Harminder Singh vs Ranjit Singh Brahmpura

Rameshwar Singh Malik, J.—Petitioner, by way of instant Election Petition under Section 80 and 81 read with Section 100 of the Representation of the People Act, 1951, ('' the Act'' for short), seeks setting aside of election of the returned candidate-respondent, elected as Member Parliament (Lok Sabha) from 03-Khadoor Sahib (Gen.) Parliamentary Constituency and further to disqualify him under Section 8 A of the Act.

Briefly put, facts of the case are that General Election for the purpose of constituting 16th Lok Sabha was announced on March 5, 2014. The Model Code of Conduct came into force on the same day, in the entire country, including State of Punjab. Petitioner as well as respondent were electors/voters of 03-Khadoor Sahib (Gen.) Parliamentary Constituency. 13 members of Lok Sabha were to be elected from State of Punjab. Last date for filing of nominations was 9.4.2014. Polling was scheduled to be held on 30.4.2014 and counting of votes was to take place on 16.5.2014. Petitioner as well as respondent, besides other candidates, filed their nominations, so as to contest the General Elections for constituting 16th Lok Sabha. Petitioner filed his nomination from 03-Khadoor Sahib (Gen.) Parliamentary Constituency, as a candidate of Indian National Congress Party on the party symbol of ''Hand''. The respondent filed his nomination from 03-Khadoor Sahib (Gen.) Parliamentary Constituency as a candidate of Shiromani Akali Dal on the party symbol of ''Scales''.

After polling of votes on 30.4.2014, counting of votes was conducted on 16.5.2014. Petitioner secured 3,66,763 valid votes, being the nearest rival of the respondent who secured 4,67,332 valid votes. On completion of the counting process, respondent was declared as duly elected Member Parliament (Lok Sabha) from 03-Khadoor Sahib (Gen.) Parliamentary Constituency.

Feeling aggrieved from the election result, petitioner has approached this Court by way of instant election petition. He has challenged the election of the respondent alleging that the respondent, during the election, has committed corrupt practice, as defined under Section 123 (3) of the Act, as per the numerous specific grounds taken in the election petition and also seeks his disqualification under Section 8A of the Act.

Respondent was put to notice. Having been served in the election petition, respondent filed his written statement raising more than one preliminary objections. Thereafter, replication to the written statement was filed on behalf of the petitioner.

On completion of pleadings of the parties, following issues were framed by this Court vide order dated 17.12.2014.

1) Whether the Election Petition is vague, ambiguous and lacks in stating material facts and particulars in it as alleged by the respondent?OPR

2) Whether the Election Petition does not disclose any cause of action and the same is liable to be dismissed in limine under Order 7, Rule 11 of the Code of Civil Procedure?OPR

3) Whether paragraphs No. 17, 18, 18(i) 18(ii), 19 & 20 of the Election Petition are liable to be deleted as these paragraphs do not make out a case of the commission of any corrupt practice as alleged by the respondent? If so its effect? OPR

4) Whether Annexures P-1 to P-4 are liable to be removed from the Election Petition as alleged by the respondent in paragraph No.4 of the preliminary objections of the written statement?OPR

5) Whether the Election Petition has not been verified as required under Section 83 (1) (c) of the Representation of People Act, 1951 and the annexures or schedule attached with it have not been verified as required under Section 83 of Representation of People Act, 1951? If so its effect?OPR

6) Whether the alleged Form BB filed by the petitioner is not in the prescribed format? If so its effect?OPR

7) Whether the copies of the Election Petition supplied to the respondent have not been duly attested by the petitioner as the date or place of attestation is not mentioned therein? If so its effect?OPR

8) Whether the respondent used Sikh Religious Symbols and/or National Flag in the election advertisement Annexures P-1 to P-4 issued/publicized/telecast through TV Channels for the furtherance of the prospects of his election as detailed in the Election Petition and thereby committed the corrupt practice as defined under Section 123 (3) of the Representation of People Act, 1951? If so its effect?OPP

9) Whether the respondent has committed corrupt practice under different provisions of law contained in the Representation of People Act, 1951, as detailed in the paragraphs No. 17 to 20 of the Election Petition? If so its effect?OPP

10) Relief.

On 17.12.2014, learned counsel for the parties were ad idem that out of the abovesaid 10 issues, issues No. 1 to 7 may be treated as preliminary issues and it was ordered accordingly. It is also pertinent to note here that on 9.4.2015, learned senior counsel for the respondent, during the course of his arguments, submitted that he did not intend to press preliminary issues No. 5 to 7, thus, only preliminary issues No. 1 to 4 remain to be decided.

Both the learned counsel for the parties addressed their respective arguments in detail, on the abovesaid preliminary issues No. 1 to 4, so as to substantiate their respective stands taken.

Opening his arguments on preliminary issue No.3, learned senior counsel for the respondent submits that even if the excess amount spent by the respondent which was not disclosed by him, as alleged, is added, still the respondent did not exceed the prescribed limit. He submits that if the alleged undisclosed amount of `15 lacs would be added to the disclosed amount of `51, 68,928/-, still the total will be less than the prescribed limit of `70 lacs. Learned senior counsel, while placing reliance on the averments taken in para 3 of the preliminary objections raised in the written statement, submits that para Nos. 17, 18, 18 (i), 18 (ii), 19 and 20 of the election petition are liable to be deleted, as they do not disclose any cause of action. He submits that even if all the averments mentioned in these paragraphs are taken to be true, still these do not make out a case of ''corrupt practice'' under the relevant provisions of the Act, because of which the same are liable to be deleted from the election petition. In support of his contentions on preliminary issues No. 3, he places reliance on the judgments of the Hon''ble Supreme Court in L.R. Shivaramagowda and others v. T.M. Chandrashekar (dead) By LRs and others, (1999) 1 SCC 666 and Kamalnath v. Sudesh Verma, (2002) 2 SCC 410.

Raising his arguments on preliminary issues No. 1, 2 and 4 together, learned senior counsel for the respondent submits that in the relevant paragraphs from 7 to 16 of the election petition qua these issues, name of the respondent is nowhere mentioned in any of the advertisements. The respondent has not been shown present anywhere in any of these advertisements. Neither name of the constituency is there, nor any objectionable words have been shown to have been used in any of the advertisements, so as to attract provisions of Section 123 (3) of the Act or any other provision of law. He would next contend that no appeal in the name of religion has been shown to have been made, either by the respondent or by anybody else on his behalf. If the petitioner was to level such allegations, he must have been very specific but such specific allegations are conspicuously missing in the present election petition. Paragraphs No. 8 and 9 of the petition are self contradictory, submits learned senior counsel.

He next contended that it was the political party who was allegedly doing it with the alleged consent of the respondent. However, no details regarding consent of the respondent have been given, as to how, when, before whom and at what time, the alleged consent was either sought by anybody from the respondent or given by the returned candidate-respondent. Once the petitioner has verified abovesaid averments, as per his knowledge, then he was under legal obligation to give details about the consent of the respondent. However, despite having been taken the preliminary objections by the respondent in his written statement, petitioner did not give any details in this regard in his replication as well. Learned senior counsel submits that in the absence of materials facts and particulars as well as non disclosure of cause of action, present election petition is liable to be dismissed at this very stage and Annexures P-1 to P-4 are also liable to be removed from the election petition, besides deletion of paragraph Nos. 17, 18, 18 (i), 18 (ii), 19 and 20.

To buttress his arguments on the abovesaid preliminary issues, learned senior counsel for the respondent places reliance on the following judgments:-

Smt. Indira Nehru Gandhi v. Shri Raj Narain, 1975 AIR (SC) 2299 (SC)

Harmohinder Singh Pradhan v. Ranjeet Singh Talwandi and others, 2005 (5) SCC 46 (SC)

Azhar Hussain v. Rajiv Gandhi, 1986 (sup) SCC 315 (SC)

Dhartipakar Madal Lal Agarwal v. Shri Rajiv Gandhi, 1987 (sup) SCC 93 (SC)

Hari Shanker Jain v. Sonia Gandhi, 2001 (8) SCC 233 (SC)

Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, 2009 (9) SCC 310 (SC)

Charan Lal Sahu v. Giani Zail Singh and another, 1984 (1) SCC 390 (SC)

Ramakant Mayekar v. Smt. Celine D''Silva, 1996 (1) SCC 399 (SC)

Chandrakanta Goyal v. Sohan Singh Jodh Singh Kohli, 1996 (1) SCC 378 (SC)

S. Subramaniam Balaji v. The Government of Tamil Nadu and others, 2013 (9) SCC 659 (SC)

Narain Chand Prashar v. Prem Kumar Dhumal and others, 1993 AIR (HP) 84 ( HP).

On non disclosure of necessary details regarding consent, learned senior counsel for the respondent made pointed reference to Hari Shanker Jain'' case (supra) and Narain Chand Prashar''s case (supra). Similarly, for dismissing the election petition at the threshold for want of cause of action, he places reliance on Dhartipakar Madan Lal Agarwal''s case (supra).

Finally, placing reliance on all the abovesaid judgments, learned senior counsel for the respondent submits that since the instant election petition is vague, ambiguous and lacks in stating material facts and particulars, which does not disclose any cause of action, it is liable to be dismissed in limine under Order 7, Rule 11 of the Code of Civil Procedure, 1908, (''CPC'' for short) and paragraph Nos. 17, 18, 18(i) 18 (ii), 19 and 20 thereof are liable to be deleted, as these paragraphs do not make out a case for commission of any corrupt practice. Similarly, Annexures P-1 to P-4 are also liable to be removed from the election petition, submits learned senior counsel for the respondent. He prays for dismissal of the election petition in limine.

Per contra, learned counsel for the petitioner emphatically contradicted all the abovesaid arguments raised by learned senior counsel for the respondent, on each and every preliminary issues No. 1 to 4. Referring to the averments taken in paragraph Nos. 6 to 16 of the election petition and also averments taken by the respondent in his written statement in reply to these paragraphs on the cause of action, learned counsel for the petitioner submits that once the respondent has denied that he ever used religious symbols for his election prospects nor it was used with his consent, it immediately becomes a matter of evidence and election petition is not liable to be dismissed, at this stage because of this preliminary issue, as the election petition clearly discloses cause of action. He submits that, in fact, displaying of religious symbols in election advertisements would amount to corrupt practice, as it would come within the scope of Section 123 (3) of the Act. Learned counsel for the petitioner lays stress on the words, ''or the use of'' in Section 123 (3) of the Act, to contend that once the use of religious symbols and national symbols is not even denied by the respondent in his written statement, it becomes a triable issue. With a view to connect the respondent with the offending election advertisements, learned counsel for the petitioner submits that it is the provisions of Section 100 (1) (b) of the Act, which are clearly attracted herein and not the provisions contained in Section 100 (1) (d).

He submits that since the candidate cannot disassociate himself from his political party, election advertisements issued by his political party would be deemed to have been issued by the candidate himself. He would next contend that political party would certainly come within the scope of words, "by any other person", used in Section 100 (1) (b) of the Act, Section 29A of Chapter IV-A of the Act read with Clause 2 (h) of the Election Symbols (Reservation and Allotment) Order, 1968, and definition of ''person'' provided in Section 3 (42) of the General Clauses Act, 1897. He also refers to 10th Schedule of the Constitution of India, to contend that a recognised political party has deep, pervasive and dominating control over its candidates or elected MP/MLA. He submits that a candidate gets elected or lose the election on the basis of strength or weakness of his political party.

Learned counsel for the petitioner submits that respondent was senior Vice President of his party and he was also a member of the Political Affairs Committee, thus, was holding a significant position in the decision making body of his political party. In such a situation, any decision taken by his political party shall be deemed to be a decision of the respondent as well. The election advertisements issued would be deemed to have been issued by the respondent himself and also by the political party, having come within the ambit of term, ''by any other person'', with the consent of the respondent. He submits that consent, in the present case, is to be inferred in view of the peculiar facts and circumstances based on the material facts specifically pleaded. The respondent is not as specific in his preliminary objections No. 1 and 2, as he is in preliminary objections No. 3, taken in his written statement. Thus, it amounts to admission by the respondent qua averments taken by the petitioner in paragraph Nos. 6 to 16, i.e. disclosure of cause of action, on account of corrupt practice and the petitioner specifically pleaded the material facts and particulars of corrupt practice, as envisaged under Section 123 (2) of the Act, contended learned counsel for the petitioner.

For substantiating his arguments on the cause of action, learned counsel for the petitioner places reliance on the following judgments:-

Ashraf Kokkur v. K. V. Abdul Khader Etc. 2014 (4) RCR (civil) 236 (SC)

Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others, AIR 2012 SC 2638 (1) (SC)

K. K. Ramachandran Master v. M.V. Sreyamskumar and others, 2010 (7) SCC 428 (SC)

Harkirat Singh v. Amrinder Singh, AIR 2006 SC 713 (1) (SC)

Virender Nath Gautam v. Satpal Singh and others, 2007 (1) RCR (civil) SC 748 (SC)

Sardar Harcharan Singh Brar v. Sukh Darshan Singh, 2004 (4) RCR (civil) 749 SC (SC)

V.S. Achutanandan v. P.J. Francis and another, AIR 1999 SC 2044 (SC)

D. Ramchandran v. R.v. Janakiraman, 1999 (2) RCR (civil) 272 SC (SC)

With a view to distinguish the judgment relied upon by learned senior counsel for the respondent in S. Subramaniam Balaji''s case (supra), learned counsel for the petitioner places reliance on two judgments of the Hon''ble Supreme Court in JIK Industries Limited and others v. Amarlal V. Jumani and another, 2012 (3) SCC 255 and Pravasi Bhalai Sangathan v. Union of India and others, 2014 (11) SCC 477.

Addressing on preliminary issue No. 3, learned counsel for the petitioner submits that allegations levelled by the petitioner against the respondent is not that the respondent has exceeded the prescribed limit of election expenses but the specific allegation levelled is that despite knowing fully well about the election expenses incurred by him, respondent filed an incorrect statement of expenses, thereby concealing the expenses, though these were within the prescribed limit. He submits that filing of incorrect statement and concealing part of election expenses would violate the provisions of Sections 77 and 78 of the Act, thereby inviting disqualification under Section 10A of the Act. In this view of the matter, learned counsel for the petitioner submits that paragraph Nos. 17, 18, 18 (i) 18 (ii), 19 and 20 of the election petition are not liable to be deleted because averments taken by the petitioner in these paragraphs clearly raise a triable issue.

He submits that by filing a false affidavit before the District Election Officer regarding his election expenses, thereby intentionally and deliberately concealing the actual expenses incurred by him in the election, respondent has also committed an offence as defined under Section 171 (I) of the Indian Penal Code (''IPC'' for short). For the purpose of co-relating the abovesaid alleged illegal action of corrupt practice on the part of the respondent which comes within the scope of Section 123 (i) of the Act, learned counsel for the petitioner places reliance on a judgment of the Hon''ble Supreme Court in Ashok Shankarrao Chavan v. Madhavrao Kinhalkar and others, 2014 (7) SCC 99. He also places reliance on the judgment of the Hon''ble Supreme Court in the case of Krishnamoorthy v. Sivakumar, 2015 (2) RCR (civil) 921.

Controverting the arguments raised by the learned senior counsel for the respondent for removal of Annexures P-1 to P-4,, learned counsel for the petitioner submits that two original copies of the election petition were filed. However, in one set of the election petition, compact discs (''CD'' for short) could not be attached as Annexures P-1 to P-4, whereas these CDs were attached with the second set of the election petition. On objection having been raised, all the four CDs were attached and objection was removed immediately and before issuance of notice to the respondent. No prejudice was caused to the respondent as both copies of election petition were already having all the four CDs and, if at all, it was a curable defect. In this regard, he places reliance on the judgment of the Hon''ble Supreme Court in G.M. Siddeshwar v. Prasanna Kumar, 2013 (4) SCC 776 and contends that CDs in the form of Annexures A-1 to A-4 were not liable to be removed from the election petition.

In addition to the abovesaid judgments, learned counsel for the petitioner also seeks support from the following judgments:-

Smt. Neena Vikram Verma v. Balmukund Singh Gautam and others, 2013 (2) RCR (civil) 847 (SC)

Sathi Vijay Kumar v. Tota Singh and others, 2006 (13) SCC 353 (SC)

Nani Gopal Swami v. Abdul Hamid Choudhary and another, 1959 Air (Assam) 200, Assam High Court Abdul Hamid Choudhary v. Nani Gopal Swami, 1962 (22) ELR 358 (SC)

Kanhiya Lal Omar v. R.K. Trivedi and others, 1986 Air (SC) 111, (SC)

Kanwar Lal Gupta v. Amarnath Chawla and others, 1975 (3) SCC 646 (SC)

Kisan Shankar Kathore v. Arun Dattatray Sawant and others, 2014 (14) SCC 162

Balwan Singh v. Lakshmi Narain and others, 1960 Air (SC) 770.

Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore and another, 1995 SCC (Cri) 57 T.C. Jacob v. C. Poulose, 1999 (4) SCC 274

Charan Lal Sahu v. Giani Zail Singh and another, 1984 (1) SCC 390 (SC)

Dhartipakar Madal Lal Agarwal v. Shri Rajiv Gandhi, 1987 (sup) SCC 93 (SC)

Balwant Rai Saluja and another v. Air India Ltd. And others, 2014 (9) SCC 407

Drawing support from the abovesaid judgments, learned counsel for the petitioner submits that since the material facts regarding corrupt practice have been specifically pleaded, election petition clearly discloses a complete cause of action and it deserves trial. He also submits that allegations contained in paragraph Nos. 6 to 16 of the election petition regarding corrupt practice have not been denied by the respondent, thus, inference deserves to be drawn regarding his consent also, because admission is the best evidence. He submits that judgments relied upon by learned senior counsel for the respondent were clearly distinguishable on facts. He concluded by submitting that all the preliminary issues No. 1 to 4 deserve to be decided against the respondent, granting an opportunity to the parties for leading their respective evidence and the election petition deserves to be tried and decided on merits.

Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that petitioner has made out a clear case for trial on merits. The respondent has failed to substantiate the stand taken in the preliminary objections and the same are liable to be overruled. Election petition deserves to be decided on merits, after granting reasonable opportunity of leading their respective evidence, to both the parties. Instant one has not been found to be a case for dismissal in limine. To say so, reasons are more than one, which are being recorded hereinafter.

Considering first preliminary issue first, a combined reading of the averments taken by the petitioner in his election petition, in corresponding paragraphs of the written statement filed by the respondent and also preliminary objection raised on his behalf, as well as replication filed by the petitioner, it becomes crystal clear that neither the instant election petition has been found vague or ambiguous nor it is lacking in material facts and particulars. In fact, specific averments taken by the petitioner have not been properly and specifically denied by the respondent. Necessary material facts as well as particulars have been pleaded by the petitioner. Respondent has failed to substantiate any of his arguments on preliminary issue No.1. Petitioner, on the other hand, has fulfilled the requirement of Section 83 of the Act, while stating all the material facts and particulars, on which he is relying. Section 83 of the Act needs to be referred here and the same reads as under:-

Contents of petition.-(1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; 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 affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.]

(2) Any schedule or annexure of the petition shall also be signed by the petitioner and verified in the same manner as the petition.]

The Hon''ble Supreme Court, while interpreting the scope and ambit of Section 83 of the Act in K.K. Ramchandran Master''s case (supra), held that while dealing with the election petition, the court should not adopt a technical approach, only to dismiss the election petition on the threshold. Hon''ble Mr. Justice T.S. Thakur, as his Lordship then was, speaking for the Bench, in para Nos. 5, 7 to 10 and 21, held as under:-

"The provisions of Section 83 (supra) have fallen for interpretation in several cases leading to a long line of decisions that have understood the said provisions to mean that while an election petition must necessarily contain a statement of material facts, deficiency if any, in providing the particulars of a corrupt practice could be made up by the petitioner at any later stage. The provision has been interpreted to mean that while a petition that does not disclose material facts can be dismissed as one that does not disclose a cause of action, dismissal on the ground of deficiency or non-disclosure of particulars of corrupt practice may be justified only if the election petitioner does not despite an opportunity given by the Court provide the particulars and thereby cure the defect. We do not consider it necessary to refer to all the decisions delivered on the subject as reference to some only of such decisions should in our opinion suffice

xx xx xx

In Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850, this Court had another opportunity to interpret the provisions of Section 83 and to cull out the principles that would determine whether an election petition complied with the requirement of the said provision. This Court cautioned that just because a corrupt practice has to be strictly proved did not mean that a pleading in an election proceedings should receive a strict construction. Even a defective charge, observed the Court, did not vitiate a criminal trial unless it was proved that the same had prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the court should accept that construction and be slow in dismissing an election petition lest it frustrates an action only on technical grounds. The court also observed that a charge of corrupt

practice is no doubt a very serious charge but the court has to consider whether the petitioner should be refused an opportunity to prove the allegations made by him merely because the petition was drafted clumsily. The following passages from the decision in Raj Narain''s case (supra) are apposite in this regard:

"While a corrupt practice has got to be strictly proved but from that it does not follow that a pleading in an election proceeding should receive a strict construction. This Court has held that even a defective charge does not vitiate a criminal trial unless it is proved that the same has prejudiced the accused. If a pleading on a reasonable construction could sustain the action, the court should accept that construction. The courts are reluctant to frustrate an action on technical grounds.

Xxxxxxxxxxxxxxxx

xxxxxxxx

The charge of corrupt practice in an election is a very serious charge. Purity of election is the very essence of real democracy. The charge in question has been denied by the respondent. It has yet to be proved. It may or may not be proved. The allegations made by the appellant may ultimately be proved to be wholly devoid of truth. But the question is whether the appellant should be refused an opportunity to prove his allegations? Should the court refuse to enquire into those allegations merely because the appellant or someone who prepared his brief did not know the language of the law. We have no hesitation in answering those questions in the negative.

Xxxxxxxxxxxxxxxx

xxxxxxxx

If the allegations made regarding a corrupt practice do not disclose the constituent parts of the corrupt practice alleged, the same will not be allowed to be proved and further those allegations cannot be amended after the period of limitation for filing an election petition; but the court may allow particulars of any corrupt practice alleged in the petition to be amended or amplified.

Xxxxxxxxxxxxxxxx

xxxxxxxx

Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed a rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it."

The above principles have been reiterated by this Court in H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217; V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737; Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261 and Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196.

Reference may also be made to Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511, where this Court reiterated the distinction between material facts and particulars and held that while material facts are primary and basic facts which must be pleaded by the plaintiff, particulars are details in support of such material facts. They simply amplify, refine and embellish the material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it more clear and informative. Particulars thus ensure conduct of a fair trial so that the opposite party is not taken by surprise. To the same effect is the decision of this Court in Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740, where the Court held that even if the respondents raised an objection in his counter affidavit and the appellant had despite the opportunity to cure the defect pointed out by the respondent did not do so yet an election petition cannot be dismissed on the ground that the petitioner had not cured any such defects. The petitioner was entitled to bona fide believe that the petition is in all respects complete and if the High Court found it otherwise it would give an opportunity to him to amend or cure the defect. This court also held that while dealing with election petitions the Court should not adopt a technical approach only to dismiss the election petitions on the threshold.

In Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617, this Court made a distinction between the need for supporting material facts and the means by which such facts are proved by the party alleging the same:

"There is distinction between facta probanda (the facts required to be proved i.e. material facts) and facts probantia (the facts by means of which they are proved i.e. particulars or evidence). It is settled law that pleadings must contain only facta probanda and not facta probantia. The material facts on which the party relies for his claim are called facts probanda and they must be stated in the pleadings. But the facts or facts by means of which facta probanda (material facts) are proved and which are in the nature of facta probantia (particulars or evidence) need not be set out in the pleadings. They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.

Xx xx xx

We do not consider it necessary to refer in further details to the specific averments made by the appellant in support of the charge that respondent No.1 had committed corrupt practices within the meaning of Section 123(4) of the Representation of People Act. All that we need to say is that the averments made in the election petition sufficiently disclose a cause of action. The averments set out the material facts & give sufficient particulars that would justify the grant of an opportunity to the appellant to prove his allegations. In as much as the High Court found otherwise, it in our opinion, committed a mistake. At any rate if there was any deficiency in the particulars required to be furnished in terms of Section 83(b) of the Act the High Court could and indeed ought to have directed the petitioner to disclose and provide the same with a view to preventing any miscarriage of justice on account of non-disclosure of the same. So long the material facts had been stated, which were stated in the present case, the absence of particulars, if any, could not justify dismissal of the petition by the High Court."

Similar view has been taken by the Hon''ble Supreme Court in a long catena of judgments at earlier as well as later points of time, including in the numerous abovesaid judgments relied upon by learned counsel for the petitioner. However, for the sake of brevity, the observations made by the Hon''ble Supreme Court only in one judgment, i.e. Ponnala Lakshmaiah''s case (supra), which aptly apply to the facts and circumstances of the present case, deserve to be referred. Observations made in para 12 of the judgment, read as under:-

"The High Court has, in the present case, held that the material facts constituting the foundation of the case set up by the election petition have been stated in the election petition. That being so, the requirement of Section 83 of the Act viz. that "the petition shall contain a concise statement of material facts" has been satisfied. The question of dismissing the petition on that ground also therefore did not arise. The High Court in our opinion committed no wrong in coming to that conclusion. We need only emphasise that the burden which lies on an election petitioner to prove the allegations made by him in the election petition whether the same relate to commission of any corrupt practice or proof of any other ground urged in support of the petition has to be discharged by him at the trial. There is no dilution of that obligation when the court refuses to dismiss a petition at the threshold. All that the refusal to dismiss the petition implies is that the appellant has made out a case for the matter to be put to trial. Whether or not the petitioner will succeed at the trial remains to be seen till the trial is concluded. Even so on a somewhat erroneous understanding of the law settled by this Court, the successful candidates charged with commission of corrupt practices or other illegalities and irregularities that constitute grounds for setting aside their elections seek dismissal of the petitions in limine on grounds that are more often than not specious, in an attempt to achieve a two fold objective. First, it takes a chance of getting the election petition dismissed on the ground of it being deficient, whether the deficiency be in terms of non-compliance with the provisions of Sections 81, 82 & 117 of the Act or on the ground that it does not disclose a cause of action. The second and the more predominant objective is that the trial of the election gets delayed which in itself sub-serve the interests of the successful candidate. Dilatory tactics including long drawn arguments on whether the petition discloses a cause of action or/and whether other formalities in the filing of the petition have been complied with are adopted with a view to prevent or at least delay a trial of the petition within a reasonable time frame. While a successful candidate is entitled to defend his election and seek dismissal of the petition on ground legally available to him, the prolongation of proceedings by prevarication is not conducive to ends of justice that can be served only by an early and speedy disposal of the proceedings. The Courts have, therefore, to guard against such attempts made by parties who often succeed in dragging the proceedings beyond the term for which they have been elected. The Courts need to be cautious in dealing with requests for dismissal of the petitions at the threshold and exercise their powers of dismissal only in cases where even on a plain reading of the petition no cause of action is disclosed. Beyond that note of caution, we do not wish to say anything at this stage for it is neither necessary nor proper for us to do so."

So far as the judgments relied upon by learned senior counsel for the respondent in this regard, including in the cases of Hari Shanker Jain (supra), Anil Vasudev Salgaonkar (supra) and Charan Lal Sahu (supra), are concerned, there is no dispute about the law laid down therein, yet, a careful perusal of the cited judgments would show that none of them is of any help to the respondent. It is so said because the instant election petition has neither been found vague or ambiguous, nor it is lacking in material facts and particulars. No doubt, an election petition can be summarily dismissed if it does not contain material facts and particulars or if it is found to be vague or ambiguous. However, no such deficiency has been found in the present case because of which the present election petition cannot be dismissed on the threshold and the petitioner deserves to be granted an opportunity to prove his case by leading appropriate evidence. Accordingly, preliminary issue No. 1 is decided against the respondent and in favour of the petitioner.

Coming to the second preliminary issue as to whether the present election petition discloses any cause of action or not and whether it is liable to be dismissed in limine under Order 7, Rule 11 CPC, the answer is and has to be that the election petition does disclose complete cause of action and is not liable to be dismissed in limine under Order 7, Rule 11 CPC.

A bare reading of the pleadings would leave no room for doubt that the petitioner has pleaded all the relevant material facts and particulars, as noticed hereinabove, thereby disclosing the complete cause of action which deserves trial. In fact, petitioner has discharged his initial onus taking specific pleadings in the election petition which discloses complete cause of action. When the averments taken by the petitioner are considered in their entirety, this Court is of the considered view that the election petition cannot be dismissed in limine by exercising powers under Order 7, Rule 11 CPC. No doubt, if the plain reading of an election petition does not disclose any cause of action, it can certainly be dismissed at the threshold by exercising powers under Order 7, Rule 11 CPC. However, in the instant case, as noticed hereinabove, petitioner has disclosed complete cause of action in the election petition. In this regard, reference can be made to paragraph Nos. 6 to 20 of the election petition.

The view that has been taken by this Court also finds support from the judgment of the Hon''ble Supreme Court in Sardar Harchand Singh Brar''s case (supra), Balwan Singh''s case (supra), T.M. Jacob''s case (supra) and finally by Ashraf Kokkur''s case (supra). The relevant observations made by the Hon''ble Supreme Court in paragraph Nos. 25 to 34 of its judgment in Ashraf Kokkur''s case (supra), read as under:-

"25. After all, the inquiry under Order 7, Rule 11 (a) of CPC is only as to whether the facts as pleaded disclose a cause of action and not complete cause of action. The limited inquiry is only to see whether the petition should be thrown out at the threshold. In an election petition, the requirement under Section 83 of the RP Act is to provide a precise and concise statement of material facts. The expression `material facts'' plainly means facts pertaining to the subject matter and which are relied on by the election petitioner. If the party does not prove those facts, he fails at the trial (see Philipps v. Philipps and others (1878) 4 QBD 127, 133; Mohan Rawale v. Damodar Tatyaba alias Dadasaheb and others (1194) 2 SCC 392, 399)

This Court in Azhar Hussain v. Rajiv Gandhi, at Paragraph-11, has held that:

"11. ... Whether in an election petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case. ..."

The charge levelled is that the respondent holds an office of profit as the Chairperson of the Kerala State Wakf Board and in that capacity he enjoys the profits attached to that office from the Government of Kerala.

In V.S. Achuthanandan v. P.J. Francis and another (1999) 3 SCC 737, a three-Judge Bench of this Court has taken the view that only because full particulars are not given, an election petitioner is not to be thrown out at the threshold. To quote Paragraph-15:

"15. ... 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 be proved at the trial by a party to establish existence of a cause of action. 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 case. .."

Again at Paragraph-16 of V.S. Achuthanandan case (supra), it was held that:

"16. ... So long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are generally more known than clearly understood. ..."

xxx xxx xxx

"... the failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars. ...

(Emphasis supplied)"

In Hari Shanker Jain v. Sonia Gandhi (2001) 8 SCC 233, a three- Judge Bench of this Court held that the expression `cause of action'' would mean facts to be proved, if traversed, in order to support his right to the judgment of the court and that the function of the party is to present a full picture of the cause of action with such further information so as to make opposite party understand the case he will have to meet. To quote Paragraph-23:

"23. ... The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party 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. (See Samant N. Balkrishna v. George Fernandez, Jitendra Bahadur Singh v. Krishna Behari.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition."

In Syed Dastagir v. T.R. Gopalakrishna Setty,1999 (3) RCR (civil) 643: while referring to the pleadings, it has been held at Paragraph- 9 that:

"9. ... In construing a plea in any pleading, courts must keep in mind that a plea is not an expression of art and science but an expression through words to place fact and law of one''s case for a relief. Such an expression may be pointed, precise, sometimes vague but still it could be gathered what he wants to convey through only by reading the whole pleading, depending on the person drafting a plea. ..."

" ... So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded."

In Mayar (H.K.) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express (2006) 3 SCC 100, this Court at Paragraph-12 held that:

"12. ... The court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the court exercising the powers under Order 7, Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, willful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint."

In a recent decision in Ponnala Lakshmaiah v. Kommuri Pratap Reddy and others (2012) 7 SCC 788, this Court had held at Paragraphs-17 and 29 that:

"17. ... The courts need to be cautious in dealing with requests for dismissal of the petitions at the threshold and exercise their powers of dismissal only in cases where even on a plain reading of the petition no cause of action is disclosed."

(Emphasis supplied)

xxx xxx xxx

"29. ... An election which is vitiated by reason of corrupt practices, illegalities and irregularities enumerated in Sections 100 and 123 of the Act cannot obviously be recognised and respected as the decision of the majority of the electorate. The courts are, therefore, duty-bound to examine the allegations whenever the same are raised within the framework of the statute without being unduly hypertechnical in their approach and without being oblivious of the ground realities."

Finally, as cautioned by this Court in Raj Narain v. Indira Nehru Gandhi and another ( 1972) 3 SCC 850, it was held that:

"19. Rules of pleadings are intended as aids for a fair trial and for reaching a just decision. An action at law should not be equated to a game of chess. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of a provision of law, generally speaking, there lies a juristic principle. It is the duty of the court to ascertain that principle and implement it...."

(Emphasis supplied)

Similarly, in para 9 of its judgment in Sardar Harchand Singh Brar''s case (supra), the Hon''ble Supreme Court held as under:-

"Having gone through the contents of the election petition, we are satisfied that the High Court has not been right in directing the petition to be dismissed at the threshold by forming an opinion that the averments made in the election petition were deficient in material facts. It is not necessary to burden this judgment with reproduction of the several averments made in the election petition. The High Court has already done it. The test laid down in the several authorities referred to hereinabove and in particular in the case of Raj Narain (supra) is fully satisfied. The grounds of corrupt practice and the facts necessary to formulate a complete cause of action have been stated. Even the particulars have been given. However, if the Court feels that the particulars as given in the petition are deficient in any manner the petitioner can be directed to supply the particulars and make the deficiency good. In any case, deficiency in particulars could not have been a ground for dismissing the petition at the threshold. It is only the non supply of particulars though ordered by the Court which could have led to either striking off of the pleadings or refusal to try the related instances of alleged corrupt practice. We cannot countenance the view taken by the High Court."

Similar controversy fell for consideration before the Hon''ble Supreme Court in the case of D. Ramachandran (supra), wherein the Hon''ble Supreme Court, in para Nos. 7 and 8 of the judgment laid down the law on this issue, as follows:-

"It is that judgment of the High Court which is challenged before us. As rightly contended by the learned counsel for the appellant, the judgment of the learned Judge is obviously based upon a confusion of ideas and failure to appreciate the distinction between the provisions in Sections 81, 83 and 85 of the Representation of the People Act 1951 (hereinafter referred to as the `Act'') on the one hand and Order 6, Rule 16 and Order 7, Rule 11 of the Civil Procedure Code on the other. The learned judge has chosen to test the veracity and sufficiency of the allegations in the election petition by taking note of the facts pleaded by the first respondent in his counter affidavit. In the circumstances, the learned senior counsel appearing for the first respondent has rightly concentrated on supporting the conclusion of the High Court rejecting the election petition and did not make any serious effort to support the reasoning contained in the judgment.

We do not consider it necessary to refer in detail to any part of the reasoning in the judgment; instead, we proceed to consider the arguments advanced before us on the basis of the pleadings contained in the election petition. It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such. The Court can not probe into the facts on the basis of the controversy raised in the counter."

So far as the relevant averments taken by the petitioner in this regard are concerned, the same are contained in para 6 to 16 of the election petition, which read as under:-

That election of the Sh. Ranjit Singh Brahmpura respondent i.e. the returned candidate from 03-Khadoor Sahib (Gen) Parliamentary Constituency is liable to be set aside for his having committed during the election, the corrupt practices as defined under Section 123 (3) of the Representation of the People Act, 1951. He is also liable to be disqualified under Section 8A of the Representation of the People Act, 1951.

That the Sh. Ranjit Singh Brahmpura-respondent is a prominent member and Senior Vice President of Shiromani Akali Dal, which is a registered and recognized State Political Party by the Election Commission of India. He is also a member of the Political Affairs Committee of the said Party. The respondent is a Sikh by religion.

That the respondent got issued election advertisements on TV Channels using the sacred religious symbols of Sikh religion and appealed the electors of Khadoor Sahib Parliamentary Constituency to vote for him on the ground of religion. In these advertisements besides using Sikh religious symbols, he also used symbol of National Flag of India for securing votes in his favour. He did so, for the furtherance of the prospects of his election in the said election. These election advertisements were continuously aired/telecast on TV Channels including PTC News many a times a day from 7.4.2014 to 28.4.2014, i.e. for about 21 days. The petitioner saw many of these advertisements on different dates and times during the election process on PTC News.

The Shiromani Akali Dal issued all these election advertisements with the consent of the returned candidate-respondent and thus he has committed the corrupt practice as defined under Section 123 (3) of the Representation of the People Act, 1951.

That on 12.4.2014 at 5:27 PM, the petitioner watched the PTC News Channel in his residence at Patti and saw the advertisements titled " Kare Kamm Lok Bhalai de Akali BJP Sarkar''. In this advertisement besides a song highlighting the advertisements of the SAD-BJP Alliance Govt. in Punjab, the pictures of Sri Harminder Sahib (Golden Temple), Amritsar and distribution of Kadah Parshad at Harminder Sahib have been shown. Sri Harminder Sahib is the symbol of Sikh religion being the holiest place for the Sikhs. Further, ''Nihang Singhs'' holding Nishan Sahib of Sikh religion and displaying the martial art of ''Gatka'' have also been shown in the said advertisement, the respondent used religious symbols of Sikh religion to appeal the Sikh voters of Khadoor Sahib Parliamentary Constituency to vote for him on the ground of his religion. An Audio- Video CD/copy of the said advertisement is annexed herewith as Annexure P-1. The said advertisement was aired/telecast continuously many items a day during the entire election process. The returned candidate did so for the furtherance of prospect of his election and to prejudicially affect the prospects of election of the petitioner. A copy of the vernacular Punjab lyrics/transcript of the song and its English translation is also annexed herewith as Annexure P1/A and P1/B respectively. The returned candidate used the religious symbols for the furtherance of the prospects of his election and to prejudicially affect the prospects of election of the petitioner.

That on 13.4.2014 at 9:56 AM at his residence, the petitioner saw another advertisement titled ''Nahin reesan bai nai reesan nai reesan punjab dian'' on PTC News TV Channel containing a song highlighting the achievements of SAD-BJP Govt. In Punjab, the pictures of Sri Harmandir Sahib ( Golden Temple) Amritsar, Sri Guru Granth Sahaib Parkash with Sikh devotees doing the Sikh religious rituals, Holy Nishan Sahib of the Sikh religion, Nihan Singhs holding Nishan Sahib of Sikh religion, Gurdwara Sahib Bhambor Sahib, District Rupnagar with Nishan Sahib of the Sikh religion and devotees paying obeisance, Virasat-e-Khalsa Anandpur Sahib, Baba Banda Singh Memorial Chappar Chiri, pictures of great Sikh Holocaust of 1762 ( Vadda Ghalughara) memorial at Malerkota, National Flag of the country ( India) and paintings of Sikh History. Besides that the pictures/photos of S. Parkash Singh Badal, Chief Minister, S. Sukhbir Singh Badal, Deputy Chief Minister, Punjab and that of Sh. Narendra Modi (then Prime Ministerial candidate of BJP and now the Prime Minister of India), have also been shown in the said advertisement. An Audio-Video CH/copy of the said advertisement is annexed herewith as Annexure P-2. A copy of the vernacular Punjabi lyrics/transcript of the song and its English translation is also annexed herewith as Annexure P2/A and P2/B respectively. From the advertisement it is clear that the respondent used the holy religious symbols of Sikh religion and the symbol of National Flag of India and appealed the voters of his constituency to vote for him on the ground of his religion and invoking National Flag. The said advertisement was aired/telecast continuously many times a day during the entire election process. The returned candidate did so for the furtherance of prospects of his election.

That on 7.4.2014 at 3.39 PM the petitioner saw another advertisement titled " Hun Punjab di hor dino din badal rahi tasveer'' at Patti, on PTC News Channel. In this advertisement Parkash of Sri Guru Granth Sahib with the Sikh devotees doing the Sikh religious rituals, the pictures of Virasat-e-Khalsa at Anandpur Sahib, paintings showing Sri Guru Amardas Ji with Moghul King Akbar and others, Sikh religious symbol of ''Ek Onkar'', the pictures of Baba Banda Singh Bahadur Memorial at Chappar Chiri, District SAS Nagar have been shown. The said advertisement was repeatedly shown throughout the election process/campaign on TV Channels including PTC News. An Audio-Video CD/copy of the said advertisement is annexed herewith as Annexure P-3. A copy of the vernacular Punjab lyrics/transcript of the song and its English translation is also annexed herewith as Annexure P3/A and P3/B respectively. From this advertisement it is clear that the respondent used holy religious symbols of Sikh religion and appealed the voters of his constituency to vote for him on the ground of his religion. The said advertisement was aired/telecast continuously many times a day during the entire election process. The returned candidate did so for the furtherance of prospects of his election and to prejudicially affect the election prospects of the petitioner.

That on 13.4.2014 at 6:30 PM, the petitioner saw another advertisement titled ''Eh raj nahin ji sewa hai'' at his residence, on PTC News Channel showing the pictures of Sri Harmandir Sahib Amritsar (Golden Temple). The said advertisement was also repeatedly shown throughout the election process/campaign on TV Channels including PTC News. An Audio-Video CD/copy of the said advertisement is annexed herewith as Annexure P-4. A copy of the vernacular Punjab lyrics/transcript of the song and its English translation is also annexed herewith as Annexure P4/A and P4/B respectively. From this advertisement it is clear that the respondent used holy religious symbols of Sikh religion and appealed the voters of his constituency to vote for him on the ground of his religion. The said advertisement was aired/telecast continuously many times a day during the entire election process. The returned candidate did so for the furtherance of prospects of his election prospects and to prejudicially affect the election prospects of the petitioner.

That the aforesaid advertisements Annexure P-1 to P-4 were aired/telecast on the various TV Channels including PTC News and Fastway Cable TV Network repeatedly during the entire election campaign/process of the respondent right from the day of his filing the nomination papers, i.e. on 7.4.2014 till the end of the election campaign on 28.4.2014.

That it is worth mentioning that Sri Harmandir Sahib Amritsar (also Known as Darbar Sahib and Golden Temple) is a Centre of Holy Sikh religion for Sikhs, as Holy Mecca is a Centre of Islam for Muslims and Holy Vatican for the Christians and Christianity. Lakhs of people visit the said Holy Shrine daily for worship and paying obeisance.

Virasat-e-Kalsha formerly known as ( Khalsa Heritage Memorial Complex) is a museum located in Anandpur Sahibh, District SAS Nagar. It gives as insight of all the events that took place in Punjab five hundred years ago that gave birth to Sikhism and finally the Khalsa Panth. The sentiments of the Sikhs are deeply attached to the Virast-e-Khalsa.

Similarly ''Chappar Chiri'' Memorial reminds the Sikhs of the important event of the Sikh history, when Baba Banda Singh Bahadur on the instructions of 10th Guru Sri Guru Gobind Singh fought fierce battle against the Moguls and took revenge of the torture and bricking alive of two young sons of Guru Gobind Singh Ji at Sirhind and restored the honour of Sikhs.

The Vadda Ghallughara " the great massacre of Sikhs" reminds the Sikh Community of the dreadful historical events in which about 25000 Sikhs were killed by Ahmad Shah Durrani. The memorial built at Malerkotla in commemoration of the said event reminds the great scarifies made by Sikhs to protect and defend their religion. It''s picture in the advertisement deeply touch the religious feelings of the Sikhs.

Sri Guru Amar Dev Ji were the second Guru of Sikhs and Holy Sri Guru Granth Sahib is now the Guru of Sikhs.

The National Flag of our country is a symbol of the heroic deeds of our people and represents our culture and civilization. The people of India salute it and are always ready to sacrifice their lives to keep it flying.

That the aforesaid advertisement Annexures P-1 to P-4 were issued and aired/telecast on various TV Channels including PTC News Channel and Fastway Cable TV Network for the furtherance of the prospects of the election of the returned candidate-respondent from 03-Khadoor Sahib Parliamentary Constituency with his knowledge and consent. The said advertisements were targeted to woo the Sikh voters in favour of the returned candidate-respondent in the said election. Through these advertisements, the returned candidate used the Sikh religious symbols and appealed to the Sikh electors to vote for him on the ground of his religion by exploiting the religious feelings and sentiments of the Sikh voters and Sikh Community. He also used the National Flag. He did so to enhance the prospects of his election and thereby committed the corrupt practice as defined under Section 123 (3) of the Representation of the People Act, 1951."

The respondent has not categorically denied all the abovesaid averments taken by the petitioner. The contents of para 6 to 16 of the written statement, read as under:-

That the contents of paragraph 6 of the Election Petition, as stated, are wrong and hence denied. The allegations levelled by the petitioner against the respondent are wrong, false and baseless. The respondent has neither committed any corrupt practice nor violated any provision of the Representation of the People Act, 1951.

That the contents of paragraph 7 of the Election Petition are not disputed, being matter of record.

8 & 9. That the contents of paragraphs 8 & 9 of the Election Petition, as stated, are wrong and denied. It is denied that respondent issued any election advertisement on TV. It is denied that the respondent ever appealed to voters to vote for him on the ground of his religion. It is denied that the respondent ever used Sikh religious symbols or National Flag for securing votes or furtherance of his election prospects. Neither any election TV advertisements were issued by the respondent himself nor by any other person with his consent.

That the contents of paragraph No. 10 of the Election Petition, as stated, are wrong and denied. It is denied that the respondent ever appealed to voters to vote from him on the ground of his religion. It is denied that the respondent ever used Sikh religious symbols for securing votes or for furtherance of his election prospects. Neither the election TV advertisement Annexure P-1 was issued by the respondent himself nor by any other person with his consent. The averments made in this paragraph regarding Sri Harmandir Sahib being the holiest place for Sikhs and considered as a symbol of the Sikh Religion, need no reply being issues of historical, religious and cultural matters.

11 to 13. That the contents of paragraph Nos. 11 to 13 of the Election Petition, as stated, are wrong and denied. It is denied that the respondent ever appealed to voters to vote for him on the ground of his religion. It is denied that the respondent ever used Sikh religious symbols or National Flag of India for securing votes or for furtherance of his election prospects. Neither the said election TV advertisements Annexures P-2 to P-4 were issued by the respondent nor by any other person with his consent.

That the contents of paragraph 14 of the Election Petition, as stated, are wrong and hence denied. Neither the said election TV advertisements Annexure P-1 to P-4 were issued by the respondent nor by any other person with his consent.

That the contents of paragraph 15 of the Election Petition related to the historical background of various monuments, memorials and historical events. The contents of this paragraph, therefore, need no reply being issues of historical, religious and cultural matters.

That the contents of paragraph 16 of the Election Petition, as stated, are wrong and denied. It is denied that the respondent ever appealed to voters to vote for him on the ground of his religion. It is denied that the respondent ever used Sikh religious symbols or National Flag of India for securing votes or for furtherance of his election prospects. Neither election TV advertisements Annexures P-1 to P-4 were issued by the respondent nor by any other person with his consent."

The abovesaid averments taken by the respondent in his written statement have been again specifically denied by the petitioner in his replication, reiterating his stand taken in para Nos. 6 to 16 of the election petition. However, contents of para Nos. 6 to 16 of the replication are not being reproduced herein for the sake of brevity.

Sections 29A (1), (7), (8) and (9), 100 (1), 123 (2) and 123 (3) of the Act, which are relevant for the purpose of deciding this preliminary issue, read as under:-

29A. Registration with the Election Commission of associations and bodies as political parties. - (1) Any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions of this Part shall make an application to the Election Commission for its registration as a political party for the purposes of this Act.

xx xx xx xx

(7) After considering all the particulars as aforesaid in its possession and any other necessary and relevant factors and after giving the representatives of the association or body reasonable opportunity of being heard, the Commission shall decide either to register the association or body as a political party for the purposes of this Part, or not so to register it; and the Commission shall communicate its decision to the association or body:

Provided that no association or body shall be registered as a political party under this sub-section unless the memorandum or rules and regulations of such association or body conform to the provisions of sub-section (5).

(8) The decision of the Commission shall be final.

(9) After an association or body has been registered as a political party as aforesaid, any change in its name, head office, office-bearers, address or in any other material matters shall be communicated to the Commission without delay.]

Grounds for declaring election to be void.-[(1) Subject to the provisions of sub-section (2) if [the High Court] is of opinion-

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act [or the Government of Union Territories Act, 1963 (20 of 1963)]; or

(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or

(c) that any nomination has been improperly rejected; or

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected-

(i) by the improper acceptance or any nomination, or

(ii) by any corrupt practice committed in the interests of the returned candidate 1[by an agent other than his election agent], or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, [the High Court] shall declare the election of the returned candidate to be void.]

Corrupt practices xx xx xx

(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person 6[with the consent of the candidate or his election agent], with the free

exercise of any electoral right:

Provided that-

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or

(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,

shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause.

1[(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:

2[Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.]

(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.]

3[(3B) The propagation of the practice or the commission of sati or its glorification by a candidate or his agent or any other person with the consent of the candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.

The provisions contained in para 2 (h) of the Election Symbols (Reservation and Allotment) Order, 1968 as well as Section 3 (42) of the General Clauses Act, 1897 are also relevant and the same read as under:-

"Para 2 (h) of the Election Symbols (Reservation and Allotment) Order, 1968:- "political party" means an association or body of individual citizens of India registered with the Commission as a political party under Section 29A of the Representation of the People Act, 1951."

"Section 3 (42) of the General Clauses Act, 1897- "person" shall include any company or association or body of individuals, whether incorporated or not;"

The main thrust of the arguments raised by learned counsel for the petitioner is that use of religious symbols and national symbols, during election campaign, with consent of the respondent for furtherance of prospects of his election, amounts to corrupt practice.

So far as the use of religious symbols and national symbols is concerned, the same is not in dispute. The only dispute in the instant matter is whether use of such national symbols and religious symbols was with consent of the returned candidate-respondent. As submitted by learned counsel for the petitioner, present case would fall under Section 100 (1) (b) of the Act and not under Section 100 (1) (d) thereof. It is pertinent to note here that use of religious symbols and national symbols by his political party, during election campaign, has not been denied by the respondent in his written statement. Whether such use of religious as well as national symbols was with or without consent of the respondent, it would be a subject matter of evidence to be led by the parties during the course of trial of the election petition.

The next equally important question that falls for consideration of this Court is whether the term, ''by any other person'' used in Section 100 (1) (b) as well as in Section 123 (3) of the Act, would bring a recognised political party within its scope and ambit or not. It is again undisputed that Shiromani Akali Dal is a recognised political party by the Election Commission of India under the provisions contained in Section 29-A Part IVA of the Act. The respondent was senior Vice President of his political party and also a member of political affairs committee. He was contesting the election as a sponsored candidate of his political party.

Para 1 (b) of 10th Schedule of the Constitution of India defines "Legislature Party'' and the same reads as under:-

"legislature party", in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions;

It is neither pleaded nor argued case on behalf of the respondent that the abovesaid election advertisements, with consistent use of religious and national symbols, issued repeatedly over a long period of 21 days were without his knowledge. A combined reading of the abovesaid relevant provisions of law would make it clear that a political party will be covered by the term, " by any other person'', used in Section 100 (1) (b) and Section 123 (3) of the Act. The respondent cannot disassociate himself from his political party. Once he was holding a very senior and significant position in his political party, as he was playing participatory and important role in the decision making process, any decision taken by his political party shall not only be deemed to be in his knowledge but shall also be treated his own decision as well.

Under the abovesaid peculiar fact situation obtaining in the present case, consent of the respondent would be implicit in the decision of his political party, for issuing numerous election advertisements using religious as well as national symbols. It also goes without saying that the political party, as recognised by the Constitution of India vide its 10th Schedule, has deep, pervasive and dominating control over its candidates. It is so said because a candidate get elected or he loses the election on the basis of strength or weakness of his political party.

As it is aptly said, " Words are very powerful, they must be weighed not counted". Each word used by the Parliament has its own meaning and many a times, very deep and purposeful meaning, pointing out the legislative intent behind it. Framers of the law have used the terminology in Section 100 (1) (b) as well as Section 123 (3) of the Act as, "or by any other person". Similar are the words, " or the use of", or appeal to, religious symbols or use of", or appeal to, national symbols." It is, thus, clear that even the use of religious symbols and national symbols, for furtherance of prospects of the election of a candidate, would also be carrying significant weight and importance.

No word used by the Legislature in any piece of legislation can be said to be superfluous because to say so is the exclusive domain of the Legislature itself. The duty casts on the courts is to interpret the provisions of law in harmonious and purposeful manner so that it may achieve the object sought to be achieved. While interpreting any provision of law, legislative intent is to be given due respect. Purpose and object behind any provision of law as well as scheme of the Act, also plays an important role in interpreting the said provisions.

Proceeding on a holistic, pragmatic and constructive approach, with a view to do complete and substantial justice, in accordance with law, this Court is of the view that since use of religious symbols and national symbols is not in dispute in the instant case, coupled with the fact that a recognised political party comes with the ambit of the term, "by any other person", and holding of important position by the respondent in his political party, it has clearly become a triable issue, because of which the petitioner deserves to be granted an opportunity to prove his case by leading appropriate evidence.

The abovesaid view taken by this Court also finds support from numerous judgments of the Hon''ble Supreme Court, including in the cases of Sathi Vijay Kumar (supra), Virender Nath Gautam (supra), Sheopat Singh (supra), Nani Gopal Swami (supra), Kanhiya Lal Omar (supra) and T.M. Jacob (supra). The relevant observations made by the Hon''ble Supreme Court in para Nos. 3 to 5 of its judgment in Sheopat Singh''s case (supra), which can be gainfully followed in the present case, read as under:-

Against this order, the appellant preferred an appeal under S. 116-A of the Act to the High Court of Rajasthan, and that was heard by a Bench consisting of the Chief Justice and Jagat Narayan, J. Dealing with this issue, the learned Judges observed that the order of the Tribunal dated September 3, 1957, striking out one of the instances was not proper, because if it was vague and indefinite, the petitioner should have been called upon to give further particulars and that the order striking it out, without giving an opportunity to the petitioner to do so was not justified. Then they proceeded to discuss the other ten instances on which evidence had been recorded, & held that in seven out of them it had been established that mechanically propelled vehicles had been used for transporting voters to the polling booths. The learned Judges further held that as regards the polling which took place at Bolanwali, jeeps had been procured by the appellant himself. With reference to other instances, they held that though it had been proved that mechanically propelled vehicles had been used, there was no direct evidence to prove that the appellant had procured them. This is how they state their conclusions:

"We thus find that seven instances out of the 11 the particulars of which were given in Schedule C have been proved. They relate to 1-3-57, 3-3-57, 5-3-57, 7-3-57 and 9-3-57 and 7 different polling stations. There is no direct evidence to show that the vehicles used were procured by the appellant himself except in one instance relating to Bholanwali Polling Station where jeeps Nos. 835 and 849 were used. These jeeps were admittedly procured by the appellant himself. Most of the vehicles used in the other instances belonged to persons who worked for the appellant during this election. Balwant Singh and Birbaldass out of them were his polling agents who acted as such with the express consent of the appellant. Others like Ramdutt and Chunilal were his canvassers who must be taken to have acted as agents in connection with the election with the implied consent of the candidate.

"The learned Judges then proceeded to consider whether, on these facts, the election of the appellant was liable to be set aside. They observed :

"The question which arises for consideration is whether it can be said in the circumstances of the present case that the corrupt practice in question has been committed by the returned candidate or by any person with the consent of the returned candidate as required under Section 100(1)(b) of the Act."

And they expressed their conclusion in these terms :

"From the numerous instances in which voters were carried in mechanically propelled vehicles by the agents of the appellant some of whom were quite close to him, we are of the opinion that the appellant could not have been unaware of this transport of his voters by mechanically propelled vehicles and did nothing to stop it. We accordingly infer that they were so carried with his implied consent."

The learned Judges next proceeded to discuss a question of law, which was raised by the appellant. That question may thus be stated : Under Section 100, as it was originally enacted, it was sufficient to invalidate an election that the returned candidate had connived at the commission of any corrupt practice. But by Amendment Act, XXVII of 1956 the word "consent" had been substituted for the word "connivance" in Section 100 of the Act. Therefore, it was not sufficient to show that the candidate had knowledge of the corrupt practice committed by his agents. It must be further established that he consented to the commission of such act. The argument was that, at the most, the evidence showed that the appellant might have had knowledge of the corrupt practice committed by his agents, but there was no evidence to show that he consented to it, and therefore, in law, as it now stands, the election should not be set aside. The learned Judges after examining this contention at some length came to the conclusion that the amendment of the Act had introduced no change in the law, that the word "consent" had a wider connotation than "connivance" and that it would include connivance and other matters as well, and after expressing their opinion on the question of law as above, they proceeded to restate their findings in the following terms:

"From the numerous instances of corrupt practice by agents which have been proved in this case, we have inferred that voters were carried by mechanically propelled vehicles with the implied consent of the appellant."

As a result of this finding, the order of the Election Tribunal was affirmed. The appellant then applied under Article 133(1)(c) for leave to appeal to this Court, and the same was granted by the learned Judges, because they considered that the question whether there had been a change in the law by reason of the amendment made by Act XXVII of 1956 was one of general importance. That is how the appeal came before us.

Now, it appears to us that on the findings given by the learned Judges, the question as to whether the substitution of the word "consent" in place of "connivance" has brought about any change in the law does not really arise for determination. The learned Judges firstly find that the appellant had knowledge of the commission of corrupt practices by his agents and workers. If that was all that was found, it might have been open to argument whether that would be sufficient to invalidate the election under Section 100 (1) (b) of the Act, as it now stands. But the learned Judges further proceed to infer from the facts that the appellant must have consented to the commission of corrupt practices by his agents. If that finding is to stand, a discussion whether the word "consent" is stricter than the word "connivance" and whether the amendment has changed the law will be wholly academical. Realising these difficulties, Mr. Sharma who argued the case for the appellant contended that what the learned Judges had really found was that the appellant had knowledge of the commission of corrupt practices, and not that he gave his consent to them. It was argued that the learned Judges had held that "consent" and "connivance" did not mean different things, and in view of that expression of opinion, their finding that there had been consent by the appellant did not amount to anything more than that he had knowledge of the acts, and that, in that view, it would be necessary to decide whether there has been change in the law by reason of the amendment. We are unable to agree with this contention. As already stated, the learned Judges first find as a fact that the appellant had knowledge of the commission of corrupt practices by his men, and then they proceed to infer consent of the appellant to the same from various circumstances. In other words, according to the learned Judges, there was much more than knowledge on the part of the appellant. There was his consent to the commission of corrupt practices by his agents and his workers."

Again, relevant extract of the law laid down by the Hon''ble Division Bench of Assam High Court in para 4 of its judgment in Nani Gopal Swami''s case (supra), reads as under:-

"The expression "agent" has been defined in Explanation (1) to S. 123 of the Representation of the People Act, 1951 (hereinafter called the Act). It includes an election agent, a polling agent and any person, who is held to have acted as an agent in connection with the election with the consent of the candidate. For the purposes of the Act, the expression "agent" has a much wider connotation than it is ordinarily understood to have under the law of contract.

Anybody, who acts in furtherance of the prospects of the candidate''s election may be said to be an agent of the candidate concerned, provided he does so with the consent of the candidate. This consent may not be necessarily an express consent and no written document is necessary. It may be gathered and implied from the circumstances of the case. Under the Act, an "agent" includes not only a person, who has been specifically engaged by the candidate or his election agent to work for him in the election, but also a person, who does in fact work for him and whose services have been accepted by the candidate.

Thus an association of persons or a society or a political party and its prominent members, who set up the candidate, sponser his cause and work to promote his election, may be aptly called the "agent" of the candidate for election purposes. If it is found that the person concerned was merely an officious intermeddler in the election or a mere volunteer, then of course the candidate cannot be said to have any responsibility for his action, even though the person may have acted for the candidate''s benefit and with a view to advance his interest in the election.

It will, therefore, have to be seen if Abdul Bari was acting in furtherance of the prospect of the erection of the returned candidate, Abdul Hamid Choudhury, and with his consent, express or implied; and if he actually resorted to the corrupt practice, as alleged in the petition. One of the corrupt practices mentioned in Section 123(1) of the Act is bribery, that is to say, any gift, offer or promise by a candidate or his agent or by any other person of any gratification to any person whomsoever, with the object directly or indirectly of inducing any elector to vote or refrain from voting at any election. This section has to be read along with Section 100 of the Act, which specifies the grounds on which any election should be declared to be void.

Section 100 provides that where a corrupt practice has been resorted to by a returned candidate or his election agent or by any other person with the consent of the returned candidate or his election agent, the Tribunal shall declare the election of the returned candidate to be void. As Abdul Bari in this case is not alleged to be an election agent, but merely an agent of the respondent, it is argued that the Court will have to see whether the act complained of against Abdul Bari, if it is found to be true, was a corrupt act done with the consent or at the instance of the respondent Abdul Hamid Choudhury. Reliance has been placed on the language of section 100, Sub-section (1), Clause (b) of the Act.

Direct evidence of consent of the candidate to a corrupt act done by his agent in most cases may not be available; and for obvious reasons, it would be unwise to insist upon the production of direct evidence in every case. Here again, the consent of the candidate to the act complained of or to his acceptance thereof has to be inferred from the facts and circumstances proved in the case, In my opinion, where the corrupt practice is attributed to an "agent" and not to ''any other person'' as provided in Sub-section (1), Clause (b) of Section 100, the case strictly falls under Sub-section (2) of the section.

It is common knowledge that in elections many strangers start taking interest, who have directly no concern with the candidates or their election agents and have never been asked to do anything on their behalf in furtherance of their election. Such persons are in the position of mere intermeddlers or sympathisers and the candidate or his election agent will have no responsibility for anything done by them, even if the act is done with a view to advance the prospect of the candidate''s election or results in some advantage to him, unless it is shown that the candidate or his election agent had given his express or implied consent to the act in question or had knowingly taken the benefit of his conduct at the time.

The case, however, of an "agent", who has been proved to be regularly working for the candidate during the election, stands on a somewhat different footing. In his case, approval or consent to any act done by him to promote the candidate''s election is implied. Where, therefore, corrupt practice in the coarse of the election proceedings is attributed to an "agent", it raises a strong presumption that it was done at the instance or with the express or implied consent of the candidate himself. The candidate is himself vicariously responsible for the act and conduct of his "agent" during the election. The language of Sub-section (2) of Section 100 strengthens the above inference.

This sub-section assumes that the returned candidate himself is guilty of the corrupt practice done by an "agent" unless he satisfies the Tribunal about the conditions mentioned in any of the clauses of that subsection, in order to escape the guilt; in which case the Tribunal may decide that the election was not void. One of the conditions in Subsection (2) is that the candidate is to satisfy the Tribunal that the questionable practice of his agent was contrary to his orders and without his consent or that of his election agent.

In such a case, the burden is thrown on the candidate to prove the want of consent and the act being done by the agent contrary to orders; in the case of an isolated act done by any other person, the burden lies on the person alleging corrupt practice to prove that it was done with the candidate''s consent or that of his election agent. The opening words of Sub-section (2) are, "If.... ....a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice......."

This appears to me a cogent and natural interpretation of the provisions contained in the different subsections of Section 100 of the Act. The observations of this Court in Khagendranath v. Umesh Chandra Nath AIR 1958 Assam 183, do not lay down any different legal proposition........."

Similarly, a Division Bench of Rajasthan High Court, in para 20 of its judgment in Inder Lall Yugal Kishore''case (supra), held as under:-

"The Tribunal appears to be in error in thinking that express consent of the contesting respondent had to be proved before he could be held liable for the acts of the General Secretary of the District Congress Committee or the Publicity Secretary of the Nagar Congress Committee; and since there was no direct evidence on the point that Sugan Chand Jain was appointed an agent in writing by the respondent No. 1 or orally in the presence of any person, the Tribunal held that the said respondent could not be responsible for the acts of those persons.

This, in our opinion, is a complete misconception of the legal principle, and we regret to have to say that the Tribunal did not properly appreciate the decision, which was delivered by me as the Chief Justice of the High Court of Assam in Nani Gopal Swami v. Abdul Hamid Choudhury, AIR 1959 Assam 200 on which, as the Tribunal observes, both parties relied before it.

It was expressly pointed out in that case that an association of persons or a society or a political party or its permanent members, who set up a candidate, sponsor his cause, and work to promote his election, may be aptly called the agent of the candidate for election purposes. Thus the District Congress Committee Chittorgarh and the Nagar Congress Committee there with their Secretaries and Publicity Secretary were all agents of the contesting respondent Shri Lal Singh.

Therefore, it must be held that the publications in this case were by the agents of the respondent No. 1 and we cannot believe that the respondent No. 1 was unaware all along about the activities of Sugan Chand who was mainly responsible for the work of publicity on his behalf and in respect of his candidature. The law provides that in such cases unless any of the exceptions mentioned in Sub-section (2) of Section 100 of the Act are found to exist, the Tribunal should assume that the returned candidate was guilty of corrupt practice by his agent and declare the election void."

The expression "political party" fell for consideration before the Hon''ble Supreme Court in Kanhiya Lal Omar''s (supra), wherein in para Nos. 6 and 10, the Hon''ble Supreme Court held as under:-

"The expression ''political party'' is defined in Paragraph 2(1)(h) of the Symbols Order thus :

2.(1)(h) - ''Political party'' means an association or body of individual citizens of India registered with the Commission as a political party under paragraph 3 and includes a political party deemed to be registered with the Commission under the proviso of sub-paragraph (2) of that paragraph;"

xx xx xx xx

It is true that till recently the Constitution did not expressly refer to the existence of political parties. But their existence is implicit in the nature of democratic form of Government which our country has adopted. The use of a symbol, be it a donkey or an elephant, does give rise to an unifying effect amongst the people with a common political and economic programme and ultimately helps in the establishment of a Westminster type of democracy which we have adopted with a Cabinet responsible to the elected representatives of the people who constitute the Lower House. The political parties have to be there if the present system of Government should succeed and the chasm dividing the political parties should be so profound that a change of administration would in fact be a revolution disguised under a constitutional procedure. It is no doubt a paradox that while the country as a whole yields to no other in its corporate sense of unity and continuity, the working parts of its political system are so organized on party basis in other words on systematized differences and unresolved conflicts. That is the essence of our system and it facilitates the setting up of a Government by the majority. Although till recently the Constitution had not expressly referred to the existence of political parties, by the amendments made to it by the Constitution (Fifty-Second Amendment) Act, 1985 there is now a clear recognition of the political parties by the Constitution. The Tenth Schedule to the Constitution which is added by the above amending Act acknowledges the existence of political parties and sets out the circumstances when a member of Parliament or of the State Legislature would be deemed to have defected from his political party and would thereby be disqualified for being a member of the House concerned. Hence it is difficult to say that the reference to recognition, registration etc. of political parties by the Symbols Order is unauthorised and against the political system adopted by our country."

In Kanwar Lal Gupta''s case (supra), the Hon''ble Supreme Court dealt with relation between the political party and its candidate. In para 9 and 11 of its judgment, the Hon''ble Supreme Court held as under:-

"Now, before we proceed to discuss the evidence bearing on this question, we must clear the ground by pointing out that not only is the incurring of excessive expenditure a corrupt practice, but also the authorising of such expenditure, and authorising may be implied as well as express. Where the authorising is express, there is no difficulty in bringing home the charge of corrupt practice against the candidate But a somewhat difficult question on facts may arise where the charge is sought to be proved against the candidate on the basis that the impliedly authorised excessive expenditure. Whether a particular expenditure was impliedly authorised by the candidate must depend on the facts and circumstances of each case as appearing from the evidence adduced before the Court. This question Would arise in a challenging form where expenditure in connection with the election is incurred, not by the candidate, but by the political party which has sponsored him or his friends and supporters. Can the limit on the expenditure be evaded by the candidate by not spending any moneys of his own but leaving it to the political party or his friends and supporters to spend an amount far in excess of the limit? The object of the prevision limiting the expenditure is twofold. In the first place, it should be open to individual or any political party, howsoever small, to be able to contest an election on a footing of equality with any other individual or political party, howsoever rich and well financed it may be, and no individual or political party should be able to secure an advantage over others by reason of its superior financial strength. It can hardly be disputed that the way elections are held in our country, money is bound to play an important part in the successful prosecution of an election campaign. Money supplies "assets for advertising and other forms of political solicitation that increases the candidate''s exposure to the public."

Not only can money buy advertising and canvassing facilities such as hoardings, posters, handbills, brochures etc. and all the other paraphernalia of an election campaign, but it can also provide the means for quick and speedy communications and movements and sophisticated campaign techniques and is also "a substitute for energy" in that paid workers can be employed where volunteers are found to be insufficient. The availability of large funds does ordinarily tend to increase the number of votes a candidate will receive. If, therefore, one political party or individual has larger resources available to it than another individual or political party, the former would certainly, under the present system of conducting elections, have an advantage over the latter in the electoral process. The former would have a significantly greater opportunity for the propagation of its programme while the latter may not be able to make even an effective presentation of its views. The availability of disproportionately larger resources is also likely to lend itself to misuse or abuse for securing to the political party or individual possessed of such resources, undue advantage over other political parties or individuals. Douglas points out in his book called Ethics in Government at page 72,

"if one party ever attains overwhelming superiority in money, newspaper support, and (government) patronage, it will be almost impossible, barring an economic collapse, for it ever to be defeated."

This produces anti-democratic effects in that a political party or individual backed by the affluent and wealthy would be able to secure a greater representation than a political party or individual who is without any links with affluence or wealth. This would result in serious discrimination between one political party or individual and another on the basis of money power and that in its turn would mean that "some voters are denied an ''equal'' voice and some candidates are denied an "equal chance". It is elementary that each and every citizen has an inalienable right to full and effective participation in the political process of the legislatures and this requires that each citizen should have equally effective voice in the election of the members of the legislatures. That is the basic requirement of the Constitution. This equal effective voice--equal opportunity of participation in the electoral processwould be denied if affluence and wealth are to tilt the scales in favour of one political party or individual as against another. The democratic process can function efficiently and effectively for the benefit of the common good and reach out the benefits of self-government to the common man only if it brings about a participatory democracy in which every man, howsoever lowly or humble he may be, should be able to participate on a footing of equality with others. Individuals with grievances, men and women with ideas and vision are the sources of any society''s power to improve itself. Government by consent means that such individuals must eventually be able to find groups that will work with them and must be able to make their voices heard in these groups and no group should be insulated from competition and criticism. It is only by the maintenance of such conditions that democracy can thrive and prosper and this can be ensured only by limiting the expenditure which may be incurred in connection with elections, so that, as far as possible, no one single political party or individual can have unfair advantage over the other by reason of its larger resources and the resources available for being utilised in the electoral process are within reasonable bounds and not unduly disparate and the electoral contest becomes evenly matched. Then alone the small man will come into his own and will be able to secure proper representation in our legislative bodies. The judgments relied upon by the learned senior counsel for the respondent on this issue including in the cases of Azhar Hussain (supra) and Dhartipakar Madan Lal Agarwal (supra) are not applicable to the facts of the present case, being distinguishable on facts.

xx xx xx xx

Now, if a candidate were to be subject to the limitation of the ceiling, but the political party sponsoring him or his friends and supporters were to be free to spend as much as they like in connection with his election, the object of imposing the coiling would be completely frustrated and the beneficent provision enacted in the interest of purity and genuineness of the democratic process would be wholly emasculated. The mischief sought to be remedied and the evil sought to be suppressed would enter the political arena with redoubled force and vitiate the political life of the country. The great democratic ideal of social, economic and political justice and equality of status and opportunity enshrined in the Preamble of our constitution would remain merely a distant dream eluding our grasp. The legislators could never have intended that what the individual candidate cannot do, the political party sponsoring him or his friends and supporters should be free to do. That is why the legislature wisely interdicted not only the incurring but also the authorising of excessive expenditure by a candidate. When the political party sponsoring a candidate incurs expenditure in connection with his election, as distinguished from expenditure on general party propaganda, and the candidate knowingly takes advantage of it or participates in the programme or activity or fails to disavow the expenditure or consents to it or acquiesces in. it, would be reasonable to infer, save, in special circumstances, that he impliedly authorised the political party to incur such expenditure and he cannot escape the rigour of the ceiling by saying that he has not incurred the expenditure, but his political party has done so. A party candidate does not stand apart from his political party and if the political party does not want the candidate to incur the disqualification, it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate. The same proposition must also hold good in case of expenditure incurred by friends and supporters directly in connection with the election of the candidate. This is the only reasonable interpretation of the provision which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying our election process and ridding it of the pernicious and baneful influence of big money. This is in fact what the law in England has achieved. There, every person, on pain of criminal penalty, is, required to obtain authority from the candidate before incurring any political expenditure on his behalf. The candidate is given complete discretion in authorising expenditure upto his limit. If expenditure made with the knowledge and approval of the candidate exceeds the limit or if the candidate makes a false report of the expenditure after the election, he is subject not only to criminal penalties, but also to having his election voided. It may be contended that this would considerably inhibit the electoral campaign of political parties. But we do not think so. in the first place, apolitical party is free to incur any expenditure it likes on its general party propaganda though, of course, in this area also some limitative ceiling is eminently desirable coupled with filing of return of expenses and an independent machinery to investigate and take action. It is only where expenditure is incurred which can be identified with the election of a given candidate that it would be liable to be added to the expenditure of that candidate as being impliedly authorised by him. Secondly, if there is continuous community involvement in political administration punctuated by activated phases of well discussed choice of candidates by popular participation in the process of nomination, much of unnecessary expenditure which is incurred today could be avoided. Considerable distance may not have to be traveled by candidates and supports nor hidden skeletons in political cupboards tactically uncovered, propagandist marijuana '' skillfully administered, temptations of office strategically held out nor violent demonstrations disruptiveness attempted. The dawn-to-dawn multiple speeches and monster rallies, the flood of posters and leaflets and the organising of transport and other arrangements for large numbers would become otiose. Large campaign funds would not be able to influence the decision of the electors if the selection and election of candidates becomes people''s decision by discussion and not a Hobson''s choice offered by Political parties. Limiting election expenses must be part of the political process."

The judgments relied upon by the learned senior counsel for the respondent on this issue, including in the cases of Azhar Hussain (supra) and Dhartipakar Madan Lal Agarwal (supra), have not been found applicable to the facts of the present case, being distinguishable on facts.

Following the law laid down by the Hon''ble Supreme Court in the cases referred to hereinabove, this Court feels no hesitation to conclude that preliminary issue No.2 deserves to be decided in favour of the petitioner and against the respondent. Ordered accordingly.

That takes this Court to the next preliminary issue No.3, whereby the respondent seeks deletion of the averments taken by the petitioner in paragraph Nos. 17, 18, 18 (i), 18 (ii), 19 and 20 of the election petition, as these paragraphs do not make out a case of commission of any corrupt practice, as contended on behalf of the respondent.

Since a joint reading of the averments taken by the petitioner, in paragraph Nos. 17, 18, 18 (i), 18 (ii), 19 and 20 of the election petition, makes out a prima facie case, the same are not liable to be deleted from the election petition. The allegations levelled by the petitioner against the respondent in these paragraphs, are that the respondent did not maintain day to day true and correct account of election expenses incurred by him, during the election and the respondent did not submit true and correct account of his election expenses to the District Election Officer.

It has been alleged that the respondent filed a false affidavit in this regard, thereby intentionally and deliberately concealing the actual expenses incurred by him, in violation of Sections 77 and 78 of the Act as well as rules framed thereunder, which warrant disqualification of the respondent under Section 10A of the Act. Petitioner has also alleged that by filing false affidavit regarding election expenses incurred by him, the respondent has committed an offence defined under Section 171 (1) IPC. After going through the pleadings of both the parties on this issue, this Court is of the considered view that petitioner has made out a triable issue in this regard because of which paragraph Nos. 17, 18, 18 (i), 18 (ii), 19 and 20 of the election petition cannot be ordered to be deleted.

In fact, the main thrust of the arguments raised by learned counsel for the petitioner on this issue was that the allegations against the respondent was not of excessive election expenses but the allegation was that neither he maintained true and correct account of election expenses incurred, nor he filed true and correct statement thereof before the District Election Officer. Moreover, respondent has filed a false affidavit withholding true and correct amount of expenses incurred and has also withheld correct information from the notice of the District Election Officer because of which the judgment relied upon by learned senior counsel for the respondent in L.R. Shivaramagowda'' case (supra) is clearly distinguishable on facts.

Similar controversy fell for consideration before the Hon''ble Supreme Court in Ashok Shankarrao Chavan''s case (supra). After elaborate discussion on each and every aspect of the matter, the Hon''ble Supreme Court in paragraph Nos. 2, 47, 48, 50 and 59 of the judgment, laid down the law, as under:-

"2. The simple yet important question of law that have arisen in these appeals before us and which have serious ramifications on the maintenance of sanctity in our democracy is as to whether the Election Commission, under Section 10A of the Representation of the People Act, 1951, can conduct an enquiry to determine the falsity of the return of election expenses by an elected candidate, especially after a decision is rendered by the High Court in the Election Petition preferred by the Respondent No.1.

xx xx xx xx

When we come to Section 143 falling under Chapter I of Part VII, the said provision needs to be examined alongside the explanation to sub-section (1) and (6) of Section 123. When we read the explanation to sub-section (1), `bribery'' is stipulated as one form of corrupt practices and yet proceeds to state that the act of bribery cannot be attributed to the payment of any expenses bona fide incurred for the purpose of any election and duly entered into the account of election expenses referred to in Section 78, i.e. the provision under which a contesting candidate is mandated to lodge, a true copy of the election expenses maintained by him, within 30 days from the date of the election of the returned candidate. The said explanation further reinforces the fact that maintenance of expenses, as mandated under Section 77(1), should not only be correct, but also be bona fide expenses. Therefore, even the explanation to sub-section (1) to Section 123 makes it clear that incurring of election expenses and the maintenance of account of those expenses are not an empty formality but the very purpose of stipulating such restrictions and directions under Section 77(1) and (3) read along with Section 78 explains the mandate to maintain absolute purity in elections by the contesting candidates. This is required in order to ensure that the process of the election is not sullied by resorting to unethical means while incurring election expenses.

It is common knowledge as is widely published in the Press and Media that nowadays in public elections payment of cash to the electorate is rampant and the Election Commission finds it extremely difficult to control such a menace. There is no truthfulness in the attitude and actions of the contesting candidates in sticking to the requirement of law, in particular to Section 77 and there is every attempt being made to violate the restrictions imposed in the matter of incurring election expenses with a view to woo the electorate concerned and thereby, gaining their votes in their favour by corrupt means viz by purchasing the votes. Therefore, this Court cannot turn a Nelson''s eye and state that Section 77(1) and (3), as well as 78 would be relevant only for the purpose of ascertaining the corrupt practices under Section 123(6) of the Act and that such requirement of incurring bona fide and correct expenditure need not be a requirement for ascertainment for the Election Commission while exercising its powers under Section 10A of the Act. In fact, ascertainment of the requirement under Section 77(3) viz the expenses incurred, do not exceed the limit prescribed and can be made both for the purpose of an enquiry under Section 10A, as well as in the event of a candidate exceeding the limit as a corrupt practice for the purpose of invalidating the election. Therefore, the requirement under Section 77(3) has got twin objectives to be fulfilled.

Xx xx xx xx

When it is stipulated under Articles 102(1)(e) and 191(1)(e) to the effect that the ascertainment of vacation of a seat of a Member of Parliament or a Member of a State Legislature would depend upon a disqualification suffered by or under the provisions of the Act, it will have to be held that the procedure to be followed for passing such an order of disqualification should be befitting the requirement of Section 10A or otherwise when an opinion is sought for from the Election Commission under Article 103(2) or 192(2), it would be rather impossible for the Election Commission to sustain any such order of disqualification. The Act in that respect cannot be held to have imposed in the Election Commission a responsibility which will not synchronise with the original order of disqualification to be made under Section 10A of the said Act and for the ultimate opinion to be rendered after such disqualification order is passed for the purpose of enabling the President of India and the Governor of a State to take appropriate decision for ascertaining the status of a member to vacate his seat as a Member of Parliament or State Legislature. It would be incongruous to visualise such a situation while reading Articles 101 to 103 and 190 to 192 of the Constitution, read along with Sections 146 and 10A of the Act. We, therefore, have no hesitation in asserting the legal position that an order to be passed under Section 10A of the said Act, could be no less important than an opinion to be rendered by the Election Commission under Section 146 when sought for by the President of India or the Governor of the concerned States. In our considered opinion, therefore, the exercise to be made under Section 10A of the said Act would certainly include the requirement of not a farce of an enquiry but a true and complete one to determine whether the return of election expenses by an elected candidate is a true/correct or false/bogus return and that would not depend upon the decision of the Election Tribunal (High Court), which is provided under the Act for validating the election of a returned candidate on very many grounds set out in Section 123 of the Act, including the one under Section 123(6) which contemplates the compliance of the requirement under Sections 77 and 78 of the Act. However, it will have to be stated that if the said issue was squarely dealt with by the Election Tribunal (High Court) based on the entire materials that were also placed before the Election Commission and the Election Tribunal (High Court) had dealt with the said issue in detail and recorded a finding after examining such materials threadbare, there is no reason for the Election Commission to give due weight to such a finding of the Election Tribunal (High Court) while exercising its jurisdiction under Section 10A. With this we wish to deal with the various submissions of the respective counsel.

Xx xx xx xx

As compared to the nature of proceedings of an Election Petition, when we examine the scope and jurisdiction of the Election Commission under Section 10A, at the outset it must be stated that the power and jurisdiction therein does not clothe the Election Commission to deal with the successful election of the candidate concerned. In other words, exercising power under Section 10A, the Election Commission cannot set aside the election of a successful candidate. Section 10 A talks of only an order of disqualification that can be passed by an Election Commission. Further, such disqualification order can be passed for failure to lodge an account of election expenses and such failure was within the time and in the manner required by or under the Act. Therefore, the scope of an Election Petition to be tried by an Election Tribunal (High Court) and the scope of an order of disqualification to be passed under Section 10A are entirely different and it must be stated that one does not conflict with the other. The very same allegation of a corrupt practice may form part of the failure to lodge the account in the manner required by or under the Act as has been specified in Sections 77 and 78 of the Act in an Election Petition. Therefore, simply because such an issue may form part of a corrupt practice as provided under Section 123(6) and the failure may be in contravention of Section 78 of the Act, it may also be one of the grounds in challenging the successful election of a candidate concerned in an Election Petition. On that score, it cannot be held that the area of disqualification to be considered by the Election Commission, under Section 10A, is fully covered in an Election Petition and thereby, the power and jurisdiction of the Election Commission would stand excluded. It cannot therefore, be contended that once the Election Petition having been rejected for want of particulars, which order has become final, a complaint under Section 10A cannot be pursued. We therefore, reject the said contention raised on behalf of the Appellant."

In its recent judgment in Krishnamoorthy''s case (supra), the Hon''ble Supreme Court emphasised about the purity of election and considering its different facets, including importance of filing an affidavit and undue influence which may sometimes amount to corrupt practice, held in para Nos. 1 to 3, 10, 36, 39, 40, 41 43, 53, 54, 58, 61, 74, 83, 85 and 86, as under:-

"In a respectable and elevated constitutional democracy purity of election, probity in governance, sanctity of individual dignity, sacrosanctity of rule of law, certainty and sustenance of independence of judiciary, efficiency and acceptability of bureaucracy, credibility of institutions, integrity and respectability of those who run the institutions and prevalence of mutual deference among all the wings of the State are absolutely significant, in a way, imperative. They are not only to be treated as essential concepts and remembered as glorious precepts but also to be practised so that in the conduct of every individual they are concretely and fruitfully manifested. The crucial recognised ideal which is required to be realised is eradication of criminalisation of politics and corruption in public life. When criminality enters into the grass-root level as well as at the higher levels there is a feeling that `monstrosity'' is likely to wither away the multitude and eventually usher in a dreadful fear that would rule supreme creating an incurable chasm in the spine of the whole citizenry. In such a situation the generation of today, in its effervescent ambition and volcanic fury, smothers the hopes, aspirations and values of tomorrow''s generation and contaminate them with the idea to pave the path of the past, possibly thinking, that is the noble tradition and corruption can be a way of life and one can get away with it by a well decorated exterior. But, an intervening and pregnant one, there is a great protector, and an unforgiving one, on certain occasions and some situations, to interdict � "The law'', the mightiest sovereign in a civilised society.

The preclude, we are disposed to think, has become a necessity, as, in the case at hand, we are called upon to decide, what constitutes "undue influence" in the context of Section 260 of Tamil Nadu Panchayats Act, 1994 (for short `the 1994 Act'') which has adopted the similar expression as has been used under Section 123 (2) of the Representation of People''s Act, 1951 (for brevity `the 1951 Act'') thereby making the delineation of great significance, for our interpretation of the aforesaid words shall be applicable to election law in all spheres.

The instant case is a case of non-disclosure of full particulars of criminal cases pending against a candidate, at the time of filing of nomination and its eventual impact when the election is challenged before the election tribunal. As the factual score is exposited the appellant was elected as the President of Thekampatti Panchayat, Mettupalayam Taluk, Coimbatore District in the State of Tamil Nadu in the elections held for the said purpose on 13.10.2006. The validity of the election was called in question on the sole ground that he had filed a false declaration suppressing the details of criminal cases pending trial against him and, therefore, his nomination deserved to be rejected by the Returning Officer before the District Court Coimbatore in Election O.P. No. 296 of 2006. As the factual matrix would unfurl that Tamil Nadu State Election Commission (TNSEC) had issued a Notification bearing S.O. No. 43/2006/TNSEC/EG dated 1.9.2006 which stipulated that every candidate desiring to contest an election to a local body, was required to furnish full and complete information in regard to five categories referred to in paragraph five of the preamble to the Notification, at the time of filing his nomination paper. One of the mandatory requirements of the disclosure was whether the candidate was accused in any pending case prior to six months of filing of the nomination of any offence punishable with imprisonment for two years or more and in which, charges have been framed or cognizance taken by a court of law. It was asserted in the petition that the appellant, who was the President of a cooperative society, on allegations of criminal breach of trust, falsification of accounts, etc., was arrayed as an accused in complaint case in Crime No. 10 of 2001. During investigation, the police found certain other facets and eventually placed eight different chargesheets, being C.C. Nos. 3, 4, 5, 6, 7, 8, 9 and 10 of 2004 before the Judicial Magistrate-IV, Coimbatore and the Magistrate had taken cognizance much before the Election Notification. Factum of taking cognizance and thereafter framing of charges in all the eight cases for the offences under Sections 120-B, 406, 408 and 477-A of the Indian Penal Code, 1860 (`IPC'' for short) prior to the cut-off date are not in dispute. The appellant had filed a declaration and the affidavit only mentioning Crime No 10 of 2001 and did not mention the details of the chargesheets filed against him which were pending trial. In this backdrop, the Election Petition was filed to declare his election as null and void on the ground that he could not have contested the election and, in any case, the election was unsustainable.

xx xx xx xx

First, we intend, as indicated earlier, to address the issue whether non-disclosure of criminal antecedents would tantamount to undue influence, which is a facet of corrupt practice as per Section 123(2) of the 1951 Act. After our advertence in that regard, we shall dwell upon the facts of the case as Ms. V. Mohana, learned counsel for the appellant has astutely highlighted certain aspects to demonstrate that there has been no suppression or non-disclosure and, therefore, the election could not have been declared null and void either by the Election Tribunal or by the High Court. Postponing the discussions on the said score, at this stage, we shall delve into the aspect of corrupt practice on the foundation of nondisclosure of criminal antecedents.

Xx xx xx xx

In this backdrop, we have looked and posed the question that whether a candidate who does not disclose the criminal cases in respect of heinous or serious offences or moral turpitude or corruption pending against him would tantamount to undue influence and as a fallout to corrupt practice. The issue is important, for misinformation nullifies and countermands the very basis and foundation of voter''s exercise of choice and that eventually promotes criminalisation of politics by default and due to lack of information and awareness. The denial of information, a deliberate one, has to be appreciated in the context of corrupt practice. Section 123 of the 1951 Act deals with corrupt practices. Sub-Section 2 of Section 123 deals with undue influence. The said sub-Section reads as follows:

"(2) Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person [with the consent of the candidate or his election agent], with the free exercise of any electoral right:

Provided that-

(a) without prejudice to the generality of the provisions of this clause any such person as is referred to therein who-

(i) threatens any candidate or any elector, or any person in whom a candidate or an elector interest, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community; or

(ii) induces or attempt to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure,

shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause;

(b) a declaration of public policy, or a promise of publication, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."

xx xx xx xx

From the aforesaid provisions, it is clear as day that concept of undue influence as is understood in the context of Section 123(2) of the 1951 Act has been adopted as it is a deemed conception for all purposes. Thus, a candidate is bound to provide the necessary information at the time of filing nomination paper and for the said purpose, the Returning Officer can compel the candidate to furnish the relevant information and if a candidate, as has been held in Resurgence India (supra), files an affidavit with a blank particulars would render the affidavit nugatory. As has been held in the said judgment if a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is liable to be rejected. It has been further directed in the said case that the candidate must make a minimum effort to explicitly remark as `Nil'' or `Not Applicable'' or `Not Known'' in the columns and not to leave the particulars blank. It is because the citizens have a fundamental right to know about the candidate, for it is a natural right flowing from the concept of democracy. Thus, if a candidate paves the path of adventure to leave the column blank and does not rectify after the reminder by the Returning Officer, his nomination paper is fit to be rejected. But, once he fills up the column with some particulars and deliberately does not fill up other relevant particulars, especially, pertaining to the pendency of criminal cases against him where cognizance has been taken has to be in a different sphere.

Mr. Harish Salve, learned senior counsel, who was requested to assist the Court, would unequivocally submit that it would come within the arena of corrupt practice. The propositions that have been presented by the learned Amicus Curiae are as follows:

A. The notion of what constitutes the free exercise of any electoral right cannot be static. The exercise of electoral rights in a democracy is central to the very existence of a democracy. The notion of the free exercise of any electoral right is thus not something that can be ossified � it must 41 evolve with the constitutional jurisprudence and be judged by contemporary constitutional values.

B. The disclosure by a candidate of his character antecedents was premised by this Court on the right of an elector to know � which right flows from the right to the informed exercise of an electoral right.

C. Section 123(2) of the 1951 Act necessarily implies that any influence on the mind of the voter that interferes with a free exercise of the electoral right is a corrupt practice. Misleading voters as to character antecedents of a candidate in contemporary times is a serious interference with the free exercise of a voter''s right.

D. In the context of disclosure of information, if the falsity or suppression of information relating to the criminal antecedents of a candidate is serious enough to mislead voters as to his character, it would clearly influence a voter in favour of a candidate. This Court should take judicial notice of the problem of criminalization of politics � which led this Court to ask Parliament to seriously consider ameliorative changes to the law.

E. Section 123 of the 1951 Act defines "undue influence" in terms of interference with the free exercise of an electoral right. This result, i.e., interference with the free exercise of an electoral right, may apply to a person or a body of persons. As clarified in Ram Dial v. Sant Lal, (1959) 2 SCR 748, Section 123 does not emphasise the individual aspect of the exercise of such influence, but pays regard to the use of such influence as has the tendency to bring about the result contemplated in the clause.

F. It is not every failure to disclose information that would constitute an undue influence. In the context of criminal antecedents, the failure to disclose the particulars of any charges framed, cognizance taken, or conviction for any offence that involves moral turpitude would constitute an act that causes undue influence upon the voters.

G. Purity of public life has its own hallowedness and hence, there is emphasis on the importance of truth in giving information. Half truth is worse than silence; it has the effect potentiality to have a cacophony that can usher in anarchy.

Learned Amicus Curiae has commended us to certain paragraphs from Association for Democratic Reforms (supra), People''s Union for Civil Liberties (PUCL) (supra) and Manoj Narula (supra).

Mr. Maninder Singh, learned Additional Solicitor General, who was requested to assist us, has submitted that to sustain the paradigms of constitutional governance, it is obligatory on the part of the candidate to strictly state about the criminal cases pending against him, especially, in respect of the offences which are heinous, or involve moral turpitude or corruption. He would submit, with all fairness at his command, that for democracy to thrive, the `right to know'' is paramount and if a maladroit attempt is made by a candidate not to disclose the pending cases against him pertaining to criminal offences, it would have an impact on the voters as they would not be in a position to know about his antecedents and ultimately their choice would be affected. Learned ASG would urge that as the nondisclosure of the offence is by the candidate himself, it would fall in the compartment of corrupt practice.

xx xx xx xx

Ms. V. Mohana, learned counsel for the appellant would submit that the High Court has fallen into error by treating it as a corrupt practice. It is her submission that as a matter of fact, there has been no non-disclosure because the appellant had stated about the crime number, and all other cases are ancillary to the same and, in a way, connected and, therefore, non-mentioning of the same would not bring his case in the arena of non-disclosure. That apart, learned counsel would contend that the appellant has read upto Class X and he had thought as the other cases were ancillary to the principal one, and basically offshoots, they need not be stated and, therefore, in the absence of any intention, the concept of undue influence cannot be attracted. Learned counsel would urge that though there was assertion of the registration of cases and cognizance being taken in respect of the offences, yet the allegation of corrupt practices having not mentioned, the election could not have been set aside. To buttress her submissions, she has commended us to the decisions in Mahadeo v. Babu Udai Pratap Singh & Ors. AIR 1966 SC 824, Baburao Patel & Ors. v. Dr. Zakir Hussain & Ors. AIR 1968 SC 904, Jeet Mohinder Singh v. Harminder Singh Jassi 2000 (1) RCR (civil 1, Govind Singh v. Harchand Kaur 2011 (1) RCR (civil 262, Mangani Lal Mandal v. Bishnu Deo Bhandari 2012 (2) RCR (civil 878, and Shambhu Prasad Sharma v. Charandas Mahant 2012 (3) RCR (civil 761.

xx xx xx xx

From the aforesaid authorities, the following principles can be culled out:-

(i) The words "undue influence" are not to be understood or conferred a meaning in the context of English statute.

(ii) The Indian election law pays regard to the use of such influence having the tendency to bring about the result that has contemplated in the clause.

(iii) If an act which is calculated to interfere with the free exercise of electoral right, is the true and effective test whether or not a candidate is guilty of undue influence.

(iv) The words "direct or indirect" used in the provision have their significance and they are to be applied bearing in mind the factual context.

(v) Canvassing by a Minister or an issue of a whip in the form of a request is permissible unless there is compulsion on the electorate to vote in the manner indicated.

(vi) The structure of the provisions contained in Section 171-C of IPC are to be kept in view while appreciating the expression of `undue influence'' used in Section 123 (2) of the 1951 Act.

(vii) The two provisos added to Section 123(2) do not take away the effect of the principal or main provision.

(viii) Freedom in the exercise of judgment which engulfs a voter''s right, a free choice, in selecting the candidate whom he believes to be best fitted to represent the constituency, has to be given due weightage.

(ix) There should never be tyranny over the mind which would put fetters and scuttle the free exercise of an electorate.

(x) The concept of undue influence applies at both the stages, namely, pre-voting and at the time of casting of vote.

(xi) "Undue influence" is not to be equated with "proper influence" and, therefore, legitimate canvassing is permissible in a democratic set up.

(xii) Free exercise of electoral right has a nexus with direct or indirect interference or attempt to interfere.

The aforesaid principles are required to be appreciated regard being had to the progression of the election law, the contemporaneous situation, the prevalent scenario and the statutory content. We are absolutely conscious, the right to contest an election is neither a fundamental right nor a common law right. Dealing with the constitutional validity of Sections 175(1) and 177(1) of the Haryana Panchayati Raj Act, 1994, the three-Judge Bench in Javed v. State of Haryana (2003) 8 SCC 369 opined thus:

"Right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution, a right to contest election for an office in Panchayat may be said to be a constitutional right - a right originating in the Constitution and given shape by a statute. But even so, it cannot be equated with a fundamental right. There is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office. Reiterating the law laid down in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency AIR 1952 SC 64 and Jagan Nath v. Jaswant Singh AIR 1954 SC 210 this Court held in Jyoti Basu v. Debi Ghosal, (1982) 1 SCC 691.

A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation."

xx xx xx xx

At this juncture, it is necessary to elucidate on one essential aspect. Section 100(1)(d)(ii) stipulates that where the High Court is of the opinion that the result of the election has been materially affected by any corrupt practice, committed in the interest of the returned candidate by an agent, other than his election agent, the High Court shall declare the election of the returned candidate to be void. This stands in contra distinction to Section 100(1)(b) which provides that election of a returned candidate shall be declared to be void if corrupt practice has been committed by a returned candidate or his election agent or by any other person with his consent or with the consent of the returned candidate or his election agent. Thus, if the corrupt practice is proven on the foundation of Section 100(1)(b), the High Court is not to advert to the facet whether result of the election has been materially affected, which has to be necessarily recorded as a finding of a fact for the purpose of Section 100(1)(d)(ii).

In this context, we may refer to the authority in Samant N. Balkrishna and Anr. v. George Fernandez and Others (1969) 3 SCC 238, wherein Hidayatullah, C.J., speaking for the Court opined thus:

"If we were not to keep this distinction in mind there would be no difference between Section 100(1)(b) and 100(1)(d) insofar as an agent is concerned. We have shown above that a corrupt act per se is enough under Section 100(1)(b) while under Section 100(1)(d) the act must directly affect the result of the election insofar as the returned candidate is concerned. Section 100(1)(b) makes no mention of an agent while Section 100(1)(d) specifically does. There must be some reason why this is so. The reason is that an agent cannot make the candidate responsible unless the candidate has consented or the act of the agent has materially affected the election of the returned candidate. In the case of any person (and he may be an agent) if he does the act with the consent of the returned candidate there is no need to prove the consent of the returned candidate and there is no need to prove the effect on the election."

In Manohar Joshi v. Nitin Bhaurao Patil and Anr. (1996) 1 SCC 169 a three-Judge Bench reiterated the principle by stating that:

"The distinction between clause (b) of sub-section (1) and sub-clause (ii) of clause (d) therein is significant. The ground in clause (b) provides that the commission of any corrupt practice by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent by itself is sufficient to declare the election to be void. On the other hand, the commission of any corrupt practice in the interests of the returned candidate by an agent other than his election agent (without the further requirement of the ingredient of consent of a returned candidate or his election agent) is a ground for declaring the election to be void only when it is further pleaded and proved that the result of the election insofar as it concerns a returned candidate has been materially affected."

The distinction between the two provisions, as has been explained by this Court is of immense significance. If the corrupt practice, as envisaged under Section 100 (1)(b) is established, the election has to be declared void. No other condition is attached to it. Keeping this in view, we are required to advert to the fundamental issue whether nondisclosure of criminal antecedents, as has been stipulated under Section 33A and the Rules framed under the 1951 Act, would tantamount to corrupt practice and if so, how is it to be proven. We have already referred to the facet of undue influence in some decisions of this Court. Emphasis has been laid by Mr. Salve, learned amicus curiae, on influence on the mind of the voter that interferes with the free exercise of the electoral right and how such non-disclosure or suppression of facts can be a calculated act to interfere with such right. The undue influence as has been mentioned under Section 123(2) uses the words `direct or indirect''. The Court has drawn distinction between legitimate canvassing and compulsion on the electorate. Emphasis has been given to the ingenuity of the human mind which is unlimited and how the nature of interference can be unlimited. The ostensibility of the ground has been taken into consideration. In this context, we think it apt to reproduce Section 171-C that deals with undue influence at elections. The said provision reads as follows:

"171C - Undue influence at elections

(1) Whoever voluntarily interferes or attempts to interfere with the free exercise of any electoral right commits the offence of undue influence at an election.

(2) Without prejudice to the generality of the provisions of sub-section (1), whoever--

(a) threatens any candidate or voter, or any person in whom a candidate or voter is interested, with injury of any kind, or

(b) induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of Divine displeasure or of spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter, within the meaning of subsection (1).

(3) A declaration of public policy or a promise of public action, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this section."

The said provision has been referred to by the Constitution Bench in Shiv Kripal Singh''s case.

Xx xx xx xx

Having stated about the need for vibrant and healthy democracy, we think it appropriate to refer to the distinction between disqualification to contest an election and the concept or conception of corrupt practice inhered in the words "undue influence". Section 8 of the 1951 Act stipulates that conviction under certain offences would disqualify a person for being a Member either of House of Parliament or the Legislative Assembly or Legislative Council of a State. We repeat at the cost of repetition unless a person is disqualified under law to contest the election, he cannot be disqualified to contest. But the question is when an election petition is filed before an Election Tribunal or the High Court, as the case may be, questioning the election on the ground of practising corrupt practice by the elected candidate on the foundation that he has not fully disclosed the criminal cases pending against him, as required under the Act and the Rules and the affidavit that has been filed before the Returning Officer is false and reflects total suppression, whether such a ground would be sustainable on the foundation of undue influence. We may give an example at this stage. A candidate filing his nomination paper while giving information swears an affidavit and produces before the Returning Officer stating that he has been involved in a case under Section 354 IPC and does not say anything else though cognizance has been taken or charges have been framed for the offences under Prevention of Corruption Act, 1988 or offences pertaining to rape, murder, dacoity, smuggling, land grabbing, local enactments like MCOCA, U.P. Goonda Act, embezzlement, attempt to murder or any other offence which may come within the compartment of serious or heinous offences or corruption or moral turpitude. It is apt to note here that when an FIR is filed a person filling a nomination paper may not be aware of lodgement of the FIR but when cognizance is taken or charge is framed, he is definitely aware of the said situation. It is within his special knowledge. If the offences are not disclosed in entirety, the electorate remain in total darkness about such information. It can be stated with certitude that this can definitely be called antecedents for the limited purpose, that is, disclosure of information to be chosen as a representative to an elected body.

Xx xx xx xx

The purpose of referring to the instructions of the Election Commission is that the affidavit sworn by the candidate has to be put in public domain so that the electorate can know. If they know the half truth, as submits Mr. Salve, it is more dangerous, for the electorate are denied of the information which is within the special knowledge of the candidate. When something within special knowledge is not disclosed, it tantamounts to fraud, as has been held in S.P. Chengalvaraya Naidu (Dead) By LRs v. Jagannath (Dead) By LRs & Others, (1994) 1 SCC 1. While filing the nomination form, if the requisite information, as has been highlighted by us, relating to criminal antecedents, are not given, indubitably, there is an attempt to suppress, effort to misguide and keep the people in dark. This attempt undeniably and undisputedly is undue influence and, therefore, amounts to corrupt practice. It is necessary to clarify here that if a candidate gives all the particulars and despite that he secures the votes that will be an informed, advised and free exercise of right by the electorate. That is why there is a distinction between a disqualification and the corrupt practice. In an election petition, the election petitioner is required to assert about the cases in which the successful candidate is involved as per the rules and how there has been non-disclosure in the affidavit. Once that is established, it would amount to corrupt practice. We repeat at the cost of repetition, it has to be determined in an election petition by the Election Tribunal.

xx xx xx xx

We have also reproduced the information that is required to be given. Sections 259 and 260 of the 1994 Act makes the provisions contained under Section 123 of the 1951 Act applicable. Submission of Ms. V. Mohana, learned counsel for the appellant is that there was no challenge on the ground of corrupt practice. As we find the election was sought to be assailed on many a ground. The factum of suppression of the cases relating to embezzlement has been established. Under these circumstances, there is no need to advert to the authorities which are cited by the learned counsel for the appellant that it has no material particulars and there was no ground for corrupt practice. In fact, in a way, it is there. The submission of the learned counsel for the appellant that he has passed up to Class X and, therefore, was not aware whether he has to give all the details as he was under the impression that all the cases were one case or off-shoots of the main case. The aforesaid submission is noted to be rejected. Therefore, we are of the view that the High Court is justified in declaring that the election as null and void on the ground of corrupt practice.

In view of the above, we would like to sum up our conclusions:

(a) Disclosure of criminal antecedents of a candidate, especially, pertaining to heinous or serious offence or offences relating to corruption or moral turpitude at the time of filing of nomination paper as mandated by law is a categorical imperative.

(b) When there is non-disclosure of the offences pertaining to the areas mentioned in the preceding clause, it creates an impediment in the free exercise of electoral right.

(c) Concealment or suppression of this nature deprives the voters to make an informed and advised choice as a consequence of which it would come within the compartment of direct or indirect interference or attempt to interfere with the free exercise of the right to vote by the electorate, on the part of the candidate.

(d) As the candidate has the special knowledge of the pending cases where cognizance has been taken or charges have been framed and there is a non-disclosure on his part, it would amount to undue influence and, therefore, the election is to be declared null and void by the Election Tribunal under Section 100(1)(b) of the 1951 Act.

(e) The question whether it materially affects the election or not will not arise in a case of this nature."

Petitioner raised abovesaid allegation in para 17 of the election petition which read as under:-

"That the returned candidate has also committed the corrupt practice of not filing the true and correct account of election expenses before the District Election Officer an of having filed a false affidavit in this regard, that in itself is a corrupt practice."

It is pertinent to refer to the averments taken by the respondent in para 17 of his written statement as well as the averments taken by the petitioner in para 17 of the his replication and the same read as under:-

Para 17 of the written statement:- That the contents of paragraph No. 17 of the Election Petition, as stated, are wrong and hence denied. It is denied that the respondent did not file true and correct account of election expenses or filed a false affidavit. Even otherwise, none of the said allegations levelled by the petitioner against the respondent amount to ''corrupt practice'' under the Representation of the People Act, 1951. The respondent has filed a true and correct account of his election expenses and has not violated any provision of law.

Para 17 of the replication:- That the contents of para No. 17 of the written statement are incorrect and hence denied. The contents of para No. 17 of the Election Petition are true and correct and are reiterated. The respondent deliberately and intentionally did not disclose many election expenses incurred by him while maintaining daily election expenses during the elections and thereafter on that basis by submitting his false account of election expenses before the District Election Officer, as required by law. He also filed a false affidavit in this regard. The intentional concealment of the election expenses and filing of false affidavit in this regard, by itself is a corrupt practice for the commission of which the election of the respondent is liable to be set aside. The details of the expenses deliberately and intentionally concealed by the respondent and his filing of false affidavit in this regard are mentioned in para Nos. 18 (i), 18 (ii), 19 and 20 of the Election Petition. The non compliance of the provisions of Section 77 and 78 of the Representation of People Act, 1951, Rules 86 to 90 of the Conduct of Election Rules, 1961, and the instructions issued by the Election Commission of India and committing of an offence by filing false affidavit in this regard by the respondent has materially affected the result of the election in so far as the returned candidate/respondent is concerned.

Petitioner has further elaborated the abovesaid allegations in the later paragraphs Nos. 18 (i) 18 (ii), 19 and 20. When the abovesaid pleadings are put together and considered in their totality, applying the law laid down by the Hon''ble Supreme Court in the cases referred to hereinabove, it can be safely concluded that petitioner has made out a case worth trial because of which paragraph Nos. 17, 18, 18 (i), 18 (ii), 19 and 20 of the election petition have not been found liable to be deleted, therefore, third preliminary issue deserves to be decided in favour of the petitioner and against the respondent and the same is decided accordingly.

Under preliminary issue No.4, respondent has sought removal of Annexures A-1 to A-4 from the election petition. All these Annexures A-1 to A-4 are the CDs. It is a matter of record that petitioner filed two duly attested original sets of the election petition. In one of the original sets of the election petition, all the four CDs were duly attached. Copies of CDs were also attached with two sets of true copies of the election petition meant for the respondent which were served on the respondent. However, in one original set of the petition, abovesaid CDs could not be attached because of oversight or inadvertence, although pages for said purpose alongwith verification were incorporated in that set of the election petition.

Besides this, songs/jingles in vernacular (Punjabi) in all the abovesaid four CDs alongwith English translation thereof were also attached with the election petition. The moment abovesaid error was pointed by the registry of this Court, said error was immediately removed before issuance of the notice to the respondent. As two attested copies of the election petition, meant for the respondent, filed within time were containing all the four CDs and the same were also supplied to the respondent, no prejudice of any kind whatsoever, has been caused to the respondent. It also goes without saying that all the four CDS in the form of Annexures P-1 to P-4 are in the nature of evidence.

In view of the abovesaid peculiar facts and circumstances of the case, it is held that defect in the election petition, if any, was a curable one and same cannot prove fatal. The petitioner has ensured meticulous compliance of the relevant provisions of law. The respondent has not been taken by surprise because the petitioner has already rectified the inadvertent error even before notice of motion was issued to the respondent.

The Hon''ble Supreme Court in G.M. Siddeshwar''s case (supra) was dealing with the case of a more serious lapse on the part of an election petitioner. After discussing entire case law on the subject, the Hon''ble Supreme Court in para Nos. 2, 3 and 42 to 65 held as under;-

"2. The principal question of law raised for our consideration is whether, to maintain an election petition, it is imperative for an election petitioner to file an affidavit in terms of Order 6, Rule 15 (4) of the Code of Civil Procedure, 1908 in support of the averments made in the election petition in addition to an affidavit (in a case where resort to corrupt practices have been alleged against the returned candidate) as required by the proviso to Section 83(1) of the Representation of the People Act, 1951. In our opinion, there is no such mandate in the Representation of the People Act, 1951 and a reading of P.A. Mohammed Riyas v. M.K. Raghavan & Ors., (2012) 5 SCC 511 which suggests to the contrary, does not lay down correct law to this limited extent.

Another question that has arisen is that if an affidavit filed in support of the allegations of corrupt practices of a returned candidate is not in the statutory Form No. 25 prescribed by the Conduct of Election Rules, 1961, whether the election petition is liable to be summarily dismissed. In our opinion, as long as there is substantial compliance with the statutory form, there is no reason to summarily dismiss an election petition on this ground. However, an opportunity must be given to the election petitioner to cure the defect. Further, merely because the affidavit may be defective, it cannot be said that the petition filed is not an election petition as understood by the Representation of the People Act, 1951.

xx xx xx

Undoubtedly, Section 86 of the Act makes no reference to Section 83 thereof and so, prima facie, an election petition cannot be summarily dismissed under Section 86 of the Act for non-compliance of the provisions of Section 83 thereof. This was briefly adverted to in Hardwari Lal v. Kanwal Singh, (1972) 1 SCC 214 but that was in the context of dismissal of the election petition under the provisions of the CPC. The contention urged in Hardwari Lal was to the effect that since Section 83 of the Act does not find a mention in Section 86 thereof, an election petition could not be summarily dismissed for non-compliance of Section 83. A three-judge Bench of this Court held that since an election petition is required to be tried as nearly as possible in accordance with the procedure applicable under the CPC to the trial of suits, an election petition could nevertheless be dismissed if it did not disclose a cause of action.

The issue was, again, specifically raised in Azhar Hussain. The question considered was:

"Since the Act does not provide for dismissal of an election petition on the ground that material particulars necessary to be supplied in the election petition as enjoined by Section 83 of the Act are not incorporated in the election petition inasmuch as Section 86 of the Act which provides for summary dismissal of the petition does not advert to Section 83 of the Act there is no power in the court trying election petitions to dismiss the petition even in exercise of powers under the Code of Civil Procedure."

While answering this issue, this Court referred to Hardwari Lal. It was held, relying on that decision that since powers under the CPC could be exercised by the Court, an election petition could be summarily dismissed if it did not disclose a cause of action. This is what this Court had to say:

"In view of this pronouncement there is no escape from the conclusion that an election petition can be summarily dismissed if it does not furnish cause of action in exercise of the powers under the Code of Civil Procedure. So also it emerges from the aforesaid decision that appropriate orders in exercise of powers under the Code of Civil Procedure can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with."

In Mallikarjunappa the issue was considered yet again and it was held:

"An election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election petition does not comply with either the provisions of "Section 81 or Section 82 or Section 117 of the RP Act". The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Noncompliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, for alleged non-compliance with provisions of Section 83(1) or (2) of the Act or of its proviso."

More recently, the issue was again considered in Ponnala Lakshmaiah and relying upon Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196 it was held:

"Even otherwise the question whether non-compliance with the proviso to Section 83(1) of the Act is fatal to the election petition is no longer res integra in the light of a three-Judge Bench decision of this Court in Sardar Harcharan Singh Brar v. Sukh Darshan Singh. In that case a plea based on a defective affidavit was raised before the High Court resulting in the dismissal of the election petition. In appeal against the said order, this Court held that non-compliance with the proviso to Section 83 of the Act did not attract an order of dismissal of an election petition in terms of Section 86 thereof. Section 86 of the Act does not provide for dismissal of an election petition on the ground that the same does not comply with the provisions of Section 83 of the Act. It sanctions dismissal of an election petition for non-compliance with Sections 81, 82 and 117 of the Act only. Such being the position, the defect if any in the verification of the affidavit filed in support of the petition was not fatal, no matter the proviso to Section 83(1) was couched in a mandatory form."

The issue having been considered several times by this Court must now be allowed to rest at that.

What is an election petition:

However, another aspect of this contention is that if the provisions of Section 83 of the Act are not complied with, then the election petition that has been filed cannot truly be described as an election petition.

In Murarka Radhey Shyam Ram Kumar v. Roop Singh Rathore & Ors. [1963] 3 SCR 573, the Constitution Bench dealt with the issue whether noncompliance with the proviso to Section 83(1) of the Act was fatal to the maintainability of an election petition wherein allegations of corrupt practices were made. It was urged that the affidavit in respect of corrupt practices which accompanied the election petition was neither properly made nor in the prescribed form. A different facet of this argument was that an election petition must comply with the provisions of Section 83 thereof and if it did not, then it could not be called an election petition.

The Constitution Bench agreed with the Election Tribunal that a defect in the verification of an affidavit "cannot be a sufficient ground for dismissal of the petitioner''s petition summarily, as the provisions of Section 83 are not necessarily to be complied with in order to make a petition valid and such affidavit can be allowed to be filed at a later stage also." In other words, non-compliance with the proviso to Section 83(1) of the Act was not `fatal'' to the maintainability of an election petition and the defect could be remedied. It would follow that if an election petition did not comply with the proviso to Section 83(1) of the Act, it would still be called an election petition.

The broad principle laid down in Murarka was somewhat restricted by another Constitution Bench decision rendered in Ch. Subba Rao v. Member, Election Tribunal, Hyderabad [1964] 6 SCR 213. In that case, the Constitution Bench introduced two clear principles: firstly, that "if there is a total and complete non compliance with the provisions of Section 81(3), the election petition might not be "an election petition presented in accordance with the provisions of this part" within Section 80 of the Act" and secondly, that "if there is a substantial compliance with the requirement of Section 81(3), the election petition cannot be dismissed by the Tribunal under Section 90(3)."

In T.M. Jacob v. C. Poulose & Ors., (1999) 4 SCC 274 this Court reiterated the doctrine of substantial compliance as mentioned in Murarka Radhey Shyam Ram Kumar and Ch. Subba Rao and also introduced the doctrine of curability on the principles contained in the CPC. It was held that the defect in the affidavit in that case was curable and was not of such a fatal nature as to attract dismissal of the election petition at the threshold.

The doctrine of substantial compliance as well as the doctrine of curability were followed in V. Narayanaswamy v. C.P. Thirunavukkarasu, (2000) 2 SCC 294. This Court held that a defect in verification of an affidavit is not fatal to the election petition and it could be cured. Following Moidutty it was held that if the election petition falls foul of Order 6, Rule 16 and Order 7, Rule 11 of the CPC and does not disclose a cause of action then it has to be rejected at the threshold.

Somewhat more recently, in Anil Vasudev Salgaonkar v. Naresh Kushali Shigaonkar, (2009) 9 SCC 310 this Court reiterated this position in law and held: "The position is well settled that an election petition can be summarily dismissed if it does not furnish the cause of action in exercise of the power under the Code of Civil Procedure. Appropriate orders in exercise of powers under the Code can be passed if the mandatory requirements enjoined by Section 83 of the Act to incorporate the material facts in the election petition are not complied with."

The principles emerging from these decisions are that although non-compliance with the provisions of Section 83 of the Act is a curable defect, yet there must be substantial compliance with the provisions thereof. However, if there is total and complete non-compliance with the provisions of Section 83 of the Act, then the petition cannot be described as an election petition and may be dismissed at the threshold.

Integral part of an election petition:

An issue arises whether an affidavit required to be filed under the proviso to Section 83(1) of the Act is an integral part of an election petition and, if so, whether the filing of a defective affidavit would be fatal to the maintainability of an election petition. This would, in a sense, be an exception to the general rule mentioned above regarding a defect under Section 83 of the Act being curable.

In Sahodrabai Rai v. Ram Singh Aharwar [1968] 3 SCR 13 the question raised was as follows:

"Whether the election petition is liable to be dismissed for contravention of Section 81 (3) of the Representation of the People Act, 1951 as copy of Annexure `A'' to the petition was not given along with the petition for being served on the respondents."

It was noted that the contents of the pamphlet, in translation, were incorporated in the election petition. It was also noted that the trial of an election petition has to follow, as far as may be, the provisions of the CPC. Therefore, this Court approached the problem by looking at the CPC to ascertain what would have been the case if what was under consideration was a suit and not the trial of an election petition.

It was held that where the averments are too compendious for being included in an election petition, they may be set out in the schedules or annexures to the election petition. In such an event, these schedules or annexures would be an integral part of the election petition and must, therefore, be served on the respondents. This is quite distinct from documents which may be annexed to the election petition by way of evidence and so do not form an integral part of the averments of the election petition and may not, therefore, be served on the respondents.

In M. Kamalam v. Dr. V.A. Syed Mohammed, (1978) 2 SCC 659 this Court followed Sahodrabai Rai and held that a schedule or an annexure which is an integral part of an election petition must comply with the provisions of Section 83(2) of the Act. Similarly, the affidavit referred to in the proviso to Section 83(1) of the Act where the election petition alleges corrupt practices by the returned candidate also forms a part of the election petition. If the affidavit, at the end of the election petition is attested as a true copy, then there is sufficient compliance with the requirement of Section 81 (3) of the Act and would tantamount to attesting the election petition itself.

F.A. Sapa and Others v. Singora and Others, (1991) 3 SCC 375 a three-judge Bench of this Court reviewed the relevant provisions of the Act, Rule 94-A of the Rules, Form No. 25, the provisions of the CPC as well as the case law and arrived at the following conclusions:

"28. From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6, Rule 15 and Order 19, Rule 3 of the Code and the resume of the case law discussed above it clearly emerges (i) a defect in the verification, if any, can be cured (ii) it is not essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true (iii) if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and (iv) the defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral part of the petition, in which case the defect concerning material facts will have to be dealt with, subject to limitation, under Section 81(3) as indicated earlier. Similarly the court would have to decide in each individual case whether the schedule or annexure referred to in Section 83(2) constitutes an integral part of the election petition or not; different considerations will follow in the case of the former as compared to those in the case of the latter." 62. It was further laid down that even though a defective affidavit may not be fatal to the maintainability of an election petition, the High Court should ensure compliance before the parties go to trial so that the returned candidate can meet the allegations and is not taken by surprise at the trial. 63. What is the consequence of not curing the defect? In Moidutty a defect in verification of the election petition was pointed out by raising a plea in that regard in the written statement. Notwithstanding this, the election petitioner did not cure the defect. Under these circumstances it was held that until the defect in the verification was rectified the petition could not have been tried. Additionally, it was held that since there was a lack of material particulars regarding the allegations of corrupt practices, it was a case where the election petition ought to have been rejected at the threshold for non-compliance with the mandatory provisions of law as to pleadings. 64. This issue was again discussed in Umesh Challiyill v. K.P. Rajendran, (2008) 11 SCC 740 and this Court suggested the following solution: However, in fairness whenever such defects are pointed out then the proper course for the Court is not to dismiss the petition at the threshold. In order to maintain the sanctity of the election the Court should not take such a technical attitude and dismiss the election petition at the threshold. On the contrary after finding the defects, the Court should give proper opportunity to cure the defects and in case of failure to remove/cure the defects, it could result into dismissal on account of Order 6, Rule 16 or Order 7, Rule 11 CPC. Though technically it cannot be dismissed under Section 86 of the Act of 1951 but it can be rejected when the election petition is not properly constituted as required under the provisions of CPC but in the present case we regret to record that the defects which have been pointed out in this election petition were purely cosmetic and do not go to the root of the matter and secondly even if the Court found them of serious nature then at least the Court should have given an opportunity to the petitioner to rectify such defects."

Applying these principles to the facts of the present case, it seems quite clear that the affidavit filed by Prasanna Kumar in compliance with the requirements of the proviso to Section 83(1) of the Act was not an integral part of the election petition, and no such case was set up. It also seems quite clear that the affidavit was in substantial compliance with the requirements of the law. Therefore, the High Court was quite right in coming to the conclusion that the affidavit not being in the prescribed format of Form No.25 and with a defective verification were curable defects and that an opportunity ought to be granted to Prasanna Kumar to cure the defects.

In view of what has been discussed hereinabove and respectfully following the law laid down by the Hon''ble Supreme Court in the cases referred to hereinbefore, preliminary issue No.4 is to be decided in favour of the petitioner and against the respondent. Ordered accordingly.

To be fair to the learned senior counsel for the respondent, the judgments relied upon by him have been duly considered by this Court but none of them has been found of any help to the respondent. Learned senior counsel for the respondent could not substantiate any of his arguments on any of the abovesaid preliminary issues No. 1 to 4, despite making his best efforts. So far as S. Subramaniam Balaji''s case (supra) relied upon by him, is concerned, it is clearly distinguishable on fact. In fact, it was a writ petition challenging the manifesto of a political party and not an election petition. Term " any other person", whether includes a political party or not, as per Section 100 of the Act, was neither argued nor dealt with by the Hon''ble Supreme Court. Similarly, Kanwar Lal Gupta''s case (supra) was not even referred, as it was not the issue before the Hon''ble Supreme Court. Thus, in view of the law laid down by the Hon''ble Supreme Court in JIK Industries Limited''s case (supra), Pravasi Bhalai Sangathan''s case (supra) and Balwant Rai Saluja''s case (supra), the judgments relied upon by learned senior counsel for the respondent have not been found applicable to the facts and circumstances of the case in hand, being distinguishable on facts.

The relevant observations made by the Hon''ble Supreme Court in para 24 and 25 of its judgment in Balwant Rai Saluja''s case (supra), read as under:-

A Constitution Bench of this Court in the case of State of Punjab v. Baladev Singh, (1999) 6 SCC 172, held that a judgment has to be considered in the context in which it was rendered and that a decision is an authority for what it decides and it is not everything said therein constitutes a precedent.

In our view, the binding nature of a decision would extend to only observations on points raised and decided by the Court and neither on aspects which it has not decided nor had occasion to express its opinion upon. The observation made in a prior decision on a legal question which arose in a manner not requiring any decision and which was to an extent unnecessary, ought to be considered merely as an obiter dictum. We are further of the view that a ratio of the judgment or the principle upon which the question before the Court is decided must be considered as binding to be applied as an appropriate precedent.

It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of even one circumstance or additional fact can make the world of difference, as held by the Hon''ble Supreme Court in Padmausundra Rao and another v. State of Tamil Nadu and others, 2002 (3) SCC 533.

Neither any other judicial precedent was pressed into service nor any other argument was raised on behalf of either of the parties.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that instant election petition cannot be dismissed in limine. Petitioner has disclosed all the material facts and particulars. When the averments taken are considered in their entirety, as they are supposed to be, a complete cause of action has been disclosed in the election petition, which deserves trial at the hands of this Court.

Similarly, respondent has failed to make out a case either for deletion of paragraph Nos. 17, 18, 18 (i), 18 (ii), 19 and 20 of the election petition or for removal of Annexures P-1 to P-4 from the election petition. In this view of the matter, it is unhesitatingly held that petitioner is entitled to prove the allegations levelled by him against the respondent by leading his evidence, in accordance with law. It goes without saying that the abovesaid view has been expressed by this Court only for the purpose of deciding the preliminary issues.

Resultantly, with the observations made above, all the abovesaid preliminary issues No. 1 to 4 are decided, in the aforesaid terms.

Election Petition be fixed for hearing on 18.5.2016.