Parasmal Saklecha vs Himat Kothari and Others

A.,Para 8(A) to 8(L),"Corrupt Practice u/s

123(1)(A)(b)of the Act.

B.,Para 8(M)&8(N),"Corrupt Practice u/s

123(3) of the Act.

C.,"Para 8(O), 8(R), Para

8(V), Para (W) & Para

8(X)","Corrupt Practice u/s

123(4) of the Act.

D.,Para 8(Q),"Corrupt Practice u/s

123(6) of the Act.

E.,"Para 8(P), Para 8(S)","Corrupt acts were done

by the resp.

,"Para 8(T), Para 8(U) Para

8(Y)","No. 1 or his agent or

persons which have

materially affected the

election prospect of the

petitioner leading to his

defeat only by small

margin of votes.

in Ram Phal Kundu Vs. Kamal Sharma, , and submitted that the Model Code of Conduct has been framed with the object to ensure that the",,

process of election is as general and fair as possible and that no elector should suffer from any handicap in casting his vote in favour of a candidate,,

of his choice and purity of democracy is maintained. While making this submission, perhaps, learned counsel for the petitioner completely over-",,

looked the fact that breach of model code of conduct so far has not been made as one of the grounds to set aside an election under the Act. Thus,",,

the reliance placed on Ram Phal Kundu Vs. Kamal Sharma, is of no avail to petitioner in which their Lordships were dealing with validity of the",,

nomination of one of candidate of Congress Party as official candidate and it was further held that the hand-book issued by the Election,,

Commission of India to Returning Officers is a mere set of administrative instructions and does not have over-riding effect over the statutory,,

provisions or rules made thereunder. It seems that the allegations in paragraphs 8(A) to 8(L) have been made without looking to the amendment,,

made in Section 79(b) of the Act or Section 171A of the IPC. Prior to amendment in the year 1975, Section 79(b) read as under:",,

79(b) ''Candidate'' means a person who has been or claims to have been duly nominated as a candidate at any election and any such person shall",,

be deemed to have been a candidate as from the time when, with the election in prospects, he began to hold himself out as a prospective",,

candidate."" After 1975 amendment, Section 79(b) reads as under :",,

79(b) ''Candidate means a person who has been or claims to have been duly nominated as a candidate at any election"". Similarly prior to",,

amendment in 1975 Section 171-A(a) IPC under Chapter IX-A relating to electoral offences, read as under :",,

171-A(a) ''Candidate'' means a person who has been nominated as a candidate at any election and includes a person who, when an election is in",,

contemplation, holds himself out as a prospective candidate thereat, provided that he is subsequently nominated as a candidate at such election;""",,

After amendment in the year 1975, Section 171-A(a) reads as under :",,

171-A(a) ''Candidate means a person who has been nominated as a candidate at any election;""",,

There is considerable force in the submissions of learned counsel for respondent No. 1 that the allegations made in paragraphs 8(A) to 8(L),,

relating to distribution of sweet-boxes prior to the date of nomination in various localities are vexatious, scandalous and tend to prejudice fair trial",,

of petition and as such are liable to be struck off because they are not the material facts constituting the cause of action in relation to corrupt,,

practice of bribery as defined u/s 123(1)(A)(b) of the Act. See in this connection decisions of the their Lordships of the Supreme Court reported in,,

Mohan Rawale Vs. Damodar Tatyaba alias Dadasaheb and Others, (Para 4 & 8); Subhash Desai Vs. Sharad J. Rao and Others, and Suryakant",,

Venkatarao Mahadik Vs. Saroj Sandesh Naik (Bhosale) (Smt), (Para 2 & 8).",,

B.Para 8(M) to 8 (N).,,

Averments made in these paragraphs relate to appeal made on the ground of religion, race, caste, community or language to vote for or refrain",,

from voting for a person at an election, which constitute a corrupt practice u/s 123(3) of the Act. Let us examine averments made in these two",,

paragraphs. In para 8(M) the allegations are that a pamphlet was distributed at the expense of respondent No. 1 making an appeal to vote for,,

respondent No. 1 on the ground of caste of Sen Samaj i.e. barber community. In support of this allegation petitioner relies upon Annexure P-15. A,,

close scrutiny of Annexure P-15 reveals that members of ''Joint Sen'' issued it. An appeal was made to members of the community to vote for,,

respondent No. 1 keeping in view the interests and honor of the caste of the community. Similarly, in para 8(N) the allegation is that an appeal not",,

to vote for the petitioner was made because he not only leveled unfounded charges but also lowered down the prestige of one of the members by,,

using profane language. In support of this allegation petitioner relies Annexure P-16.,,

Submission of learned counsel for the respondent No. 1 was that even if the allegations made in paragraph 8(M) & 8(N) are accepted on their,,

face value still they do not constitute a corrupt practice as defined u/s 123(3) of the Act because in neither of paragraphs, petitioner alleges that",,

appeal was made in the name of caste religion etc. of the respondent No. 1 with his consent which is sine qua non to attract charge of corrupt,,

practice u/s 123(3) of the Act. Per contra, learned counsel for the petitioner submitted that any appeal- made in the name of religion caste etc. is",,

sufficient to render the election void as Section 123(3) of the Act hits it.,,

Now the question is whether these allegations constitute a corrupt practice as defined u/s 123(3) of the Act.,,

The law in this regard is no longer res integra. In order to constitute corrupt practice as defined u/s 123(3), it is essential that either positive or",,

negative appeal u/s 123(3) must be made with the consent of the candidate for the furtherance of the prospects of election of that candidate or at,,

the cost of election prospects of other candidate. In the pleadings as contained in paragraph 8(M) and 8(N), the element of consent of the",,

respondent No. 1 is conspicuously missing. What has been pleaded is stated above. The Annexure P-15 and annexure P-16 obviously belong only,,

to realm of evidence of what has been pleaded and do not amount to pleading of material facts. Their Lordships of the Supreme Court in Dr,,

Ramesh Yeshwant Prabhoo Vs. Prabhakar Kashinath Kunte and Others, have explained the scope of Section 123(3) as under :-",,

There can be no doubt that the word ''his'' used in sub-section (3) must have significance and it cannot be ignored or equated with the word",,

''any'' to bring within the net of sub-section (3) any appeal in which there is any reference to religion. The religion forming the basis of the appeal to,,

vote or refrain from voting for any person, must be of that candidate for whom the appeal to vote or refrain from voting is made. This is clear from",,

the plain language of sub-section (3) and this is the only manner in which the word ''his'' used therein can be construed. The expressions ""the",,

appeal... to vote or refrain from voting for any person on the ground of his religion,... for the furtherance of the prospects of the election of that",,

candidate or for prejudicially affecting the election of any candidate"" lead clearly to this conclusion. When the appeal is to vote on the ground of",,

''his'' religion for the furtherance of the prospects of the election of that candidate, that appeal is made on the basis of the religion of the candidate",,

for whom votes are solicited. On the other hand when the appeal is to refrain from voting for any person on the ground of ''his'' religion for,,

prejudicially affecting the election of any candidate, that appeal is based on the religion of the candidate whose election is sought to be prejudicially",,

affected. It is thus clear that for soliciting votes for a candidate, the appeal prohibited is that which is made on the ground of religion of the",,

candidate for whom the votes are sought; and when the appeal is to refrain from voting for any candidate, the prohibition is against an appeal on",,

the ground of the religion of that other candidate. The first is a positive appeal and the second a negative appeal. There is no ambiguity in sub-,,

section (3) and it clearly indicates the particular religion on the basis of which an appeal to vote or refrain from voting for any person is prohibited,,

under sub-section (3).""",,

Apart from this, as pointed supra there is no allegation that allegations made in Para 8(M) and (N) were purported to be made with the consent of",,

the respondent No. 1. In absence of these material facts in the pleadings, in the considered opinion of this Court averments made in these two",,

paragraphs do not disclose any cause of action or triable issue and they being unnecessary are liable to be struck off.,,

C. Paragraph 8(O)8(R)8(V)8(W)8(X),,

Allegations made in these paragraphs relate to corrupt practice as defined u/s 123(4) of the Act. On a plain reading of Section 123(4), it is clear",,

that requirement of that Section would be satisfied when a publication or any statement of fact is made by a candidate -,,

(i) which was false;,,

(ii) which the candidate either believed to be false or did not believe to be true;,,

(iii) which relates to personal character or conduct of any candidate;,,

(iv) the statement was reasonably calculated to prejudice the prospect of election of a candidate.,,

Now let us examine each one the paragraphs.,,

Paragraph 8(O)8(W) 8(X),,

Allegations are that petitioner is respectable member of Jain community and is believer of non-violence. Petitioner and his family members are pure,,

vegetarians. Respondent No. 1 published a pamphlet that family members of petitioner are the authorized distributor Branch of POONJIAJI''s of,,

ready to cook recipe of non-vegetarian dishes. This personal statement is false and has been made to prejudice the election prospects of the,,

petitioner because there are about thirty thousand voters belonging to Jain community. In support of the allegations petitioner relies upon Annexure,,

P-18.,,

Paragraph 8(R) & 8(V),,

Averments made in paragraph 8(R) and 8(V) relate to false allegations of corruption charges during petitioner''s tenure as Mayor of Ratlam,,

Municipal Corporation by the slogan in a hording photo whereof has been filed as Annexure P-21 and in the election manifesto copy whereof has,,

been filed as Annexure P-13.,,

We find force in the submissions of learned counsel for respondent No. 1. Learned counsel for the respondent No. 1 submitted that the allegations,,

made in paragraph 8(O)8(W)& 8(X)8(R)& 8(V) do not constitute corrupt practice as defined u/s 123(4) of the Act. According to him, the",,

statement does not relate to personal conduct or character of the petitioner. It is also not pleaded that the respondent No. 1 made a statement of,,

fact which was false to his knowledge or which he did not believe to be true. In absence of pleading of these material facts, no triable issue is",,

raised in the election petition relating to corrupt practice as defined u/s 123(4) of the Act as the necessary factual foundation regarding ''statement,,

of fact'' was not laid in the pleadings. See Lalit Kishore Chaturvedi Vs. Jagdish Prasad Thada and others, ; Ravinder Singh Vs. Janmeja Singh and",,

Others, ; Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil and Others, and Quamarul Islam Vs. S.K. Kanta and others, .",,

There is no force in the submissions of learned counsel for the petitioner that the lacuna in the pleading can be cured and for this purpose, he relied",,

upon recent decision of the Supreme Court reported in AIR 2004 SCW 6205-Sardar Harcharan Singh Brar vs. Sukh Darshan Singh and others.,,

We are of the opinion that the said decision does not advance the case of the petitioner for the simple reason that in that case material facts which,,

constitute the complete cause of action were pleaded and what was sought to be introduced by amendment were ''particulars'' of those ''material,,

facts''. In that case, also it was held that ''material facts'' couldn''t be introduced by way of amendment after the period of limitation is over. Thus,",,

failure to plead the statement of facts leads to incomplete cause action relating to corrupt practice covered u/s 123(4) of the Act and as such,,

pleadings made in Para 8(O)8(W)8(X)8(R) and 8(V) are frivolous, vexatious and wholly unnecessary and tend to prejudice the fair trial of the",,

petition, therefore they are liable to be struck off.",,

D. Paragraph 8(Q),,

This paragraph relates to corrupt practice u/s 123(6) of the Act. Averments made in this paragraph are that respondent No. 1 failed to show true,,

and correct election expenditure incurred in the return of election expenses. Petitioner has quoted the example of one digital hording. According to,,

petitioner, daily cost of digital hording comes to Rs. 10000/- whereas expenses shown for the same by the respondent No. 1 are incorrect and",,

false. The sum and substance of the averments is that respondent No. 1 failed to account for the election expenses incurred and is thus guilty of,,

corrupt practice as per Section 123(6) of the Act.,,

Section 77(1) enjoins upon every candidate to keep a separate and correct account of all expenditure in connection with election incurred or,,

authorized by him or his election agent between the date of nomination and the date of declaration of result of the election. Sub. sec. (2) of Section,,

77 provides that the account of election expenses shall contain such particulars as may be prescribed and Sub. sec. (3) lays down that the total of,,

the said expenditure shall not exceed such amount as may be prescribed. Part VIII of the Conduct of Election Rules 1961 deals with the Election,,

Expenses. Undisputedly, under Rule 90, for the state Assembly Election in Madhya Pradesh the ceiling is Rs. Six lacs. Under Sec. 123(6) of the",,

Act, the incurring or authorizing of expenditure in contravention of Sec. 77 of the Act amounts to commission of a corrupt practice.",,

Now let us examine whether averments made in paragraph 8(Q) constitute a corrupt practice u/s 123(6) of the Act. It is settled law that not every,,

contravention of Section 77 of the Act comes within the mischief of Sec. 123(6) of the Act. The violation of sub-sec. (1) or sub-sec. (2) does not,,

amount to commission of a corrupt practice under Sec. 123(6) of the Act. The provision of Sec.123 (6) directly relates to sub-sec. (3) of Sec. 77.,,

From a plain reading of Sec.123 (6) and Sec.77 it is clear that in order to be a corrupt practice, the excessive expenditure must be incurred or",,

authorized by the candidate or his election agent. In the pleading, there is not a whisper that expenditure incurred was by respondent No. 1 or his",,

authorized agent, which constitute the material fact to establish corrupt practice covered by Section 123(6) R/w. Sec. 77 of the Act. The emphasis",,

in paragraph 8(Q) is on the non-disclosure of correct election expenses. As pointed out here in above nondisclosure of account is not a corrupt,,

practice. See Gajanan Krishnaji Bapat and another Vs. Dattaji Raghobaji Meghe and others, and AIR 2002 599 -Kamalnath vs. Sudesh Verma.",,

In view of the foregoing discussion the inevitable result is that pleading in this paragraph is vexatious and as such is liable to be struck off. That,,

apart even the affidavit sworn by the petitioner in support of averments made in paragraph 8(Q) also does not disclose the source of information,",,

which is a fatal defect and creates a bar to entertain the petition. See L.R. Shivaramagowda, Etc. Vs. T.M. Chandrashekar Etc., .",,

This leaves us with pleadings contained in paragraphs 8(P),8(S),8(T),8(U)and 8(Y) of the petition. Let us examine each of them one by one.",,

Paragraph 8(P),,

Pleading is that the respondent No-1 used the financial and muscle power during the campaign. Ostentatious digital hoardings were displayed in,,

Ratalam City. Dimensions of the hoarding were violative of instructions of the Election Commission of India as contained the circular dated,,

2.9.1994, which was made available to the candidates along with ''Nirdesh Pustika''. That the respondent No. 1 campaigned contrary to election",,

rules and obtained votes which other wise would have gone in favour of petitioner. On this ground, the election of the respondent No. 1 should set",,

aside.,,

Pleadings contained in this paragraph by no stretch of imagination constitute a corrupt practice as defined u/s 123 of the Act. On the averments as,,

contained in this paragraph the election of respondent No. 1 cannot be set aside. The material facts are lacking in this paragraph too. The,,

allegations are not only vague but also vexatious and do not raise any triable issue. Averments made in this paragraph therefore, are liable to be",,

struck off.,,

Paragraph 8(S),,

Pleading is that on 29.11.2003 at 5 pm campaign came to an end still workers respondent No. 1 carried the election campaign and raised slogans,,

on 30.11.2003 in 3 localities. The action on the part of workers was contrary to rules and the Model Code of Conduct. If the Model Code of,,

Conduct was not violated, petitioner would have secured more votes in those localities and consequently won the election.",,

Assuming what petitioner says in this paragraph is correct, then, at best, it would an offence punishable under 126(2) of the Act and not a corrupt",,

practice as defined u/s 123 of the Act. The election of respondent No. 1 cannot be set-aside on these averments. The pleadings in this paragraph,,

are vexatious and deserve to be struck off.,,

Paragraph 8(T) and 8(U),,

Pleadings in these two paragraphs pertain to misleading broadcast made by private T.V. Channels hence they are taken-up together. In paragraph,,

8(T) allegation is that misleading and partisan broadcasts were made on private TV Channel ""Chetna"" from 7.11.2003 to 1.12.2003 tarnishing the",,

image of the petitioner and based upon the complaint of petitioner, District Returning Officer stopped the broadcast of program ''Mahapor ka",,

Mayajal. Despite that, the said program was displayed on National TV channel ''Jain TV. This affected the voting and the petitioner lost the",,

election. So the election of respondent No. 1 should be set aside.,,

Similarly, pleading in paragraph 8(U) is to this effect that on 19.11.2003 private TV channel ''Chetna'' attributed to petitioner that he is opposed to",,

month of Ramjan. This, according to petitioner, was deliberately done to antagonize thirty thousand Muslim voters. So the election of the",,

respondent No. 1 should be set aside.,,

A close scrutiny of averments in these two paragraphs reveals that no-where petitioner has alleged that broadcasts were made with the consent of,,

the respondent No. 1. It is now well settled that consent is the life-line to link up the candidate with the action of other person which may amount,,

to corrupt practice and unless it is specifically pleaded, respondent No. 1 cannot be charged for the action of private TV ''Chetna or National TV",,

Channel ""Jain TV"". Thus, allegations made in these two paragraphs are scandalous, tend to prejudice the trial, and as such are liable to be struck",,

off.,,

Paragraph 8(Y),,

Sum and substance of the pleading in this paragraph is that using trick-photography, petitioner''s photos were distributed among Muslim voters",,

depicting petitioner in RSS Uniform. The respondent No. 1 through his followers did this. This tarnished the image of the petitioner and affected the,,

result. On this ground, the election of respondent No. 1 is liable to be set aside.",,

It is no-where alleged that the acts complained of were done with the consent of the respondent No. 1 or by him. In absence of this material fact, it",,

cannot be said that the act complained of falls under any category of corrupt practice u/s 123 of the Act. Thus, in the considered opinion of this",,

Court, averments made in this paragraph are vexatious scandalous and tend to prejudice the fair trial and as such they deserve to be struck off.",,

The upshot of the preceding discussion is that averments made in paragraph 8(A) to 8(Y) are vexatious unnecessary and tend to prejudice fair trial,,

of the election petition and as such they liable to be struck off. Accordingly they have been ordered to struck off and then we are left with,,

Paragraph No. 1 to 7,8(A),8(b),9 to 12. Let us examine these remaining paragraphs to ascertain whether any cause of action or triable issue",,

survives.,,

Paragraph 1 states that petitioner is permanent resident of Ratlam and his name appears at Sl.No. 65 in the Voter List and that presently he is the,,

elected Mayor Municipal Corporation, Ratlam and that he is eligible to contest the Assembly Election.",,

Paragraph 2 to 7 states that on 6.10.2003 the Model Code of Conduct came into force and petitioner was selected to contest the Assembly,,

Election as the candidate of Congress Party and submitted his nomination on 10.11.2003, which was accepted after scrutiny. After last date of",,

withdrawal, eight candidates remained in the fray including respondent No. 1. As per election program, polling of votes took place on 1.12.2003",,

and counting was done on 4.12.2003 and result was declared in which respondent No. l who represented the constituency since 1977 except, for",,

the period from 1993 to 1998, was declared elected. Respondent No. l won the present election by indulging in corrupt practices as enumerated",,

in various ground in Paragraph 8 of the petition. Paragraph 9 to 12 are again of general nature and contain pleas regarding the petition being,,

presented within limitation from the date of declaration of the result and prayer clause to set aside the election of respondent No. 1 and declare that,,

petitioner is the duly returned candidate and allow the petition with costs. The pleadings in the aforesaid paragraphs do not raise any triable issue,,

therefore, this Court has no option but to reject the election petition under Order VII Rule 11 of the CPC Consequently the I.A. No. 4974 of",,

2004 is hereby allowed. Since the application under Order VII Rule 11 of the CPC is allowed there is no need to pass a separate order on the,,

application filed u/s 86 of the Act.,,

Now we take up the application for amendment Order VI Rule 17 of the CPC (I.A.N.6048/04). In the light of decisions of the Supreme Court, it",,

is clear that election law insists that to unseat a returned candidate, the corrupt practice must be specifically alleged to have been committed by the",,

returned candidate himself or by his election agent or by any other person with the consent of the returned candidate or by his election agent.,,

Since, pleadings play an important role in an election petition, the legislature has provided that the allegations of corrupt practice must be properly",,

alleged and both the material facts and particulars provided in the petition itself so as to disclose a complete cause of action. The failure to plead,,

and disclose a reasonable cause of action is distinct from the absence of full particulars. There is a distinction amongst the ""grounds"" in Sec. 81(1),",,

the ""material facts"" in Sec. 83(1)(a), and ""full particulars"" in Sec. 83(1)(b). Section 83 of the Act provides that the election petition must contain a",,

concise statement of the material facts on which the petitioner relies and further that he must set forth full particulars of the corrupt practice that he,,

alleges including as full a statement as possible of the name of the parties alleged to have committed such corrupt practices and the date and place,,

of the commission of each of such corrupt practices. This section has been held to be mandatory and requires first a concise statement of material,,

facts and then the full particulars of the alleged corrupt practice, so as to present a full picture of the cause of action.",,

Looking to the nature of charges levelled against the respondent No. 1, pleading in the petition ought to have been precise disclosing all and basic",,

and preliminary facts of the various corrupt practices alleged against the respondent No. 1. In the present election petition pleadings are vague and,,

they lack in material particulars of various acts of corrupt practices imputed to respondent No. 1. Thus, in the considered opinion of this Court, the",,

application for amendment cannot be granted at this stage. Accordingly the same is hereby rejected.,,

In the result the application under Order VII Rule 11 CPC is allowed and the election petition is hereby dismissed with costs as it does not,,

disclose any triable issue. The petitioner shall bear and pay Rs. 5000/- as costs to the respondent No. 1.,,

An authentic copy of this order under the seal and signature of the Registrar of this Bench be sent to Election Commission and the Speaker of,,

State Legislative Assembly in compliance of Section 103 of the Act.,,