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ूकािशतूकािशतूकािशतूकािशत 20 ौावणौावणौावणौावण 1939 (शशशश0)
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सं0 एम1-0020/2013-33332222—निर्वाचन अर्जी संख्या-9/2015 में माननीय उच्च न्यायालय, पटना द्वारा दिनांक 20 निर्वाचन अर्जी संख्या-9/2015 में माननीय उच्च न्यायालय, पटना द्वारा दिनांक 20.03.2017 को निर्वाचन अर्जी संख्या-9/2015 में माननीय उच्च न्यायालय, पटना द्वारा दिनांक 20 पारित आदेष सर्वसाधारण की जानकारी के लिए प्रकाषित की जाती है। पारित आदेष सर्वसाधारण की जानकारी के लिए प्रकाषित की जाती है।
बिहार-राज्यपाल के आदेष सेे,
राज्यपाल के आदेष सेे,
सोहन कुमार ठाकुर, सोहन कुमार ठाकुर,
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भारत निर्वाचन आयोगभारत निर्वाचन आयोगभारत निर्वाचन आयोगभारत निर्वाचन आयोग
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अधिसूचना
निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001 तारीख 8 जून, 2017/18 ज्येश्ठ, 1939 (षक) निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001 निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001 निर्वाचन सदन, अषोक रोड, नई दिल्ली-110001
सं0 82/सं0 82/सं0 82/सं0 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 09/2015 में दिये गये उच्च न्यायालय, पटना के तारीख 20 मार्च, 2017 के आदेष को प्रकाषित करता है।,
आदेष से,
सुमित मुखर्जी,
सचिव,
भारत निर्वाचन आयोग। ELECTION COMMISSION OF INDIA
——————
NOTIFICATION
Nirvachan Sadan, 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 ,
ELECTION COMMISSION OF INDIA.
3 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017IN 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 Vice petitioner has mainly prayed for cancellation of nomination paper of the respondent, It is evident that earlier the present election petition was presented an 15.12.1015. 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 or notice the sole respondent 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 any4 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017 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 examination 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 (cid:1)बहार गजट (असाधारण), 11 अगःत 20175. That it is stated that in the year 2015,
when the election was h eld for th e B ih ar
L eg isl at i ve Assembly Election 2015 through the
State and under the direct control of the Election
Commission of India, the Respondent no. 5 was
elected for t h e M em b er o f L egi sl at i ve
Assembly from 230-Gaya town.
6. That, since the date of his election, the
Respondent no. 5 has never conducted any
affidavits 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 bership of Mem 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 isutilized his pos ition 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 nomination 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 vo i d
t h e A r t i cl e 3 2 o f th e 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
6 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017Section 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
17. 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.
18. 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.
7 (cid:1)बहार गजट (असाधारण), 11 अगःत 201719. 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
20. 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.
21. 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 be
appreciated in the eye of law.
22. 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.
23. That, under the facts and circumstances
stated hereinbefore, the petitioner has got no
other alternative or efficacious remedy except
to move this Hon'ble High Court for vindication of
his justified grievance.
24. 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 returned 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 be8 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017 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. Jai Vardhan Narayan, learned counsel for the 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 the reliefs sought for in the9 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017 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 c 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 High10 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017 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 and 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 ct a n d o f a n y r u l es m a d e
thereunder, every election petition shall be
tried by the High Court, as nearly as m ay
b e, i n a ccor da nce w ith 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 such, in view of Rule 17 Order VI 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 pleadings in such manner and on
such terms as may he just, and all such amendments
shall be made as may be necessary for the purpose
11 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017of 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 actuall y th e 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 en 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 election for
presenting election petition calling in
12 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017question, 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 S. 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 to ra is e n ew g r oun d o f ch al l enge. 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 substantive law on
the subject o f election petitions we may now turn to th e
p r o ced u r a l p r o vi 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 th e Act.
The first provi des t he procedure for the presentation of
election petitions. The proviso to subsection alone is
material here. It 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
13 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017each 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 material facts will
mention that a statement of fact (which must be set out)
was 'mule and it must be alleged that it refers to the
character and conduct of the candidate that it is false o r
w h i ch th e r et u r n ed ca n d i d a t 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 com plete cause of action and
the 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 fa ct s'
w ill b e l o st . Th e fa ct wh i ch 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 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
p eti ti on a nd th e p a rti cul ar s in 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. Indeed 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
14 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017the penalty of dismissal is taken away. Sub-section (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 allow any am en dm ent of the 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 alleges 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 alleged, the
particulars cannot 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 voters, the particulars of the cars 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
el e ct i o n l a w t h ey 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 Sate15 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017 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)
———— अधी(क, सिचवालय मुिणालय,
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