, the issue is no longer res-integra. A similar plea was
negatived by a three- Judge Bench of this Court in Hardwari Lal v. Kanwal Singh, wherein
speaking for the Bench, A.N. Ray, J. (as His Lordship then was) said : (SCC p.221, para 23).
23. Counsel on behalf of the respondent submitted that an election petition could not be
dismissed by reason of want of material facts because Section 86 of the Act conferred power
on the High Court to dismiss the election petition which did not comply with the provisions
of Section 81, or Section 82 or Section 117 of the Act. It was emphasised that Section 83 did
not find place in Section 86. Under Section 87 of the Act every election petition shall be tried
by the High Court as nearly as may be in accordance with the procedure applicable under
the Code of Civil Procedure, 1908, to the trial of suits. A suit which does not furnish cause of
action can be dismissed.
18. The issue was again dealt with by this Court in Azhar Hussain v. Rajiv Gandhi. Referring to
earlier pronouncements of this Court in Samant N. Balkrishna (AIR 1969 SC 1201) (supra) and
Udhav Singh v. Madhav Rao Scindia wherein it was observed that the omission of a single
material fact would lead to incomplete cause of action and that an election petition without the
material facts is not an election petition at all, the Bench held that all the facts which were
essential to clothe the petition with complete cause of action must be pleaded and omission of
even a single material fact would amount to disobedience of the mandate of Section 83(1)(a) of
the Act and an election petition can be and must be dismissed if it suffers from any such vice.
The view expressed in the case of Azhar Hussain (supra) finds approval in the above
judgment of Ram Sukh (supra) by the Supreme Court.
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49
Sri Jain, learned Senior Counsel appearing for the respondent, referring to paragraph 10 of the
judgment of the Apex Court in the case of Subhash Desai vs. Sharad J. Rao and others, reported in
AIR 1994 Supp (2) Supreme Court Cases 446 submitted that it is mandatory to plead material facts
and if material facts are not pleaded the election petition is liable to be dismissed at the threshold.
Paragraph 10 of the report is reproduced below :
Section 86 vests power in the High Court to dismiss an election petition which has not been
properly presented as required by Section 81; or where there has been non-compliance of
Section 82 i.e. non-joinder of the necessary parties to the election petition; or for non-
compliance of Section 117 i.e. non-deposit of the required amount as security for the costs of the
election petition. Section 86 does not contemplate dismissal of the election petition for non-
compliance of the requirement of Section 83 of the Act. But Section 83 enjoins that an election
petition shall contain concise statement of material facts, and shall set forth full particulars of
any corrupt practice that the petitioner alleges, which should be verified and supported by
affidavit, so far the allegations of corrupt practices are concerned. This provision is not only
procedural, but has an object behind it; so that a person declared to have been elected, is not
dragged to court to defend and support the validity of his election, on allegations of corrupt
practice which are not precise and details whereof have not been supported by a proper
affidavit. Apart from that, unless the material facts and full particulars of the corrupt practices
are set forth properly in the election petition, the person whose election is challenged, is bound
to prejudiced in defending himself of the charges, which have been levelled against him. In view
of the repeated pronouncements of this court, that the charge of corrupt practice is quasi-
criminal in nature, the person challenging an election on the ground of corrupt practice, cannot
take liberty of making any vague or reckless allegation, without taking the responsibility about
the correctness thereof. Before the court proceeds to investigate such allegations, the court must
be satisfied, that the material facts have been stated along with the full particulars of the corrupt
practice, alleged by the petitioner, which have been duly supported by an affidavit. In cases
where the court finds that neither material facts have been stated, nor full particulars of the
corrupt practice, as required by Section 83, have been furnished in the election petition, the
election petition can be dismissed, not under Section 86 but under the provisions of the Code of
Civil Procedure, which are applicable, read with Section 83(1) of the Act, saying that it does not
disclose a cause of action. This aspect has been examined by this Court in detail in the cases of
Azhar Hussain v. Rajiv Gandhi, Hardwari Lal v. Kanwal Singh.
Sri Jain further placed reliance on the case of Udhav Singh vs.Madhav Rao Scindia, reported in AIR
1978 Supreme Court 744 and referring to paragraphs 30 & 36 to 40 submitted that pleading has to
be construed as it stands without addition or subtraction of words, or sense or change of its apparent
grammatical sense, that material facts would mean all the basic facts construing the ingredients of a
particular corrupt practice and that petition can be summarily rejected for want of cause of action.
With approval the Supreme Court referred the extract from the judgment in the case of Hardwari
Lal (supra) in paragraph 40 of its report. Paragraphs 30 & 36 to 40 are reproduced below :
30. We are afraid, this ingenious method of construction after compartmentalisation, dissection,
segregation and inversion of the language of the paragraph, suggested by Counsel, runs counter
to the cardinal canon of interpretation, according to which, a pleading has to be read as a whole
to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read
it out of the context, in isolation. Although it is the substance and not merely the form that has to
be looked into, the pleading has to be construed as it stands without addition or subtraction of
words, or change of its apparent grammatical sense. The intention' of the party concerned is to
be gathered, primarily, from the tenor and terms of his pleading taken as a whole.
50 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
36. Section 83 lays down : "(1) An election petition-
(a)
shall contain a concise statement of the material facts on which the petitioner relies;
(b)
shall set forth full particulars of any corrupt practice that the petitioner alleges, including
as full a statement as possible of the names of the parties alleged to have committed such
corrupt practice and the date and place of the commission of each such practice and
(c)
.. .. .. ..
37. Like the Code of Civil Procedure, this section also envisages a distinction between ―material
facts‖ and ―material particulars‖. Clause (a) of sub-section (1) corresponds to O.6, R.2, while
clause (b) is analogous to Order 6, Rules 4 and 6 of the Code. The distinction between "material
facts" and "material particulars" is important because different consequences may flow from a
deficiency of such facts or particulars in the pleading. Failure to plead even a single material
fact leads to an incomplete cause of action and incomplete allegations of such a charge are
liable to be struck off under Order 6, Rule 16, Code of Civil Procedure. If the petition is based
solely on those allegations which suffer from lack of material facts, the petition is liable to be
summarily rejected for want of a cause of action. In the case of a petition suffering from a
deficiency of material particulars, the court has a discretion to allow the petitioner to supply the
required particulars even after the expiry of limitation.
38. All the primary facts which must be proved at the trial by a party to establish the existence of
a cause of action or his defence, are "material facts". In the context of a charge of corrupt
practice, "material facts" would mean all the basic facts constituting the ingredients of the
particular corrupt practice alleged, which the petitioner is bound to substantiate before he can
succeed on that charge. Whether in an election-petition, a particular fact is material or not, and
as such required to be pleaded is a question which depends on the nature of the charge levelled,
the ground relied upon and the special circumstances of the case. In short, all those facts which
are essential to clothe the petitioner with a complete cause of action, are "material facts" which
must be pleaded, and failure to plead even a single material fact amounts to disobedience of the
mandate of sec. 83(1) (a).
39. "Particulars", on the other hand, are "the details of the case set up by the party". "Material
particulars" within the contemplation of clause (b) of s. 83(i) would therefore mean all the
details which are necessary to amplify, refine and embellish the material facts already pleaded
in the petition in compliance with the requirements of clause (a). 'Particulars' serve the purpose
of finishing touches to the basic contours of a picture already drawn, to make it full, more
detailed and more informative.
40. The distinction between 'material facts' and 'material particulars' was pointed out by this
Court in several cases, three of which have been cited at the bar. It is not necessary to refer to
all of them. It will be sufficient to close the discussion by extracting what A. N. Ray J. (as he then
was) said on this point in Hardwari Lal's case (AIR 1964 SC 1366) (supra):
"It is therefore vital that the corrupt practice charged against the respondent should be a full
and complete statement of material facts to clothe the petitioner with a complete cause of
action and to give an equal and full opportunity to the respondent to meet the case and to
defend the charges. Merely, alleging that the respondent obtained or procured or attempted
to obtain or procure assistance are extracting words from the statute which will have no
meaning unless and until facts are stated to show what that assistance is and how the
prospect of election is furthered by such assistance. In the present case, it was not even
alleged that the assistance obtained or procured was other than the giving of vote. It was
said by counsel for the respondent that because the statute did not render the giving of vote a
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51
corrupt practice the words "any assistance" were full statement of material fact. The
submission is fallacious for the simple reason that the manner of assistance, the measure of
assistance are all various aspects of fact to clothe the petition with a cause of action which
will call for an answer. Material facts are facts which if established would give the petitioner
the relief asked for. If the respondent had not appeared, could the court have given a verdict
in favour of the election petitioner? The answer is in the negative because the allegations in
the petition did not disclose any cause of action."
Sri Jain, learned Senior Counsel for the respondent further placed reliance upon the judgment
in the case of Anil Vasudev Salgaonkar vs.Naresh Kushali Shigaonkar, reported in (2009) 9
Supreme Court Cases 310. Paragraphs 57 to 61 of the report are being reproduced below :
57. It is settled legal position that all "material facts" must be pleaded by the party in support
of the case set up by him within the period of limitation. Since the object and purpose is to
enable the opposite party to know the case he has to meet with, in the absence of pleading, a
party cannot be allowed to lead evidence. Failure to state even a single material fact will entail
dismissal of the election petition. The election petition must contain a concise statement of
―material facts‖ on which the petitioner relies.
58. There is no definition of "material facts" either in the Representation of Peoples Act, 1951
nor in the Code of Civil Procedure. In a series of judgments, this court has laid down that all
facts necessary to formulate a complete cause of action should be termed as "material facts". All
basic and primary facts which must be proved by a party to establish the existence of cause of
action or defence are material facts. "Material facts" in other words mean the entire bundle of
facts which would constitute a complete cause of action. This court in Harkirat Singh's case
(supra) tried to give various meanings of "material facts". The relevant paragraph 48 of the said
judgment is reproduced as under (SCC pp.526-27):-
48.
"The expression 'material facts' has neither been defined in the Act nor in the Code.
According to the dictionary meaning, 'material' means 'fundamental', 'vital', 'basic',
'cardinal', 'central', 'crucial', 'decisive', 'essential', 'pivotal', indispensable', 'elementary' or
'primary'. [Burton's Legal Thesaurus, (3rd Edn.), p.349]. The phrase 'material facts',
therefore, may be said to be those facts upon which a party relies for his claim or defence. In
other words, 'material facts' are facts upon which the plaintiff's cause of action or the
defendant's defence depends. What particulars could be said to be 'material facts' would
depend upon the facts of each case and no rule of universal application can be laid down. It
is, however, absolutely essential that all basic and primary factswhich must be proved at the
trial by the party to establish the existence of a cause of action or defence are material facts
and must be stated in the pleading by the party."
59. In the context of a charge of corrupt practice, "material facts" would mean all basic facts
constituting the ingredients of the particular corrupt practice alleged, which the petitioner
(respondent herein) is bound to substantiate before he can succeed on that charge. It is also
well-settled that if "material facts" are missing they cannot be supplied after expiry of period of
limitation for filing the election petition and the pleading becomes deficient.
60. According to the appellant, in the election petition, there was no averment whether the bore
wells were dug with the consent and/or active knowledge of the appellant. This averment was
absolutely imperative and the failure to mention such an important averment in the petition is
fatal for the election-petitioner (respondent herein) and the election petition is liable to be
summarily dismissed on that ground.
52 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
61. The legal position has been crystallized by a series of the judgments of this Court that all
those facts which are essential to clothe the election petitioner with a complete cause of action
are "material facts" which must be pleaded, and the failure to place even a single material fact
amounts to disobedience of the mandate of section 83(1)(a) of the Act.
The other judgment in the case of Samant N. Balakrishna vs. George Fernandez and others,
reported in AIR 1969 Supreme Court 1201 has also been relied upon by Sri Jain, learned Senior
Counsel for the respondent for the above preposition wherein it has been held that omission of a
single material fact would be fatal.
On the other hand Sri Sharma, learned Senior Counsel appearing for the petition submitted
that at this stage a limited inquiry is to be made only to see whether the petition should be thrown
out at the threshold if the pleadings are taken as a whole and the material facts stated construed a
cause of action and raised a triable issue. It is only to be seen that substantial compliance of the
provisions of the Act has been made and there is ample power with the Court to cure any defect or if
necessary call for supporting material so that the issue raised is tried and substantial justice is done
to the parties. Taking the literal meaning of the provisions would defeat the purpose of the Act.
Reliance has been placed upon Constitutional Bench judgments of the Apex Court in the cases of
Ch. Subbarao vs. Member of Election Tribunal Hyderabad, reported in AIR 1964 SC 1027 and
Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore and others, reported in AIR 1964 SC
1545.
It is also the submission of Sri Sharma that in the case of Azhar Hussain (supra) the Supreme
Court did not notice the aforesaid two Constitutional Bench judgments of the Apex Court and
therefore the law laid down in the case of Azhar Hussain (supra) may not be relied upon. Further
reliance has been placed upon the judgment in the case of Virendra Nath Gautam vs. Satpal Singh
and others, reported in 2007 (3) SC 617 which explains the distinction between facts required to be
proved i.e. basic or primary facts or facta probanda and the facts by means of which they are proved
i.e. particulars or facta probantia. Following three judgments have also been relied upon in support
of the submission that petition should not be thrown out at the threshold where pleadings show that a
triable case is made out :
1. T.M. Jacob vs. C. Paulose and others (1999) 4 SCC 274.
2. G.M. Siddeshwar vs. Prasanna Kumar. (2013) 4 SCC 776.
3. Ashraf Kokkur vs. K.V. Abdul Khader and others, 2015 (1) SCC 129.
Sri Sharma, learned Senior Counsel for the petitioners placed reliance on Paragraphs 12, 18
& 19 of the judgment in the case of Ch. Subbarao (supra). In the said case of Ch. Subbarao the
election petitioner had prayed for setting aside the election of the returned candidate on the ground
of non-compliance of section 81 (3) of the Act. It was not a case relating to corrupt practice. It is in
this context that the Apex Court in paragraph 12 of the said report made the following observations :
Though the learned counsel for the appellant made several submissions, we propose to deal with
only one, as the same is sufficient for the disposal of this appeal. This was that in the
circumstances of the case there had been a substantial compliance with the requirements of s.
81(3). Before, however, dealing with it, it will be convenient to refer to some of the submissions
made to us by the learned Solicitor-General appearing for the contesting respondents. He
submitted to us certain propositions which however we consider really unexceptionable. He said
that an election petition was not to be equated to an election at law or in equity, but that as the
rights were purely the creature of statute, if the statute rendered any particular requirement
mandatory, the courts possessed and could exercise no dispensing power to waive non-
compliance. We consider these propositions are sound and it is in the light of these basic
positions that we shall proceed to consider whether the, omission to add the words "true copy"
in the copies which were admittedly exact copies of the petition, constituted a non-compliance
with s. 81 (3) as to render the petition liable to be rejected under s. 90(3) of the Act.
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53
It may also be noted here that one of the grounds taken for dismissing the election petition
for noncompliance of section 81 (3) of the Act was that the words ―true copy‖ were omitted by the
election petitioner. In paragraph 19 of the said report the Apex Court observed that ―........while we
are conscious of the need for expeditious disposal of election petitions, and for the strict
enforcement of provisions designed to achieve this purpose, we cannot be oblivious to the
circumstance that to read every requirement literally might equally defeat the purpose for which
Part VI is intended, viz., that elections are conducted in accordance with the relevant statutory
provisions framed to ensure purity and orderliness and that the candidate who has not obtained a
majority of valid votes or has obtained it in flagrant breach of the statutory provisions is not held
entitled to represent the constituency‖
The other Constitutional Bench judgment in Murarka Radhey Shyam Ram Kumar (supra),
also, relates to the objection being raised for dismissal of the election petition for non-compliance of
section 81 (3) of the Act. In paragraph 8 of the said judgment, Supreme Court observed that ―......it
seems clear to us that reading the relevant sections in Part VI of the Act, it is impossible to accept
the contention that a defect in verification which is to be made in the manner laid down in the Code
of Civil Procedure, 1908, for the verification of pleadings as required by cl. (c) of sub-s. (1) of s. 83
is fatal to the maintainability of the petition‖. Again this case is not related to any allegations of
corrupt practice. It is not the argument of Sri Sharma that the judgment in the case of Azhar Hussain
(supra) has ever been held to be not a good law or that it has been overruled by a larger bench of the
Supreme Court.
While referring to the judgment in the case of T.M. Jacob (supra), Sri Sharma, learned
Senior Counsel for the petitioners placed reliance on Paragraph 38 of the report which reads as
under :
38. We are unable to agree with Mr. Salve that since proceedings in election petitions are purely
statutory proceedings and not ―civil proceedings‖ as commonly understood, there is no room
for invoking and importing the doctrine of substantial compliance into section 86(1) read with
section 81(3) of the Act. It is too late in the day to so urge. The law as settled by the two
Constitution Bench decisions of this Court referred to above is by itself sufficient to repel the
argument of Mr. Salve. That apart, to our mind, the Legislative intent appears to be quite clear,
since it divides violations into two classes-those violations which would entail dismissal of the
election petition under section 86(1) of the Act like non-compliance with section 81(3) and those
violations which attract section 83(1) of the Act, i.e. non-compliance with the provisions of
section 83. It is only the violation of Section 81 of the Act which can attract the application of
the doctrine of substantial compliance as expounded in Murarka Radhey Shyam and Ch.
Subbaraos cases. The defect of the type provided in Section 83 of the Act, on the other hand, can
be dealt with under the doctrine of curability, on the principles contained in the Code of Civil
Procedure. This position clearly emerges from the provisions of Section 83(1) and 86(5) of the
Act, which read :
83.
Contents of petition.- (1) An election petition -
(a)
shall contain a concise statement of the material facts on which the petitioner relies;
(b)
shall set forth full particulars of any corrupt practice that the petitioner alleges, including
as full a statement as possible of the names of the parties alleged to have committed such
corrupt practice and the date and place of the commission of each such practice; and
(c)
shall be signed by the petitioner and verified in the manner laid down in the Code of Civil
Procedure, 1908 (5 of 1908) for the verification of pleadings:
86.
Trial of election petitions.- (1)-(4)
54 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
(5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the
particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as
may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow
any amendment of the petition which will have the effect of introducing particulars of a corrupt practice
not previously alleged in the petition.
The question in the present case is not of allowing amendment or amplification with regard
to the corrupt practice but it relates to as to whether the material facts have been stated so as to
constitute a complete cause of action. Selection 86 (5) of the Act although confers power with the
High Court to allow the particulars of any corrupt practice alleged in the petition to be amended or
amplified but at the same time it prohibits amendment of the petition which have effect of
introducing particulars of any corrupt practice not previously alleged in the petition. The above case
of T.M. Jacob as such is of no help to the petitioners.
While referring to the judgment in the case of Virendra Nath Gautam (supra), Sri Sharma,
learned Senior Counsel for the petitioners placed reliance on Paragraphs 50 & 52 of the report. It
would be relevant to consider Paragraph 51 of the report also. Paragraphs 50, 51 & 52 are
reproduced below :
50. There is distinction between facta probanda (the facts required to be proved, i.e. material
facts) and facta probantia (the facts by means of which they are proved, i.e. particulars or
evidence). It is settled law that pleadings must contain only facta probanda and not facta
probantia. The material facts on which the party relies for his claim are called facta probanda
and they must be stated in the pleadings. But the facts or facts by means of which facta probanda
(material facts) are proved and which are in the nature of facta probantia (particulars or
evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts
required to be proved at the trial in order to establish the fact in issue.
51. In our considered opinion, material facts which are required to be pleaded in the Election
Petition as required by Section 83 (1) of the Act read with Order 7, Rule 11(a) of the Code have
been pleaded by the election petitioner, cause of action has been disclosed in the Election
Petition and, hence, the petition could not have been dismissed by the High Court. The impugned
order of the High Court suffers from infirmity and cannot be sustained.
52. The High Court, in our considered opinion, stepped into prohibited area of considering
correctness of allegations and evidence in support of averments by entering into the merits of the
case which would be permissible only at the stage of trial of the Election Petition and not at the
stage of consideration whether the Election Petition was maintainable and dismissed the
petition. The said action, therefore, cannot be upheld and the order deserves to be set aside.
The above case also does not help the petitioners, in as much as, in Paragraph 51 of the
report, the Supreme Court was of the view that the election petition disclosed a cause of action and
therefore could not have been dismissed by the High Court by entering into the correctness of
allegations and evidence in support of averments and entering into the merits of the case which
would be permissible only at the stage of trial.
While referring to the judgment of the Apex Court in the case of G.M. Siddeshwar (supra),
Sri Sharma, learned Senior Counsel for the petitioners placed reliance on Paragraphs 49 & 52 of the
report. It would be relevant to refer to Paragraphs 49 to 52, which are reproduced below :
49.
In T.M. Jacob v. C. Poulose this Court reiterated the doctrine of substantial compliance as
mentioned in Murarka Radhey Shyam Ram Kumar and Ch. Subba Rao and also introduced the
doctrine of curability on the principles contained in the CPC. It was held that the defect in the
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55
affidavit in that case was curable and was not of such a fatal nature as to attract dismissal of the
election petition at the threshold.
50.
The doctrine of substantial compliance as well as the doctrine of curability were followed
in V. Narayanaswamy v. C.P. Thirunavukkarasu. This Court held that a defect in verification of
an affidavit is not fatal to the election petition and it could be cured. Following Moidutty it was
held that if the election petition falls foul of Order 6 Rule 16 and Order 7 Rule 11 CPC and does
not disclose a cause of action then it has to be rejected at the threshold.
51.
Somewhat more recently, in Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar this
Court reiterated this position in law and held: (SC C p.324, para 50)
―The position is well settled that an election petition can be summarily dismissed if it does not
furnish the cause of action in exercise of the power under the Code of Civil Procedure.
Appropriate orders in exercise of powers under the Code can be passed if the mandatory
requirements enjoined by Section 83 of the Act to incorporate the material facts in the election
petition are not complied with.‖
52.
The principles emerging from these decisions are that although non- compliance with the
provisions of Section 83 of the Act is a curable defect, yet there must be substantial compliance with the
provisions thereof. However, if there is total and complete non-compliance with the provisions of Section
83 of the Act, then the petition cannot be described as an election petition and may be dismissed at the
threshold.
A reading of the above paragraphs clearly indicates that the Apex Court while referring to
previous judgments has approved the preposition that where a cause of action has not been disclosed
or furnished in the election petition the same can be dismissed under the provision of CPC i.e. Order
VII Rule 11.
While referring to the judgment in the case of Ashraf Kokkur (supra) Sri Sharma, learned
Senior Counsel for the petitioners relied upon Paragraphs 21 & 22 of the report which are
reproduced below :
21.
The pleadings, if taken as a whole, would clearly show that they constitute the material
facts so as to pose a triable issue as to whether the first respondent is disqualified to contest
election to the Kerala State Legislative Assembly while holding an office of profit under the State
government as Chairperson of the Kerala State Wakf Board. The question is not whether the
Chairperson of the Kerala State Wakf Board is an office of profit or not. That is the issue to be
tried. Question is whether the petitioner has raised such a question in the election petition. The
disqualification under the Constitution of India being, holding an office of profit under the State
Government. Petitioner has furnished all the material particulars in that regard. Therefore, the
petition discloses a cause of action.
22.
After all, the inquiry under Order VII Rule 11(a) of CPC is only as to whether the facts as
pleaded disclose a cause of action and not complete cause of action. The limited inquiry is only
to see whether the petition should be thrown out at the threshold. In an election petition, the
requirement under Section 83 of the RP Act is to provide a precise and concise statement of
material facts. The expression ‗material facts‘ plainly means facts pertaining to the subject-
matter and which are relied on by the election petitioner. If the party does not prove those facts,
he fails at the trial (see Philipps v. Philipps (QBD p. 133); Mohan Rawale v. Damodar Tatyaba
(SCC p. 399, para 16).
56 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
On reading of the above paragraphs it is to be noted that in the said case the Supreme Court
found that the petitioner had furnished all the material particulars and the petition disclosed a cause
of action. The power under Order VII Rule 11(a) CPC requires an inquiry as to whether the
petitioner had pleaded a cause of action or not.
GROUNDS and PLEADINGS – Grounds A & B
In the backdrop of the legal provisions and the law laid down the grounds and pleadings are
taken up for consideration.
Ground A & B relate to improper acceptance of the nomination paper of the returned
candidate (the respondent). Both the Grounds A & B as contained in the petition are reproduced
below :
(A) Because the election of returned candidate has been materially affected on account of
improper acceptance of the nomination paper of Returned Candidate by the Returning Officer. The
Returning Officer has acted against the provision of Section 33A(2) of the Act read with Rule 4A of the
Rules framed thereunder.
(B) Because the election of the returned candidate has been materially affected on account of the fact that
once the Returned Candidate presented the nomination papers showing the name of the spouse Mrs.
Jashoda Ben, it was a mandatory requirement of Section 33A (2) read with Rule 4A to filled up the
prescribed Form-26 in a manner prescribed therein. The Returned Candidate in his Form, details of
property, asset, liabilities, profession, etc. of his wife, if any, has been shown. Nomination paper
presented by the returned candidate instead of showing the details of properties, assets, liabilities and
the profession of the spouse has been mentioned as ―Not Known‖. The requirement of the Act does not
permit such declaration. The declaration in Form 26 of the returned candidate on oath is contradictory
to the contents of Part 'A' and 'B' of Column 7, 8 & 9 and Part 'B' of Form-26 in relation to the spouse
of the returned candidate. Thus, the nomination form of the Returned Candidate was incomplete and the
same was improperly accepted, as the non disclosure of the assets and required information under the
Form-26 relating to the living wife is nothing but denial to disclosure of mandatory requirement of law.
To substantiate these grounds paragraph nos. 7, 8, 9 & 10 of the petition contain the relevant
facts. In paragraph no.7 it has been stated that the nomination paper of the returned candidate was
presented on 24.04.2014 and the same was improperly accepted by the Returning Officer. The
nomination paper is to be filed in terms of proforma prescribed by the Election Commission in
Form-26. It is to be supported by an affidavit of the candidate which is contained in Part 'A' & Part
'B' of the nomination paper. The returned candidate in the said affidavit disclosed the name of his
spouse as Mrs. Jashoda Ben. The candidate is required to disclose the details regarding spouse as
required in paragraph nos. 4, 7, 7A, 7B, 8 & 9 of Form No. 26 and similarly paragraph nos. 7, 8, 9 &
10 of Part B of Form No. 26. According to the petitioners, as stated in paragraph 7 itself, returned
candidate instead of disclosing the required details has only stated/disclosed ―Not Known‖ which
does amount to disclosure of the required information. It is also stated in the same paragraph of the
petition that paragraph no. 9 of Part A of Form No. 26 required the details of the
profession/occupation where also the respondent has stated/declared ―Not Known‖.
In paragraph no.8 of the petition the averments contained are to the effect that the
information provided in Item Nos.7 and 8 of Part ―A‖ and Item Nos.8, 9 & 10 of Part ―B‖ of Form-
26, the returned candidate has made a declaration on behalf of the spouse that the details provided in
these columns are correct and no concealment of fact has been made. A copy of the affidavit of the
returned candidate has been attached as Schedule-A.
The averments contained in paragraph no.9 of the petition is purely legal in nature. No
factual averments have been made in paragraph no.9.
II—
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57
First part of paragraph no.10 of the petition deals with legal pronouncement in the case of
Kishan Shanker Kathore vs. Arun Duttarary Sawant and others, reported in JT 2014 Supreme Court
657, relating to outcome in the case of nondisclosure of details of movable and immovable property
owned by spouse. The second part of paragraph no.10 of the petition is also a continuation of the
same Supreme Court judgment and also quotes the verification part of the affidavit of the respondent
filed along with the nomination paper.
The objection raised by learned Senior Counsel appearing for the respondent is firstly that
there was no nondisclosure by the respondent, secondly that the information furnished by the
respondent was correct and true to the best of his knowledge and thirdly that the contents of these
paragraphs do not make out a case which may lead to a triabe issue.
Before proceeding further with the respective arguments that shall be dealt with at a later
stage, the relevant statutory provisions may be noted. Sri Jain, learned Senior Counsel appearing for
the respondent referred to sections 33A, 36 and 100 (1) (d-i) of the Act which are being reproduced
here under :
33A. Right to information.- (1) A candidate shall, apart from any information which he is required
to furnish, under this Act or the rules made thereunder, in his nomination paper delivered under
sub-section (1) of section 33, also furnish the information as to whether -
(i) he is accused of any offence punishable with imprisonment for two years or more in a
pending case in which a charge has been framed by the court of competent jurisdiction;
(ii)
he has been convicted of an offence [other than any offence referred to in sub-section (1) or
sub-section (2), or covered in sub-section (3), of section 8] and sentenced to imprisonment
for one year or more.
(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to the returning
officer the nomination paper under sub-section (1) of section 33, also deliver to him an affidavit sworn by the
candidate in a prescribed form verifying the information specified in sub-section (1).
(3) The returning officer shall, as soon as may be after the furnishing of information to him under
sub-section (1), display the aforesaid information by affixing a copy of the affidavit, delivered under
sub- section (2), at a conspicuous place at this office for the information of the electors relating to a
constituency for which the nomination paper is delivered.]
36. Scrutiny of nomination.- (1) On the date fixed for the scrutiny of nominations under section 30,
the candidates, their election agents, one proposer of each candidate, and one other person duly
authorized in writing by each candidate, but no other person, may attend at such time and place as
the returning officer may appoint; and the returning officer shall give them all reasonable facilities
for examining the nomination papers of all candidates which have been delivered within the time
and in the manner laid down in section 33.
(2) The returning officer shall then examine the nomination papers and shall decide all objections
which may be made to any nomination and may, either on such objection or on his own motion, after
such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following
grounds:-
(a) that on the date fixed for the scrutiny of nominations the candidate either is not qualified or is
disqualified for being chosen to fill the seat under any of the following provisions that may be
applicable, namely :-
Articles 84, 102, 173 and 191
58 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
[Part II of this Act and sections 4 and 14 of the Government of Union Territories Act, 1963 (20 of
1963]; or
(b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or
(c) that the signature of the candidate or the proposer on the nomination paper is not genuine.]
(3) Nothing contained in clause (b) or clause (c) of sub-section (2) shall be deemed to authorise
the rejection of the nomination of any candidate on the ground of any irregularity in respect of a
nomination paper, if the candidate has been duly nominated means of another nomination paper in
respect of which no irregularity has been committed.
(4) The returning officer shall not reject any nomination paper on the ground of any defect which
is not of a substantial character.
(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under clause
(b) of section 30 and shall not allow any adjournment of the proceedings except when such
proceedings are interrupted or obstructed by riot or open violence or by causes beyond his control:-
Provided that in case an objection raised by the returning officer or is made by any other
person the candidate concerned may be allowed time to rebut it not later than the next day but one
following the date fixed for scrutiny, and the returning officer shall record his decision on the date
to which the proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his decision accepting or
rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement
of his reasons for such rejection.
(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the time
being in force of a constituency shall be conclusive evidence of the fact that the person referred to in
that entry is an elector for that constituency, unless it is proved that he is subject to a
disqualification mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).
(8) Immediately after all the nomination papers have been scrutinized and decisions accepting or
rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated
candidates, that is to say, candidates whose nominations have been found valid, and affix it to his
notice board.
100. Grounds for declaring election to be void.- (1) Subject to the provisions of sub-section (2) if
the High Court is of opinion -
(a)
…...........
(b)
…...........
(c)
…...........
(d) that the result of the election, in so far as it concerns a returned candidate, has been
materially affected -
(i)
1. by the improper acceptance of any nomination, or
II—
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59
(ii)
by any corrupt practice committed in the interest of the returned candidate by an agent other
than his election agent, or
(iii)
By the improper reception, refusal or rejection of any vote or the reception of any vote which
is void, or
(iv)
By any non-compliance with the provisions of the Constitution or of this Act or of any rules
or orders made under this Act,
the High Court shall declare the election of the returned candidate to be void.
The requirement for disclosure of necessary information by a candidate is provided under
section 33A of the Act. The candidate is required to file an affidavit disclosing the necessary
information as detailed in Form-26. The averment made by the petitioners objects only to the words
―Not Known‖ used in so far as the relevant information about movable and immovable assets of
spouse of the respondent is concerned. Apart from these ―Not Known‖ words used at several places
in the form/affidavit there is no other irregularity or illegality or any nondisclosure pointed out
against the respondent.
Further taking clue from these used words ―Not Known‖ in so far as the details of the spouse
of the returned candidate is concerned the second attack is to the verification clause of the affidavit
wherein it has been stated that the deponent do hereby verifies and declares that the contents of this
affidavit are true and correct to the best of my knowledge and no part of it is false and nothing
material has been concealed therefrom. The submission is that on one hand the words 'Not Known'
is being used and on the other hand in the verification such contents have been verified to be true
and correct to the best of his knowledge. On the one hand there is knowledge and on the other hand
there is consistent use of words 'Not Known' instead of providing correct information.
Sri Jain, learned Senior Counsel for the respondent submitted that the petitioners have
nowhere alleged in their petition that any information provided by the respondent is either incorrect
to his belief or knowledge or that it is false or that any part of the information has been concealed. It
is his submission that in order to allege that the use of words ―Not Known‖ was either false or any
material has been concealed then this fact ought to have been alleged by the petitioners in their
petition. According to Sri Jain not a single word has been mentioned in the petition stating that the
spouse of the respondent had any asset or liability in the knowledge of the respondent and such asset
or liability has not been disclosed in the affidavit thus making the declaration false. Merely by
alleging that the use of words ―Not Known‖ is false and whereby concealment has been made by the
respondent does not constitute a cause of action. To prove that the respondent had made a false
declaration, some information or fact relating to any asset or liability of the spouse of the respondent
ought to have been placed on the petition and then other facts could have been stated whether or not
there has been a nondisclosure or concealment of fact which was in the knowledge of the
respondent.
On the other hand Sri Sharma, learned Senior Counsel appearing for the petitioners
submitted that it is a pure and simple case of complete and deliberate nondisclosure of the assets and
liability of the spouse by the respondent. According to him once the respondent has made
declaration that he has a wife then it is highly improbable or unbelievable that the respondent would
not be knowing about assets and liability of his wife. By stating ―Not Known‖ in all the columns the
respondent had deliberately concealed the information. The nomination paper being not in
accordance to law as it did not contain all the required information and declaration suffered from the
vice of nondisclosure was liable to be rejected. It is further submitted by Sri Sharma, learned Senior
Counsel for the petitioners that on the one hand in the verification clause it has been stated by the
respondent that all the information provided is true to the best of his knowledge and belief as such
60 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
the verification clause is self contradictory to the contents of other information about the spouse of
the respondent in various paragraphs of Form No.26.
Sri Sharma, learned Senior Counsel for the petitioners further submitted that in any case
whether the returned candidate is aware of the details of the assets and liability of his wife or not
would be a question which would raise a triable issue and the facts narrated in paragraph nos.7 to 10
would disclose a cause of action for trial of the election petition. In support of his submission Sri
Sharma placed reliance upon a judgment of the Apex Court in the case of Union of India vs.
Association for Democrative Reforms and another, reported in (2002) 4 SCC 294 wherein the
Supreme Court agreed with the directions issued by the Calcutta High Court to the Election
Commission of India requiring the Election Commission to call certain information relating to
criminal antecedents, assets, liability and educational qualifications of each of the candidates
contesting the election of the Parliament and State Legislature. It was in pursuance to the aforesaid
judgment of the Apex Court that an amendment was brought in the Act in the year 2002 by the
Amendment Act No.72 of 2002 inserting sections 33A and 33B in the Act. He further submitted that
the insertion of section 33B was challenged before the Apex Court in the case of People's Union for
Civil Liberties (PUCL) and another vs. Union of India and two others, reported in (2003) 4 SCC 399
wherein the Apex Court struck down section 33B of the Act and again affirmed the directions for
disclosure of criminal antecedents, assets, liability and educational qualifications of the candidate,
his spouse and dependent given in earlier decision.
Sri Sharma then referred to another decision of the Apex Court in the case of Kishan Shankar
Kathore vs. Arun Dattatray Sawant and others, reported in (2014) 14 SCC 162 wherein the Apex
Court held that if required information as per the format in respect of the assets of the candidate, his
wife and dependent children is not given it would amount to suppression/nondisclosure and the same
would entail rejection of the nomination paper. In so far as the duty of the Returning Officer is
concerned it was laid down that only a summary inquiry could be made by the Returning Officer
regarding disclosure of such information and detailed inquiry could be deferred to a later date for
thorough investigation and a verdict by Court upon filing of an election petition on the ground of
furnishing of wrong information or suppression of material information by the candidate in the
nomination form.
Sri Sharma next relied upon a judgment of the Apex Court in the case of Resurgence India
vs. Election Commission of India and another, reported in (2014) 14 SCC 189 wherein the Supreme
Court held that where relevant columns are left blank and information is not furnished then it would
render the affidavit itself nugatory and the Returning Officer would be obliged to reject the
nomination paper.
Lastly Sri Sharma relied upon a judgment of the Apex Court dated 28.10.2016 passed in
Civil Appeal Nos.2649 and 2829 of 2016, Mairembam Prithviraj and others vs. Pukhem
Sharatchandra and others, wherein the Supreme Court held that the disclosure of the assets,
liability, criminal antecedents and education qualifications are mandatory and obligatory and non-
supply of the same would mean nondisclosure/suppression of material information entailing
rejection of the nomination paper.
On the basis of the aforesaid judgments Sri Sharma submitted that the respondent having not
disclosed the complete details and information relating to his spouse, which was mandatory and
obligatory, and merely mentioning the words ―Not Known‖ in several columns did not make full
disclosure rather concealed material information as such his nomination paper was improperly
accepted by the Returning Officer. Once the nomination has improperly been accepted by the
Returning Officer it was sufficient ground for setting aside the election of the returned candidate
(respondent).
II—
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61
At the cost of repetition it may be recorded here that on behalf of the respondent Sri Jain,
learned Senior Counsel submitted that the nomination paper of the respondent contained full and
complete disclosure of facts within the knowledge of the respondent. He further submitted that the
petitioners do not allege that the respondent had knowledge of any particular fact relating to asset or
liability of his spouse which has not been disclosed or deliberately concealed. According to him the
petitioners' allege that the use of words ―Not Known‖ in various columns of the nomination form
and the affidavit cannot be by itself in any manner imply or indicate that the respondent had the
knowledge but still did not chose to disclose or state the details of the assets and liability. He further
submitted that in the case of Resurgence India (supra) relied upon the the petitioners the Supreme
Court has itself held that not known is a valid information to the knowledge of the person making
the disclosure or filing the nomination paper or the affidavit. The Supreme Court further observed in
the same case that at least minimum efforts to remark ―NIL‖ or ―NOT APPLICABLE‖ or ―NOT
KNOWN‖ in the columns must be mentioned and they should not be left blank. The respondent
having used the words ―Not Known‖ clearly meant that he had no knowledge about the assets and
liability of his spouse. According to him even if despite knowledge of the asset and liability the
words 'Not Known‖ were used by the respondents then until and unless specific averments and facts
are pleaded by the petitioners, no triable issue can be raised for such use of words ―Not Known‖ in
the nomination paper. Sri Jain, learned Senior Counsel has further elaborated his argument and has
gone to the extent of submitting that even looking to the pleadings, one or a single material fact
would entail an outcome that the cause of action has not been completely made out. He further
submitted that to establish a cause of action each and every material fact which would constitute
cause of action has to be pleaded. In the absence of pleadings of all material facts, no cause of action
can be said to have accrued or arisen.
In the present case a bare reading of the pleadings and the averments contained in paragraphs 7 to
10 of the petition, the petitioners have not pleaded that (i) the respondent knew or had knowledge of
the asset and liability of his wife Smt. Jashoda Ben, (ii) the petitioners have not pleaded that Smt.
Jashoda Ben was possessed of any assets or that she had any liabilities and (iii) the respondent had
knowledge of such liabilities and assets of his wife Smt. Jashoda Ben but did not purposely disclose
the same in his nomination paper. According to him absence of these averments which were material
facts completely fail to make out a cause of action. He thus submits that the ground nos.A & B, in so
far as use of words ―Not Known‖ is concerned, are bereft of any merits.
Sri Jain, learned Senior Counsel for the respondent further submitted, referring to verification
clause that the said ground is also without any merit and does not make out any cause of action.
Form-26 in the form of affidavit has been filed as Schedule-I to the election petition. The
verification clause reads as under :
I, the deponent, about named, do hereby verify and declare that the contents of this affidavit are true
and correct to the best of my knowledge and belief and no part of it is false and nothing material has
been concealed therefrom. I further declare that :—
(a)
There is no case of conviction or pending case against me other than those mentioned in item
5 and 6 of Part A and B above.
(b)
I, my spouse, or my dependents do not have any asset or liability, other than those mentioned
in items 7 and 8 of Part A and items 8, 9 and 10 of Part B above.
Verified at AHMEDABAD, this the 22ND day of April, 2014.
62 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
The petitioners have no grievance so far as Clause A Part is concerned but they have serious
objections to Clause B of the verification clause which according to them is self contradictory to the
information provided in the affidavit. Clause B reads as I, my spouse, or my dependents do not have
any asset or liability, other than those mentioned in items 7 and 8 of Part A and items 8, 9 and 10 of
Part B above. According to the petitioners once the details of asset and liabilities have been
mentioned as ―Not Known‖ in the affidavit in various columns how could this declaration be made
by the spouse or by the respondent that they do not have any assets or liabilities other than those
mentioned.
Sri Jain, learned Senior Counsel for the respondent submitted that this verification has been
given by the respondent and not by his wife. The facts mentioned in the affidavit are provided as per
knowledge of the respondent and not his wife. The verification clause itself starts from I, the
deponent and the deponent here is the respondent and not his wife and if the deponent has further
stated that he verifies and declares that the contents of this affidavit are true and correct to the best
of his knowledge and belief and that no part of it is false and nothing material has been concealed,
no concealment or nondisclosure can be attributed to the respondent or to the person making the
verification. It was thus submitted that this ground raised by the petitioner being based on the
contents of the affidavit itself does not require any trial as this ground cannot be sustained on the
material already on record.
DISCUSSION – Grounds A & B
Having considered the submission and the law laid down, the question that is to be decided
here is whether a triable issue on Grounds A & B set out in the petition has been made out or not?
Whether the petitioners have pleaded the basic material facts which would constitute a cause of
action ? The ground of improper acceptance of the nomination paper is only based on the words
used as ―Not Known‖ in the disclosure of the movable and immovable assets, liabilities and
profession of the spouse of the respondent. Paragraph nos.7, 8, 9 and 10 of the petition are relevant
paragraphs containing pleadings with regard to Grounds A & B. There can be no denial of the fact
that a person may not know the assets and liabilities of his spouse. There can also be no denial of the
fact that a person knowing the assets and liabilities of his spouse may not want to disclose it. But if
the petitioners allege that the respondent knew about the assets and liabilities of his spouse and has
deliberately not disclosed the same then it can be said that the respondent has not completely and
honestly made the disclosure. So long as the petitioners do not allege that the respondent knew but
still did not disclose, it cannot be assumed that the respondent knew and deliberately did not
disclose. No presumption or assumption can be drawn with regard to the knowledge of the
respondent regarding the information of assets, liabilities and occupation / profession of his spouse.
Paragraphs 7, 8, 9 and 10 of the petition does not contain any such averments that the
respondent despite having knowledge of the assets and liabilities of his spouse did not disclose the
same. In the absence of any such averments or pleading, as already observed, there can be no
assumption that it was a deliberate nondisclosure by the respondent about the assets and liabilities of
his spouse. In order to raise this ground it was mandatory for the petitioners to make specific
pleadings not only about the knowledge of the respondent regarding the assets and liabilities of his
spouse but also about the assets and liabilities actually held by the spouse of the respondent. The
other aspect would be that the spouse may be having assets and liabilities but still the same may not
be known to the respondent. In that event it would be for the respondent to prove and burden would
be on him to establish that he had no knowledge of such assets and liabilities of his spouse. In
paragraph 7 to 10 of the petition the petitioners have not come up with the details or particulars of
any assets and liabilities of the spouse of the respondent. If the same was pleaded and mentioned,
the respondent could be put to trial and called upon to explain as to whether he had or he did not
have the knowledge of the same. Since no such particulars or details of any assets and liabilities of
II—
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63
the spouse of the respondent has been pleaded, it would be a futile exercise to call upon the
respondent and put such issue to trial. The petitioners have thus utterly failed to plead material facts
which could constitute a cause of action.
In so far as the verification part is concerned, the ground raised and the supporting pleadings
in paragraph 8, in particular, also does not make out a triable issue or complete cause of action
which could be tried or respondent be called upon to discharge his burden. The affidavit as already
referred to above is Schedule-I to the petition. The columns have been filled up. The verification has
been on the personal knowledge and belief of the respondent. The petitioners have not alleged or
pleaded that the belief and knowledge of the respondent is incorrect or that he had knowledge and
belief of any asset and liabilities of his spouse. As such apparently no fault can be found in the
verification clause in the absence of any pleadings. This ground also does not disclose a cause of
action.
Sri Sharma, learned Senior Counsel has also sought to argue that the court can always call
upon the petitioners to furnish further and better details. That would be a case only where the
particulars may be lacking but not in a case where the material facts are lacking. It is only if the
material facts are pleaded, then in order to supplement or substantiate it evidence can be called upon
by the Court.
In case the petitioners felt that any pleadings with regard to any material facts or particulars
have been left out and were required to be incorporated by way of amendment or modification then
it was for the petitioners to make an application and not force upon the Court to call upon the
petitioners to file an amendment application or supplement the pleadings and the material on record.
The Court is not a party to the proceeding. The Court has to adjudicate upon pleadings as they are,
and, unless the petitioners request to make an application for amendment they cannot be directed to
do so by the Court.
In view of the above discussion it is held that on Grounds A & B the petitioners have failed
to state material facts in paragraphs 7 to 10 of the petition which may constitute a cause of action.
GROUNDS and PLEADINHGS – Grounds G, H & I
Grounds G, H & I stated in paragraph 6 of the petition relate to the corrupt practice
committed by the returned candidate, his election agents or persons associated with the political
party (BJP) with the consent of the returned candidate in terms of section 123 (6) of the Act by
incurring or authorizing expenditure in contravention of section 77 of the Act. These grounds are
substantiated by the averments contained in paragraphs 28 to 33 of the petition.
It is stated in Ground G that the Election Commission of India in respect of 77 Varanasi
Parliamentary Constituency had fixed Rs.70 lakhs as the total expenditure which could be incurred
by the candidate. It is further stated that the returned candidate, his agents or persons associated with
consent of the returned candidate exceeded the prescribed expenditure by spending about Rs.50
crores in the election of 77 Varanasi Parliamentary Constituency, which was in contravention of the
provisions of section 77 read with section 123 (6) of the Act.
In Ground H it has been mentioned that section 77 of the Act mandates that the candidates at
the election themselves or by their election agents will maintain a separate account of all
expenditure in connection with the election incurred or authorized by them between the date on
which they have been nominated and the date of the declaration of the result thereof, both dates are
inclusive. It is further mentioned in the same ground that contravention of section 77 of the Act in
view of section 123 (6) of the Act would amount to corrupt practice and would fall within the
64 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
purview of section 100 (1) (b) of the Act for declaring the election to be void. It is further stated that
in the present case the returned candidate, his election agents or associated persons with his consent
exceeded the aforesaid limit of expenditure and also did not maintain the complete and correct
account of their entire expenditure.
In Ground I it is stated that the election of the returned candidate was materially affected on
account of the fact that the expenditure incurred by the returned candidate in his election campaign
as ―ABKI BAR MODI SARKAR‖ is not propagation of the program of the political party i.e.
Bhartiya Janta Party but a self promotion seeking votes for himself as a Prime Ministerial candidate
which is against the tenets of the basic frame work of the Constitution of India. It is lastly stated in
the said ground that the respondent (returned candidate) was seeking vote for himself and has not
propagated election programme of Bhartiya Janta Party which is contained in its manifesto.
Before adverting to the factual averments made in paragraphs 28 to 33 in support of the aforesaid
ground, the relevant statutory provisions and the legal position may be noted.
Sections 77, 78, 78-A, 78-B, 79, 100 (1) (b) and 123 (6) of the Act are relevant for dealing
with the Grounds G, H & I relating to corrupt practice committed by the returned candidate or his
election agent. For ready reference the said sections are reproduced below :
77. Account of election expenses and maximum thereof.- (1) Every candidate at an election shall,
either by himself or by his election agent, keep a separate and correct account of all expenditure in
connection with the election incurred or authorised by him or by his election agent between [the
date on which he has been nominated] and the date of declaration of the result thereof, both dates
inclusive.
Explanation 1.-For the removal of doubts, it is hereby declared that—
(a) the expenditure incurred by leaders of a political party on account of travel by air or by any
other means of transport for propagating programme of the political party shall not be
deemed to be the expenditure in connection with the election incurred or authorised by a
candidate of that political party or his election agent for the purposes of this sub-section;
(b) any expenditure incurred in respect of any arrangements made, facilities provided or any
other act or thing done by any person in the service of the Government and belonging to any
of the classes mentioned in clause (7) of section 123 in the discharge or purported discharge
of his official duty as mentioned in the proviso to that clause shall not be deemed to be
expenditure in connection with the election incurred or authorised by a candidate or by his
election agent for the purposes of this sub-section.
Explanation 2.-For the purpose of clause (a) of Explanation 1, the expression ―leaders of a
political party‖, in respect of any election, means,—
(i)
where such political party is a recognised political party, such persons not exceeding forty
in number, and
(ii)
where such political party is other than a recognised political party, such persons not
exceeding twenty in number,
whose names have been communicated to the Election Commission and the Chief Electoral Officers
of the States by the political party to be leaders for the purposes of such election, within a period of
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65
seven days from the date of the notification for such election published in the Gazette of India or
Official Gazette of the State, as the case may be, under this Act:
Provided that a political party may, in the case where any of the persons referred to in clause (i) or,
as the case may be, in clause (ii) dies or ceases to be a member of such political party, by further
communication to the Election Commission and the Chief Electoral Officers of the States, substitute
new name, during the period ending immediately before forty-eight hours ending with the hour fixed
for the conclusion of the last poll for such election, for the name of such person died or ceased to be
a member, for the purposes of designating the new leader in his place.
(2) The account shall contain such particulars, as may be prescribed.
(3) The total of the said expenditure shall not exceed such amount as may be prescribed.]
78. Lodging of account with the (district election officer).—(1) Every contesting candidate at an
election shall, within thirty days from the date of election of the returned candidate or, if there are
more than one returned candidate at the election and the dates of their election are different, the
later of those two dates, lodge with the [district election officer] an account of his election expenses
which shall be a true copy of the account kept by him or by his election agent under section 77.
78-A. Free supply of copies of electoral rolls.—(1) The Government shall, at any election to be held
for the purposes of constituting the House of the People or the Legislative Assembly of a State,
supply, free of cost, to the candidates of recognised political parties such number of copies of the
electoral roll, as finally published under the Representation of the People Act, 1950 (43 of 1950)
and such other material as may be prescribed.
(2)
The material referred to in sub-section (1) shall be supplied,—
(i)
subject to such conditions as may be imposed by the Central Government in consultation
with the Election Commission with respect to the reduction of the maximum expenditure
which may be incurred by the candidate under section 77; and
(ii)
through such officers as may be specified by the Election Commission who shall act
in accordance with such general or special directions as may be given by the Election
Commission.
78-B. Supply of certain items to candidates, etc.—(1) The Election Commission shall, at any time
between the date of publication of the notification calling the election for the purposes of
constituting the House of the People or the Legislative Assembly of a State and the date on which the
poll is to be taken, supply or cause to be supplied, such items as the Central Government may, by
order, determine in consultation with the Election Commission, to the electors in the constituencies
concerned or to the candidates set up by the recognised political parties.
(2) Where the Election Commission supplies the items to the candidates under sub-section (1), the
Central Government may, in consultation with the Election Commission, impose conditions with
respect to the reduction of the maximum expenditure which may be incurred by the candidate under
section 77.
Explanation.—For the purposes of section 39A, this Chapter and clause (hh) of sub- section (2) of
section 169, the expression ―recognised political party‖, has the meaning assigned to it in the
Election Symbols (Reservation and Allotment) Order, 1968.]
79. Definitions.—In this Part and in [Part VII] unless the context otherwise requires,—
66 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
[(a) any reference to a High Court or to the Chief Justice or Judge of a High Court shall, in relation
to a Union territory having a Court of the Judicial Commissioner, be construed as a reference to the
said Court of the Judicial Commissioner or to the Judicial Commissioner or any Additional Judicial
Commissioner, as the case may be;]
[(b) "candidate" means a person who has been or claims to have been duly nominated as a
candidate at any election;]
(c)
"costs" means all costs, charges and expenses of, or incidental to, a trial of an election
petition;
(d)
"electoral right" means the right of a person to stand or not to stand as, or [to withdraw or
not to withdraw] from being, a candidate, or to vote or refrain from voting at an election;
[(e) "High Court" means the High Court within the local limits of whose jurisdiction the election
to which the election petition relates has been held;]
(f) "returned candidate" means a candidate whose name has been published under section 67 as
duly elected.
100. Grounds for declaring election to be void.—[(1) Subject to the provisions of sub-section (2) if
[the High Court] is of opinion—
(a)
…......
(b)
that any corrupt practice has been committed by a returned candidate or his election agent
or by any other person with the consent of a returned candidate or his election agent; or
(c)
…......
(d)
….......
(i) …........
(ii) …........
(iii) …........
(iv) ….......
[the High Court] shall declare the election of the returned candidate to be void.]
(2) ….......
(a)
….....
(b)
….....
(c)
….....
(d)
…....
123. Corrupt practices.—The following shall be deemed to be corrupt practices for the purposes of
this Act:—
(1) ….......
(2) …......
(3) …...... (3A)
…...... (3B) …....
(4) ….....
(5) ….....
(6) The incurring or authorizing of expenditure in contravention of section 77.
II—
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67
(7) ….....
(8 ) ….....
Section 77 of the Act provides for the account of election expenses and maximum thereof. It
requires the candidate at an election to maintain a separate and correct account of all expenditure in
connection with the election incurred or authorised by him or by his election agent between the date
on which he has been nominated and the date of declaration of the result thereof, both dates
inclusive, either by himself or by his election agent. Explanations 1 & 2 to section 77 of the Act
further clarifies certain doubts which may arise.
Section 78 of the Act provides for lodging of account with the District Election Officer. This
section mandates that every contesting candidate at an election shall, within thirty days from the date
of election of the returned candidate or, if there are more than one returned candidates at the election
and the dates of their election are different, the later of those two dates, lodge with the District
Election Officer an account of his election expenses which shall be a true copy of the account kept
by him or by his election agent under section 77 of the Act.
Section 79 sub-clause (b) of the Act defines 'candidate' to be a person who has been or claims
to have been duly nominated as a candidate at any election.
Section 100 (1) (b) of the Act provides that if any corrupt practice has been committed by a
returned candidate or his election agent or by any other person with the consent of a returned
candidate or his election agent would be a ground if proved for the High Court to declare the
election of the returned candidate to be void. The other grounds for declaring the election to be void
are also enumerated in section 100 (1) sub-clauses (a), (c) and (d).
Sub-sections (1) to (8) of section 123 of the Act deals with corrupt practices for the purpose of
the Act. In the present case the petitioners have alleged corrupt practice defined in sub-section (6) of
section 123 of the Act.
Grounds raised by the petitioners in Grounds G, H & I are only of corrupt practices as stated
under section 123 (6) of the Act i.e. incurring or authorizing of expenditure in contravention of
section 77 of the Act. Requirements of section 77 can be analyzed as follows-
(i)
For every election every candidate has to maintain an account of expenditure.
(ii)
Account is to be maintained by the candidate or his election agent.
(iii)
The account has to be separate and correct account.
(iv)
Period for which account is to be maintained is from the date on which a candidate has been
nominated till the date of declaration of the result, both dates inclusive.
(v)
Account should relate to all expenditure in connection with the election- to be incurred or
authorized by the candidate or his election agent.
Section 77 (2) provides that the account so maintained shall contain particulars as may be
prescribed.
Section 77(3) of the Act provides that the total of the said expenditure shall not exceed the
amount as may be prescribed.
Section 123 (6) of the Act provides that incurring or authorizing expenditure in contravention
of section 77 would amount to corrupt practice.
68 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
In order to challenge the election of a returned candidate on the ground of corrupt practice as
stated in section 123 (6) of the Act the basic material facts would be (i) copy of the account
submitted by the candidate under section 77 of the Act, (ii) the account contained incorrect facts,
figures and particulars, (iii) the facts, figures and particulars mentioned in the account did not depict
the actual amount spent, (iv) the figures had been reduced in order to confine it to the maximum
ceiling limit prescribed, (v) the candidate had spent the amount in excess of what was stated in the
account and (vi) details of the excess expenditure made by the candidate.
The next question would be whether such excess expenditure, not reflected in the accounts,
was actually made by the candidate or his election agent or upon its authorization by associated
person.
The petitioner while raising ground of corrupt practice under section 123 (6) of the Act has
not cared to state the essential facts which would be germane to the issue. These facts may be
summarised as follows :
(i)
The date on which the respondent filed the account with the District Election Officer
under section 78 of the Act.
(ii)
The petitioner does not even state that he has a copy of the account submitted by the
respondent under section 78 of the Act with the District Election Officer.
(iii) The petitioner has seen the account furnished by the respondent under section 78 of the
Act with the District Election Officer.
(iv)
The averments made in paragraphs 28-33 giving figures of the expenditure relating to
different heads have not been stated to be whether they existed in the account
furnished by the respondent before the District Election Officer and if so all the
amount was shown against those heads for which excessive expenditure is stated.
(v)
Who incurred the expenses of the figures mentioned in paragraphs 28-33 of the
petition under different heads?
(vi)
Whether the said amount was spent by the candidate, his election agent or upon
authorization or consent of the candidate by associated persons.
(vii)
Neither the name of the election agent has been stated nor the names of any
associated person has been stated who incurred the expenditure alleged in paragraphs
28-33 of the petition.
(viii) Time, place and manner in which the authorization was made by the candidate or his
election agent to the authorized persons has also not been stated.
To make out a case for contravention of section 77 of the Act as a corrupt practice under
section 123 (6) of the Act the above facts would be the basic or the minimum facts required to
constitute material facts.
In the light of the above the averments contained in paragraphs 28-33 are now being dealt
with in detail.
Paragraph 28 of the petition reads as follows :
28. That the concise statement of material facts regarding ground G, H & I, it is submitted that the
respondent-Returned Candidate, his election agents or the persons associated with him with his
consent acted in contravention of Section 77 of the said Act have incurred and authorized the
expenditure beyond the permitted limit. It is submitted that in contravention of Section 77 of the Act
his corrupt practice in terms of section 123(6) of the Act. Section 77 of the Act deals with ―account
II—
(iii)
69
of election expenditure and maximum thereof‖. It is provided in section 77(3) that total of the said
expenditure shall not exceed such amount as may be prescribed by the Election Commission. For
the present election the Election Commission of India has set limit of Rs.70 Lakhs as maximum
expenditure which may be incurred by the candidates. Section 77 (1) further provides that the
candidate himself or through his election agents keep a separate correct account of all expenditure
in connection with the election expenditure incurred or authorized by him between the date on
which he has been nominated and the declaration of results thereof, both dates inclusive. Meaning
thereby, that the returned candidate or his election agents have to keep a correct account of all
expenditure in connection with the election. But Explanation – 1 to Section 77 of the Act exempts the
expenditure incurred by leaders of a political party on account of travel by air or by any other
means of transport for propagating the programme of the political part. The provisions of Section
77 have been violated by the Returned Candidate. It is submitted that returned candidate has spent
more than 50 crores rupees in campaigning in Varanasi Constituency.
Paragraph 28 of the petition refers to the provision of sections 77 and 123 (6) of the Act and
explains the same. It does not make any factual averments, except for the last sentence of paragraph
28 which states that the returned candidate spent more than Rs.50 crores in campaigning in Varanasi
Constituency. At the cost of repetition it is again mentioned that this paragraph 28 does not make
any other factual averments but for the last sentence as recorded above. It is a vague statement that
the returned candidate spent more than Rs.50 crores in Varanasi Constituency. It does not give any
detail or breakup as to who, on which item and for what purposes Rs.50 crores were spent and it also
does not mention as to who spent this amount whether the returned candidate or his election agent or
any associated person with the consent of the returned candidate or his election agent.
Paragraph 29 of the petition contains factual averments and therefore it would be appropriate
to reproduce the same and thereafter deal with the facts mentioned therein :
29. That nomination paper of the respondent-returned candidate was filed on 24.04.2014 in which
hundreds of leaders of the party have come to attend the said rally. It is submitted that expenses of
traveling, boarding, lodging of the said leaders are part of the election expenses of the returned
candidate. The said expenses in itself shall not be lesser than 20.00 lakhs rupees, as the said leaders
were accommodated in the different hotels like Hotel Ramada, Hotel Meridian, Hotel Surya, Hotel
Taj, Hotel Radisson etc. where the rooms had been booked from 22.04.2014 to 10.05.2014. Sri Amit
Shah stayed in Temple Town Hotel since 22.04.2014 to 24.04.2014 and accompanied the returned
candidate for presenting the nomination papers. All rooms of the Hotel Surya were booked with
effect from 22.04.2014 to 10.05.2014 where the press conference, media centre were set up.
Similarly second floor of Hotel Meridian was also booked for the said period.
From a reading of the above paragraph it is to be noted that according to the petitioners -
(i)
100 of leaders of the party had come to attend the rally on 24.04.2014. Names of the
leaders have not been mentioned,
(ii) the traveling, boarding and lodging expenses on the said leaders are part of the election
expenses of the returned candidate and the same would not be less than Rs.20 lakh. As
such leaders were accommodated in different hotels like Hotel Ramada, Hotel
Meridian, Hotel Surya, Hotel Taj, Hotel Radisson etc. where the rooms had been
booked from 22.04.2014 to 10.05.2014,
(iii) Sri Amit Shah stayed in Temple Town Hotel since 22.04.2014 to 24.04.2014 and
accompanied the returned candidate for presenting the nomination paper,
(iv) all rooms of Hotel Surya were booked with effect from 22.04.2014 to 10.05.2014
where press conference, media centre were setup and
70 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
(v)
second floor of Hotel Meridian was also booked for the said purpose.
Paragraph 30 of the petition also contains factual averments which as such the same is
reproduced below :
30. That in the residential apartment namely Virat Villa (now known as Seva Ashram), Sigra Rath
Yatra Road, Varanasi five floors have been booked for the period of 24.04.2014 to 10.05.2014.
Every floor has 10 to 12 flats and holds approximate area of 8000 sq ft. each. Prevailing rent for the
said apartment had been 45 to 50 rupees per sq. ft. per month. In the said complex one floor was
utilized for IT Cell, one floor was for Media Co-ordination Cell, one floor for parties meeting, one
floor of general public and top floor for VIPs. It is submitted that rent/lease charges for the said
premise, hotels hired by the returned candidate, his election agent and other persons acting with his
consent not less than Rs.50 lakhs.
In brief the facts stated in this paragraph are :
(i)
In residential apartment namely Virat Villa (now known as Seva Ashram), Sigra Rath Yatra
Road, Varanasi five floors were booked from 24.04.2014 to 10.05.2014, each floor has 10 to 12
flats with an approximate area of 8000 sq. ft. each.
(ii) Prevailing rent for the said apartment was Rs.45 to Rs.50 per sq. ft. per month.
(iii) In the said complex one floor was utilized for IT Cell, one floor for general public and
top floor for VIPs.
(iv) The rent/lease charges for the said premises, hotels hired by the returned candidate, his
election agent and other persons acting with his consent was not less than Rs.50 lakhs.
Paragraph 31 of the petition also contains factual averments. The same is reproduced below :
31. That the expenses incurred by the returned candidate on coming to the constituency for filing
nomination paper, campaigning has also to be added to the expenditure incurred by the returned
candidate has been visiting the constituency either by way of helicopter or by chartered plane. It is
submitted that the traveling expenses incurred by the respondent-returned candidate shall not be
lesser than Rs.10.00 lakh. All the expenses of the massive rally which took place on 24.04.2014 and
his rally in Lahuraveer, road show etc.
The above paragraph spells out the following facts :
(i)
the expenditures incurred by the returned candidate in coming to his constituency to
file nomination paper and in campaigning are also be added to the expenditure incurred
by the returned candidate as he as visiting the constituency either by way of helicopter
or by chartered plane and such traveling expenditure would not be less than Rs.10 lakh.
(ii) The last sentence of this paragraph reads that all the expenses of the massive rally
which took place on 24.04.2014 and his rally in Lahuraveer, road show etc. is an
incomplete sentence. It is difficult to understand how the last sentence of this paragraph
would be attributable to the returned candidate or his election agent or associated
persons.
Paragraph 32 of the petition also contains factual averments as such is being reproduced
below :
32. That 400 mobile vane installed with LCD T.V. were hired for election campaigning in the
constituency which were converted into Har-Har Van bearing slogan HAR-HAR MODI and GHAR-
GHAR MODI RATH YATRA. The said vans have traveled repeatedly to all parts of the constituency
II—
(iii)
71
to campaign for the returned candidate. These all things have been reported in the daily newspapers
on 24.03.2014 and 25.03.2014. The expenses of Mobile vans, diesel, drivers and other staffs have
also to be included in the election expenses of the returned candidate which shall not be lesser than
Rs.50.00 Lakhs. The advertisement and coverage made by the electronic media has been recorded in
a C.D. which may form integral part of pleading and herewith appended as SCHEDULE-III to the
election petition.
Facts stated in this paragraph may be reproduced as under :
(i)
400 mobile vans installed with LCD TV were hired for election campaigning in the
constituency which were converted into Har-Har Van bearing slogan HAR-HAR
MODI and GHAR-
GHAR MODI RATH YATRA.
(ii) Said vans have traveled repeatedly to all parts of the constituency to campaign for the
returned candidate as reported in daily newspapers on 24.03.2014 and 25.03.2014.
(iii) The expenses of Mobile vans, diesel, drivers and other staffs have also to be included
in the election expenses of the returned candidate which shall not be less than Rs.50
lakhs.
(iv) The advertisement and coverage made by the electronic media has been recorded in a
C.D. which may form integral part of pleading and is attached as Schedule-III.
Paragraph 33 of the petition also contains some factual averments as such are being
reproduced below :
33. That about 450 rallies of the returned candidate have taken place all over India which have been
widely covered and circulated by media in various forums. News items in regard to the said rallies
have been published in print and electronic media including Varanasi constituency. Repeated
advertisement representing the returned candidate with remark ―ABKI BAR MODI SARKAR' have
been published in the print media and electronic media and has been widely circulated all over
India including Varanasi constituency where it has been seen by the voters on the media forums.
The campaigning of the returned candidate by way of said advertisement, rallies have been for
himself as a Prime-ministerial candidate and not to propagate the programme for the B.J.P. which
is projected in its manifesto. It is submitted that though the returned candidate has no constitutional
mandate to project him as Prime-ministerial candidate, it is submitted that the expenses for rallies,
advertisements are to be considered as part of his election expenditure. The respondent-returned
candidate has spent much beyond the prescribed expenditure of Rs.70 lakhs. The entire campaign of
the B.J.P. has been around the returned candidate to promote his candidature in Varanasi
Constituency from there he was contesting the election. The returned candidate was not only the
face but also the centre point of the entire campaigning of the B.J.P. There have been estimated
circulated in the media estimating the advertisement expenditure of the party for the campaign to be
around Rs.5,000 crores before the last phage of polling. It is submitted that the said expenditure is
to be divided between all the candidates of the party and the share of the returned candidate shall
itself be more than the prescribed limit. The returned candidate has conducted around 1500 3D
rallies at considerable expend. The company namely NCHANT 3D have provided
hardware/software for 3D rallies. The cost of which per rally shall not be lesser than Rs.50 Million
excluding the cost of renting small trucks for a month shall be not less than Rs.36,000.00 per trucks
besides the power supply costs.
72 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
Facts quoted in this paragraph 33 may be summarised as follows :
(i)
450 rallies of the returned candidate have taken place all over India which have been
widely covered and circulated by media in various forms.
(ii) News items in regard to the said rallies have been published in print and electronic
media including Varanasi constituency.
(iii) Repeated advertisements representing the returned candidate with remark ―ABKI BAR
MODI SARKAR‖
(iv) The returned candidate by way of said advertisements, rallies had been campaigning
himself as a Prime Ministerial Candidate and not to propagate the programme for the
BJP which is projected in its manifesto.
(v)
As the returned candidate has no constitutional mandate to project him as Prime
Ministerial candidate, the expenses for rallies and advertisements are to be considered
as part of his election expenditure.
(vi) The returned candidate spent much beyond the prescribed expenditure of Rs.70 lakh.
(vii) The entire campaigning of the BJP has been around the returned candidate to promote
his candidature in Varanasi Constituency from there he was contesting the election.
(viii) The returned candidate was not only the face but also the centre point of the entire
campaigning of the BJP.
(ix) There have been estimate circulated in the media estimating the advertisement
expenditure of the part for the campaign to be around Rs.5,000 crores before the last
phase of polling. Such expenditure should be divided between all the candidates of the
parties and as such share of the returned candidate itself would be more than the
prescribed limit.
(x)
The returned candidate has conducted around 1500 3D rallies at considerable expense.
The company namely NCHANT 3D have provided hardware/software for 3D rallies
and cost of each rally should not be lesser than Rs.50 Million excluding the cost of
renting small trucks for a month which shall also not be less than Rs.36,000 per truck
besides the power supply costs.
DISCUSSION – Grounds G, H & I
On the basis of the above narration of facts the petitioners seek to challenge the election of
the respondent-returned candidate on the ground of corrupt practices as provided under section 123
(6) of the Act.
Sri Jain, learned Senior Counsel representing the respondent submitted that the facts stated in
paragraphs 28-33 do not constitute a cause of action as they lack with complete material facts which
may be tried in the election petition. The petitioners have made vague and bald statement without
giving relevant material facts with regard to each of the allegations and in view of the settled law no
cause of action arises in this petition which may compel the Court to put the petition to trial.
Sri Jain has placed strong reliance on the case of Azhar Hussain (supra) wherein the Apex
Court has dealt with in detail and has laid down as to what would constitute the material facts to
constitute a complete cause of action. It would be worthwhile to refer to paragraph 18 of the
II—
(iii)
73
judgment of the Apex Court in the case of Daulat Ram Chauhan vs. Anand Sharma, reported in AIR
1984 Supreme Court 621 wherein the Apex Court again emphasised that in order to constitute a
corrupt practice necessary particulars, statement of facts and essential ingredients must be contained
in the pleadings in the following words.
18. We must remember that in order to constitute corrupt practice, which entails not only the
dismissal of the election petition but also other serious consequences like disbarring the candidate
concerned from contesting future election for a period of six years, the allegations must be very
strongly and narrowly construed to the very spirit and letter of the law. In other words, in order to
constitute corrupt practices the following necessary particulars, statement of facts and essential
ingredients must be contained in the pleadings:-
(1)
Direct and detailed nature of corrupt practice as defined in the Act.
(2)
Details of every important particular must be stated giving the time place, names of
persons, use of words and expressions, etc.
(3)
It must clearly appear from the allegations that the corrupt practices alleged were
indulged in by (a) the candidate himself (b) his authorised election agent or any other
person with his express or implied consent.
Further a reference may also be made to the judgment of the Apex Court in the case of Kamal
Nath v s. Sudesh Verma, reported in (2002) 2 Supreme Court Cases 410. In paragraph 4 of the said
report the Supreme Court observed that ―..... It may be stated that mere non-disclosure of the
expenditure will not be a corrupt practice but it is incurring of expenditure in excess of the
prescribed amount would be held to be a corrupt practice. On a combined reading of Section 77 and
Section 123 (6) of the Act, it is explicitly clear that the excess expenditure must be incurred by the
candidate or by any person authorised by the candidate or his election agent. In other words, an
expenditure incurred by a third person, who is not authorised by a candidate or who is not an
election agent of the candidate, will not be a corrupt practice within the ambit of Section 123 (6) of
the Act to plead requisite facts showing authorisation or undertaking of reimbursement by the
candidate or his election agent......‖
Reverting back to the pleadings in the election petition it is to be seen whether each of the
averments contained are completely clothed with all material facts so as to constitute a cause of
action.
Paragraph 28 of the petition as already stated above, except for the last sentence that the
returned candidate spent more than Rs.50 crores in campaigning in Varanasi Constituency, does not
state any other fact relating to the corrupt practice but rather lays down legal and statutory
provisions and the requirement thereof. Last sentence is completely vague and as such cannot in any
manner be said to be disclosure of material facts.
In Paragraph 29 each of the parts as already incorporated above are not supported by
complete material facts. The first sentence of Paragraph 29 is again vague. It just refers to 100 of
leaders to attend the rally on 24.04.2014 the date on which nomination papers were filed. No more
details are given, not even a single name of the party leader is mentioned. The averment that the
expenses relating to the said leaders on their traveling, boarding, lodging etc are to be treated as
election expenditure of the returned candidate, is also without specific averments relating to as to
who made expenditure, what was the amount of expenditure, how the leaders traveled and by which
mode, are not mentioned. Vaguely, it has been mentioned, that not less than Rs.20 lakhs have been
spent. Names of several hotels have been given like Hotel Ramada, Hotel Meridian, Hotel Surya,
74 THE GAZETTE OF INDIA : MAY 6, 2017/ VAISAKHA 16, 1939 [PART II—SEC. 3(iii)]
Hotel Taj, Hotel Radisson etc. but petitioners have not cared to mention about the rent/tariff of the
hotel rooms. Who made the payment thereof has also not been pleaded. It is next stated that Sri Amit
Shah stayed in Temple Town Hotel. No details regarding the amount or the person making payment
has been made. Similarly with regard to Hotel Surya being booked, no specific facts have been
mentioned as to what was the amount and who paid the same.
In Paragraph 30 residential apartment and 5 floors of Virat Villa (now known as Seva
Ashram), Sigra Rath Yatra Road, Varanasi are said to have been booked for the period from
24.04.2014 to 10.05.2014, but again, no details with regard to amount paid and who paid the amount
has been mentioned. It is said that different floors were used for different purpose namely IT Cell,
Media Coordination Cell, parties meeting, general public and VIPs. In the end it is only mentioned
that the total amount of Rs.50 lakhs must have been spent by the returned candidate, his election
agents and other persons with their consent. Now who made the payment, what and how consent
was taken, whether the election agents made payment or the returned candidate made the payment
have not been pleaded.
Similarly in Paragraph 31 also the averments contained are vague. It relates to the traveling
expenses of the returned candidate on visiting his constituency either by helicopter or chartered
plane and it has again been mentioned that such expenditure would not be less than Rs.10 lakhs.
This paragraph again is lacking in basic material facts. The averments are wholly vague.
In Paragraph 32 reference of 400 mobile vans installed with LCD TV hired for election
campaign are said to have been used with slogan ―HAR-HAR MODI and GHAR-GHAR MODI
RATH YATRA‖. Again there is lack of specific pleadings with regard to the amount paid and who
paid the amount and where these amounts were paid by the associated persons or election agents or
by the returned candidate after obtaining consent of the returned candidate or the election agents. All
such averments are missing. Again a vague figure of Rs.50 lakhs has been mentioned to have been
spent. A CD has been annexed as Schedule-III mentioned in Paragraph 32. The sentence reads that
the advertisement and coverage made by the electronic media has been recorded in that CD which
may form integral part of pleading. The contents of the CD have not been transcripted nor placed on
record. Sri Sharma, learned Senior Counsel wanted the Court to take the said CD as part of the
pleading which the Court is afraid can be done. CD could be read in evidence in support of or to
substantiate or prove certain facts and pleadings but in the absence of the contents of the CD being
stated and to prove the fact which may have been pleaded being missing, it would be difficult to
accept the submission of Sri Sharma.
Paragraph 33 talks about 450 rallies which took place all over India by itself, cannot in any
manner be a part of corrupt practice as defined in Section 123 (6) of the Act. The averments made in
Paragraph 33 are with regard to the returned candidate projecting himself as Prime Ministerial
Candidate. This projection of the returned candidate as a Prime Ministerial Candidate cannot be said
to be a corrupt practice under section 123 (6) of the Act. The Act does not provide such projection as
a corrupt practice. Further there is a vague averment that the returned candidate spent beyond the
prescribed expenditure limit of Rs.70 lakhs but it may be noted here that the petitioners have not
pleaded anywhere as to the contents of the statement of account as submitted under section 78 of the
Act. The next statement is that in the media it was circulated that an estimated amount of
expenditure of the party in campaign was Rs.5000 crores before the last phase of polling. This again
by itself cannot constitute a cause of action or an issue which can be tried. The next submission that
such expenditure of Rs.5000 crores as circulated by media should be divided between all the
candidates of the parties as such share of the candidates is more than prescribed limit is again a
vague and bald statement. With regard to 1500 3D rallies said to have been conducted by the
returned candidate at considerable expense and each rally costing not less than Rs.50 Million is
again completely vague as the basic and material facts are lacking.
II—
(iii)
75
Section 77 of the Act requires the candidate at an election to keep a separate account of all
expenditure in connection with an election incurred or authorized by him or by his election agent
and such account is to be filed under section 78 of the Act within 30 days. Section 123 (6) of the Act
makes the incurring or authorizing of expenditure in contravention of section 77. of the Act a
corrupt practice. In order to constitute a corrupt practice under section 123 (6) of the Act, the
incurring of the expenditure or authorizing of the expenditure in excess of the statement of account
filed under section 78 has to be proved. For the various expenditures mentioned in Paragraph 28 to
33 firstly the fact as to who made the expenditure is missing and secondly the very averment that the
expenditure was made by the candidate, his election agent or with the consent of the returned
candidate or his elections agent is also lacking. It is only at one or two places it has been mentioned
that the expenses were made by the returned candidate, his election agents or other persons acting
with his consent. In order to substantiate this averment, specific facts relating to the person making
the expenditure, the amount of expenditure are to be pleaded to make out a case which can be tried.
On such a vague allegations no issue can be made triable.
It may be true that the expenditure incurred in the election of the returned candidate may be
in excess of ceiling limit fixed by the Election Commission of India but for that in the absence of
specific details or at least making such pleadings with specific details which may convince the Court
that at least a triable issue has been raised, it would be difficult to put this petition to trial. The
petitioners, it appears, half-heartedly filed this petition. May be in over confidence they thought that
such frivolous allegations in each paragraph would make out a triable issue but since Election Law
is extremely technical and is governed by the statute, parties have to strictly adhere to the provision
of the Act and Rules and thus the Court finds that no fruitful purpose would be served by putting
this petition to trial. No cause of action arises on any of the issues raised and pressed in this petition.
Preliminary objection raised by the respondent is upheld.
Application Paper No.A-10 is allowed. Application Paper No. A-11 is dismissed as not
pressed.
As a consequence the election petition is liable to be dismissed at the threshold and is
accordingly dismissed.
There shall however be no order as to costs.
Order Date : 7.12.2016
sd/-
VIKRAM NATH, J.
[No. 82/UP-HP/9/2014(Alld.)]
BY Order,
ANUJ JAIPURIAR. Secy.
Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.
RAKESH SUKUL
Digitally signed by RAKESH SUKUL
Date: 2017.05.29 18:00:59 +05'30'