Bihar Gazette, 03 August 2017

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(स(cid:14)(cid:15) पटन(cid:4) (cid:19)(cid:20)3) पटन(cid:4)(cid:22)

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(cid:4)नवा(cid:19)चन (cid:21)वभाग

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31 जुलाई 2017 सं॰ एम1-0020/2013-33333333—निर्वाचन अर्जी संख्या- 9/2015 से संबंधित भारत निर्वाचन आयोग, नई दिल्ली की अधिसूचना निर्वाचन अर्जी संख्या- 9/2015 से संबंधित भारत निर्वाचन आयोग, नई दिल्ली की अधिसूचना निर्वाचन अर्जी संख्या- 9/2015 से संबंधित भारत निर्वाचन आयोग, नई दिल्ली की अधिसूचना सर्वसाधारण की जानकारी के लिए प्रकाषित की 82/बी0आर0-एल0ए0/ई0एस0-1/ई0पी0/(9/2015)/2017 दिनांक 08.06.2017 सर्वसाधारण की जानकारी के लिए प्रकाषित की संख्या-82/बी0आर0-एल0ए0/ई0एस0-1/ई0पी0/(9/2015)/2017 दिनांक 08 जाती है।

बिहार-राज्यपाल के

राज्यपाल के आदेष सेे,

सोहन कुमार ठाकुर, सोहन कुमार ठाकुर अपर सचिव। अपर सचिव।2 ॢबह(cid:4)र गजट (cid:10)[स(cid:4)ध(cid:4)रण(cid:15)(cid:16) 3 अग(cid:16)त 2017 भारत निर्वाचन आयोग भारत निर्वाचन आयोग भारत निर्वाचन आयोग भारत निर्वाचन आयोग ———

..„

अधिसूचनाअधिसूचनाअधिसूचनाअधिसूचना निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001/निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001/निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001/निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001/ तारीख तारीख तारीख तारीख 8 जून8 जून8 जून8 जून 2017/2017/2017/2017/18 ज्येश्ठ18 ज्येश्ठ18 ज्येश्ठ18 ज्येश्ठ,,,, 1939 (षक)1939 (षक)1939 (षक)1939 (षक)

सं0 सं0 सं0 सं0 82/82/82/82/BR-LA/ES-1/EP/(9/2015)/2017—लोक प्रतिनिधित्व अधिनियम 1951 (1951 की 43) की धारा 106(ख) के अनुसरण में, निर्वाचन आयोग एतद्‌द्वारा निर्वाचन अर्जी सं0 9/2015 में दिये गये उच्च न्यायालय, पटना के तारीख 20 मार्च, 2017 के आदेष को प्रकाषित करता है।

आदेश से,आदेश से,आदेश से,आदेश से, सुमित मुखर्जी,सुमित मुखर्जी,सुमित मुखर्जी,सुमित मुखर्जी, सचिवसचिवसचिवसचिव,,,, भारत निर्वाचन आयोगभारत निर्वाचन आयोगभारत निर्वाचन आयोगभारत निर्वाचन आयोग।।।।

ELECTION COMMISSION OF INDIA

———

NOTIFICATION

Nirvachan Sedan, Ashoka Road, New Delhi-110001/ Dated 8 t h June 2017/ 18 Jyaistha,1939 (SAKA)

No. 82/BR-LA/ES-1/EP/(9/2015)/2017: In pursuance of Section 106(b) of the Representation of the People Act, 1951 (43 of 1951), the Election Commission hereby publishes the Order dated the 20th March, 2017 of the High Court of Judicature at Patna in Election Petition No. 09/2015.

By Order SUMIT MUKHERJEE, SECRETARY, ELETION COMMISSION OF INDIA.

———

IN THE HIGH COURT OF JUDICATURE AT PATNA

Election Petition No.9 of 2015

Anuj Kumar Sinha, son of Late Sionandan Prasad, resident of c/o Gulav Yadav,

Rajcolony, Puccafield, Maharanipath, New godown, Gaya District Gaya - 823002

…………….Petitioner/s

Versus

Prem Kumar, s/o Late Shyam Narayan Ram Mukhlotgunj Mahavir Asthan Gaya -823001

………….Respondent/s

Appearance : For the Petitioner/s : Mr. Jai Vardhan Narayan. Advocate For the Respondent/s: Mr. Shree Prakash Shrivastava, Advocate

CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR

CAV ORDER

15 20 -03- 2017

1. The present petition has been filed under Section 80, 80A and 81 of the Representation of the People Act, 1951 (hereinafter referred to as the " RP Act"). As pleaded, the petitioner was an election agent of one Sri Priya Ranjan who was a candidate of the Indian National Congress and contested Legislative Assembly election from the Constituency No. 230 - Gaya Town (Bihar). The Legislative Assembly election was conducted in the year 2015. The election was held on 16th October 2015 and result was declared on 8th November, 2015. From the said constituency i.e. 230-Gaya Town Constituency the Respondent was declared as returned candidate. In the said election he (respondent) got total 66,891 votes whereas, the candidate for whom the petitioner was election agent got 44102 votes.

2. In the present election petition the petitioner has mainly prayed for cancellation of nomination paper of the respondent, It is evident that earlier the present election petition was presented an 1512.1015. The election petitioner was duly identified by :his counsel. namely, Mr. Md. Irshad Thereafter,— the petition was examined by the stamp reporting section and number of defects were pointed out and as such; on 11.02.2016 learned counsel for the election petitioner informed the court regarding removal of the defects and as such, by order dated 11..02.20116 the present election petition was admitted for hearing and notice was directed to be issued to the sole respondent.. After receipt of notice the sole sepondent appeared through his counsel and on 4'h May 2016 written statement was filed on behalf of the returned candidate i.e. respondent. Besides raising other objections the respondent also raised an objection regarding maintainability of the election petition for want of cause of action. Subsequently, the election petitioner filed an application for permitting him to appear in person. The said permission was granted and learned lawyer who had earlier filed "Vakalatnama" on behalf of the election petitioner was discharged from liability. On 12.05.2016 the election petitioner was permitted to appear in person and on his request case was adjourned for filing proposed issues by both the parties, which was subsequently filed. Thereafter, the petitioner engaged one another counsel namely Sri Jai Vardhan Narayan , who has appeared on behalf of the petitioner. The respondent / returned candidate thereafter filed an interlocutory application vide I.A. No. 6627 of 2016 under Section 83 and 86 of the RP Act read with Order VII Rule 11 of the Code of Civil Procedure. The respondent by way of filing the said interlocutory application prayed for rejection of the election petition on the ground of non disclosure of any cause of action. After filing of the interlocutory application vide 1.A. No. 6627 of 2016, whereby the respondent had made a prayer for rejecting the election petition on the ground of absence of any cause of action , the election petitioner filed an amendment petition vide I.A. No. 7997 of 2016. The interlocutory application praying for rejection of election petition i.e. I.A. No. 6627 of 2016 was filed on 17th August 2016 whereas the petition for amendment i.e. I.A. No. 7997 of 2016 was filed on behalf of the election petitioner on 28th September 2016. Thereafter, both the petitions were heard and order was reserved on 24.01.2017.

3. Since in the present election petition interlocutory application was filed on behalf of the returned candidate i.e. the sole respondent for rejection of the election petition on the ground of absence of any cause of action, the court is of the opinion that it would be just and proper to quote the reliefs which have been sought for in the main election petition, which are as follows:-

i. For issuance of an appropriate writ in the nature of MANDAMUS,

c o m m a n d i n g a n d d i r e c t i n g t h e Respondent nos. I to 4 for

cancellation of nomination paper of Respondent nos. 5.

ii. For issuance of an appropriate writ, order or direction in the nature of

examination of affidavits by competent independent agency having expertise

in such evaluation.

iii. For issuance of an appropriate writ, order or direction in the nature of

procedures for verification of affidavits, related to the use of affidavits

in election process on finding possibilities of malicious damage and that

this e x a m i n a t i o n b e c a r r i e d o u t b y competent independent agency

having expertise in such exam ination of affidavits.

iv. For issuance of an appropriate writ, order or direction in the nature

directing the Respondent nos. I to 4 to provide for affidavits verifiable Audit

Trial in all coming election where affidavits are used.

v. For issuance of an appropriate writ, order or direction in the nature of any

other relief that the Hon'ble Court may find appropriate"

4. Now, the question which is required to be examined is as to whether the election petition contains concise statement of material facts relating to any corrupt practice adopted by the returned candidate/Respondent. Accordingly, it would be appropriate to incorporate the facts disclosed in the election petition i.e. from paragraph nos. 3 to 23 of the election petition , which are as follows:-

"3. That, the petitioner is a citizen of India also election agent in same

election for candidate Priy Ranjan, Indian National Congress and

resides within the territorial jurisdiction of this Hon'ble High Court.

4. That, 230-Gaya Town is one of the oldest Constituency Assembly in the

District of Gaya. It had its glorious status while it was under the hands

of genuine person as the Member of Legislative Assembly but after it has

gone in the hands of nefarious person, it has lost its all previous credit

and prestige.

5. That it is stated that in the year 2015, when the election was he l d f or

t he Bi ha r Le g i s l at i v e Assembly Election 2015 through the State and

under the direct control of the Election Commission of India, the

Respondent no. 5 was elected f or t he M e m be r of Le gi s l at i v e

Assembly from 230-Gaya town.

6. That, since the date of his election, the Respondent no. 5 has ne ve r

c onducte d any aff idavit s genuinely though the petitioner has

knowledge that he has prepared the proceeding book of the cancel of the

nomination and voids the election result with the forged affidavit.

7. That, thereafter, benefit of this Mem bers hi p of M em ber of

Legislative Assembly for 230-Gaya Town has never been for its voters.

It is the Respondent no. 5, who in connivance with the local Authority had

m i s uti l i ze d hi s pos i ti on of M.L.A. of 230-Gaya Town for his

personal benefits.

8. That, under Section — 33 and its Sub section 33A, and 33B, of the

Representation of People Act 1951, p r o v i s i o n h a s b e e n m a d e f o r

a d m i s s i o n t o n o m i n a t i o n o f Legislative Election. It requires that

every person desiring admission to nom ination of a Legislative Assembly

Election shall furnish information on Form 26 (affidavits).

9. That, in the judgment of Writ Petition (Civil) No. 121 of 2008 by Hon'ble

Supreme Court of India however puts a clarification of Article

32 of the Constitution of India for furnishing information by candidate

and make it compulsory for the Returning Officers to ensure that the

affidavits filled by the Contestants are complete in all respect

and to reject affidavits or cancel the nomination paper of contestant

having affidavits ground, such Respondent no. 5 shall made a unlawful

affidavits.

10. That the petitioner would, therefore respectfully submit that if a

Respondent no. 5 did not fulfill the eligibility for admission of

nomination paper of such election a n d v o i d t h e A r t i c l e 32 of t he

Constitution of India Respondent n o . 5 w o u l d n o t b e a l l o w e d t o

membership of Bihar Legislative Assembly.

11. That, so far 230-Gaya Town assembly is concerned the conduct by the

Respondent no. 1 to 4 would show that probably unlawful under Section 33,

33A and 33B and Article 32 of the Constitution of India does n o t a p p l y

t o 2 3 0 - G a y a T o w n assembly seat and, therefore 230-Gaya Town is

exception to all other constituency assembly in the State.

12. That so far 230-Gaya Town assembly is concerned the conduct by the

Respondent no . 5 would throughout from nomination to declaration of

result are unlawful and showing corrupt practices by himself. Also

respondent no. 3 and respondent no. 4 help in work of Respondent no 5

for do unlawful w o r k a n d d i r e c t l y p r o f i t t h e Respondent no. 5.

13. T h a t the Election Commission of India has already declared results of

election in the State, According to which in 230-Gaya Town.

14. That, according to the result notified by the Election Commission of India, the

Respondent Authority have prepared a elected candidate for Bihar

Legislative Election 2015 election and it has been published f o r

g a z e t t e n o t i f i c a t i o n a n d Government formation in Bihar have

been invited

15. That after going through the result when the petitioner came to know that

in order to become the R e s p o n d e n t n o s . I t o 4 i n connivance

with the Respondent no. 4 has declared result of election to ineligible

person, they were shocked of the illegalities.

16. That after going through the affidavits when the petitioner came to

know that fake or unlawful affidavits have been made contrary to Article

32 of the Constitution of India and Section 33 33A, and 33B, of the

Representation of People Act 1951 the petitioner drafted an election

petition against the said illegal inclusion of information in the affidavits

and had approached the petitioner for the purpose of filing of their

election petition as required

1 6 . T h a t , s i n c e a l l t h e s e illegalities have been done by the Respondent

no. 5 in connivance with the Respondent nos. I to 4, did not cancel the

nomination paper at the time of nomination the election petition filed

by the petitioner.

17. T h a t u n d e r t h e circumstance, the petitioner was left with no option but to approach the Hon'ble C o u r t a g a i n s t t h e illegalities in preparation of affidavit b y t h e R e s p o n d e n t n o . 5 , i n accordance with law.

18. That , at this juncture, the petitioner would like to the notice of this

Hon'ble Court, a sample of illegalities done by the Respondent nos.

1 to 4 from which it would be evidently clear that in impugned

affidavits which no authority is ready to entertain contrary to section

3 3 , 3 3 A a n d 3 3 B , o f t h e Representation of People Act, 1951

nor Article 33 of the Constitution of India

19. That at the time of election p e r i o d f r o m n o m i n a t i o n t o declaration

of results, the petitioner would like to the notice of this Hon'ble

Court that the function of Respondent no. 3 and Respondent no. 4 are in

favourable to support to Respondent no. 5 in getting results of winner

contestant candidate.

20. That, from the facts stated hereinbefore it is apparently clear the

Respondent no. 5 does not have respect for law at all and they are going to

election on the basis of the u n l a w f u l a f f i d a v i t w h i c h i s absolutely

illegal and cannot he appreciated in the eye of law.

21. That, from the facts stated hereinbefore it is apparently clear t h e

R e s p o n d e n t n o . 3 a n d Respondent no. 4 also does not have respect

for law at all and they are going to election on the basis of u n l a w f u l

w o r k f o r p r o f i t o f Respondent no. 5 which is absolutely illegal and

cannot be appreciated in the eye of law.

22. That, under the facts and circumstances stated hereinbefore, the

petitioner has got no other alternative or efficacious remedy except

to move this Hon 'He High Court for vindication of his justified grievance.

23. That, the petitioner has not moved before this Hon'ble Court earlier for

the relief as sought for in the present election petition."

5. Sri Shree Prakash Shrivastava, learned counsel for the returned candidate / sole respondent has argued that on the basis of pleadings in the election petition it is evident that only vague statement was made regarding allegation of corrupt practice against the respondent. Neither it has been stated as to what corrupt practice was adopted by the returned6 ॢबह(cid:4)र गजट (cid:10)[स(cid:4)ध(cid:4)रण(cid:15)(cid:16) 3 अग(cid:16)त 2017 candidate nor such allegation has been substantiated by any specific statement made in the election petition. According to learned counsel for the respondent as per Section 81 of the RP Act an election petition calling in question any election may be presented on one or more of the grounds specified in Section 100 and Section 101 within 45 (forty-five) days from the date of election and Section 83 of the RP Act specifically provides that such petition must contain concise statement of material facts and shall set forth full particulars of any corrupt practice as alleged. According to learned counsel for the respondent these provisions are mandatorily required to be complied with otherwise the election petition is required to be rejected at the threshold. It has also been argued by Sri Shrivastava , learned counsel for the respondent that election petition is fit to be rejected on the ground that in the election petition the election petitioner has mainly prayed for cancellation of nomination paper of the respondent. In the prayer portion nothing has been sought for regarding cancellation of the declared result of the returned candidate.

6. Sri Jai Vardhan Narayan, learned counsel for he election petitioner tried to persuade the Court to examine the facts disclosed in the synopsis of the election petition and he wanted to persuade the Court that in synopsis all facts have been stated. He further submits that in this case the election petitioner has filed an amendment petition and in the amendment petition the cause of action and case of the election petitioner has concisely been dealt with full allegation of corrupt practice adopted by the returned candidate. He makes a prayer for allowing the amendment petition and even in absence of amendment petition he emphasized that once in the election petition in the synopsis all those facts were mentioned there was no necessity to incorporate all those facts in the election petition and this Court may reject the interlocutory application i.e. T.A. No. 6627 of 2016 which has been filed by the respondent for rejecting the election petition. Sri Jai Vardhan Narayan, learned counsel to substantiate his submission regarding examining material facts on record has placed heavy reliance on a recent judgment of the Hon'ble Apex Court in a case reported in AIR 2015 SUPREME COURT 147 (Ashraf Kokkur v. K.V. Abdul Khader etc.). According to learned counsel for the election petitioner in view of Ashraf Kokkur Case (Supra) the allegation which have been mentioned in the synopsis of the election petition can well be proved in-course of trial by way of producing the evidences and in any event at the outset the election petition is not required to be rejected.

7. Replying to the submission of learned counsel for the election petitioner, Sri Shrivastava, learned counsel for the respondent has argued that since in the RP Act there is provision for filing election petition within 45 days from the date of election, at this belated stage the amendment petition which substantially changes the case of the election petitioner is required to be rejected in view of the provisions contained in Section 86(5) of the RP Act. To substantiate his submission he has placed reliance on a judgment of the Apex Court reported in AIR 1987 SC 1577

(Dhartipakar Madan Lai Agarwal v. Shri Rajiv Gandhi). He submits that after commencement of trial in the election petition and in view of restriction imposed under Section 86(5) of the RP Act the amendment petition is required to be rejected. According to learned counsel for the respondent since in the election petition there is no statement disclosing proper cause of action nor specific statement to corroborate the allegation of corrupt practice the election petition is fit to be rejected at the outset. On this very point he has placed reliance on a judgment of Hon'ble Apex Court in a case reported in AIR 1969 SC 1201 (Samant N. Balakrishna v. George Fernandez and others). In sum and substance it has been argued that the election petition in absence of any specific cause of action and statement regarding allegation of corrupt practice is fit to be rejected.

8. Besides hearing learned counsel for the parties I have perused the materials available on record. So far submission made by learned counsel for the election petition that facts disclosed in the synopsis of the petition may be taken note of for adjudicating the interlocutory application filed by the respondent regarding rejection of the election petition is concerned , the Court is of the opinion that only on the basis of facts disclosed in the synopsis of the election petition case may not be adjudicated. A case is to proceed primarily on the basis of facts disclosed in the election petition as well as reliefs sought for in the petition. The reliefs which have-been sought for in the present election petition has already been indicated in preceeding paragraphs of this order. On perusal of the7 ॢबह(cid:4)र गजट (cid:10)[स(cid:4)ध(cid:4)रण(cid:15)(cid:16) 3 अग(cid:16)त 2017 reliefs sought for in the petition the Court is of the opinion that once the result of election has already been declared and respondent has come out as returned candidate, thereafter there is no point to examine the veracity of the nomination paper. Moreover, in the election petition though election petitioner has brought on record about 8 annexures separately verified and affidavited, the election petitioner has not brought on record any document to show that he had raised any objection regarding the nomination of the returned candidate before the election officer. Annexure '6' which has been brought on record through verification and affidavit shows that after the election the candidate namely Sri Priya Ranjan who was a candidate of Indian National Congress for whom the petitioner had acted as election agent had raised demand of re- election of 230 Gaya Assembly Constituency. It would be appropriate to quote Annexure '6' which is as follows:-

"To

The Returning Officer

230, Gaya Assembly Constituency, Gaya

Sub:- Demand for Re-election of 230 Gaya assembly constituency.

D/sir,

With due respect I inform you and derived for in election of Gaya town

constituency since as per VTR report and presiding officer report for booth no.-93

of Gaya town constituency total vote casted (turnout) is 901 (nine hundred

one) but at counting table it is showing 9 0 2 t o t a l v o t e t a s t e d , h o w i s t h e

difference carry since which of the election proceeding is in defeated form.

So I demand cancellation of Gaya Town constituency and re-election

on Gaya town constituency no. 230.

Thank you Your's truly

Priya Ranjan

Candidate INC

Gaya Town

Constituency no. 230

C.C. to;

I. Chief Election Commissioner 2. Observer Gaya town 230 3. District Election Officer cum District Magistrate" 9. On perusal of Annexure '6' as mentioned above it is evident that Sri Priya Ranjan had demanded re-election before the Returning Officer of the Gaya Assembly Constituency only on dispute of one vote at a particular booth i.e. booth no. 93 and no other dispute was raised by the candidate for whom petitioner was an election agent. In the election petition as quoted hereinabove it is evident that only vague statements were made regarding nomination and referred certain provisions of the RP Act but no concise statement of material facts relating to allegation of corrupt practice was shown .

10. So far I.A. No. 7997 of 2016 filed under section 86(5) of the RP Act on behalf of the election petitioner is concerned the court is of the opinion that after commencement of trial and that too after gap of such a long time such amendment petition is fit to be rejected . As per explanation to Subsection 4 of Section 86 of the RP Act trial of election petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition". After presentation of the present election petition for the first time on 11.02.2016 notice was directed to be issued to the sole respondent fixing 31St March 2016 for his appearance and filing written statement. Meaning thereby that in view of explanation to subsection 4 of Section 86 of the RP Act trial in the present case had commenced with effect from 31st March 2016. Thereafter, the respondent filed written statement and also raised objection regarding maintainability of the election petition . Subsequently the respondent filed a petition under Section 83 and 86 of the RP Act read with Order VII Rule 11 of the Code of Civil Procedure vide I.A. No. 6627 of 2016 with a prayer to reject the election petition on the ground of absence of material facts and8 ॢबह(cid:4)र गजट (cid:10)[स(cid:4)ध(cid:4)रण(cid:15)(cid:16) 3 अग(cid:16)त 2017 cause of action. Only thereafter the election petitioner filed amendment petition. So far amendment in the election petition is concerned Section 86(5) of the RP Act deals with restriction regarding amendment petition. Other hurdle to the election petitioner in respect of prayer of his amendment is the provision contained in Order VI Rule 17 of the Code of Civil Procedure, 1908 (hereafter referred to as the "CPC"). At this juncture it would be to appropriate to quote Section 87 of the RP Act , which is as follows:-

"87. Procedure before the High Court.- (1) Subject to the provisions of t h i s A c t

a n d o f a n y r u l e s m a d e thereunder, every election petition shall be tried by the High Court,

as nearly as m a y be , i n a c c o r da nc e wi t h t he procedure applicable under the Code of Civil

Procedure, 1908 (5 of 1908) to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to

be recorded in writing, to examine any witness or witnesses if it is of the opinion that the

evidence of such witness or witnesses is not material for the decision of petition or that

the party tendering such witness or witnesses is doing so on frivolous grounds or with a view

to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 ( 1 of 1872) , shall subject to the

provisions of this Act. be deemed to apply in all respects to the trial of an election petition." 11. Meaning thereby that the procedure prescribed in the CPC is also required to be followed in the election petition and as s uc h, i n vie w of Rule 17 Order V I of the CPC after commencement of trial the amendment petition is fit to be rejected. At this juncture it would be necessary to quote Rule 17 Order VI of the CPC

"17. Amendment of pleadings.-The court may at any stage of

the proceedings allow either party to alter or am end his

ple adings in suc h manner and on such terms as may he just,

and all such amendments shall be made as may be necessary for

the purpose of determining the real questions in controversy

between the parties:

Provided that no application for amendment shall be allowed

after the trial has commenced, unless the Court comes to the

conclusion that in spite • of due diligence, the party could not have

raised the matter before the commencement of trial."

12. The proviso to Rule 17 of Order VI makes it clear that after the commencement of trial amendment petition is ordinarily required to be rejected. Moreover., on this very point Sri Shrivastava, learned counsel for the respondent has heavily placed reliance on Dhartipakar Case (Supra). The said issue has been dealt with in paragraph no. 31 of the judgment, which is as follow:

"31. The above scanning of the election petition would show

that the appellant failed to plead complete details of corrupt

practice which could constitute a cause of action as

contemplated by S. 100 of the Act and he further failed to give the

material facts and other details of the alleged corrupt practices.

The allegations relating to corrupt practice, even if assumed to

be true as stated in the various paras of the election petition do

not constitute any corrupt practice. The petition was drafted in a

highly vague and general manner. Various paras of the petition

presented disjointed averments and it is difficult to m ake out as

t o what ac t ual l y t he petitioner intended to plead. At the

conclusion of hearing of the appeal before us appellant

made applications for amending the election petition, to

remove the defects pointed out by the High Court and to render

the allegations of corrupt practice in accordance with the

provisions of S. 33 read with S. 123 of the Act. Having given our

anxious c o n s i d e r a t i o n t o t h e a m e n d m e n t applications, we

are of the opinion that these applications cannot be allowed at this

stage. It must be borne in mind that the election petition was

presented to the Registrar of the High Court at Lucknow Bench on

the last day of the limitation prescribed for filing the election

petition. The appellant could not raise any ground o f c h a l l e n g e

a f t e r t h e e x p i r y o f limitation. Order IV, Rule 17 no doubt

permits amendment of an election petition but the same is

subject to the p r o v i s i o n s o f t h e A c t S e c t i o n 8 7

prescribes a period of 45 days from the date of the ele cti on

f or pre se nti ng election petition calling in question, the

election of a returned candidate. After the expiry of that

period no election petition is maintainable and the High

Court or this Court has no jurisdiction to extend the period of

limitation. An order of amendment permitting a new ground to

be raised beyond the time specified in 5.81 would amount to

contravention of those provisions and beyond the ambit of S. 87

of the Act. It necessarily follows that a new ground cannot be

raised or inserted in an election petition by way of amendment

after the expiry of the period of limitation. The amendments

claimed by the appellant are not in the nature of supplying

particulars instead those seek t o r ai s e ne w gr o u nd of

c hal l e n ge . Various paras of the election petition which are

sought to be amended do not disclose any cause of action,

therefore, it i s n o t p e r m i s s i b l e t o a l l o w t h e i r

amendment after expiry of the period of limitation. Amendment

applications are accordingly rejected."

13. Moreover, now the point which has been raised by the respondent regarding rejection of the election petition in absence of any specific concise cause of action as well as absence of statement regarding allegation of corrupt practice is concerned, on going through the pleadings in the election petition the Court is of the opinion that the petition lacks basic feature for maintaining the present election petition. In the election petition as specified under Section 83 of the RP Act it is mandatorily required to disclose concise statement of the material facts and particulars regarding corrupt practice. This point was considered in detail by the Hon'ble Supreme Court in the case of Samant N. Balakrishna v. George Fernandez (AIR 1969 SC 1201) , on which reliance was placed by learned counsel for the respondent. I may not do better than to only quote paragraph nos. 29 of the said judgment , which is as follows:-

" 2 9 . H a v i n g d e a l t w i t h t h e s ubs t anti v e l aw on t he

s ubj e c t of election petitions we may now turn to t h e p r o c e d u r al

p r o v i s i o n s i n t h e Representation of the People Act. Here we have to

consider Ss. 81, 83 and 86 of t he Ac t . The f i r s t pr ov i de s t he

procedure for the pre sentation of election petitions. The proviso

to subs e cti on alone is m ate ri al he re . I t provides that an election

petition may be presented on one or more of the grounds specified

in sub-section (1) of S. 100 and S.101. That as we have shown

above creates the substantive right. Section 83 then provides that the

election petition must contain a concise statement of the material facts on

which the petitioner relies and further that he must also 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. The Section is mandatory and

requires first a concise statement of material facts and then requires

the fullest possible particulars. What is the difference between

material facts and particulars? The word 'material' shows that the facts necessary to formulate a complete c a u s e o f a c t i o n m u s t b e s t a t e d . Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of particulars is to present as full a picture of the cause of action with such further information in detail a s t o m a k e t h e o p p o s i t e p a r t y understand the case he will have to meet There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the m aterial facts will mention that a statement of fact (which must be set out) was 'made and it must be alleged that it refers to the character and conduct of the candidate that it is false o r w hi c h t h e r e t u r n e d c a nd i d at e believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts thus will show the ground of corrupt practice and the c om pl e te c aus e of ac t i on and t he particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts it will not do merely to quote the words of the Section because then the efficacy of the words 'material f a c t s ' wi l l b e l os t . T he f a c t w hi c h constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the sections cannot be said to disclose a cause of action where the allegation is the making of a false statement The statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly the petition used to be in two parts. The material facts had to the included in the pe t i t i o n a nd t he par t i c ul ar s i n a schedule. It is inconceivable that a petition could be filed without the material facts and the schedule by merely citing the corrupt practice from the statute. I ndeed the penalty of dismissal summarily was enjoined for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture This distinction is brought out b y t h e p r o v i s i o n s o f S e c t i o n 8 6 although the penalty of dismissal is taken away. Subsection (5) of that Section provides:

(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 al l ow any am e ndm e nt of t he petition

which will have the effect of introducing particulars of a corrupt

practice not previously alleged in the • petition."

The power of amendment is given in respect of particulars but there

is a prohibition against an amendment " w h i c h w i l l h a v e

t h e e f f e c t o f introducing particulars of a corrupt practice not

previously alleged in the petition". One all eges the corrupt

practice in the material facts and they must show a complete cause

of action. If a petitioner has omitted to allege a c o r r u p t p r a c t i c e ,

h e c a n n o t b e permitted to give particulars of the corrupt

practice. The argument that the latter part of the fifth sub-section is

directory only cannot Stand in view of the contrast in the language of

the two parts. The first part is enabling and the second part creates

a positive bar. Therefore, if a corrupt practice is not all eged, t he

partic ul ar s c annot be supplied There is however a difference o f

a p p r o a c h b e t w e e n t h e s e v e r a l corrupt practices. If for

example the charge is bribery of voters and the particulars give

a few instances, other instances can be added; if the charge is use of

vehicles for free carriage of v ot ers , t he parti c ulars of t he

c ar s employed may be amplified But if the charge is that an agent

did something, i t c a n n o t b e a m p l i f i e d b y g i v i n g particulars

of acts on the part of the candidate or vice versa. In the scheme o f

e l e c t i o n l a w t h e y a r e s e p a r a t e corrupt practices which cannot

be said to grow out of the material facts related to another person.

Publication of false statements by an agent is one cause of action,

publication of false statements by the candidate is quite a

different cause of action. Such a cause of action must be alleged in

the material facts before particulars may be given. One cannot

under the cover of particulars of one corrupt practice give particulars

of a new corrupt practice. They constitute different causes of action.

14. In exactly similar manner the present election petition does not contain a concise statement of material facts nor the facts regarding particulars of corrupt practice adopted by the respondent. So far Ashraf Kokkur Case (Supra) ) on which heavy reliance was placed by learned counsel for the election petitioner is concerned , the Court is of the opinion that in view of the facts and circumstances of the present case the petitioner may not get any benefit from the said case. In Ashraf Kokkur Case (Supra) the returned candidate was not eligible to contest the election since there was allegation in the election petition that he was having disqualification for Membership as he was holding the post of Chairperson of Kerala Sate Wakf Board. In the said election petition the fact regarding occupying the said post was specifically mentioned. 15. In view of the facts and circumstances particularly the fact that the election petition does not contain concise statement of material facts nor particulars of corrupt practice adopted by the respondent in the election , the Court is of the opinion that election petition is required to be rejected at its threshold nor the amendment petition is required to be entertained at such belated stage that too after commencement of trial in the election petition. In view of the facts and circumstances, the interlocutory application i.e. I.A. No. 6627 of 2016 filed on behalf of the returned candidate/ respondent is allowed and the election petition as well as the amendment petitions are dismissed.

(Rakesh Kumar, J)

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