B. Venkataswami, J.
1. I. A. No. TIT is an application filed by the first respondent (Returned Candidate) praying for the striking out of the paragraphs in the Election Petition concerning the allegations relating to corrupt practices alleged to have been indulged in by the first respondent. The relevant issue in this regard is No. 5, which is set out later. This issue was set down for hearing as a preliminary issue. But by common consent of Counsel Issue No. 7 and two other issues, namely 3 and 6, the survival or otherwise of which would depend on the findings on issues Nos. 5 and 7, have also been taken up and treated as preliminary ones. Hence the issues arising for consideration are 3, 5, 6 and 7. The petitioner, it must be stated, has made no attempt to amend or amplify the particulars furnished in the Petition relative to corrupt practices. Before setting them out, it is necessary to briefly advert to a few relevant facts.
2. In the elections held in March, 1972 for a seat for the Mysore Legislative Assembly from Aurad Constituency, in Bidar District, the first respondent, who contested the election as an independent candidate, allegedly supported by M. E. S. (Maharashtra Ekikarana Samithi) Party, was returned. The petitioner and the second respondent had also contested in the election on behalf of what have since come to be known as Congress (O) and Congress (R) respectively. The votes secured by the petitioner and respondents 1 and 2 were 18,570, 22,431 and 13,376 respectively. The polling for the seat in question took place on 9-3-1972 and the results were announced on 11-3-1972. The Election Petition has been presented on 25-4-1972.
3. The election of the first respondent has been challenged on grounds relating to disqualification, with which I am not concerned for the present, and corrupt practices falling under the definitions in subsections (3), 3 (a) and (4) of Section 123 of the Representation of the People Act, 1951 (R. P. Act), which will be referred to later in detail when they fall to be examined in the context of the law applicable to such matters. The Petition is also accompanied by five pamphlets marked as Annexures 1 to 5, the contents of which also will be referred at a later stage. But it is relevant to state that one of the reliefs sought by the petitioner is that he himself might be declared as duly elected. The petition is resisted on behalf of the first respondent only, and apart from controverting the various allegations in the Petition, it has been pleaded that the petitioner himself has been guilty of certain corrupt practices and, therefore, is not entitled to be declared as elected.
4. The Issues Nos. 3, 5, 6 and 7 will now be set out and are as follows:--
'3. Whether the petitioner proves all or any of the allegations relative to corrupt practices pleaded in his petition?
5. Whether the petitioner has to be non-suited on the ground that the allegations in the petition relative to corrupt practices are vague and do not, therefore, call for a trial on facts, as pleaded in para 13 of the Written Statement of the first respondent.
6. Whether the first respondent establishes the allegations of corrupt practices indulged in by the petitioner himself as alleged in paragraphs 15, 16 and 17 of the Written Statement?
7. Whether the first respondent would be entitled to prove corrupt practices pleaded by him in paragraphs 15, 16 and 17 without filing a proper recriminatory petition in compliance with Section 97 of the R. P. Act and specifying materials on which such allegations are based?'
5. It will be seen from the above issues that Issues Nos. 3 and 6 relate to proof of allegations and could survive only if the answers to Issues Nos. 5 and 7 are in the negative and affirmative respectively. Hence in the main, the issues that arise for consideration are 5 and 7, and I propose to consider the same.
6. It is convenient to take up Issue No. 7 first. The plea involved herein is one of recrimination which would be permissible only when in an election petition a declaration (that any candidate other than the returned candidate is duly elected) is claimed in accordance with the provisions of Section 97 of the R. P. Act. The proviso to the said section prescribes the conditions precedent to be complied with by the returned candidate or such other party who desires to lead evidence in support of such a plea. They are: (1) Notice of intention to lead such evidence must be given to the High Court within fourteen days of the commencement of trial; (2) furnish security as per Sections 117 and 118 of the R. P. Act. As to what is the date of 'commencement of trial' for the purpose of Section 97, it is laid down in the explanation to Section 86(4) of the R. P. Act, that a trial must be deemed to have commenced on the date fixed for the appearance of respondents in order to answer the claim or claims made in the Petition.
7. In the case on hand, the date fixed for such appearance of respondents is 29-5-1972. The written statement, raising recriminatory pleas for the first time, has been produced on 30-6-1972, clearly beyond fourteen days from the date of commencement of trial within the meaning of Sections 86(4) and 97 of the R. P. Act. Moreover, no security has been furnished as required by the provisions of Section 97. It is clear therefore, that the respondent would be disentitled to lead evidence in support of such allegations. The provisions of Section 97 are clearly mandatory and, therefore, have to be strictly complied with.
8. For the above reasons, Issue No. 7 has to be answered in the negative, and against the respondent. In view of this conclusion, Issue No. 6 does not survive for decision. The issues are answered accordingly.
9. I now turn to Issue No. 5. The allegations of 'material facts' and 'particulars', as contemplated under Section 83(1) of the R. P. Act, and concerning corrupt practices, have been set out in sub-paragraphs 1 to 9 of paragraph 4 of the Petition. In addition, Annexures 1 to 5, which are pamphlets, have been relied on in support of such allegations. Broadly stated, such corrupt practices have been said to fall under the definitions set out in Sub-sections (3), (3-A) and (4) of Section 123 of the R. P. Act. The specific allegations in regard to such corrupt practices will be referred to at a later stage, when they are taken up for consideration in the light of the law governing the matter.
10. Sri A. V. Albal, the learned counsel for the petitioner, contented himself with a general submission that the facts and particulars furnished in the petition were sufficient to put the Opponent on notice of the charges and, therefore, there was a case for trial of the issues relative to corrupt practices. According to him, the fact that the respondent has been able to file a written statement would show that the materials furnished were adequate and sufficient. He merely invited attention to certain enunciations by the Supreme Court in three decisions; namely, (1) Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, : 2SCR428 ; (2) S. M. Banerji v. Sri Krishna Agarwal, : 2SCR289 ; and (3) Balwan Singh v. Lakshmi Narain, : 3SCR91 , which have reference to the procedure to be followed by a Court in case the Petition was found to be defective for want of particulars. It is convenient to mention at this stage itself that those decisions were concerned with Section 83(3) of the unamended R. P. Act. The present provisions corresponding to it is Section 86(5). On a comparison of these two provisions it will be seen that they are not exactly in pari materia. The provisions are these:
'Section 83(3) (unamended)
Sec. 86 (5): (amended)
The Tribunal may, upon such terms as to costs and otherwiseas it may direct at any time, allow the particulars included in the said list to be amended or order such further and better particulars in regardto any matter referred to therein to be furnished as may in its opinion feenecessary for the purpose of ensuring a fair and effectual trial of thepetition.
The High Court may, upon suchterms as to costs and otherwise as it may deem fit,allow the particulars of anycorrupt practice alleged in the petition to be amended or amplified in suchmanner as may in its opinion be necessary for ensuring a fair and effectivetrial of the petition but shall not allow any amendmentof the petition which will have the effect of introducing particulars of a corrupt practice not previouslyalleged in the petition.'
11. It seems to me that the words Underlined in the above Section 83(3) would enable a court to make an order giving an opportunity to the petitioner to furnish such further or better particulars before striking off the pleadings relevant thereto. The position is not the same in regard to Section 86(5). There is also no indication therein whether the court could act suo motu in that regard. In any event, the enunciations in question relate to particulars and not to material facts. In the case on hand, in my view, the material facts themselves are wanting. Hence this Contention of Sri Albal has to fail.
12. On behalf of the respondent, Sri R. U. Goulay, the learned Counsel, contended that the 'material facts and particulars' furnished were highly insufficient and did not disclose a cause of action against him. He further submitted that the portion of the petition relative to corrupt practices did not comply with the mandatory requirements of the provisions of Section 83 of the R. P. Act. In support of this submission, he relied on several decided cases of the Supreme Court and one of the High Court of Patria. Before a further consideration of the problem, it would be appropriate to notice the law as laid down in several cases, including those relied on by Sri Goulay.
13. In the case of Samant N. Balkrishna v. George Fernandez, : 3SCR603 , the Supreme Court was, inter alia, concerned with the scope, ambit and applicability of the provisions enacted in Sections 83, 86(5) and 123(4) of the R. P. Act. The propositions laid down therein have been summarised in the case of Hardwari Lal v. Kanwal Singh, : 2SCR742 . It seems to me convenient to quote the relevant passage in the latter case in order to appreciate the propositions laid down by Hidayatullah, C. I., in the former case. The passage in question, in Hardwari Lal's case, occurs in paragraph (19) of the aforesaid report and runs thus:--
'Hidayatullah, C, J., speaking for the Court laid down these propositions, first, Section 83 of the Act is mandatory and requires first a concise statement of material facts and then requires the fullest possible particulars. Second, omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. Third, the function of particulars is to present in full a picture of the cause of action to make the opposite party understand the case he will have to meet, for the material facts and particulars are distinct matters. Material facts will mention statements of fact and particulars will set out the names of persons with the date, time and place. Fifth, material facts 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. Sixth, in stating the material facts it will not do merely to quote the words of the section because then the efficacy of the material facts will be lost. The fact which constitutes a corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. Seventh, 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 obtaining or procuring of assistance unless the exact type and form of assistance and the person from whom it is sought and the manner in which the assistance is to further the prospects of the election are alleged as statements of facts.'
Again, in the same judgment (Hardwari Lal's) in para 20, it is further observed thus:
'......... Material facts are facts which if established would give the petitioner the relief asked for. If the respondent had not appeared could the Court have given a verdict in favour of the election petitioner? The answer is in the negative because the allegations in the petition did not disclose any cause of action'
14. Reverting to the decision in Samant N. Balakrishna's case : 3SCR603 , in the context of the provisions of Section 86(5), it is observed by the Court in paragraph 30 of the aforesaid report thus:
'Since a single corrupt practice committed by the candidate, by his election agent or by another person with the consent of the candidate or his election agent is fatal to the election, the case must be specifically pleaded and strictly proved. If it has not been pleaded as part of the material facts, particulars of such corrupt practice cannot be supplied later on. The bar of the latter part of the fifth sub-section to Section 86 then operates............'
15. Keeping in view the above principles, I shall now proceed to consider the allegations in the petition relative to corrupt practices.
16. In essence, paragraph 4.1 of the Petition refers to appeal to language falling under Section 123(3) of the R. P. Act. The material allegations are:
'......... The respondent exploited the issue for his own purpose by exceeding the limits of the political issue and making it a language issue in pure and simple terms. The militant appeal has been in the nature of requesting the people to vote in the name of language namely, Marathi language as opposed to the Karinada language. All the pamphlets issued by him and his workers and agents with his consent or connivance have all been in Marathi language. Respondent, his agents and other persons with the consent of his have been asked to vote on the ground of language namely Marathi language and not to vote for the petitioner on the ground that he sneaks Kannada language. This, he has done by publishing the pamphlets as also in the various election speeches which he made during the course of election propaganda throughout the constituency. This act on his part therefore has been a corrupt practice falling within the Sub-section (3) of Section 123 of the Act.'
17. The first part of the allegation related to making the language an issue in the election, I fail to see that even if such an issue had been raised, how it would offend the provisions of law in this regard, secondly an inference is sought to be drawn on that basis of the language adopted in the pamphlets, aforesaid 1 to 5, which are in Marathi. This ground cannot be of any avail to the petitioner in order to show that the language of the candidate is being exploited to persuade the electorate either to vote or refrain from voting for a particular candidate. It is significant to note that there is no reference to any fact of such reference to the language of the petitioner in any of the pamphlets in question. That such an act to constitute a corrupt practice within the meaning of Section 123(3) the appeal must be based on the candidate's language, and not if consideration of language is made an issue in an election. There is support for this view in the case of Jagadev Singh v. Pratap Singh, : 6SCR750 . In para 26 of the said report, this is what Shah, J., (as he then was) has observed:
'The corrupt practice defined by Clause (3) of Section 123 is committed when an appeal is made either to vote or refrain from voting on the ground of the candidate's language. It is the appeal to the electorate on a ground personal to the candidate relating to the language which attracts the ban of Section 100 read with Section 123(3). Therefore it is only when the electors are asked to vote or not to vote because of the particular language of the candidate that a corrupt practice may be deemed to be committed. Where however for conservation of language of the electorate appeals are made to the electorate and promises are given that steps would be taken to conserve that language, it will not amount to a corrupt practice.'
18. It is no doubt true that there is an allegation that the respondent and his agents had been asking 'not to vote for the petitioner on the ground that he speaks Kannada language.' This is too bald a statement to constitute material sufficient to put the opponent on notice of the charge he is called upon to meet without particulars as to place, time and the names of persons from whom such votes were sought and any other circumstances relevant. There is no doubt a reference to the making of election speeches by the respondent and the pamphlets. Even these facts, whether they be material facts or particulars within the meaning of the provisions of Section 83, are devoid of details adumbrated above. Clauses (1) and (2) of Section 83 make it mandatory on the petitioner to furnish a concise statement not only of material facts necessary to constitute a cause of action, but also particulars necessary to put returned candidate on notice of the details of the charge he has been called upon to meet. As regards the contents of the pamphlets relied on, only one of which has been issued by the respondent, it has not been shown to me that there was any appeal addressed to the voters not to vote for the petitioner on the ground that he speaks Kannada language. Hence, I am clearly of the view that the material in this regard does not satisfy the requirements of Section 83(1) and (2) of the R. P. Act. I, therefore, direct that para 4-1 of the petition be struck off from the petition.
19. The paragraphs numbered as 4.2, 4.3 and 4.4 in the petition relate to the issue of an appeal by 15 persons, a copy of which is marked as Annexure II. Principally, on the basis of this pamphlet the petitioner has sought to bring the charge under all the sub-sections of Section 123 with which we are concerned. In order to lay the charge at the door of the respondent, this is what has been stated in para 4.2:--
'............ Although 15 persons are said to have signed, the petitioner states that the author and publisher is the respondent himself. Alternatively some of the said persons are the workers and agents of the respondent and as they have printed and published the pamphlets with the consent of the respondent, he is deemed to have accepted then as his. It thus tant amounts to a publication by the respondent himself.'
20. It seems to me from the above passage, that the petitioner is uncertain as to who among the signatories of Annexure 2 were the agents and workers of the second respondent. The particulars in regard to their identity are necessary as otherwise it would be tantamount to allowing the petitioner to shape his case in evidence in such a manner as to take the respondent by surprise.
20-A. Paragraph 4.3 merely refers to the contents of the annexure in question, wherein there is a reference to the public activities of the respondent and the good that has been done by him to the area concerned with the constituency. According to the petitioner, this constitutes a charge falling under Sub-section (3) of Section 123 of the R. P. Act.
21. Annexure 2 in question, is an appeal to the community of 'Dhangars' to vote for the respondent. It nowhere refers to the caste or community of the respondent. In order to constitute this as a charge falling under Sub-section (3) or (3-A) of Section 123, the appeal must be on the basis of the caste of the candidate. This view is supported by the observation in Sant Prasad Singh v. Dasu Sinha, : AIR1964Pat26 . The observations occur in para 7 of the above report and read thus:
'It is clear that the expression 'for any person on the ground of his religion, race, caste, community or language' distinctly lays down that the appeal to be made by the candidate to the voters to support him should be on the ground that he belongs to a particular religion, caste, etc. ...........'
22. The contents of Annexure 2 are also pressed into service in support of a plea that the fact 'Kurubars' (Dbangars) have been asked to vote in favour of the respondent on the ground that the Congress was hitherto controlled by another community and had done nothing for kurubars, and such an appeal, therefore, amounted to promotion of feelings of enmity and hatred between different classes of citizens of India on the ground of religion. It seems to me that such an inference is far-fetched, nor is it 'implicit' as pleaded. The pamphlet in question (Annexure II) is a short one and may be set out in full. It reads thus:
'English translation of Annexure IL
Respectful appeal to Dhangar
Brothers and Sisters:
It is known to you that the day of Election is approaching and therefore, it is your duty to cast your invaluable votes to elect the appropriate candidate. The representatives of both the Congress parties, viz., Organisation Congress (Syndicate) and Indira Congress (Indicate) have not done anything so far for the progress of our community. You are quite aware of it.
For the progress of this community only Mr. Bapurao Patil Ekambekar has certainly done and will do something. Hence it is our first duty to elect him by a great majority due to which he can get good opportunity to work for the welfare of our community.
23. From the above it is clear that Kurubars have been merely asked to vote in favour of the respondent. There is no reference to any other community. Hence this allegation cannot be said to give rise to a triable issue. The material facts pleaded in support are too vague and completely devoid of particulars. I am, therefore, of the view that paragraphs 4.2, 4.3 and 4.4 of the petition are liable to be struck off. It is ordered accordingly.
24. The paragraphs in the petition that, remain, so far as the questions before me are concerned, are 4.5, 4.6 and 4.7. According to the petitioner, the charge in this behalf would be one falling under Sub-section (4) of Section 123 of the R. P. Act. The charge in this behalf is clearly based on the contents of Annexures 3 to 5 which are pamphlets issued under the signatures of several persons who it is alleged are agents and workers of the respondent and there was consent by him for the issue of such appeals. The contents of such pamphlets are generally in praise of the good work of the respondent in various fields such as educational, social and communications, pertaining to Aurad Taluk. The plea is that such claims are all false and also false to the knowledge of the makers themselves. In my view, to constitute a cause of action falling under the head of charge under Section 123(4) of the R. P. Act, the allegations regarding character and conduct must be such as would reflect on the moral and mental character of the candidate personally. Any criticism, therefore, of the public or political activities of candidate, however unfair or exaggerated, would not bring the charge under Section 123(4). That the criticism complained of falls under the latter category is clear from the following plea in the petition. In paragraph 4.7 it is pleaded thus:--
'......... The petitioner further states that the statements are relating to improvements and further statements that the said improvement is referable to respondent alone are statements which are false and further they are false to the knowledge of the makers themselves. According to the petitioner, the said statements are made and published by the candidate himself. Even in case it is assumed, that they are published by some or all the signatories, they being workers or agents of the respondent, will become acts of the respondent ...'....'
25. I am, therefore clearly of opinion that the allegations in this behalf would not give rise to a cause of action in support of a charge falling under Section 123(4) of the R. P. Act. The answer to Issue No. 5, therefore, is in the affirmative and against the petitioner. Hence, paragraphs 4.5, 4.6, 4.7 and 4.8 also call for interference and they are, therefore, ordered to be struck off from the petition.
26. In the result, I. A. No. Ill is allowed, Paragraphs 4, 4.1, to 4.8 are struck off. Paragraphs 4.9 and 4.10 would not also arise for consideration in view of my conclusion in regard to the earlier sub-paragraphs of paragraph 4. Hence they are also ordered to be struck off.
27. The issue No. 5, therefore, has to be answered in the affirmative. Issue No. 7 is answered in the negative. It follows from this that Issues Nos. 3 and 6 would not survive for decision. From these conclusions, it would follow that the parties will not be at liberty to adduce evidence as to the corrupt practices alleged against each other.