Senthibalaji v. v. A.P. Geetha and Ors

ABHAY S. OKA, J. FACTUAL ASPECTS 1. These appeals arise out of an Election Petition filed by the first respondent under Section 81 of the Representation of the People A ct, 1951 (for short, ‘the RP Act of 1951’). The Election Petition was filed by the first respondent in the Madras High Court questioning the validity of the election of 134 - Aravakurichi Assembly Constituency (for short, “the said Constituency”). Polling was held on 19th November 2016 and the result was declared on 22 nd November 2016. The present appellant is the 5th respondent in the Election Petition filed by the first respondent. The present appellant was declared as elected. He was pol led 88,068 votes. The 6th respondent in the Election Petition (the 6th respondent in this appeal) was polled 64,407 votes. Only 82 voters voted for the first respondent (Election Petitioner). 2. The first ground of challenge in the Election Petition is the improper acceptance of nomination papers of the appellant a nd the 6th respondent. The second ground of challenge is that the election is void as the appellant has indulged in corrupt practices. The allegation is that the appellant’s agent and some other persons with the consent of the appellant have indulged in corrupt practices. 3. An application was made by the present appellant inter alia pointing out that no cause of action has been set out in t he Election Petition in support of the ground of corrupt practice. It was submitted by the appellant that the Election Petition filed by the first respondent does not disclose any material particulars and material facts about the allegation of corrupt practice. It was contended that the allega tions made in paragraphs 3 to 9 are vague and therefore, the said paragraphs deserve to be struck out by exercising the power under Rule 16 of Orde r VI of the Code of Civil Procedure, 1908 (for short, ‘CPC’). The second prayer was for the rejection of the Election Petition on the ground that the same does not disclose the cause of action. A similar application was also filed by the 6th respondent. By the impugned judgment, the learned Judge of 551 the Madras High Court rejected the applications. While doing so, he observed that the first respondent had forwarded copies of a compact disc, photographs, etc. to the Returning Officer (5 th respondent). The learned Judge directed the first respondent to file all relevant documents such as emails, photographs, video footage, etc. which were submitted to the Returning Officer within a period of 15 days from the order. The appellant has challenged the said judgment and order dated 23rd February 2018 by way of this Appeal. SUBMISSIONS 4. Shri Ranjith Kumar, the learned senior counsel appearing o n behalf of the appellant has invited our attention to the requiremen t of clauses (a) and (b) of sub-section (1) of Section 83 of the R P Act of 1951 of incorporating in an election petition a concise statem ent of material facts and full particulars of any corrupt practice which is allegedly committed by the returned candidate. He pointed out that clause (b) of sub-section (1) of Section 83 also requires the election petitioner to make full statement disclosing the names of the parties al leged to have committed such corrupt practice and the date and place of commission of such practice. The learned senior counsel also pointed out that initially, the election to the said Constituency was to be held in May 20 16. By order dated 14 th May 2016, the Election Commission of India (“the Election Commission”) postponed the said election. There was a further order passed on 27th May 2016 by the Election Commission holding that the election of the said Constituency cannot be allowed to proceed and ought to be rescinded so that fresh elections could be held. Accordingly, on 17th October 2016, the Election Commission rescheduled the election to the said Constituency and declared that the polling will be held on 19th November 2016. He pointed out that the first respondent fil ed a writ petition before the Madras High Court challenging acceptanc e of the nomination papers of the appellant and 6 th respondent. He pointed out that by the judgment and order dated 18 th November 2016, the High Court rejected the said writ petition filed by the first respondent and imposed costs on the first respondent. 5. Inviting our attention to the averments made in the Elect ion Petition filed by the first respondent, he pointed out that par agraphs 3 and 4 of the Election Petition give the history of the declarati on of the poll and subsequent postponement. Paragraph 5 refers to the fact that the representation made by the first respondent for challenging the validity SENTHIBALAJI V. v. A.P. GEETHA AND ORS. [ABHAY S. OKA, J.] of the nomination papers of the appellant and 6th respondent was rejected by the Returning Officer. He pointed out that in paragraph 6 of the Election Petition, the first respondent has relied upon four representations made from 17th November 2016 to 22nd November 2016 to the Returning Officer alleging that the appellant has committed electoral misconduct, corrupt practice, and acts of bribery. It is alleged that the first respondent handed over audio and video clippings to the Returning Officer to prove the allegations in the representations made by email addres sed to the Returning Officer. In paragraph 7, the allegation is that r esult of the election is vitiated due to improper acceptance of the nomination paper of the appellant. Paragraph 8 contains a chart showing the re spective votes polled by various candidates. In paragraph 9, it is alleged that the earlier election was cancelled due to misconduct on the pa rt of the appellant and the 6th respondent and that they have suppressed the findings of the Election Commission recorded against them. He submit ted that along with the Election Petition, copies of the representations made by the first respondent were filed. He urged that mate rial facts and particulars regarding the alleged corrupt practices are not f ound in the Election Petition. He submitted that on the basis of the applications made by the appellant, the High Court has directed the first respondent to file copies of emails, photographs, and video footage which do not find place in the list of documents filed along with the Election Petition. He urged that the said direction is per se illegal. 6. Learned senior counsel relied upon decisions of this Court in the case of (i) Dhartipakar Madan Lal Agarwal v. Rajiv Gandhi1 (ii) M. Karunanidhi v. H.V. Hande & Ors. 2 and (iii) Mulayam Singh Yadav v. Dharam Pal Yadav & Ors. 3. He submitted that once the paragraphs in the Election Petition concerning allegations of corrupt practice are struck out, nothing will survive in the Election Petit ion as the term of the appellant is already over and a fresh elec tion has been held thereafter. 7. Lastly, the learned senior counsel submitted that while deciding the applications made by the appellant, the High Court could have either allowed the applications or rejected the same. But the High Court has 1 1987 Supp SCC 93 2 (1983) 2 SCC 473 3 (2001) 7 SCC 98 553 committed an error by directing the first respondent to produce documents which she had not produced. 8. Shri Balaji Srinivasan, the learned counsel representing the first respondent pointed out that material facts in support of the allegations of corrupt practice are already pleaded in the Election Petition. He pointed out that the first respondent has relied upon representations made by her to various authorities in which specific details of corrupt practices have been set out. He submitted that as material facts have already been pleaded, the High Court rightly did not exercise its powers under Rule 16 of Order VI of CPC. Relying upon a decision of this Court i n the case of V.S. Achuthanandan v. P.J. Francis & Anr. 4, the learned counsel submitted that material particulars can always be supplied later on even if the period of limitation for filing the election petition is over. He also relied upon another decision of this Court in the case of Ponnala Lakshmaiah v. Kommuri Pratap Reddy and Ors. 5. He submitted that while dealing with applications under Rule 11 of Order VII or Rule 16 of Order VI of CPC, the Court cannot adopt a hyp ertechnical approach. Relying upon what is held in paragraph 9 of a judgment of a Constitution Bench of this Court in the case of Balwan Singh v. Lakshmi Narain & Others6, he submitted that an opportunity is always available to the election petitioner to apply for amendment of the election petition for incorporating particulars or for amplifying the particulars. He invited our attention to the impugned order and urged that the High Court has correctly applied settled legal principles and therefore, no interference is called for. OUR VIEW 9. We have given careful consideration to the submissions. W e have carefully perused the Election Petition filed by the first respondent. As noted earlier, the election to the said Constituency was postponed in terms of the order dated 27 th May 2016 passed by the Election Commission. The challenge to the election was on two grounds. Firstly, that the nomination of the appellant was improperly acc epted and secondly, corrupt practices have been committed by the appellant or by other persons with his consent. Section 123 of the RP Act of 1951 defines various corrupt practices for the purpose of the said enactment. Naturally, 4 (1999) 3 SCC 737 5 (2012) 7 SCC 788 6 (1960) 3 SCR 91 SENTHIBALAJI V. v. A.P. GEETHA AND ORS. [ABHAY S. OKA, J.] the corrupt practice has to be qua the election subject matter of challenge in the Election Petition. 10. Now, coming to the Election Petition filed by the first respondent, paragraphs 1 and 2 are formal paragraphs which contain the first respondent’s address and description of t he respondents. Paragraph 3 only records that by a notification dated 16th October 2016, the Election Commission announced the election for the said Constituency. Paragraph 4 quotes the order of the Election Commission by which the election earlier scheduled was postponed due to reasons incorporated in the said order. Paragraphs 3 and 4 are completely irrelevant to adjudicate upon the grounds pleaded in the Election Petition. 11. In paragraph 5, the first respondent has relied upo n the representation made by her on 3 rd November 2016 to the Returning Officer by pointing out that the appellant and 6 th respondent have committed misconduct by suppressing the findings of the Ele ction Commission recorded in the order dated 27 th May 2016. The first respondent called upon the Returning Officer to disqualify the appellant and the 6 th respondent. It is further stated that the representation w as rejected by communication dated 5 th November 2011. Therefore, the first respondent filed a writ petition in the High Court which was dismissed by the order dated 18th November 2016 with costs of Rs.3,000/- on the first respondent. Presumably, paragraph 5 of the petition is in support of the ground of improper acceptance of the nomination papers of the appellant. However, the first respondent has not pleaded that under a particular statutory provision, the appellant and 6th respondent were under an obligation to disclose the order dated 27 th May 2016 passed by the Election Commission while filing nomination papers. It is not pleaded how on the ground of the failure to disclose the said order, the appellant and 6th respondent were disqualified from contesting the election. The disqualification must be based on a statutory provi sion. The first respondent has not pleaded that in law it was the obligation of the appellant to disclose in the nomination paper, the earlier order of the Election Commission by which the election was postponed. The existence of no such obligation is pleaded. Therefore, in our view, averme nts made in paragraphs nos. 4 and 5 of the Election Petition are unnecessary, thereby, attracting clause (a) of Rule 16 of Order VI of CPC. Un der clause (a) of Rule 16 of Order VI of CPC, the Court has the power to strike out a pleading which is unnecessary. 555 12. We will have to examine the averments regarding corrup t practice in the light of Section 83 of R.P. Act of 1951 which reads thus: “83. Contents of petition.—(1) An election petition— (a) shall contain a concise statement of the material fact s on which the petitioner relies ; (b) shall set forth full particulars of any corrupt prac tice that the petitioner alleges, including as full a stateme nt as possible of the names of the parties alleged to hav e committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: [Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavi t in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.” (emphasis added) Now we come to paragraphs 6 and 7 which read thus: “6. The petitioner filed representations to 4th Respondents on 17.11.2016 two representations, 19.11.2016, 20.11.2016, 22.11.2016 explaining that the 5th Respondent committed electoral misconduct, corrupt practice and bribery to the electorate. The 4th Respondent did not consider the representations. She submitted that the 5 th Respondent used Government vehicles for election campaign. The petitioner filed audio and video clippings to prove the allegations made in the representation by electronic mail to th e 4th Respondent. She craves leave of the Court to treat the averments in the above representations has part and parcel of this petition. 7. The petitioner submits that the returned candidate was disqualified to be chosen to fill the said seat that he has committed corrupt practice and the result of the election so far as it concerned SENTHIBALAJI V. v. A.P. GEETHA AND ORS. [ABHAY S. OKA, J.] to the 5th Respondent has been materially affected by improper acceptance of his nomination, by corrupt practice an d non- compliance of by not disclosing the earlier order of the election commission for same constituency.” 13. Section 123 of the RP Act of 1951 defines corrupt practices. In paragraphs 6 and 7, even bare particulars of any of the corrupt practices covered by Section 123 have not been pleaded. Wha t is the nature of corrupt practice is also not described except for making a bald allegation that in the representations mentioned in paragraph 6, the first respondent has set out electoral misconduct, corrupt practice, and bribery on the part of the appellant. Clause (a) of sub-section (1) of Section 83 mandates that an election petition must contain a concise statem ent of material facts. When the allegation is of corrupt practice, the basic facts constituting corrupt practice must be pleaded in order to make compliance with Clause (a) of sub-section (1) of Section 83. In this case, such concise facts are not at all pleaded. Basic facts cannot be pleaded only by stating that the same find place in the documents relied upon. The first respondent has merely stated that the contents of representations may be read as a part of the petition. This does not satisfy the requirement of incorporating a concise statement of material facts. Moreover, when the allegation is of corrupt practice, the proceedings virtually become quasi -criminal. Therefore, the elected candidate must get adequate notice of what is alleged against him. That is why material facts concerning the ground of corrupt practice must be pleaded. The outcome of such a petition is very serious. It can oust a popularly elected representative of the people. Therefore, non-compliance with the requirement of stating material facts must result in the rejection of the petition at the threshold. 14. At this stage, we may make useful reference to a well-known decision of this Court of a Bench of three Hon’ble Judges in the case of V.S. Achuthanandan4 which is in fact relied upon by the first respondent. Paragraph 15 of the said decision reads thus: “15. It would thus appear that the election petition was rejected mainly on the ground that it did not disclose the cause of action as according to the learned trial Judge the allegations rega rding corrupt practice were vague and did not disclose “material facts and full particulars” of the corrupt practice alleged. It is evident that the learned trial Judge did not distinguish between the “material facts” and the “material particulars” of allegations regarding 557 corrupt practices as defined under Section 123 of the Act. The law on the point is well settled which appears to have not been taken note of or appreciated by the learned trial Judge. Af ter referring to various pronouncements of this Court including cases in Balwan Singh v. Lakshmi Narain [AIR 1960 SC 770 : (1960) 3 SCR 91], Samant N. Balkrishna v. George Fernandez [(1969) 3 SCC 238] , Virendra Kumar Saklecha v. Jagjiwan [(1972) 1 SCC 826], Udhav Singh v. Madhav Rao Scindia [(1977) 1 SCC 511], F.A. Sapa v. Singora [(1991) 3 SCC 375] and Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe [(1995) 5 SCC 347] and a host of other authorities, this Court in L.R. Shivaramagowda v. T.M. Chandrashekar [(1999) 1 SCC 666 : (1998) 6 Scale 361] held that while failure to plead “material facts” is fatal to the election petition and no amendment of the pleading is permissible to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of “material particulars” can be cured at a later stage by an appropriate amendment. An election petition was not liable to be dismissed in limine merely because full particulars of corrupt practice alleged were not set out. It is, therefore, evident that material facts are such primary facts which must b e proved at the trial by a party to establish existence of a cause of ac tion. Whether in an election petition a particular fact is a material fact or not, and as such, required to be pleaded is a question which depends on the nature of the charge levelled, the ground relied upon, and in the light of the special circumstances of the c ase. In Udhav Singh case [(1977) 1 SCC 511] the Court held: (SCC p. 523, paras 42-43) “In short, all those facts which are essential to clot he the petitioner with a complete cause of action, are ‘material facts’ which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)( a). ‘Particulars’, on the other hand, are ‘the details of the case set up by the party’. ‘Material particulars’ within the contempla tion of clause (b) of Section 83(1) would therefore mean all the details which are necessary to amplify, refine and embellish the material facts already pleaded in the petition in compliance with the SENTHIBALAJI V. v. A.P. GEETHA AND ORS. [ABHAY S. OKA, J.] requirements of clause ( a). ‘Particulars’ serve the purpose of finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative.” (emphasis added) 15. The consensus of judicial opinion is that the failure to ple ad material facts concerning alleged corrupt practice is fatal to the election petition. The material facts are the primary facts which must be proved on trial by a party to establish the existence of a cause of action. In the present case, taking the averments made in the petition as it is, not a single material fact is pleaded making out an allegation of corrupt practice covered by Section 123 of the RP Act of 1951. All that the first respondent has pleaded is that he made representations to the Returning Officer and other authorities complaining about the corrupt practice on the part of the appellant. What is the nature of the corrupt p ractice is not mentioned even in brief. Therefore, material facts, which ac cording to the first respondent constitute corrupt practice were not pleaded in the Election Petition. 16. At this stage, we may refer to a decision of this Court in the case of Dhartipakar Madan Lal Agarwal1 and in particular paragraph nos. 13 and 14 which reads thus:- “13. The appellant’s grievance that in entertaining the preliminary objections and rejecting the election petition under Order VII Rule 11 the High Court deprived the appellant’s opportunity to amend the petition and to make good the deficiencies by supplying the necessary particulars and details of the corrupt practice alleged in the petition, is devoid of any merit. Firstly, the appellant was free to file amendment application, but at no stage he expressed any desire to make any amendment application nor he made any application to that effect before the Hi gh Court. It was open to the appellant to have made th at application but he himself did not make any such application. The High Court was under no legal obligation to direct the appellant to amend pleadings or to suo moto grant time for the same. Secondly, the allegations of corrupt practic e as required by Section 83 were not complete and the sa me did not furnish any cause of action, any amendment made after the expiry of the period of limitation could n ot be 559 permitted which would amount to raise a new ground of challenge. The question, however, does not arise as the appellant did not file any amendment application. During the course of hearing of this appeal before us the appellant has made applications for amendment of the election petition which we shall deal with later. 14. Before we consider various paragraphs of the election petition to determine the correctness of the High Court order we think it necessary to bear in mind the nature of the right to elect, the right to be elected and the right to dispute election and the trial of the election petition. Right to contest election or to question the election by means of an election petition is neither common law nor fundamental right, instead it is a statutory right regulated by the statutory provisions of the Representation of People Act, 1951. There is no fundamental or common law right in these matters . This is well settled by a catena of decisions of this Court in N.P. Ponnuswami v. Returning Officer [(1952) 1 SCC 94: AIR 1952 SC 64 : 1952 SCR 218 : 1 ELR 133], Jagan Nath v. Jaswant Singh [AIR 1954 SC 210 : 1954 SCR 892 : 9 ELR 231], Jyoti Basu v. Debi Ghosal [(1982) 1 SCC 691 : AIR 1982 SC 983 : (1982) 3 SCR 318]. These decisions have settled the legal position that outside the statutory provisions there is no right to dispute an election. The Representation of People Act is a complete and self-contained Code within which any rights claimed in relation to an election or an election dispute must be found. The provisions of the Civil Procedure Code are applicable to the ext ent as permissible by Section 87 of the Act. The scheme of the Act as noticed earlier would show that an election can be questione d under the statute as provided by Section 80 on the grounds as contained in Section 100 of the Act. Section 83 lays down a mandatory provision in providing that an election petition shall contain a concise statement of material facts and set forth full particulars of corrupt practice. The pleadings are regulated by Section 83 and it makes it obligatory on t he election petitioner to give the requisite facts, det ails and particulars of each corrupt practice with exactitude. If the election petition fails to make out a ground under Section 100 of the Act it must fail at the threshold. Allegations of corrupt practice are in the nature of criminal charges, it is SENTHIBALAJI V. v. A.P. GEETHA AND ORS. [ABHAY S. OKA, J.] necessary that there should be no vagueness in the allegations so that the returned candidate may know t he case he has to meet. If the allegations are vague and general and the particulars of corrupt practice are not stated i n the pleadings, the trial of the election petition cannot proce ed for want of cause of action. The emphasis of law is to avoid a fishing and roving inquiry. It is therefore necessary for the Court to scrutinise the pleadings relating to corrupt practice i n a strict manner.” (emphasis added) 17. This Court held that Section 83 makes it obligatory for the election petitioner to give requisite facts, details, and particulars of each corrupt practice with exactitude . In this case, requisite facts are completely missing. The allegations are very vague and general in nature and, therefore, there is no cause of action to proceed on the grou nd of corrupt practice. Therefore, in our view, the averm ents made in paragraphs 6 and 7 do not constitute a cause of action available to proceed on the ground of corrupt practices contemplated by Section 123. Paragraph 8 contains the details of the result of the election. Paragraphs 2 to 4 and 8 are formal in nature and not at all relevant. 18. In paragraph 9, again there are vague and general allegations that the appellant and 6 th respondent committed electoral misconduct and corrupt practice. Even this paragraph is bereft of ma terial facts. Paragraph 9 (a) has been added which contains only one sentence that acceptance of nomination of the appellant and 6th respondent is illegal. Not a single material fact is pleaded in support of th e plea that the acceptance of the nomination paper is improper. 19. While rejecting the applications made by the appellants, the learned Single Judge of the High Court had issued directions in paragraphs 19 and 20 which read thus:- “19. In this case, as already held that the election petition discloses material facts and particulars and copy of the CD, photogr aphs etc sent to the respondent/returning officer has not been given to the applicants herein/respondents 5 & 6. The 1st respondent/ election petitioner has not stated anything new in the ele ction petition, these documents have already been sent to the 5 th respondent/returning officer during election. The R eturned 561 candidate/5 th respondent has not denied and the same can be decided at the time of trial. Therefore, it is necessity on the part of the first respondent/election petitioner to produ ce the copies of emails, photographs, CD and video footages etc., before this Court and serve the same to the applicant s herein/contesting respondents 5 and 6. 20. With the above observation, all the three applications are dismissed. This Court directs the first respondent/ election petitioner to file all the relevant documents befor e this Court within 15 days from the date of this order viz., emails, photographs and video footages etc., if any filed before th e 5th respondent/returning officer during the Election and also to serve those materials to applicants herein/contestin g respondents 5 and 6. ” (emphasis added) 20. We must note here that the emails, photographs, and vide o footage have not been relied upon in the list of documents fi led along with the Election Petition. At the highest, these documents will constitute particulars and not material facts. Secondly, the High Court had no reason to direct the election petitioner to file the said documents on record while dismissing applications filed by the appellant and the 6th respondent. It was for the first respondent to seek permission to produce the documents. The first respondent never sought such permission. Even if the documents are produced, the same will be without any foundation in the pleadings. Therefore, it is very difficult to sustain the said direction as well. 21. As held earlier, paragraphs 3 and 4 are unnecessary, which do not deal with something which happened after the election was declared. Therefore, the said paragraphs being irrelevant will have to be ordered to be deleted under Rule 16 of Order VI of CPC. Paragraph 5 is not material for the alleged cause of action. Paragraphs 6, 7 a nd 9 do not disclose any material facts in relation to the allegati ons of corrupt practices. As material facts regarding allegations of c orrupt practice have not been pleaded, the election petition does not disclose any cause of action as far as the ground of corrupt practice is concerned. Therefore, even these paragraphs deserve to be deleted. As stated earlier, the ground of improper acceptance of the nomination paper is not s upported by material facts. In any case, the ground of improper accep tance of the nomination paper is no longer relevant as the term of the appellant has SENTHIBALAJI V. v. A.P. GEETHA AND ORS. [ABHAY S. OKA, J.] already expired. Therefore, in view of the findings wh ich we have recorded above, no purpose will be served by keeping the Election Petition pending. Accordingly, we set aside the impugned judgment of the High Court and allow the applications filed by the appellant for reject ion of the petition and/or for deletion of irrelevant paragraphs. Election Petition No.1 of 2017 pending before the High Court of Judicature at Madras stands dismissed. There will be no order as to costs. Divya Pandey Appeals disposed of. (Assisted by Varun Dhond and Shevali Monga, LCRAs]