Praveen Sahu vs Chandra Shekhar Sahu "Champu"

Dhirendra Mishra, J.—This order shall dispose of I.A. No. 3, an application filed by the respondent under Order 7 Rule 11 read with Section 151 of the CPC for dismissal of the election petition in limine for non compliance of the mandatory requirement of the Representation of the People Act, 1951 (for short ''the Act'') and the rules made thereunder.

Shri B.P. Sharma, learned counsel for the respondent submitted that the petitioner by the instant petition has prayed as follows:

(i) To declare the election of the respondent as null and void from Abhanpur Constituency No. 53 to the State Assembly Election at Chhattisgarh, as declared on 8.12.2008.

(ii) Recounting of votes to be ordered for just and fair decision, if in the process of recounting, the votes of any other candidates is found to be more than those polled by the respondent the person may kindly be declared elected in place of the respondent.

Referring to para-2 of the petition, it was submitted that there were in all 13 candidates including the respondent who contested the election, however, the petitioner has not joined other contesting contestants as party to the election petition except the respondent as per the provisions of Section 82 of the Act and, therefore, the petition is liable to be dismissed u/s 86 of the Act. He further argued that the election petition has been filed on the ground of allegation of corrupt practice referred to in para-8 of the petition. However, the petitioner has not filed any document in support of allegation of corrupt practice and he has also failed to give concise statement of material facts on which the petitioner relies and has also not set forth full particulars of corrupt practice that the petitioner alleges including the names of the parties alleged to have committed such corrupt practice, the date and the place of commission of each of such practice. The petitioner has averred that the respondent obtained permission of plying 4 vehicles, but no document in support of aforesaid contention has been filed to establish that any permission was accorded to the petitioner by the Returning Officer.

Referring to the pleadings contained in para-8 of the petition in detail, it was argued that though the petitioner has alleged search and seizure of a particular vehicle used by the respondent for electioneering purposes with the permission of the Returning Officer on the allegation of carrying cartons of country made liquor for the purposes of distribution amongst the electorates for casting their votes, but no document evidencing such fact has been filed along with the petition. The detail of person to whom allegedly the respondent or any person authorized by him has distributed the liquor etc. has not been given. The material facts with respect to the allegation of distribution of blankets, sarees, clothes and liquor to the electorates by the respondent or his election agent or authorized representative have not been pleaded and the full names of the recipients of the aforesaid articles have not been given. The petitioner was bound to produce documents relied on in the election petition in his possession or power in support of his claim. Where he is not in possession of such document, he is required to state as to whose possession or power the document is.

In the instant petition, though the petitioner has stated about the documents and contents thereof, but he has not filed the same along with the petition. The verification of the pleadings is not in accordance with Order 6 Rule 15 of the CPC. The petitioner is also required to furnish an affidavit in support of his pleadings. However, the affidavit filed in the instant case is not in accordance with Order 6 Rule 15 (4) of the CPC. Even affidavit filed in support of allegation of corrupt practice is not as per the requirement of law i.e. Rule 94-A and Form-25. From bare perusal of the verification and affidavit furnished by the petitioner, it would be evident that the affidavit filed in support of allegation of corrupt practice does not correspond to the law. There is no allegation in the petition that corrupt practices were committed for obtaining promise of the voters to vote or refrain from voting in an election except in para-8.12 and thus pleadings are not in accordance with the description of corrupt practice as defined u/s 123 (1) of the Act.

The petitioner has also sought declaration of election of the respondent as returned candidate as void u/s 123 (5) of the Act, however, there is no averment that the respondent plied the vehicles for transportation of the voters as free conveyance for the voters.

The challenge to the election of the respondent is also on the ground of corrupt practice described u/s 123 (7) of the Act, however, there is no pleading in the petition or material facts and material particulars regarding obtaining or procuring of any assistance from any gazetted officer or police officer or excise officer etc. Copy of the petition supplied to the respondent (Annexure-A) does not correspond to the copy of the petition filed in the Court. The defaults pointed out by the office at the time of filing were cured after the expiry of period of limitation for filing complete petition. The petition has been filed in a most casual, negligent and cavalier manner challenging the election of the respondent. In the absence of pleadings regarding material facts and material particulars of the alleged corrupt practice adopted by the respondent for soliciting vote, the entire pleading of corrupt practice deserves to be ignored and struck out in accordance with Order 6 Rule 16 of the CPC and the petition deserves to be dismissed u/s 87 of the Act for want of cause of action.

On the other hand, Dr. N.K. Shukla, learned senior counsel appearing on behalf of the petitioner argued that the petitioner has claimed for substantial relief of recounting of votes and claimed that "if in the process of recounting, the votes of any other candidate is found to be more than those polled by the respondent the person may kindly be declared elected in place of the respondent" is only a consequential relief and, therefore, the petition cannot be dismissed u/s 86 of the Act. He further submitted that from bare perusal of contents of para-8 of the petition, it would be evident that the petitioner has pleaded the material facts and particulars regarding corrupt practice adopted by the respondent with full details. In paras-8.1, 8.3 & 8.4 of the petition, the petitioner had detailed the description of venicles for which permission was accorded to the respondent for using the same in electioneering for the relevant period. The name of the owner of the vehicle, the date on which country made liquor was seized from such vehicle and the person in whose presence seizures were effected have been minutely detailed.

It has been specifically pleaded that the liquor was meant for distribution amongst the voters and 50% of the same had already been distributed and remaining was seized. On the basis of seizure of liquor, an offence was registered and at the time of the incident, the respondent was present in the vehicle, who tried to influence the result of the election by distributing country made liquor amongst the voters for the purposes of enhancing his election prospects. Similarly, the pleadings regarding distribution of blankets, Sari & liquor etc. by the respondent and his supporters on 8.11.2008, 9.11.2008, 10.11.2008, 16.11.2008, 17.11.2008 and 18.11.2008 in village Kurra in the presence of witnesses have also been made in para-8.6 with full details. The material facts and material particulars of corrupt practice have been pleaded in the petition.

Section 86(5) of the Act permits particulars of any corrupt practice alleged in the petition to be amended or amplified to ensure fair and effective trial of the petition and the only bar is against introducing such amendment whereby allegation of particulars of corrupt practice which was not previously pleaded in the petition. It was further argued that the petition is duly verified and supported By affidavit. A defect in verification may be cured and merely on account of defect in verification in the election petition, the petition cannot be thrown out at the threshold.

I have heard learned counsel for the parties and perused the record.

The instant petition has been filed by the petitioner, who is registered voter of Abhanpur Legislative Assembly Constituency and his name is recorded in the vote list of village Torla at Part No. 69 at Sr. No. 350 from where the respondent was elected as member of the Legislative Assembly. In para-2 of the petition, the petitioner has averred that apart from the respondent, 12 other candidates contested the assembly election from Abhanpur constituency held in the year 2008. The petitioner has prayed for the following reliefs:

(i) Declare the election of the respondent as null and void from Abhanpur Constituency No. 53 to the State Assembly Election of Chhattisgarh, as declared on 8.12.2008.

(ii) Recounting of votes to be ordered for just and fair decision, if in the process of recounting, the votes of any other candidate is found to be more than those polled by the respondent the person may kindly be declared elected in place of the respondent.

(iii) Grant any other suitable relief which the Hon''ble High Court may deem fit in the circumstances of the case along with the cost of the petition.

The respondent has prayed for dismissal of this petition in limine on the grounds that:

(i) The petitioner has prayed for declaring any other candidate who contested the election after ordering recount, however, all the candidates who contested the election have not been joined as respondents and, therefore, by virtue of Section 86 of the Act, the petition deserves to be dismissed.

(ii) The petitioner has not set forth full particulars of 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 as per requirement of Section 83 of the Act.

(iii) Verification of the petition and the affidavit in support of allegation of corrupt practice are not in accordance with Section 83 of the Act and Rule 94-A of the Conduct of Election Rules, 1961.

Ground No. 1

Apart from praying for declaration of election of the respondent as null and void, the petitioner has also prayed for recount and has further prayed that if in the process of recounting the votes of any other candidate is found to be more than those polled by the respondent that person may be declared elected. Chapter 6 of the Act deals with the dispute regarding election. Section 81 provides for presentation of election petition whereas Section 82 deals with the parties to the election petition, which reads as under:

Parties of the petition - A petitioner shall join as respondents to his petition -

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

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

Sub-section (1) of Section 86 provides that the High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.

In the instant case, the petitioner has prayed for recounting and to declare such person as elected in place of the respondent who has polled more votes than the respondent. It is also not in dispute that apart from the respondent, there were 12 other candidates who contested the election against the respondent, however, they have not been joined as respondents.

Dr. Shukla vehemently argued that the election petition has been primarily filed on the ground of corrupt practice as defined in Section 123 of the Act. The second prayer for recounting of votes and on the basis of such recounting to declare any other candidate as elected on the basis of result of recounting is superfluous and the petitioner may be permitted to withdraw the second relief claimed in the election petition.

In the matter of K. Kamaraja Nadar Versus Kunju Thevar and others, 2008 SC 687, an election petition was filed by the first respondent, who was elector in the State Assembly constituency impleading the elected candidate and the second respondent as party respondent to that petition and prayed that election of the appellant be declared void and further that the second respondent be declared duly elected. One Pillai who had retired from the contest was not impleaded as party respondent. An objection was taken by the Election Commission with respect to the maintainability of the election petition on the ground of non-joinder of one of the necessary parties, however, it was held by the Election Commission that it would be for the Election Tribunal to decide at the trial after hearing the parties if the issue of non-joinder of Pillai as respondent necessarily affect the prayer seeking that the second respondent be declared duly elected and the petition was referred to the Election Tribunal for trial. After notice, the elected candidate filed an application for dismissal of the petition on the ground that the respondent had failed to join Pillai who was also candidate as a respondent and also on the ground that security deposit has not been made as required u/s 117 of the Act. The first respondent moved an application for amendment of the petition for deleting the relief that the second respondent be declared as duly elected candidate in the election. The application for amendment was allowed as the Tribunal came to the conclusion that the first respondent never meant to include the portions sought to be deleted in the petition, as the same was included by reason of an accidental mistake by his legal advisers. The elected candidate filed a writ petition against the above order of the Election Tribunal, however, the same was dismissed by the High Court. The Supreme Court setting aside the order of the Election Tribunal and the High Court directed the Election Tribunal to decide the preliminary objection of the elected candidate afresh after affording opportunity of hearing to the parties. In paras-29 and 33, it was observed thus:

(29)..........................................An election petition calling in question any election can be presented by any candidate at such election or any elector on one or more of the grounds specified in Ss. 100 (i) and 101 to the Election Commission and a petitioner in addition to calling in question the election of the returned candidate or candidates may further claim a declaration that he himself or any other candidate has been duly elected. Where the petitioner claims such further declaration, he must join as respondents to his petition all the contesting candidates other than the petitioner and also any other candidate against whom allegations of any corrupt practices are made in the petition. The words "other than the petitioner" are meant to exclude the petitioner when he happens to be one of the contesting candidates who has been defeated at the polls and would not apply where the petition is filed for instance by an elector. An elector filing such a petition would have to join all the contesting candidates whose names were included in the list of contesting candidates prepared and published by the returning officer in the manner prescribed under S. 38, that is to say, candidates who were included in the list of validly nominated candidates and who had not withdrawn their candidature within the period prescribed. Such contesting candidates will have to be joined as respondents to such petition irrespective of the fact that one or more of them had retired from the contest under S. 55A (2). If the provisions of S. 82 which prescribes who shall be joined as respondents to the petition are not complied with, the Election Commission is enjoined under S. 85 of the Act to dismiss the petition and similar are the consequences of non-compliance with the provisions of S. 117 relating to deposit of security of costs. If the Election Commission however does not do so and accepts the petition, it has to cause a copy of the petition to be published in the official gazette and a copy thereof to be served by post on each of the respondents and then after the petition to an election tribunal for trial. Section 90 (3) similarly enjoins the Election Tribunal to dismiss an election petition which does not comply with the provisions of S. 82 or S. 117 notwithstanding that it has not been dismissed by the Election Commission under S. 85. Section 90 (3) is mandatory and the Election Tribunal is bound to dismiss such a petition if an application is made before it for the purpose. (33) As regards the amendment of a petition by deleting the averments and the prayer regarding the declaration that either the petitioner or any other candidate has been duly elected, so as to cure the defect of non-joinder of the necessary parties as respondents, we may only refer to our judgment about to be delivered in Inamati Mallappa Basappa Vs. Desai Basavaraj Ayyappa and Others, (D) where the question is discussed at considerable length. Suffice it to say here that the Election Tribunal has no power to grant such an amendment, be it by way of withdrawal or abandonment of a part of the claim or otherwise, once an Election Petition has been presented to the Election Commission claiming such further declaration."

The Bombay High Court in the matter of Comrade Kallappa Laxman Malabade vs. Prakash Kallappa Awade, 2009 Bombay 5, following the judgments of the Supreme Court in the matters of Mohan Raj Vs. Surendra Kumar Taparia and Others, K. Kamaraja Nadar (Supra) and Inamati Mallappa Basappa Vs. Desai Basavaraj Ayyappa and Others, held that non-joinder of parties, provisions of the CPC could not be resorted to in order to save a petition which is otherwise liable to be dismissed for non-joinder of the parties, which Section 82 of the Act says must be joined.

In the instant case, there is specific prayer in the election petition for declaring such candidate who has polled more votes than the respondent after recount to be elected in place of the respondent. The instant petition has been filed by the elector without joining any of the contesting candidate except the respondent and, therefore, in my considered view, in view of the mandatory provisions of Section 86 (1) of the Act, the election petition has to be dismissed in limine and the aforesaid defect cannot be cured by permitting the petitioner to withdraw or abandon the relief No. 2 claimed by the petitioner.

In view of the aforesaid finding, it is not necessary to consider other grounds raised by the respondent for dismissal of the election petition.

In the result, the election petition is accordingly dismissed u/s 86 (1) of the Act for non-compliance of Section 82 of the Act.

No orders as to costs.