C.M. Stephen vs Atal Behari Vajpayee

S. Chadha, J.

(1) The election of Shri Atal Behari Vaipayec (the respondent) the returned candidate to the Parliament (Lok Sabha) from the Parliamentary Constituency-I, New Delhi at the last general elections to the parliamentary constituencies held in January. 1980 has been called in question in this election petition by Shri C. M. Stephen (the petitioner) a defeated candidate. The polling for the Parliamentary Constituency-1, New Delhi took place on 3/01/1980 and counting took place on 6/01/1980. The result was declared on the same day. The respondent was declared elected with 94,098 votes as against 89,053 votes polled by the petitioner. This election petition u/s 81 of the Representation of People Act, 1951 (hereinafter called the Act) was filed on 24/01/1980 for declaring the election of the respondent void u/s 100(1)(b) and Section 100(1)(d)(iv) of the Act. Summons for the appearance of the respondent and for filing the written statement were issued. The written statement was filed on 3/03/1980. The replication was filed on 12/03/1980. It is not necessary to reproduce the pleadings at this stage for the pleas in controversy are sufficiently clear from the issues. The pleadings of the parties gave rise to the following issues which were framed on 19/03/1980 :

"1. Whether the election petition was accompanied by a copy thereof and the copy was attested by the petitioner under his own signatures to be a true copy of the petition ? O. P. P.

2.Whether the affidavit in support of the allegations of corrupt practice is no affidavit in the eye of law ? O. P. R.

Whether Shri Madan Lal Khurana was a candidate at the election to the New Delhi Parliamentary Constituency No .1 ? If so, whether any allegations of any corrupt practice are made in the election petition against him to make him a necessary party to the election petition ?O. P. R.

4.If issue No. 3 is held in favor of the respondent whether the election petition is not liable to dismissal in the absence of necessary party ? O. P. P.

5.Whether full particulars of the corrupt practice have nut been alleged in the election petition ? If so, to what effect ?O. P. R.

Whether the election petition lacks in material particulars in paras 7 (d) or 8 (e) of the election petition as to how and in what manner the result of the election was materially affected ? O. P. R.

(MR.Chawla objects to the inclusion of para 8 (e) in this issue .

7.Whether Shri Madan Lal Khurana was in the service of the Government at the relevant time and belonging the class of gazetted officers ? If so, whether the election of the respondent is liable to be declared as void on the around of corrupt practice u/s 100(1)(b) read with section 123(7)(a) of the Representation of the People Act ,1951 ? O. P. P.

8.Whether Shri Madan Lal Khurana was a person holding an office of profit under the Government of India at the relevant time and thus stood disqualified under Article 102(1)(a) of the Constitution of India for being an election agent of the respondent ? O. P. P.

9.Whether the result of the election in so far as it concerns the returned candidate has been materially affected by the non-compliance of the provisions of Article 102(1)(a) of the Constitution of India and/or Section 41 of the Representation of the People Act, 1951 ? If so, whether the election is liable to be declared as void u/s 100(1)(d)(iv) of the said Act ? O. P. P10. Relief."

Issues 1 to 6 were treated as preliminary issues. On an application by the respondent issues 1 and 2 were dropped on 18/04/1980Issue No. 3 had been recast as follows

"3.Whether Shri Madan Lal Khurana was a candidate at the election by being a candidate at the general elections to the Parliament from the Parliamentary Constituency II-South Delhi ? If so, whether any allegations of corrupt practice are made in the election petition against him to make him a necessary party to the election petition ? O. P. R.This order disposes of the preliminary issues. Issues No. 3

(2) The election petition calls in question the election of the respondent to the Parliamentary Constituency-I-New Delhi. It is conceded by the respondent that Shri Madan Lal Khurana was not a candidate at the election to the Parliamentary Constituency-I-New Delhi. He was only a candidate at the election to the Parliament from the Parliamentary Constituency-II-South Delhi as is established from the certified copy of the list of nominated candidates, Ext. R-1 Section 82 of the Act lays down the persons to be made parties to the petition, reading as follows :

"82.Parties to the petition. A petitioner shall join as respondents to his petition

(A)Where the petitioner, addition to claiming a declaration that the election of all or any of the returned candi-dates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates ; and

(B)any other candidate against whom allegations of any corrupt practice are made in the petition."

Before the amendment of Section 82 by Act 27 of 1956, it required a petitioner to join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated .Obviously at the election ".poke of candidates at the same election ,in other words, limited to the election of a particular constituency. Even after the amendment, the words "any other candidate" used in sub-section (b) of Section 82 means any other candidate in the election for the constituency which is the subject matter of the petition as held in Srimati Kanta Kathuria Vs. Manak Chand Surana, . (1) The objection raised is concluded against the respondent by the law laid down by the Supreme Court. First part of the issue is held against the respondent. The later part does not thus survive for decision. Issue No. 4.

(3) Issue No. 3 has been held against the respondent issue No. 4,therefore, does not arise for determination. Issue No. 5.

(4) The petitioner in para 8 of the election petition lias alleged that the election of the respondent is liable to be declared void on the ground of corrupt practice u/s 100(1)(b) read with Section 123(7)(a) of the Act and the particulars of the corrupt practice have been given in sub-paras (a) to (f) of para 8. The averment is that the respondent obtained the assistance of Shri Madan Lal Khurana, a person belonging to the class of gazetted officers in the service of the Government ,for the furtherance of his prospects in the election (i) by appointing him as an election agent and (ii) by involving him in the conduct of the election campaign. Circumstances in the support of the submission that Shri Khurana was a person belonging to the class of gazetted officers in the service of the Government are then detailed. The appointment of Shri Khurana as an election agent is averred for the purpose of getting his deeming assistance for the furtherance of the prospects of the election of the respondent. It is then alleged :

"8(c) Even otherwise than as an election agent, the respondent had been receiving assistance from Sim Khurana for the furtherance of his prospects in the election. ShriKhurana had been addressing public meetings along with the respondent. Shri Khurana had been going round in the constituency along with the respondent canvassing for votes .Shri Khurana had been, in particular, visiting the basthies of harijans and backward people along with the respondent with promises of help from the Administration in return for their votes. He had also, at the instance of the respondent published appeals calling upon voters to vote for the respondent."

The objection by the respondent is that no particulars have been given in support of the allegations as contained in this sub para. It is pleaded as lacking in particulars of the dates of meetings and places of meeting ; particulars of the voters alleged to have been canvassed and the dates of alleged canvassing and the particulars of alleged publication. The stand in the replication by the petitioner is that no corrupt practice has been alleged in para 8 (e) of the election petition against any person and that the petitioner has only emphasised the fact that the respondent has obtained the assistance from Shri Khurana even otherwise than as an election agent. A statement is also made at the Bar by Shri D. D. Chawla the learned counsel for the petitioner that "the petitioner does not claim allegations in para 8(e) as allegations of any corrupt practice". If the corrupt practice is not alleged, then the particulars cannot be supplied. These allegations thus will not be gone into by me in this petition for pronouncing upon any "corrupt practice" in election law and for this reason ,no full particulars need be furnished. Issue No. 5 is decided accordingly.Issue No. 6.

(5) In para 7 of the election petition, the petitioner pleads that the election is liable to be declared void u/s 100(1)(d)(iv) of the Act. Allegations are made that Shri Khurana who was appointed as election'' agent by the respondent has been holding an office of profit under the Government of India and thus stood disqualified underArticle 102(1)(a) of the Constitution of India from the membership of Parliament and that u/s 41 of the Act, any person disqualified for being a member of Parliament will also be disqualified for being an election agent. The appointment of Shri Khurana as an election agent by the respondent is then averred in violation of, and in non-compliance with a material provision of the Constitution and of the Act. IT is then pleaded in para 7(d) as follows :

"7(D)Shri Khurana, as an Executive Councillor, has been wielding considerable influence and authority among the voters of New Delhi. By virtue of his appointment as an election agent, he got easy access to all the polling booths in the constituency. He entered the polling boll''s in the constituency on the polling day when the polling was in progress .He used that opportunity to canvass votes in the polling booths and in the premises thereof. As a person in authority, he influenced the officers in the polling booths also .He swayed a large number of votes, estimated at about 10,000, in favor of the respondent by his visits to and activities in, the polling booths and by his campaign after his appointment as an election agent on 31/12/1979. The result of the election was materially affected by the appointment of Shri Khurana as an election agent and by his functioning in that capacity."

(6) The objection of the respondent is to the lack of material particulars in this para, since the allegations in para 8 (e) of the petition aren''t being enquired into.

(7) The examination of the provisions of Section'' 83 of the Act will show that the petitioner is required to include in the election petition(a) a concise statement of the material facts on which the petitioner relies and (b) full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names, of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. Mr. D. D. Chawlahas cited at the Bar two authorities bringing out the distinction between'' material facts'' and ''particulars''. Only the Supreme Court draws the distinction .Xxiii E. L. R. 171 (2) contains no helpful discussion." 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 cause of action must be stated. Omission of a single material fact leads loan incomplete cause of action and the statement of claim becomes bad. "I he function of particulars is to present as full a picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet." Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, . The petitioner doest not claim the perpetration of any corrupt practice in this para. The power of amendment is given in respect of particulars of a corrupt practice alleged by Section 85(5) of the Act, There is a prohibition against an amendment which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. This has no application to the furnishing of particulars of material facts required u/s 83(1) of the Act, The cardinal provision in Section 83(1)(a) is that the election petition must contain material facts. The words ''material ''means necessary for the purpose of formulating a complete cause of action and would include facts relating to the holding of the elections ,the result thereof, the right of the petitioner to present the election petition, the grounds on which it is sought to be set aside, the noncompliance with the provisions of the Constitution and, or of the Act, and that the result of the election was materially affected. The material facts have been stated. It is for this reason the issue is restricted to the lack of material particulars in para 7 (d) of the election petition. The use of particulars is intended to meet a further and quite separate requirement of the pleadings. It is imposed in fairness and justice to the respondent. The function of the particulars is to fill in the picture of a petitioner''s cause of action with information sufficiently retailed to put the respondent on his guard as to the case ho has to meet and to enable him to prepare for the trial. It would serve another purpose of enabling the Court to exclude irrelevant matters and concentrate upon the real matters in controversy for ensuring a fair and speedier disposal of the election petition.

(8) The election petition is verified by the petitioner that the contents of paragraphs 1 to 13 including 7 (d) are true to his knowledge. The petitioner says that Shri Khurana entered the polling booths in the constituency on the polling day when the poll was in progress and he used that opportunity to canvass votes in the polling booths and in the premises thereof. There were 560 polling booths in the Parliamentary Constituency-1 New Delhi. The entry is alleged on the polling day when the poll was in progress, but there is no particularization of the polling booths. Whether it is one or all or if some, then which one the election petition has been kept vague and indefinite. The allegation further is that as a person in authority Shri Khurana influenced the officers in the polling booths also. The plea is again lacking in particularization the officers whether it is the Presiding Officer or Polling Officers or one or all and which one as also the type of influence. It is essential to call upon the petitioner to furnish better and further particulars of the polling booths, the officers and the type of influence to ensure a arterial of the election petition. The election petition has to be tried by this Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suit. The CPC empowers the Court to call for better and further particulars. That provision is to be found in Order Vi Rule 5.A power to call for particulars in respect of any pleading in an election case is. Therefore, necessary for and incidental to a fair trial of the election petition.

(9) The objection of the respondent further is to the plea that ShriKhurana swayed a large number of votes estimated at about 10,000 in favor of the respondent by his visits to, and activities in, the polling booths and by his campaign after his appointment as an election agent on 31/12/1979. Mr Shanti Bhushan, the learned counsel for the respondent did not press this objection when told that it is not always practicable to specify the names of voters swayed. Particulars cannot in the very nature of these things be given and cannot be insisted upon.

(10) Issue No. 6 is partly held in favor of the respondent. The petitioner is called upon to furnish further and better particulars within one week from today of the allegations contained in para 7 (d) in relation to the polling booths, the officers and the type of influence with sufficient fullness and clearness in the light of discussion above.

(11) The election petition be listed for further proceedings on 30/04/1980.