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C.M. Stephen Vs. Atal Behari Vajpayee - Court Judgment

LegalCrystal Citation
SubjectElection
CourtDelhi High Court
Decided On
Case NumberElection Petition Appeal No. 1 of 1980
Judge
Reported inILR1980Delhi1345
ActsRepresentation of People Act, 1951 - Sections 41; Constitution of India - Article 102(1); Code of Civil Procedure (CPC), 1908 - Order 6, Rule 5
AppellantC.M. Stephen
RespondentAtal Behari Vajpayee
Advocates: D.D. Chawla,; Shanti Bhushan and; R.P. Bansal, Advs
Cases ReferredKanta Kathuria v. Manak Chand
Excerpt:
.....the election was materially affected ? ; it is alleged in para 7 of the election petition that shri khurana who was appointed an election agent by the respondent had been holding an office of profit under the government of india and thus stood disqualified under article 102(1)(a) of the constitution of india from the membership of parliament and that under section 41 of the act, any person disqualified for being a member of parliament will also be disqualified for being an election agent. it was further alleged in para 7(d) of the petition that as an executive councillor, shri khurana had been yielding considerable influence and authority among the voters of new delhi and, thereforee, by virtue of his appointment as an election agent, he got easy access to all the polling boths in..........been receiving assistance from sim khurana for the furtherance of his prospects in the election. shrikhurana had been addressing public meetings along withthe respondent. shri khurana had been going round in theconstituency along with the respondent canvassing forvotes. shri khurana had been, in particular, visiting thebasthies of harijans and backward people along with therespondent with promises of help from the administrationin return for their votes. he had also, at the instance ofthe respondent published appeals calling upon voters tovote for the respondent.'the objection by the respondent is that no particulars have beengiven in support of the allegations as contained in this sub para. it ispleaded as lacking in particulars of the dates of meetings and placesof meeting ;.....
Judgment:

S. Chadha, J.

(1) The election of Shri Atal Behari Vaipayec (the respondent) the returned candidate to the Parliament (Lok Sabha) from the Parliamentary Constituency-I, New Delhi at the last general elections to the parliamentary constituencies held in January. 1980 has been called in question in this election petition by Shri C. M. Stephen (the petitioner) a defeated candidate. The polling for the Parliamentary Constituency-1, New Delhi took place on 3/01/1980 and counting took place on 6/01/1980. The result was declared on the same day. The respondent was declared elected with 94,098 votes as against 89,053 votes polled by the petitioner. This election petition under Section 81 of the Representation of People Act, 1951 (hereinafter called the Act) was filed on 24/01/1980 for declaring the election of the respondent void under Section 100(1)(b) and Section 100(1)(d)(iv) of the Act. Summons for the appearance of the respondent and for filing the written statement were issued. The written statement was filed on 3/03/1980. The replication was filed on 12/03/1980. It is not necessary to reproduce the pleadings at this stage for the pleas in controversy are sufficiently clear from the issues. The pleadings of the parties gave rise to the following issues which were framed on 19/03/1980 :

'1. Whether the election petition was accompanied by acopy thereof and the copy was attested by the petitionerunder his own signatures to be a true copy of the petition O. P. P.

2.Whether the affidavit in support of the allegations of corrupt practice is no affidavit in the eye of law O. P. R.

3. Whether Shri Madan Lal Khurana was a candidate at theelection to the New Delhi Parliamentary ConstituencyNo. 1 If so, whether any allegations of any corruptpractice are made in the election petition against himto make him a necessary party to the election petition ?O. P. R.

4.If issue No. 3 is held in favor of the respondent whetherthe election petition is not liable to dismissal in the absenceof necessary party O. P. P.

5.Whether full particulars of the corrupt practice have nutbeen alleged in the election petition If so, to what effect ?O. P. R.

6. Whether the election petition lacks in material particularsin paras 7 (d) or 8 (e) of the election petition as to howand in what manner the result of the election was materially affected O. P. R.

(MR.Chawla objects to the inclusion of para 8 (e) in thisissue).

7.Whether Shri Madan Lal Khurana was in the service of theGovernment at the relevant time and belonging the classof gazetted officers If so, whether the election of therespondent is liable to be declared as void on the aroundof corrupt practice under Section 100(1)(b) read withsection 123(7)(a) of the Representation of the PeopleAct, 1951 O. P. P.

8.Whether Shri Madan Lal Khurana was a person holding anoffice of profit under the Government of India at the relevant time and thus stood disqualified under Article 102(1)(a) of the Constitution of India for being an electionagent of the respondent O. P. P.

9.Whether the result of the election in so far as it concernsthe returned candidate has been materially affected by thenon-compliance of the provisions of Article 102(1)(a) of the Constitution of India and/or Section 41 of theRepresentation of the People Act, 1951 If so, whetherthe election is liable to be declared as void under Section 100(1)(d)(iv) of the said Act O. P. P10. Relief.'

Issues 1 to 6 were treated as preliminary issues. On an applicationby the respondent issues 1 and 2 were dropped on 18/04/1980Issue No. 3 had been recast as follows

'3.Whether Shri Madan Lal Khurana was a candidate at theelection by being a candidate at the general elections tothe Parliament from the Parliamentary Constituency II-South Delhi If so, whether any allegations of corrupt practice are made in the election petition against him to makehim a necessary party to the election petition O. P. R.This order disposes of the preliminary issues.Issues No. 3

(2) The election petition calls in question the election of the respondent to the Parliamentary Constituency-I-New Delhi. It is concededby the respondent that Shri Madan Lal Khurana was not a candidateat the election to the Parliamentary Constituency-I-New Delhi. He wasonly a candidate at the election to the Parliament from the Parliamentary Constituency-II-South Delhi as is established from the certifiedcopy of the list of nominated candidates, Ext. R-1 Section 82 of the Actlays down the persons to be made parties to the petition, reading asfollows :

'82.Parties to the petition. A petitioner shall join as respondents to his petition

(A)Where the petitioner, addition to claiming a declaration that the election of all or any of the returned candi-dates is void, claims a further declaration that he himself or any other candidate has been duly elected, allthe contesting candidates other than the petitioner, andwhere no such further declaration is claimed, all thereturned candidates ; and

(B)any other candidate against whom allegations of anycorrupt practice are made in the petition.'

Before the amendment of Section 82 by Act 27 of 1956, it requireda petitioner to join as respondents to his petition all the candidates whowere duly nominated at the election other than himself if he was sonominated. Obviously at the election '.poke of candidates at the sameelection, in other words, limited to the election of a particular constituency. Even after the amendment, the words 'any other candidate'used in sub-section (b) of Section 82 means any other candidate in theelection for the constituency which is the subject matter of the petitionas held in 'Kanta Kathuria v. Manak Chand', reported in : [1970]2SCR835 . (1) The objection raised is concluded against the respondent by the law laid down by the Supreme Court. First part of theissue is held against the respondent. The later part does not thus survive for decision.Issue No. 4.

(3) Issue No. 3 has been held against the respondent issue No. 4,therefore, does not arise for determination.Issue No. 5.

(4) The petitioner in para 8 of the election petition lias alleged thatthe election of the respondent is liable to be declared void on the groundof corrupt practice under Section 100(1)(b) read with Section 123(7)(a) of the Act and the particulars of the corrupt practice have.been given in sub-paras (a) to (f) of para 8. The averment is that therespondent obtained the assistance of Shri Madan Lal Khurana, a person belonging to the class of gazetted officers in the service of theGovernment, for the furtherance of his prospects in the election (i) byappointing him as an election agent and (ii) by involving him in theconduct of the election campaign. Circumstances in the support of thesubmission that Shri Khurana was a person belonging to the class ofgazetted officers in the service of the Government are then detailed.The appointment of Shri Khurana as an election agent is averred forthe purpose of getting his deeming assistance for the furtherance ofthe prospects of the election of the respondent. It is then alleged :

'8(c) Even otherwise than as an election agent, the respondent had been receiving assistance from Sim Khurana for the furtherance of his prospects in the election. ShriKhurana had been addressing public meetings along withthe respondent. Shri Khurana had been going round in theconstituency along with the respondent canvassing forvotes. Shri Khurana had been, in particular, visiting thebasthies of harijans and backward people along with therespondent with promises of help from the Administrationin return for their votes. He had also, at the instance ofthe respondent published appeals calling upon voters tovote for the respondent.'

The objection by the respondent is that no particulars have beengiven in support of the allegations as contained in this sub para. It ispleaded as lacking in particulars of the dates of meetings and placesof meeting ; particulars of the voters alleged to have been canvassedand the dates of alleged canvassing and the particulars of alleged publication. The stand in the replication by the petitioner is that no corruptpractice has been alleged in para 8 (e) of the election petition againstany person and that the petitioner has only emphasised the fact that therespondent has obtained the assistance from Shri Khurana evenotherwise than as an election agent. A statement is alsomade at the Bar by Shri D. D. Chawla the learned counselfor the petitioner that 'the petitioner does not claim allegations in para 8(e) as allegations of any corrupt practice'. If the corrupt practice is not alleged, then the particulars cannot be supplied.These allegations thus will not be gone into by me in this petition forpronouncing upon any 'corrupt practice' in election law and for thisreason, no full particulars need be furnished. Issue No. 5 is decidedaccordingly.Issue No. 6.

(5) In para 7 of the election petition, the petitioner pleads that theelection is liable to be declared void under Section 100(1)(d)(iv) of the Act. Allegations are made that Shri Khurana; who was appointedas election' agent by the respondent has been holding an office ofprofit under the Government of India and thus stood disqualified underArticle 102(1)(a) of the Constitution of India from the membershipof Parliament and that under Section 41 of the Act, any person disqualified for being a member of Parliament will also be disqualified for beingan election agent. The appointment of Shri Khurana as an election agentby the respondent is then averred in violation of, and in non-compliance with a material provision of the Constitution and of the Act. IT is then pleaded in para 7(d) as follows :

'7(D)Shri Khurana, as an Executive Councillor, has beenwielding considerable influence and authority among thevoters of New Delhi. By virtue of his appointment as anelection agent, he got easy access to all the polling boothsin the constituency. He entered the polling boollis in theconstituency on the polling day when the polling was inprogress. He used that opportunity to canvass votes in thepolling booths and in the premises thereof. As a personin authority, he influenced the officers in the polling boothsalso. He swayed a large number of votes, estimated atabout 10,000, in favor of the respondent by his visits to.and activities in, the polling booths and by his campaignafter his appointment as an election agent on 31/12/1979. The result of the election was materially affected by the appointment of Shri Khurana as an election agentand by his functioning in that capacity.'

(6) The objection of the respondent is to the lack of material particulars in this para, since the allegations in para 8 (e) of the petition arenet being enquired into.

(7) The examination of the provisions of Section' 83 of the Act willshow that the petitioner is required to include in the election petition(a) a concise statement of the material facts on which the petitionerrelies and (b) full particulars of any corrupt practice that the petitioneralleges including as full a statement as possible of the names, of theparties alleged to have committed such corrupt practice and the dateand place of the commission of each such practice. Mr. D. D. Chawlahas cited at the Bar two authorities bringing out the distinction between'material facts' and 'particulars'. Only the Supreme Court draws thedistinction. Xxiii E. L. R. 171 (2) contains no helpful discussion.'The section is mandatory and requires first a concise statement ofmaterial facts and then requires the fullest possible particulars. Whatis the difference between material facts and particulars The word'material' shows that the facts necessary to formulate a complete causeof action must be stated. Omission of a single material fact leads toan incomplete cause of action and the statement of claim becomes bad.'I he function of particulars is to present as full a picture of the cause ofaction with such further information in detail as to make the oppositeparty understand the case he will have to meet.' (S. N. Balakrishnav. Femandez, : [1969]3SCR603 . The petitioner doest notclaim the perpetration of any corrupt practice in this para. The powerof amendment is given in respect of particulars of a corrupt practicealleged by Section 85(5) of the Act, There is a prohibition against anamendment which will have the effect of introducing particulars of acorrupt practice not previously alleged in the petition. This has no application to the furnishing of particulars of material facts required under section 83(1) of the Act, The cardinal provision in Section 83(1)(a) is that the election petition must contain material facts. The words'material' means necessary for the purpose of formulating a completecause of action and would include facts relating to the holding of theelections, the result thereof, the right of the petitioner to present the election petition, the grounds on which it is sought to be set aside, the noncompliance with the provisions of the Constitution and, or of the Act,and that the result of the election was materially affected. Thematerial facts have been stated. It is for this reason the issue is restricted to the lack of material particulars in para 7 (d) of the election petition. The use of particulars is intended to meet a further and quiteseparate requirement of the pleadings. It is imposed in fairness andjustice to the respondent. The function of the particulars is to fill inthe picture of a petitioner's cause of action with information sufficientlyretailed to put the respondent on his guard as to the case ho has tomeet and to enable him to prepare for the trial. It would serve anotherpurpose of enabling the Court to exclude irrelevant matters and concentrate upon the real matters in controversy for ensuring a fair andspeedier disposal of the election petition.

(8) The election petition is verified by the petitioner that the contents of paragraphs 1 to 13 including 7 (d) are true to his knowledge.The petitioner says that Shri Khurana entered the polling booths inthe constituency on the polling day when the poll was in progress andhe used that opportunity to canvass votes in the polling booths and inthe premises thereof. There were 560 polling booths in the Parliamentary Constituency-1 New Delhi. The entry is alleged on the polling daywhen the poll was in progress, but there is no particularisation of thepolling booths. Whether it is one or all or if some, then which one theelection petition has been kept vague and indefinite. The allegation further is that as a person in authority Shri Khurana influenced the officersin the polling booths also. The plea is again lacking in particularisationof the officers whether it is the Presiding Officer or Polling Officers orone or all and which one as also the type of influence. It is essential tocall upon the petitioner to furnish better and further particulars of thepolling booths, the officers and the type of influence to ensure a fairtrial of the election petition. The election petition has to be tried bythis Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suit. TheCode of Civil Procedure empowers the Court to call for better andfurther particulars. That provision is to be found in Order Vi Rule 5.A power to call for particulars in respect of any pleading in an electioncase is. thereforee, necessary for and incidental to a fair trial of theelection petition.

(9) The objection of the respondent further is to the plea that ShriKhurana swayed a large number of votes estimated at about 10,000 infavor of the respondent by his visits to, and activities in, the pollingbooths and by his campaign after his appointment as an election agenton 31/12/1979. Mr Shanti Bhushan, the learned counsel forthe respondent did not press this objection when told that it is not always practicable to specify the names of voters swayed. Particularscannot in the very nature of these things be given and cannot be insisted upon.

(10) Issue No. 6 is partly held in favor of the respondent. The petitioner is called upon to furnish further and better particulars within oneweek from today of the allegations contained in para 7 (d) in relationto the polling booths, the officers and the type of influence with sufficient fullness and clearness in the light of discussion above.

(11) The election petition be listed for further proceedings on 30/04/1980.


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