Krishan Kumar Kaushal vs Ram Lal Thakur and Another

V.P. Gupta, J.—The Petitioner has filed this election petition under Sections 81, 84, 100 and 101 of the Representation of People Act, 1951 (hereinafter the Act) challenging the election of Shri Ram Lal Thakur (hereinafter Respondent No. 1) and claiming that the said election be declared void and the Petitioner be declared to be duly elected from 20-Kot Kehloor Constituency of Himachal Pradesh Legislative Assembly.

Briefly, the facts of the case are that elections to the Himachal Pradesh Legislative Assembly were held on 5-3-1985. The date of polling for 20-Kot Kehloor constituency was 5-3-1985 and the dates for filing the nomination papers and for scrutiny and acceptance/rejection were 8-2-1985 and 9-2-1985 respectively. The results were to be declared after counting on 6-3-1985.

The Petitioner alleges that he contested the election for 20-Kot Kehloor Constituency as a nominee of Communist Party of India. The Respondent No. 1 and Respondent No. 2, Shri Daulat Ram contested the election as nominees of Congress (I) and Bharatiya Janata Party respectively. Respondent No. 1 was declared elected and the security of Respondent No. 2 was forfeited.

It is alleged that Shri Bachittar Singh filed his nomination papers from 23-Gherwin (Reserved) Constituency and 20-Kot Kehloor Constituency. Both these constituencies are adjacent and are situate in Bilaspur district. The nomination papers of Shri Bachittar Singh for 20-Kot Kehloor constituency were rejected improperly and for this reason the entire election stands vitiated.

Another allegation is that two notified polling stations were illegally shifted to benefit the prospects of Respondent No. 1 and to cause harm to the Petitioner. The change in the polling station was unauthorised and illegal.

The third allegation is that on the polling day immediately before the start of the polling, supporters of Respondent No. 1 with the prior consent of Respondent No. 1 attacked the supporters of the Petitioner and created a terror amongst the voters. The supporters of Respondent No. 1 captured the booth, which fact was duly reported. Further false rumours were spread that the supporters of the Petitioner had stabbed some supporter of Respondent No. 1, who could die at any moment and with such false rumours the result of the election has been materially affected in favour of Respondent No. 1.

It is further alleged that at the time of the counting of votes some validly polled votes in favour of the Petitioner were declared invalid whereas many invalid votes cast in favour of Respondent No. 1 were declared valid inspite of protests against counting and request for recounting was not allowed. The method of counting is also challenged and it is alleged that the counting was illegal and dishonest to favour Respondent No. 1.

The next allegation is that Dr. Sukh Ram Chauhan, holding a gazetted post canvassed for Respondent No. 1 in different villages from house to house at the instance of Respondent No. 1.

On these allegations, it is alleged vhat the Respondent No. 1 indulged in corrupt practices and had acted in violation of the Act and Rules. Due to non-complying with the provi sions of the Act and the Conduct of Election Rules, the elec tion of Respondent No. 1 is void and illegal.

Respondent No. 2 in his written statement has sup ported the allegations of the Petitioner.

Respondent No. 1 contested the petition and denied the various allegations of illegalities, irregularities and the corrupt practices. He also raised preliminary objections regarding the form of affidavit and the maintainability of the petition.

On the pleadings of the parties, the following preliminary issues were framed on 29-5-1985:

Whether the affidavit filed by the Petitioner in the prescribed form in support of the allegations of corrupt practices and the particulars thereof is defective ? If so, its effect ? O. P. R-l.

Whether the election petition does not contain concise statement of the material facts on which the Petitioner is claiming the relief, as alleged? O.P.R-1.

Whether full particulars of the corrupt practices alleged by the Petitioner, ;as are required .under Section 83(1)(a) have not been given by the Petitioner ? If so, its effect ? O.P.R-1.

Relief.

Issue Nos. 1 and 3 were decided by my order dated 20-6-1985. Now I proceed to decide issue No. 2.

The learned Counsel for the Respondent No. 1 contends that the petition does not contain a concise statement of material facts upon which the Petitioner relies, because he has not narrated the material facts for :

(a) wrongful rejection of the nomination papers of Shri Bachittar Singh,

(b) the corrupt practices alleged u/s 123(2) of the Act,

(c) the corrupt practices alleged u/s 123(7)(a) of the Act, and

(d) illegalities and irregularities in counting.

It is contended that the petition should be dismissed. The dearned counsel for the Petitioner, however, contends that all the material facts have been staled in the petition.

I have considered the contentions an I have gone through the records of the case.

The present case pertains to the interpretation of Section 83(1)(a) of the Act which reads as follows:

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

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

For the purposes of finding out as to what are the material facts as stated in Section 83(1)(a) it is relevant to refer to some observations made in the Shri Udhav Singh Vs. Madhav Rao Scindia, and 1982 (3) S.C.C. 487 (Roop Lal Sathi v. Nachhattar Singh Gill).

In Udhav Singh v. M.R. Scindia (supra), Shri Udhav Singh was an elector of the constituency. He filed an election petition challenging the election of Shri M. R. Scindia. There were two main grounds in the petition that is,

(1) That the Respondent (Madhav Rao Scindia) and/or his election agent had incurred or authorised to incur expenditure in connection with the election in excess of the limit of Rs. 35,000/- prescribed u/s 73(3) of the Act read with Rule 90 of the Conduct of Election Rules, 1961. It was alleged that the Respondent made a tour in the Constituency by helicopters and. showed Rs. 5,000/- only as an expense towards the cost of the aviation fuel but did not show the hiring and other charges in respect thereof. It was further alleged that the Respondent hired and used motor vehicles, not less than 18, but did not show the expenditure incurred in respect thereof in the statement of election expenses submitted by him to the Election Commission.

(2) That the workers of the Respondent, with his consent, had threatened the electors with bodily injuries and criminally intimated them not to vote for Shri Deorao Krishnarao Jadhav, the Gongress candidate. Five instances of such threats and intimidation interfering with the free exercise of electoral rights, were set out in Clauses (i) to (v) of the original paragraph 10 (III) of the petition which after amendment, was renumbered as para II (iv). Clause (iv) of paragraph II was as follows:

That on or before 22-2-1971, Shri Mohan Prasad Ojha, a Congress Worker of village Umri (Tehsil Guna) was threatened at pistol point by the workers of the Respondent with his consent. Shri Shiv Piatap Singh and Ors. of Umri threatened not to vote and canvass in favour of the Congiess candidate, Deorao Krishnarao Jadhav and threatening with dire consequences.

The Respondent denied these allegations. The elec tion petition was dismissed by the High Court of Madhya Pra desh and the Appellant filed an appeal in the Supreme Court. While dealing with the question as to what is a concise state ment of material facts as mentioned in Section 83(1)(a), the learned Judges have observed as follows in paras 38 and 40 of the judgment:

All the primary facts which must be proved at the trial by a party to establish the existence of a cause of action or his defence, are ''material facts''. In the context of charge of corrupt practice, ''material facts'' would mean all the basic facts constituting the ingredients of the particular corrupt practice alleged, which the Petitioner is bound to substantiate before he can succeed on that charge. Whether in an election petition, a particular fact is material or not, and as such required to be pleaded is a question which depends on the nature of the charg3 levelled, the ground relied upon and the special circumstances of the case. In short, all those facts which are essential to clothe the Petitioner with a complete cause of action, are material facts, which must be pleaded, and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83(1)(a).

The learned Judges pointed out the distinction between the material facts and material particulars and after perusal of para 11(4) of the petition, it was held that all the material facts constitute complete charge of corrupt practice within the meaning of Section 123(2) against Shri Shiv Pratap Singh, who was a candidate at the election.

Similarly in 1982 (3) S.C.C. 487 (Roop Lal Sathi v. Nachhattar Singh Gill), it was held that the words''material facts'' mean the facts necessary to formulate a complete cause of action and that such a question has to be decided on a consideration of the averments in the election petition alone. The leraned Judges have held that the words''material facts'' u/s 83 of the Act mean facts necessary for the purpose of formulating the complete cause of action and if any one material fact is omitted the statement or plaint is bad, it is liable to be struck out. The function of particulars is quite different. The use of particulars is intended to meet a further and quite separate requirement of pleading imposed in fairness and justice to the returned candidate. Their function is to fill in the picture of the election Petitioner�s cause of action with information sufficiently detailed to put the returned candi-date on his guard as to the case he has to meet and to enable him to prepare for trial in a case where his election is challenged on the ground of any corrupt practice.

In view of the observations of the Supreme Court at this preliminary stage, the only point for consideration is as to whether the Petitioner has given a concise statement of material facts, which are sufficient to establish the existence of a cause of action i.e., whether the Petitioner has narrated all such facts for a complete cause of action.

to 29. xxx xxx xxx

From these averments, it is proved that all the primary facts which are required to be proved at the trial by the Petitioner to establish the existence of a cause of action have been mentioned in the perition. These can be the only material facts and no further material facts could possibly be supplied by the Petitioner.

In view of the averments made in the petition, the objection of Respondent No. 1 that material facts for wrongful rejection of papers of Shri Bachittar Singh have not been mentioned is not sustainable.

The Id. counsel for Respondent No. 1 during the course of arguments relied upon Rattan Anmol Singh and Another Vs. Atma Ram and Others, Sri Baru Ram Vs. Prasanni and Others, , Narbada Prasad Vs. Chhaganlal and Others, , Parmar Himatsingh Jugatsingh Vs. Patel Harmanbhai Narsibhai, , Avadh Raj Singh Vs. Jugal Kishore Gupta, (Avadh Raj Singh v. Jugai Kishore Gupta), (1971) 29 ELR 108 , Bharat Bhushan Vs. Ved Prakash, (Bharat Bhushan v. Ved Prakash). All these cases were decided on merits and were not decided at a preliminary stage for deciding the question as to whether a concise statement of material facts as required u/s 83 of the Act, had been given in the petition or not. Hence, these judgments relied upon by the Id. counsel for Respondent No. 1 are not relevant and are distinguishable at the present stage because this Court is not adjudicating on the merits of the case and is not deciding the issue as to whether the rejection of the nomination papers of Shri Bachittar Singh was valid or invalid. It is, therefore, held that the averments made in paras 4 to 9 of the petition do contain a concise statement of material facts upon which the Petitioner relies for getting the relief on the grounds of wrongful rejection of the nomination papers of Shri Bachittar Singh.

to 35. xxx xxx xxx

The contention of the learned Counsel for Respondent No. 1 is that the Petitioner has not mentioned the period when the polling stations were changed, that is, as to whether the same were changed during the election period or not. He further contends that even the loss of various votes as stated in the election petition cannot materially affect the election.

In para 10 the Petitioner has stated that the shifting has materially prejudiced the election prospects of the Petitioner and enhanced the prospects of Respondent No. 1. He has mentioned the number of votes which would have been polled in his favour.

In para 11 also it is stated that the unauthorised and illegal shifting has materially and prejudicially affected his election prospects and has advanced the election prospects of Respondent No. 1 and the result of the election has been materially prejudiced and affected. He has also given the number of votes which he could poll in excess.

In para 12, the Petitioner has alleged that this unauthorised and illegal shifting of the polling stations was done at the behest and asking of Shri Shankar Singh in order to help Respondent No. 1.

This petition relates to the election held on 5-3-1985 and in para No. 1 different dates of the schedule for the election are mentioned. It is admitted that the election proceedings started on 1-2-1985. The Petitioner�s allegations regarding unauthorised, illegal and improper change in polling stations can only pertain to the present elections. In these circumstances, the contention of the Id. counsel for Respondent No. 1 cannot be accepted and a reading of the various paras 1, 10, 11 and 12 clearly proves that the Petitioner has given all the material facts on which he relies. The allegation that the result of the election has been materially affected is also evident from the various averments in these paragraphs.

The learned Counsel for Respondent No. 1 relied upon Samant N. Balkrishna and Another Vs. V. George Fernandez and Others, in support of his contentions. This judgment does not in any way help the Respondent No. 1. In para 29 of the judgment, it is observed as follows:

Section 83 then provides that the election petition must contain a concise statement of the material facts on which the Petitioner relies and further that he must also set forth full particulars of any corrupt practice that the Petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. This Section is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. What is different between material facts and particulars? The word ''material'' shows that the facts necessary to formulate a complete cause of action must be stated. Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function ofparti-culars 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. There may be some overlapping between material facts and particulars but the two are quite distinct. Thus the material facts will mention that a statement of fact (which must be set but) was made and it must be alleged that it refers to the character and conduct of the candidate that it is false or which the returned candidate believes to be false or does not believe to be true and that it is calculated to prejudice the chances of the Petitioner. In the particulars the name of the person making the statement, with the date, time and place will be mentioned. The material facts, thus, will show the ground of corrupt practice and the complete cause of action and the particulars will give the necessary information to present a full picture of the cause of action. In stating the material facts, it will not do merely to quote the word of the Section because then the efficacy of the words ''material facts'' will be lost. The fact which constitute the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practices. Just as a plaint without disclosing a proper cause of action cannot be said to be a good plaint, so also an election petition without the material facts relating to a corrupt practice is no election petition at all. A petition which merely cites the Sections cannot be said to disclose a cause of action where the allegation is the making : of a false statement. That statement must appear and the particulars must be full as to the person making the statement and the necessary information. Formerly, the petition used to be in two particles The material facts have to be included in the petition and the particulars in schedule. It is inconceivable that a petition could be filed without the materia) facts and the schedule by merely citing the corrupt practice from the statute. Indeed ths penalty of dismissal summarily was enjoin for petitions which did not comply with the requirement. Today the particulars need not be separately included in a schedule, but the distinction remains. The entire and complete cause of action must be in the petition in the shape of material facts, the particulars being the further information to complete the picture. This distinction is brought out by the provisions of Section 86 although the penalty of dismissal is taken away.

The Petitioner has, in fact, narrated all the material facts in paras 1, 10, 11 and 12 of the petition, which are sufficient to disclose a complete cause of action challenging the election of Respondent No. 1 on the ground of corrupt practices alleged u/s 123(2) of the Act.

It is next contended by the Id. counsel for Respondent No. 1 that the Petitioner has not alleged that the false rumours were spread which the Respondent No. 1 knew to be false. He relies upon Section 123(4) of the Act for this purpose. The learned Counsel for the Petitioner, however, contends that he does not rely upon the provisions of Section 123(4) of the Act, but relies upon the provisions of Section 123(2) of the Act. He has drawn my attention to the contents of paras 13 and 14 and to the affidavit dated 19-4-1985 filed on behalf of the Petitioner.

In my opinion, detailed statement of the material facts upon which the Petitioner relies for.proof of the corrupt practices of undue influence mentioned in Section 123(2) of the Act has been given in these paras. Knowledge of Respondent No. 1 is not necessary because the relevant portion of Section 123 reads as folows:

Corrupt practices.-The following shall be deemed to be corrupt practices for the purposes of this Act:

(1) x x xx x x x

(2) Undue influence, that is to say any direct 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 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 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

(3) xxxxxxxx x

(4) xxxxxxxxx

(5) x x x x x x x x x

(6) xx xx x x xx x

(7) The obtaining or procuring or, abetting or attempting to obtain or procure by a candidate or his agent or, by any other person (with the consent of a candidate or his election agent), any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate''s election, from any person in the service of the Government and belonging to any of the following classes, namely :

(a) gazetted officers ;

(b) stipendiary judges and magistrates;

(c) members of the armed forces of the

Union ;

(d) members of the police forces;

(e) excise officers ;

(f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, desh-mukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and

(g) such other class of persons in the service of the Government as may be prescribed:

Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of the candidate or his election agent, (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate''s election.

Explanation.-(1) In this Section the expression ''agent'' includes an election agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.

(2) For the purposes of Clause (7), a person shall be deemed to assist in the furtherance of the prospects of a candidate''s election if he acts as an election agent of that candidate.

(3) For the purposes of Clause (7) notwithstanding anything contained in any other law. the publication in the Official Gazette of the appointment, resignation, termination of service, dismissal or removal from service of a person in the service of the Central Government (including a person serving in connection with the administration of a Union Territory) or of a State Government shall be conclusive proof-

(i) of such appointment, resignation, termination of service, dismissal or removal from service as the case may be, and (ii) where the date of taking effect of such appointment, resignation, termination of service, dismissal or removal from service, as the case may be, is stated in such publication, also of the fact that such person was appointed with effect from the said date, or in the case of resignation, termination of service, dismissal or removal from service, such person ceased to be in such service with effect from the said date.

x x x x x x x x x

xx xx xx

Thus, the Petitioner has stated all the material facts in paras 13 and 14 of his petition for the purposes of challenging the election of Respondent No. 1 u/s 123(2) of the Act and the objection of the learned Counsel for Respondent No. 1 cannot survive.

It is then contended by the Id. counsel for Respondent No. 1 that the dates and places of approach and the names of the persons in whose presence the talks or the canvassing took place have not been mentioned in the petition and the material facts for the purpose of Section 123(7)(a) have not been narrated. xx xx xx

xx xx xx

To my mind, these details are sufficient for being a concise statement of material facts. The whole evidence is not to be reproduced in the petition while giving a concise state ment of material facts and the sole purpose is of making a complete cause of action. From paras 18 and 19 of the petition, I find that a complete cause of action has been brought out by the Petitioner for the purpose of Section 123(7)(a) of the Act and the objection of the learned Counsel for the Respondent No. 1 cannot survive.

x x x x x x x x x

x x x x x x x x x

xx xx xx

The statements in paras 15 to 17, if read together, clearly suggest that the Petitioner has alleged that due to illegal or irregular counting the result of the election has been materially affected. u/s 83(1)(a) of the Act, the petition should contain a concise statement of the material facts on which the Petitioner relies and to my mind, the Petitioner has given all the material facts for a complete cause of action. The Petitioner has also mentioned that this irregular and illegal counting was done to help Respondent No. 1 and if re-counting had been ordered or is ordered, then in that case the Petitioner can have majority of votes.

Hence the objection of the learned Counsel for Respondent No. 1 that material facts regarding illegalities and irregularities in counting have not been given cannot be accepted.

As a result of the above discussion, issue No. 2 is decided against Respondent No. 1.

Now, the case be listed on July 18, 1985 for further proceedings.