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Balraj Madhok Vs. Shashi Bhushan and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtDelhi High Court
Decided On
Case NumberElection Petition No. 1 of 1971
Judge
Reported inILR1971Delhi614
ActsRepresentation of People Act, 1951 - Sections 19, 23(3), 83(1), 100 and 100(1); Representation of People Act, 1950; Constitution of India - Article 326; Conduct of Election Rules, 1961 - Rules 56(1) and 56(2)(6)
AppellantBalraj Madhok
RespondentShashi Bhushan and ors.
Advocates: R.P. Bansal,; M.C. Bhandare,; C.M. Oberoi,;
Cases ReferredJitendra Bahadur Singh v. Krishna Behari and
Excerpt:
(i) representation of people act (1951), section 23(3 --electoral rolls -- non-inclusion of names of voters --only persons affected can agitate --representation of people act, 1950.; that though a person may be eligible to vote he shall not be entitled to vote in any constituency if his name is not entered in the electoral roll of that constituency. the right to vote is a personal right which is attached to the person who is eligible to vote. he can vote only if his name is entered in the electoral roll for his constituency. if his name is not entered, the right to vote of only that person is taken away and it is for him to agitate in the manner prescribed by the 1950 act for the inclusion of his name.; (ii) representation of people act (1951) - section 100(1) (d) (iv) --scope of --non.....s.n. andley, j. (1) this petition has been mod by balraj madhok to challenge the election of shashi bhushan, respondent no. 1, to the lok sabha in the general elections which were held in march, 1971. the other contesting candidates are respondents nos. 2 to 8. in addition madhu ram subharao. respondent no. 9, has been imp leaded by the petitioner. tiis nomination paper was, according to the allegations in the petition, improperly rejected. respondent no. 1. the returned candidate, has filed his written statement in which, apart from the reply on merits, several preliminary objections have been raised. respondent no. 6. som dutt joshi, one of the contesting and defeated candidates has also filed a written statement. the petitioner has filed his replication to the written statement. (2) on.....
Judgment:

S.N. Andley, J.

(1) This petition has been mod by Balraj Madhok to challenge the election of Shashi Bhushan, respondent No. 1, to the Lok Sabha in the General Elections which were held in March, 1971. The other contesting candidates are respondents Nos. 2 to 8. In addition Madhu Ram Subharao. respondent No. 9, has been imp leaded by the petitioner. Tiis nomination paper was, according to the allegations in the petition, improperly rejected. Respondent No. 1. the returned candidate, has filed his written statement in which, apart from the reply on merits, several preliminary objections have been raised. Respondent No. 6. Som Dutt Joshi, one of the contesting and defeated candidates has also filed a written statement. The petitioner has filed his replication to the written statement.

(2) On July 16. 1971. seven Issues which were ordered to be treated as preliminary Tssues were framed and this order will dispose of the aforesaid preliminary Issues,

(3) The following dates were fixed by the Election Commission for various matters in connection with the aforesaid election :-

FEBRUARY1 to 8, 1971-Nomination papers were invited and could be filed during this period (both dates inclusive). February 9, 1971-Date for scrutiny. February 11, 1971-Last date for withdrawal of nomination papers. March 5, 1971-Date of poll, if necessary. March 10 and Ii, 1971-Dates for counting of votes.

(4) The election challenged by this petition was from the South Delhi Parliamentary Constituency in the Union Territory of Delhi.

(5) The first Issue is whether the petition contains allegations and averments which are outside the scope of section 100 of the Representation of the People Act, 1951 (hereinafter referred to as the '1951 Act') and, thereforee, does not comply with the requirements of section 81 of the 1951 Act. This Issue need not be discussed as the specific objections to specified paragraphs in the petition are the subject matter of Issues Nos. 2, 3 (a), 3(b) and 4 which are being dealt with separately.

(6) The second Issue is :-

'WHETHERthe ground of imperfect and defective electoral rolls as taken in paragraph 14 of the petition can form the subject matter of an election petition If not, are the allegations in paragraph 14 of the petition liable to be struck off

Paragraph 14 of the petition alleges that the election was held on the basis of imperfect and defective electoral rolls and, for this reason, the election of respondent No. 1 was void and was liable to be set aside. It is further alleged that these imperfect or improper electoral rolls were used in the election despite protests by the petitioner, his workers and his party. Details to show that the electoral rolls were imperfect and improper have been given and they are :-

(A)that names were included in the electoral rolls on a large scale in violation of the provisions which are relevant for making inclusion of names in the electoral rolls; (b) that a large number of applications which were neither in the prescribed forms nor were properly filled nor exhibited as required by the provisions of the Registration of withdrawal Rules and in respect of which no objections were invited, were received on the eve of election by various Registration Officers and the names of such persons, whose applications should have been rejected, were illegally included in the electoral rolls; (c) that just on the eve of elections a large number of names were deleted from the electoral rolls in contravention of the Representation of the People Act, 1950 (hereinafter referred to as the 1950 Act') and rules and orders framed there under and the Registration of Electoral Rolls and (d) that the electoral rolls did not contain the names of several thousand persons who had attained the age of 21 years on the qualifying date.

(7) At the stage of arguments it was stated by the counsel for the petitioner that there was a contravention of sub-section 3 of section 23 of the 1950 Act with regard to grounds (a), (b) and (c) above and a contravention of sections 19 and 21 of the 1950 Act and Article 326 of the Constitution with regard to ground (d) above.

(8) Apart from the reply to the said allegations on merits respondent No. 1 pleaded that the allegations related to electoral rolls whose legality or correctness cannot be gone into in an election petition and it is only this aspect of the matter which is to be decided under this Issue.

(9) The grounds on which an election can be held void arc set out in section 100 of the 1951 Act and this section does not contain any specific ground to the effect that an election can be declared void if imperfect and defective electoral rolls have been used. The argument of the petitioner is that this ground is available to him under sub-clause (iv) of clause (d) of sub-section (1) of section 100 of the 1951 Act providing that the result of the election in so far as it concerns a resumed candidate has been materially affected by any non-compliance with the provisions of the Constitution or of the 1951 Act or of any rules or orders made under this Act. It is contended on behalf of respondent No. 1 that the 1950 Act is not mentioned in this sub-clause.

(10) Now, the electoral rolls for Parliamentary constituencies are prepared under section 13-D of the 1950 Act and section 15 of this Act provides for the preparation of an electoral roll for every constituency. Section 16 of the 1950 Act specifies the disqualifications for registration in an electoral roll. Section 21 provides for their preparation in the prescribed manner by reference to the qualifying date and their revision. Section 22 provides for their correction. Section 23 provides for the inclusion of names in the electoral rolls. The orders made by the Electoral Registration Officer under section 22 or 23 are made appealable by section 24. Section 30 bars the jurisdiction of Civil Courts to entertain or adjudicate upon any question whether any person is or is not entitled to be registered in an electoral roll for a constituency, or the question of legality of any action taken by or under the authority of an Electoral Registration Officer, or of any decision given by any authority appointed under this Act for the revision of any such roll. It is, thereforee, clear that the preparation of electoral rolls is governed by the 1950 Act and not by the 1951 Act. The 1951 Act merely provides the right to vote by section 62 which, inter alia, states that it is only a person who is and not a person who is not entered in the electoral roll of any constituency who shall be entitled to vote in that constituency. thereforee, even though a person may be eligible to vote he shall not be entitled to vote in any constituency if his name is not entered in the electoral roll of that constituency, The right to vote is a personal right which is attached to the person who is eligible to vote. He can vote only if his name is entered in the electoral roll for his constituency. If his name is not entered, the right to vote of only that person is taken away and it is for him to agitate in the manner prescribed by the 1950 Act for the inclusion of his name.

(11) The matter is concluded against the petitioner by decisions of the Supreme Court. The first decision is : [1971]2SCR611 in re : Pampakavi Rayappa Belagali v. B. D. Jatti and others, where it has been observed that the ambit of section 100(1)(d)(iv) does not entitle the Court in an election petition to set aside an election on the ground of non-compliance with the provisions of the Act of 1950' or any rules made there under with the exception of section 16 of this Act and that in an election petition the correctness of the electoral roll cannot be gone into. The Supreme Court approved the view to that effect taken by a Full Bench of the Punjab and Haryana High Court in Roop Lal Mehta v. Dhan Singh and others . In an earlier decision : [1970]1SCR845 in re : Kabul Singh v. Kulldan Singh and others') the Supreme Court observed that the right to vote being purely a statutory right the validity of any vote has to be examined on the basis of the provisions of the Act. After noticing provisions of the 1950 Act relating to the preparation of electoral rolls it was observed that these provisions formed a complete Code by themselves in the matter of preparation and maintenance of electoral rolls; that the entries found in the electoral rolls are final and they are not open to challenge either before a Civil Court or before a Tribunal which considers the validity of any election.

(12) I, thereforee, hold that the objections raised in sub-paras (a), (b) and (c) of paragraph 14 of the petition cannot be the subject matter of this petition.

(13) With regard to the objection raised in sub-para (d) above, reliance on sections 19 and 21 of the 1950 Act is misconceived because assuming there was any non-compliance of these sections, the non-compliance of any provision of this Act cannot be raised as a ground under section 100(1)(d)(iv) of the 1951 Act. The next argument is that in so far as sub-para (jd) is concerned, there has been a non-compliance of Article 326 of the Constitution which provides for the elections to the House of the People to be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than twenty one years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. As stated by me already, the right to vote is a personal right and although the Constitution has declared that the election shall be on the basis of adult suffrage the right to vote is subject to the conditions mentioned in Article 326 of the Constitution. Mere attainment of the age of 21 years on the qualifying date does not confer the right to vote because such a person may be otherwise disqualified. Article 326 of the Constitution docs not impose an obligation upon anybody to include in the electoral roll the name of every person who is above the age of 21 years. It merely gives a right to such a person, unless he is otherwise disqualified, to have his name included in the electoral roll. There cannot, thereforee, be said to be any non-compliance with Article 326 of the Constitution as contended by the petitioner.

(14) For all these reasons I hold that the grounds raised in paragraph 14 of the petition cannot form the subject matter of this election petition and I order that paragraphs 14 of the petition be struck off.

(15) The next Issue which requires consideration is Issue No. 3 (a), which is as follows :-

'WHETHERthe grounds of challenge alleged in paragraphs 15 to 19 of the petition fall under sections 100 or 101 of the Act and can they form the subject matter of an election petition under the Act ?'

(16) Paragraphs 15 to 19 relate to the amendment of rule 56(1) of the Conduct of Elections Rules, 1961 and its substitution by a new rule. This substitution was brought about by the Central Government by notification No. S.O. 479 dated January 27, 1969 in exercise of the powers conferred by section 169 of the 1951 Act.

(17) In paragraph 15 it is alleged that this amendment had been brought about bala fide by the Central Government and Election Commission of India acting in consonance with the wishes of the Prime Minister, n Smt. Indira Gandhi. Paragraph 16 reproduces the existing and the substituted rule 56(1). Paragraph 17 again reiterates bala fide and alleges that the amendment was brought about without following the procedural and other legal requirements in contravention of the provisions of section 169 of the 1951 Act despite the protest of the petitioner's party and other political parties in the country. Paragraph 18 states that this amendment was brought in even though the Election Commission and the Central Government knew and were aware that it could not be placed on the table of either the Lok Sabha or the Rajya Sabha as they were not in session and that it was made obviously with the desire to avoid scrutiny by Parliament to say that the amendment ought not to be made. Paragraph 19 alleges that the action of the Central Government was with the ulterior motive to introduce invalid ballot papers which had been treated by a Chemical and mechanical process and grounds are set out to show that there was an ulterior motive.

(18) In substance, the allegations in these paragraphs relate to the validity of the substituted rule 56(1) in the Conduct of Elections Rules, 1961. There can be no doubt that this Court while trying an election petition can declare an election to be void only if any of the grounds specified in sections 100 and 101 of the 1951 Act is found proved. The jurisdiction of this Court, while trying an election petition is limited and circumscribed by the provisions of the 1951 Act. While trying an election petition, this Court is not exercising its ordinary or extraordinary jurisdiction and has to deal with an election petition only in accordance with the provisions of the 1951 Act and not otherwise. It has to take the provisions of the 1951 Act or of any rules or orders made there under as they are and it is not for this Court to see whether any such provisions were brought in mala fide or with ulterior motives. It has to confine itself to the grounds mentioned in sections 100 and 101 of the 1951 Act. Seen in this back- ground, there can be no doubt that there cannot be said to be any non-compliance with the provisions of the substituted rule 56(1) within the meaning of section 100(1)(d)(iv). Further, to make this ground available to the petitioner it is necessary for him to allege that the result of the election in so far as the returned candidate is concerned has been materially affected by non-compliance. There is no such averment in paragraphs 15 to 19 of the petition. I, thereforee, hold that the allegations contained in paragraphs 15 to 19 of the petition do not fall under section 100 and 101 of the 1951 Act and cannot form the subject matter of this petition. I, thereforee, order that paragraphs 15 to 19 of the petition be struck off.

THEnext Issue is Issue No. 3(b) and it is in these terms :- 'Whether this Court has no jurisdiction to determine the question of virus of the amended rule 56 of the Conduct of Elections Rules, 1961 ?'

(19) The jurisdiction to try an election petition has been conferred on High Courts by section 80-A of the 1051. Act. Before the amendment of this Act by Act No. 47 of 1966, this jurisdiction had been conferred upon Election Tribunals constituted under this Act.

(20) The right to file an election petition is not a common law right. It has been conferred by the 1951 'Act. It is true that High Courts have their ordinary and extraordinary jurisdictions. But election petitions cannot be tried in exercise of these jurisdictions. thereforee, the jurisdiction to try an election petition conferred by the 1951 Act is a special jurisdiction and it follows that it has to be exercised in accordance with the provisions of the statute conferring the jurisdiction. Provisions are made in various sections of the 1951 Act for the presentation of petitions (section 81); parties to the petition (section 82); contents of the petition (section 83): relief that may be claimed by the petitioner (section 84); trial of election petitions (section 86); procedure before the High Court (section 87); documentary evidence (section 93); secrecy of voting (section 94); answering of criminating questions and certificate of indemnity (section 95); expenses of witness (section 96); recrimination when seat claimed (section 97); decision of the High Court (section 98): other orders to be made by the High Court (section 99); grounds for declaring election to be void (section 100); grounds on which a candidate other than the returned candidate may be declared to have been elected (section 101); procedure in case of an equality of votes (section 102): communication of orders of the High Court (section 193); transmission of order to the appropriate authority, etc. and its publication (section 106) and effect of orders of the High Court (section 107). Provisions are also made for withdrawal of election petitions (section 109); procedure for withdrawal of election petitions (section 110); report of withdrawal by the High Court to the Election Commission (section 111); Abatement of election petitions (section 112) and Abatement or substitution on death of respondent (section 116).

(21) All these provisions show that while trying an election petition the High Court is exercising a limited jurisdiction as prescribed and circumscribed by the 1951 Act and it would not be permissible to the High Court to try the petition in a manner other than the manner provided or to make orders other than the orders provided. There is no provision in the 1951 Act conferring upon the High Court the jurisdiction to declare any provision to be ultra vires. Such an order is not contemplated by the 1951 Act. As has been held by the Supreme Court in 1954 Supreme Court Reports 892 in re : Jagan Nath v. Jaswant Singh and others the general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power . It has been stated in : [1952]1SCR218 in re : N. P. Ponnuswami v. The Returning Officer, Namakkal Constituency that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of and that in relation to elections it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members and if the Legislature takes it out of its own hands and vests in a Special Tribunal, an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. It is clear that it is not within the scope of the 1951 Act that an election Court even though it be the High Court having pre-existing ordinary and extraordinary jurisdiction can try an election petition or pass orders therein otherwise than in accordance with the provisions of this Act. The fact that the High Court trying an election petition has pre-existing ordinary and extraordinary jurisdiction docs not effect the matter. The position is somewhat the same as of a High Court hearing a reference under the Income-tax Act.

(22) In the case of K. S. Venkataraman and Co. (P) Ltd. v. State of Madras : [1966]60ITR112(SC) the Supreme Court held that the authorities constituted under the Income Tax Act are not concerned with whether the provisions of the Act are good or had and the question of ultra virus is foreign to the scope of its jurisdiction. Having said that the Supreme Court went on to say that as the question of ultra virus cannot arise in the order of the Income Tax Tribunal, the High Court cannot possibly give any decision on the question of virus of any provision of this Act while hearing a reference. If the argument of the petitioner that the question of ultra virus is beyond the scope of only such authorities which are constituted by the statute and not where jurisdiction has been conferred upon an existing Court having its own ordinary and extraordinary jurisdiction were to be accepted, the High Court would be entitled to consider the question of ultra virus of a provision of the Indian Income Tax Act even while exercising its jurisdiction under section 66(1) of the Indian Income Tax Act, 1922. It is, thereforee, clear that the fact that this High Court has its own ordinary and extraordinary jurisdiction would not lead to the conclusion that while trying an election petition in exercise of jurisdiction conferred by the 1951 Act. it can adjudicate upon the virus of this Act or of any rules or orders made there under. The election petition has to be tried in accordance with the provisions of the 1951 Act.

(23) I, thereforee, hold that this Court has no jurisdiction to determine the question of virus of the amended rule 56(1) of the Conduct of Elections Rules, 1961.

(24) The next Issue is Issue No. 4 which is in these terms :-

'WHETHERthe allegations made in paragraphs 20 and 21 of the petition cannot be investigated in an election petition If not, are these allegations liable to be struck off ?'

Paragraph 20 contains the allegations that the verdict declared by the Returning Officer is not the verdict of the electorate at the poll and that the defeat of the petitioner and the success of respondent No.1 was the result of introduction of fraudulent ballots say about a lac or more ballot papers, in a systematic manner which was facilitated by virtue of the amendment in rule 56(1) referred to above. To substan- tiate these allegations it has been alleged,-

(A)that it was noticed by the petitioner and his counting agents that the stamp marks on the 'cow and calf symbol in thousands of ballot papers were uniform exactly on the same place and of uniform density and were bright and fresh as against the stamp marks on 'Deepak' symbol which were diffiuse, dispersed and of divergent density or brightness; (b) that on some ballot papers, the stamp ink was spread over the whole symbol column as if it had been spread by a roller and was due to incomplete or defective treatment of the paper Chemically; (c) that the colour and thickness of the paper of such ballots was different from the other ballot papers; (d) that in some ballot papers some faint marks appeared on places where they could not normally have come as a result of folding of the ballots and (e) that about a lac of ballot papers bore markings which could not be the act of human hand but could be the result of a Chemical process used on such ballot papers.

On these allegations it is contended that these marks could not have been put by the voters at the time of polling but had appeared as a result of some mechanical and/or Chemical process and that quite a large percentage of Chemically treated and mechanically imprinted ballot papers had been smuggled in.

(25) In paragraph 21 it is alleged that as a result of the Chemical treat- ment, the markings of the 'cow and calf symbol which were not dis- cernible at the time of the actual voting became visible by the time of counting of votes and the effect of the Chemicals was that the markings made on the ballots by the voters disappeared by the time of counting. It is further alleged that a large number of ballot papers did not bear the signatures of the Presiding Officers at the back as such they were invalid but they were counted as valid. The petitioner goes on to say- that a prayer was made to the Election Commission by a petition for inspection of these ballot papers but it was turned down thereby depriv- ing the petitioner of an opportunity to prove the truth of his allegations.

(26) It is contended on behalf of respondent No. 1 that barring the allegation regarding the absence of signatures of the Presiding Officer at the back of the ballot papers, the other allegations regarding what may be described in short as the employment of a mechanical or Chemical process do not fall within the four comers of section 100 of the 1951 Act and cannot be investigated. It is contended that these allegations amount to the votes being rendered void and the only grounds on which votes can be rendered void are contained in section 62 of the 1951 Act. This section deals with the right to vote and provides, inter alia, that a person who is not entered in the electoral roll is not entitled to vote; that a person who is subject to any disqualifications referred to in section 16 of the 1950 Act shall not be entitled to vote; that no person shall vote in more than one constituency; that no person shall vote for more than once in the same constituency and that no person shall vote who is confined in a prison. In my view this contention has no force. Section 62 of the 1951 Act is by no means exhaustive of the votes which may be void.

(27) The allegations in paragraphs 20 and 21 have to be read with the allegations in paragraph Ii in which the petitioner has alleged, inter alia, that the result of the election is so far as it concerns respondent No. 1 has been materially affected, inter alia, by reception of votes which are void or by improper rejection of valid votes.

(28) In short, the allegations in paragraphs 20 and 21 amount to saying that the mark on over a lac. ballot papers is a mark made by some mechanical or Chemical process and is not a mark made by the voter with the instrument supplied for the purpose. These allegations appear to me to fall clearly within clause (b) of sub-rule (2) of rule 56 of the Conduct of Election Rules, 1961, which relates to counting of votes and which provides that the Returning Officer shall reject a ballot papers if, to indicate the vote, it bears no mark at all or bears a mark made otherwise than with the instrument supplied for the purpose. The theory advanced by the petitioner has been described as fantastic by respondent No. 1. But that is a matter of proof with which I am not concerned at this stage. If the allegations are true then undoubtedly such ballot papers which have been treated by a mechanical or Chemical process should have been rejected under rule 56(2) (b) of the Conduct of Elections Rules, 1961. In my view the allegations fall squarely within the purview of section 100(1)(d)(iii) and (iv) taken with the allegation that the result of the election, in so far as it concerns respondent No. 1, has been materially affected by a non-compliance of the aforesaid rule. 1, thereforee, hold that the allegations in paragraphs 20' and 21 of the petition can be investigated in this petition.

(29) Then I come to Issue No. 5 which is : -

'WHETHERthe allegations made in paragraphs 7, 28 and 29 of the petition do not contain any concise statement of the material facts as required by section 83(1)(a) of the Act? If so, to what effect.'

(30) Before I deal with these paragraphs separately it may be proper to state the scope of section 83(1)(a) of the 1951 Act. Section 83 provides for the contents of the petition and the first requirement of clause (a) of sub-section (1) is that it shall contain a concise statement of the material facts on which the petitioner relies. I may also here mention clause (b) of sub-section (1) which requires that an election petition shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties who are alleged to have committed such corrupt practice and the date and place of the commission of each such practice. I have given the purport of sub-clause (b) of sub-section (1) here because the contention on behalf of the petitioner is that while to a certain extent the petition may suffer from a lack of full particulars of the corrupt practices alleged, it does contain a concise statement of the material facts as required by clause (a) of sub-section (1).

(31) Quite a few authorities have been cited at the bar bringing out the distinction between 'material facts' and 'particulars' but I do not think it is necessary to deal with all of them as this distinction has been brought out and explained by the Supreme Court in Samant N. Bulakrishrta, etc. v. George Fernandez. and others : [1969]3SCR603 .

(32) The learned Chief Justice has stated :-

'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 of particulars 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.' Again,- 'In staling the material facts it will not do merely to quote the words of the section because then the efficacy of the words 'material facts' will be lost. The fact which constitutes the corrupt practice must be stated and the fact must be correlated to one of the heads of corrupt practice. 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 making of false statement.'

(33) In a later decision : [1970]1SCR852 in re : Jitendra Bahadur Singh v. Krishna Behari and others (8) it was observed that the material facts required to be stated are those facts which can be considered as materials supporting, the allegations made. In other words they must be such facts as to afford a basis for the allegations made in the petition.

(34) As I understand these decisions 'material facts' are those which constitute the cause of action or in other words they are facts on the basis of which one or other of the. grounds set out in section 100 of the 1951 Act for declaring an election to be void is made out while 'particulars' are with respect to the material facts alleged.

(35) Paragraph 7 of the petition alleges that the rejection of the nomination paper of respondent No. 9, Madhu Ram Subbarao, by the Returning Officer was improper and this allegation is made on the basis of section 100(1)(c) of 'the 1951 Act which provides that the improper rejection of any nomination paper is a ground for declaring the election of the returned candidate to be void.

(36) The cause of action for invoking the ground in section 100(1)(c) is the improper rejection of a nomination paper. The improper rejection is a conclusion which has to be based upon facts. Such facts which will lead to the conclusion that the rejection was improper would constitute material facts. The rejection may be for a variety of reasons. The petitioner has not stated any facts which will lead to the B conclusion of improper rejection which is the cause of action for invoking the ground contained in section 100(1)(c). This allegation clearly lacks the statement of material facts. I, thereforee, hold that paragraph 7 does not contain a concise statement of the material facts with regard to the alleged improper rejection of the nomination paper of respondent No. 9. I, thereforee, order that paragraph 7 of the petition be struck off.

(37) Then, paragraph 28 of the petition alleges a contravention of sub- section (3) of section 77 of the 1951 Act which provides that the total of the expenditure incurred by the candidate at an election shall not exceed the prescribed limit which in the case of the present consti- tuency was placed at Rs. 10,000.00 and the excess of expenditure over the prescribed limit is one of the corrupt practices as provided by sub- D section (6) of section 123 of this Act for which the election of the returned candidate can be declared to be void.

(38) The allegations in paragraph 28 of the petition are that respondent No. I and his election agent incurred or authorised expenditure in contravention of section 71 to the extent of about Rs. 10 lacs while the prescribed limit of expenditure is Rs. 10,000.00 only. The material fact which constitutes the cause of action is the excess of expenditure over the prescribed limit and that fact is the allegation that expenditure of about Rs. 10 lacs was incurred or authorised by respondent No. 1 and his election agent. The material fact has thus been stated in the petition and I do not think this paragraph suffers from the absence of a statement of material facts as contended by respondent No. 1. I, thereforee, hold that the allegations in paragraph 28 fulfill the require- ments of section 83(1)(a) of the 1951 Act.

(39) In paragraph 29 of the petition it is alleged that respondent No. 1, his election agent and other persons with their consent obtained or procured or abetted or attempted to obtain or procure assistance for the furtherance of prospects of election of respondent No. 1 from persons in the service of the Government and belonging to the Police Force, the Armed Forces, Gazetted Officers and Excise Officers. These allegations constitute a corrupt practice as provided by sub-section (7) of section 123 of the 1951 Act.

(40) The allegations do read like a paraphrase of sub-section (7) of section 123 of the 1951 Act. The facts which will lead to the conclu- sion that the services of the named classes of persons were obtained or procured et cetera or the facts which will lead to the conclusion that this was done for the furtherance of the prospects of the election of respondent No. 1 have not been given. These facts would be material facts to constitute the cause of action for the corrupt practice contemplated by section 123(7) of the 1951 Act. In the absence of such facts it is not possible to say merely because of the repetition of the language of the sub-section that the requirement of section 83(1)(a) of the 1951 Act has been fulfillled. In my opinion the allegations in paragraph 29 of the petition are lacking inmaterial facts and cannot be gone into. I, thereforee, order that paragraph 29 be struck off.

(41) The answer to Issue No. 5 is that paragraphs 7 and 29 of the petition are to be struck off but paragraph 28 survives.

(42) Out of the two remaining Issues 1 will deal with Issue No. 7 first. This Issue is in these terms :-

'WHETHERthe petition is had for misguide of parties by reason of impleading respondent No. 9 ?'

Respondent No. 9, is Madhu Ram Subbarao whose nomination paper was alleged to have been improperly rejected. This allegation was made in paragraph 7 of the petition. The only justification for impleading respondent No. 9 even as a proper party would have been if the plea about the improper rejection of nomination paper of respondent No. 9 was entertainable. Paragraph 7 which contains this plea has already been ordered to be struck off by me in my discussion of Issue No. 5. thereforee, the justification for impleading respondent No. 9 even as a proper party has ceased to exist and without going into the question as to who are necessary and proper parties to an election petition, it is enough to say that by reason of the striking off of para 7 of the petition, respondent No. 9 has ceased to be a proper party and I order that his name be struck off from the array of respondents.

(43) The last Issue to require consideration is the sixth Issue which is in these terms:-

'WHETHER.paragraphs 22 to 30 of the petition lack in full particulars of the corrupt practices alleged as required by section 83(1)(b) of the Act? If so, to what effect.'

(44) As I have already stated on the basis of the judgment of the Supreme Court in the Feriiandez's case : [1969]3SCR603 , the function of particulars 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. Even clause (b) of sub-section (1) of section 83 of the 1951 Act requires the setting forth of full particulars of any corrupt practice that is alleged 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.

(45) The instances of the corrupt practices are given in paragraphs 22 to 30 of the petition. It has not been seriously disputed by the petitioner that full particulars arc lacking and it has been urged that such particulars as may be required will be furnished to this Court. For the sake of convenience I have mentioned the particulars required with reference to each paragraph and sub-paragraph in the Schedule to this Order. These particulars should be furnished to the Registry of this Court in writing by August 19, 1971 with advance copy to the counsel for respondent No. 1. The petition will be listed on August 20, 1971, for framing of Issue on merits on the pleas that survive and for further proceedings.


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