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Bihar Gazette · Government of Bihar

Bihar Gazette, 11 August 2017

Published 11 August 2017

Type
Extra Ordinary
Identifier
in.gov.bih.gazette.2017-08-11.700
Languages
English, Hindi

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ूकािशतूकािशतूकािशतूकािशत 20 ौावणौावणौावणौावण 1939 (शशशश0)

((((संसंसंसं0 पटनापटनापटनापटना 700) ) ) ) पटनापटनापटनापटना

पटनापटनापटनापटना, शुबशुबशुबशुबवारवारवारवार, 1111 1111 अगःतअगःतअगःतअगःत 2017 नििििििििनननननननवववववववर्र्र्र्वााााााााचचचचचचचचनननननननन वििििििििवववववववभ्भ्भ्भ्भ्भ्भ्भााााााााााााााागगगगगगगग

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अधिसूचनाअधिसूचनाअधिसूचनाअधिसूचना

3333333311111111 जजजजजजजजुुुुुुुुललललललललााााााााइइइइइइइर्र्र्र्ई 22222222000000001111111177777777

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,

अपर सचिव। अपर सचिव2 (cid:1)बहार गजट (असाधारण), 11 अगःत 2017

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 2017

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 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 2017

5. 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 2017

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

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 2017

19. 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 2017

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 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 2017

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 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 2017

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 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 2017

the 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)

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Cite this issue. Bihar Gazette, Government of Bihar, 11 August 2017. Indian Gazettes, https://egazette.servantsofknowledge.in/details/in.gov.bih.gazette.2017-08-11.700/. Archive identifier in.gov.bih.gazette.2017-08-11.700.